Halici v KDR Victoria Pty Ltd T/A Yarra Trams (No.3)
[2017] FCCA 764
•28 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HALICI v KDR VICTORIA PTY LTD T/A YARRA TRAMS (No.3) | [2017] FCCA 764 |
| Catchwords: INDUSTRIAL LAW – Enterprise agreement – clause dealing with staff discipline – discipline in accordance with policy – whether breach of policy and enterprise agreement – application dismissed. |
| Legislation: Fair Work Act 2009, ss.54, 546 |
| Cases cited: Halici v KDR Victoria Pty Ltd T/A Yarra Trams (No.1) [2015] FCCA 2912 Halici v KDR Victoria Pty Ltd T/A Yarra Trams (No.2) [2016] FCCA 1391 Transport Workers Union of Australia v Linfox Australia Proprietary Limited (2014) 318 ALR 54 McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 |
| Applicant: | TAHSIN HALICI |
| Respondent: | KDR VICTORIA PTY LTD T/A YARRA TRAMS |
| File Number: | MLG 1129 of 2015 |
| Judgment of: | Judge O'Sullivan |
| Hearing date: | 14, 15 & 16 March 2017 |
| Date of Last Submission: | 16 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 28 April 2017 |
REPRESENTATION
| Senior Counsel for the Applicant: | Mr Alstergren QC |
| Junior Counsel for the Applicant: | Mr Denton |
| Solicitors for the Applicant: | Hughes Watson Marks Kennedy |
| Senior Counsel for the Respondent: | Mr O’Grady QC |
| Junior Counsel for the Respondent: | Mr Avallone |
| Solicitors for the Respondent: | Johnson Winter & Slattery |
ORDERS
THE COURT ORDERS THAT:
The application filed 20 May 2015 and further amended statement of claim filed 14 March 2017 be dismissed.
Any application for costs along with brief written submissions be filed and served within 14 days of this order.
Any response to an application for costs along with brief written submissions be filed and served 14 days thereafter.
AND THE COURT NOTES:
(A)Any application for costs will be determined on the papers unless otherwise requested in submissions.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
MLG 1129 of 2015
| Tahsin Halici |
Applicant
And
| Kdr Victoria Pty Ltd T/a Yarra Trams |
Respondent
REASONS FOR JUDGMENT
In Victoria, private transport companies operate different parts of the public transport network. Authorised officers (also known as Revenue Protection Officers (“RPO’s”)) employed by those companies, inter alia, report offences against the Transport Act 1983 (Vic) (“the Act”).
These reasons concern an application brought by one RPO against his employer arising from events in 2013. Tahsin Halici (“the applicant”) is 52 years old and has been employed by KDR Victoria Pty Ltd, trading as Yarra Trams (“the respondent”), as an RPO since 2008.
The respondent employs RPO’s to patrol the tram network, check passengers’ myki cards, report behavioural and ticketing offences and perform a customer service function. RPO’s employed by the respondent have obligations under, inter alia, the Act and applicable industrial legislation and instruments that govern their employment.
The respondent’s RPO’s are based at one of five depots, Southbank, Preston (which replaced East Preston in 2016), Essendon, Kew and Glen Huntly. At each of those depots there are two teams of RPO’s (the ‘A’ and ‘B’ teams) working either the morning or afternoon shift on a rotating basis.
RPO’s such as the applicant commence and conclude their shifts at the depot, but spend the majority of their working hours patrolling the tram network. This is generally done in a number of groups of four or five RPO’s.
The applicant was based at the East Preston depot (“the Depot”) in 2013, when the events that formed the background to these proceedings occurred, working in the B team.
In May 2013 the respondent became aware of allegations that there was a bullying gang in operation amongst RPO’s at the Depot. By October 2013, as a result of a report the respondent commissioned to investigate those allegations (“the Bullying Report”), the respondent had established that inter alia the following types of material was being posted on the walls of the RPO room at the Depot.
The respondent also had, in the Bullying Report, evidence that a number of people subject to the conduct referred to in that report identified the applicant as a part of that gang.
As a result of the outcome of the investigation (and the Bullying Report) into these events in October 2013 the respondent took disciplinary action against a number of its employees, including the applicant (who was issued with a final written warning and transferred to the Essendon depot). The applicant is still employed as a RPO by the respondent and is now based at the new Preston depot.
The applicant filed an application and statement of claim in the Fair Work Division of this Court on 20 May 2015. The applicant alleged, inter alia, the respondent had contravened the Fair Work Act 2009 (“FW Act”), the Yarra Trams Enterprise Agreement 2012-Operations (“the Agreement”) and the Yarra Trams Disciplinary Counselling Policy and Procedures (“the Policy”).
Following two interlocutory applications by the respondent which raised issues with respect to the applicant’s pleadings[1] on 16 June 2016 the Court made orders for the applicant to file a further amended statement of claim, the respondent a defence, and the matter was programmed for a trial commencing 14 March 2017.
[1] See Halici v KDR Victoria Pty Ltd T/A Yarra Trams (No.1) [2015] FCCA 2912 and Halici v KDR Victoria Pty Ltd T/A Yarra Trams (No.2) [2016] FCCA 1391.
Background
Before turning to the terms of the Agreement, the Policy, the submissions of the parties and the evidence, it is timely to set out the background facts.[2] Where in these reasons there is a statement of fact, those are, unless otherwise specified, findings of fact.[3]
[2] Each of the parties prepared a chronology upon which they relied and these have been taken into account along with all the evidence (see Exhibit A9 and Exhibit R9).
[3] In submissions each of the parties set out what in relation to the applicant were said to be the “[f]acts” and the respondent submitted were the “facts of the case” (see Exhibit A8 the Applicants Outline of closing submissions at [7] to [40] and Exhibit R8 respondents final submissions on liability at [21] to [94]).
In May 2013 the respondent received a complaint by email from one of its RPO supervisors who had been at the Depot. The complaint concerned material displayed on the walls of an office used by RPO’s at the Depot.
Over the course of a number of days there were further emails from the complainant to particular staff members of the respondent raising various issues and making complaints about that and other issues. The team leader or supervisor responsible for RPO’s at the Depot directed unauthorised material be removed, only authorised material be displayed and attended the Depot to ensure unauthorised material was removed.
Following further communication from the complainant the respondent held a meeting between her and the respondent’s team leader responsible for RPO’s and the respondent’s employee relations advisor.
As a result of this and other information that had come to the attention of the respondent of alleged bullying at the Depot, the RPO supervisor, Mr Said, and the respondent’s employee relations advisor, Ms Moodie, attended at the Depot on the afternoon of 4 June 2016.
At the Depot Mr Said requested a meeting with the RPO’s in the B team, which included the applicant. All RPO’s involved were advised the meeting was not a disciplinary meeting but part of an investigation by management.
As a result of what went on at the Depot that afternoon an officer of the union, of which the applicant is a member, the Rail, Tram and Bus Union (“the Union”) an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) attended and subsequently made a complaint about the behaviour of the respondent’s managers to the respondent’s CEO. Following correspondence between the respondent and the Union, Mr Kelly from the Victorian Employers Chamber of Commerce and Industry (“VECCI”) was engaged to conduct an investigation into what went on at the Depot on the afternoon of 4 June 2013. As a part of this investigation the applicant and others at the Depot that day were interviewed.
Whilst that investigation was on foot the respondent also took steps to continue its investigation of the allegations raised by the complainant (Ms Moysey) about bullying at the Depot and engaged a separate investigator through VECCI (Ms Stevens) to do so and prepare a report.
Over the course of July, August and September 2013 these (separate) investigations continued. The respondent’s managers including those responsible for RPOs across its network briefed both RPO’s at the Depot and the Union about this second investigation.
The investigation conducted by Mr Kelly into the events on 4 June 2013 at the Depot resulted in a report on 30 September 2013 (the “Investigation Report”) which (without annexures) was subsequently sent to those involved in the events at the Depot on 4 June 2013. The Investigation Report included the following:
“Allegations of bullying, harassment, deprivation of basic human rights and civil liberties, being detained in an enclosed room, abuse of management position and intimidation have been made by the complainants listed in Schedule A (“the complainants”) against management at Yarra Trams (“the respondents”). An independent investigation has been completed into these allegations. Both the complainants and the respondents were interviewed and given an opportunity to provide their concerns and responses.
..
The following events occurred:
On 24 May 2013 management of Yarra Trams advised employees by email that unauthorised material must not be placed on walls in the Preston Depot (“the Unauthorised Material directive”)
On or about 25 May a Yarra Trams employee made a complaint in relation to unauthorised material (“the material”) on the wall of the Revenue Protection Office briefing room at the Preston Depot (“the briefing room”).
It was determined by management that the material was likely to have been placed in the briefing room by an employee on the afternoon shift, that is, the B team
On 4 June 2013 Mr Mohammed Said and Ms Sharon Moodie attended the East Preston Depot to interview members of the B Team to confirm that they had received the Unauthorised Material directive
It was agreed by management that the employees would be interviewed individually by Mr Said and the employees who were waiting to be interviewed would be supervised by Ms Moodie in a room to prevent any collusion
The employees were advised by both Mr Said and Ms Moodie that they could not use their mobile phones or talk to each other whilst waiting to be interviewed
The employees were advised that if they didn’t meet with Mr Said, which was a lawful and reasonable request, they would be stood down
The employees were advised that they did not require union representation as it was not a disciplinary meeting
A number of employees expressed their dissatisfaction that they could not have union representation at their meetings
Two employees were denied use of the toilet by Ms Moodie
One of the employees who was denied use of the toilet collapsed to the floor. An ambulance was called and paramedics attended
..”[4]
[4] See Respondent’s Court Book page 1411.
The conclusions and recommendations made in the Investigation Report were as follows:
“Overall this report has found that:
- Staff were not denied a lawful request to have a support person present;
- Staff were denied access to the toilet and water where it would have been reasonable to accommodate such access;
- The complainants felt intimidated and demeaned by the conduct of the respondents, though the conduct of the respondents was not unlawful;
- The respondents did not breach the human rights of the complainants;
- The respondents did not breach the civil liberties of the complainants;
- The allegation that the respondents took adverse action against the complainants is not substantiated;
- The respondents did not place the complainants under arrest or otherwise unlawfully detain the complainants.
…
In light of the findings in this report we recommend:
That in any further workplace interviews or investigations provisions are made to allow staff to attend the toilet and to access water. Allowing staff to leave one at a time would satisfy any need to ensure that staff are not colluding and would minimise any risk to employees health and safety
That in any further workplace interviews or investigations care is taken to ensure as far as reasonable that staff are not exposed to unnecessary stress or anxiety
Staff need to be educated regarding the extent of a manager’s right to make lawful requests of them including the request for them to attend an interview or investigation. This would assist in minimising any undue stress or anxiety
Many of the complainants had an exaggerated understanding of their rights, particularly in relation to human rights, civil liberties and their rights under the EBA…
”(emphasis added)[5]
[5] See Respondent’s Court Book page 1421.
The second (and separate) investigation by Ms Stevens into the bullying allegations, from inter alia Ms Moysey, resulted in a report which was provided to the respondent on 4 October 2016 (the “Bullying Report”). The Executive Summary of the Bullying Report provided:
“VECCI was engaged by Yarra Trams to conduct an investigation into the posting of what was felt inappropriate material on the walls of the Authorised Officer’s (“AO”) office at East Preston.
The issue was raised by a relief supervisor who described the material as “offensive, adolescent and bullying” and which for her signalled deeper cultural issues at East Preston. The investigation scope is to gather facts from parties working at the depot as to their observations and experience as relevant to this issue.
This investigation supports the view that much of the material on the wall is intended to single out and humiliate individuals working at East Preston and possibly other areas of Yarra Trams. There are strong themes of racism in the material that many report to have found offensive and personally threatening. While there is suspicion, there have been no witnesses to anymore physically placing it on the walls apart from one example reported as occurring in 2011.
This investigation also supports that there is a deeper cultural concern that has existed at East Preston since the election of the current delegate. Indicators support a culture described as “toxic” in which intimidation and bullying occurs by this group led by Danny Stevic.
Danny Stevic or appointed and known members of his “group”, “gang”, the “Mobsquad” feature strongly in promoting a culture that is systemic at East Preston. Allegations raised support a possible misuse of power as a result of a union official role and the formation of a strong group to support a gang mentality. Prior to being elected, Danny Stevic’s attitude to other workers is reported as being very different to what emerged in this investigation.
For considerable time there has been an environment of fear at East Preston to go against this group “representing the Union”. This has been inclusive of supervisors and workers alike. The strong perception is that Danny Stevic’s alleged conduct has not been addressed in the past by Yarra Trams.”[6]
[6] See Respondent’s Court Book page 1440 to page 1454.
The Bullying Report set out the “Background and Overview of Complaint”, the “Investigations Process”, the “Methodology” before canvassing the “Legislative provisions”. The Bullying Report then turned to “Key Issues and Trends” before going through a series of “Discussion” topics. Under that heading the Bullying Report observed:
“This investigation supports Deb Moysey’s assessment…the material on the walls could reasonably be viewed as unprofessional, offensive, racist, mocking and potentially humiliating.
…
Consistently through observation and experience individuals referred to a power group commonly referred to as “Gang X”, the “Gang”, “the boys”, “the Mobsquad”, “the mafia”, Danny Stevic and his “cohorts” who have dominated and controlled the two teams at East Preston…A consistent and common view was the material on the wall promoted an image of “power”, a “gang mentality” and confrontation and intimidation.
…
This “group” was consistently described as “Danny Stevic and a small group of followers” identified as Tolga Veil, Andrew Simovic, Carlos Corado, Robert Prowd, Michael Azzopardi, Tashin Halici and Upkar Chaudry….
This group or individual members of the group were described as creating “headaches” for the supervisor and team members; work to their own agenda of “power”…
…
It is the opinion of the investigator that the perception of a culture of bullying by a “power group” would be reasonable given the consistent observations, feelings and experience of the interviewees recorded in signed statements. It would also be reasonable to anticipate a strong link to much of the material displayed on the AO’s wall…
The allegations raised are concerning and high risk to the individuals working at East Preston and Yarra trams in context of their legislative positive duty. Not to address these issues leaves the working environment at Yarra Trams open to suppressed safety issues and potential breaches of duty of care obligations…
…”[7] (emphasis added)
[7] See Respondent’s Court Book page 1440 to 1454.
The Bullying Report concluded:
“The following is summarised for Yarra Trams consideration when assessing strategies moving forward:
- There is an overwhelming fear of victimisation should individuals be named in any allegations presented to members of what appears a “power group” described as “Danny Stevic and his cohorts”, “the mafia”, “the gang”, “the Mobsquad” and Gang X. This fear also extends to their names being disclosed to the Union;
- Feedback from interviewees raising a long history of issues being known to both senior union officials and Yarra Trams management with little or no action evidenced;
- All individuals interviewed have participated in this investigation on the proviso that is their names are to be used in any way as a “complainant” in the future, they will be contacted and assured by a senior manager personally that they will in no way be victimised as a result of participation by either management or the union. It is understood by all interviewees that this report will only be viewed by very senior management of Yarra Trams on a “need to know” basis. Yarra Trams have agreed to this in order to gain a better understanding of the experiences of individuals working at East Preston or interacting with East Preston;
- There is also a fear that things will return to “normal” i.e. material and associated behaviour will return once the investigation is over. Despite a sense of relief that the investigation signals positive and welcomed change, there is still a feeling of scepticism;
- Input from supervisors past, present and from other depots supports bullying and inhibiting conduct has been experienced or observed by this “Group X” or by individual members of this group. This alleged behaviour has been described as intimidating, unreasonably challenging and consistently disruptive. East Preston supervisors both current and past expressed a feeling it was not worth the backlash and consequences if they went against this “group” led by Danny Stevic. One comment, a person “simply survives”. Compounding this was the perceived lack of support by senior Yarra Trams management in the past and in some instances a deference to Senior Union officials to handle issues concerning Yarra Trams employees;
- There is a view that bullying happens at Yarra Trams, particularly at East Preston, but it is pointless in raising issues and therefore issues go unreported. Fear of victimisation is constant and palpable; and
- Participants in this investigation now welcomed change and saw the removal of the wall material as empowering and “its good now”. There was a view that the new structure supporting two managers was a good one i.e. Mohamed Said and Trevor Greer. This may improve a perception of criticism of supervision regarding administrative matters e.g. roster, leave forms, acting in higher processes. On a positive note, a sense of “giving up and trying to make a difference” at East Preston appears to be gradually replaced by a supportive attitude of new managers making change.
It should be noted that this investigation was into the complaint raised by Deb Mosey regarding the inappropriate nature of the material on the AO’s office wall at East Preston. It is the opinion of the investigator that it would be reasonable to anticipate and support her view of deeper cultural issues existing over a long period of time. Witness input is based on alleged experiences, observations and feelings. What does emerge from this investigation are consistent themes and indicators which cannot be ignored.”[8]
[8] See Respondent’s Court Book page 1474 to 1475.
On the receipt of the Bullying Report the respondent’s management discussed what action should be taken, senior managers took steps to brief the Union, the CEO sent information to all staff and RPO supervisors across all depots were briefed on the steps the respondent had and would take to deal with those affected. At those briefings the respondent advised that Mr Stevic’s employment had been terminated (on 11 October 2013) and said inter alia:
“Disciplinary action is also being considered against a number of other members of the East Preston Revenue Protection unit which we will work through over the next couple of days…”[9]
[9] See Respondent’s Court Book page 1625.
The respondent’s manager responsible (Mr Greer) also put in place a process so that those affected by the Bullying Report’s investigations could be told about it, its findings and what the respondent believed had gone on, on the basis on the Bullying Report. He also ensured they would have an opportunity to respond and put forward any matters they wanted considered before the respondent decided what action, if any, to take in relation to each employee concerned.
A meeting was subsequently arranged with the applicant and his representative from the Union (Mr Altieri) on 18 October 2013. At that meeting the applicant was told why the meeting was being held, told of the investigation that led to the Bullying Report, the allegations against him, that the respondent intended to take disciplinary action against him and he was given an opportunity to respond. The applicant was told the following during this meeting:
“We are in receipt of an investigation report prepared by a Senior Consultant from the Victorian Employers’ Chamber of Commerce & Industry initiated in response to an employee complaint over the posting of unauthorised material on the East Preston Authorised Officer’s office noticeboards and walls.
The investigation involved the interviewing of some 13 Revenue Protection employees. The investigation went beyond the posting of unauthorised materials to identify a number of inappropriate behaviours in the workplace. The workplace was characterised as a toxic environment of fear and intimidation. The investigation further identified that a core group or gang of bullies was in operation who promoted confrontation and intimidation. Some examples of the behaviours they engaged in included:
if you fell out with the gang you were excluded or alienated or singled out for ridicule by the gang
if you reported to many fare evaders you were told to stop reporting
some members would not report and actively discourage others from reporting
if you were a supervisor you were subject to interference and deliberate disruption or bullying and intimidation to stop you from doing your job, or publicly humiliated for doing your job
you could not report or raise issues with management that went to the behaviours of other team members
there was a fear of consequences and victimisation and mistrust
the Officers who were interviewed did not want to make a formal complaint for fear of being victimised
some staff elected to transfer rather than complain
The external investigation identified that you were one of the individuals identified to be one of the “gang” of bullies.
Yarra Trams is of the view that you were in breach of our EEO & Bullying policy and that you failed in your employment obligations to both your employer and other employees to maintain a workplace free from bullying behaviour. We are of the view that your actions were a serious breach of policy and warrants disciplinary action being taken against you….”.(emphasis added)[10]
[10] See Respondent’s Court Book page 1630 to page 1631.
There were two breaks during this meeting for Mr Greer to consider the applicant’s response to those allegations and the disciplinary action the respondent intended to take against him. The respondent considered the applicant’s response and that of the Union representative. The applicant’s response, after he was told of the allegations and the disciplinary action the respondent intended to take, was recorded as follows:
“ – Mohammed usually referred to me as a gentleman
– I’m disappointed that people never gave me the opportunity to change
– This is completely a shock to me
– I completely reject all 13 persons allegations
– I was never given the decency to warn me
– I’m 50 years old man and I have never been disciplined in my life
– My conscious is clear– If I make a mistake I can apologise”[11]
[11] See Respondent’s Court Book page 1634.
Ultimately the applicant was advised of what action the respondent intended to take by way of disciplinary action against him. The applicant was given a final written warning and advised that he would be transferred to the Essendon depot and the respondent would not proceed with a regression in his pay.
As indicated earlier, the applicant remains employed by the respondent as an RPO and is now based at the (new) Preston depot.
Trial
Material Relied On
At the trial on 14 March 2017 Senior Counsel for the applicant told the Court his client relied on:
a)his further amended statement of claim filed with leave on 14 March 2017[12];
b)his affidavit filed 4 November 2016;
c)the affidavit of Mr Altieri filed 4 November 2016;
d)the affidavit of Mr Polomarkakis filed 4 November 2016;
e)the applicant’s submissions filed 10 February 2017;
f)the applicant’s submissions filed in Court on 16 March 2017; and
g)the applicant’s chronology filed 16 March 2017.
[12] At the commencement of the trial Senior Counsel for the applicant sought leave, which was not opposed, to file a further amended statement of claim in Court. As Senior Counsel for the respondent conceded there was no prejudice to his client, the amendments reflected the extent of the controversy between the parties already exhaustively canvassed in their affidavits and submissions, there was the need to consider the role and mode of operation of this Court as set out in the Federal Circuit Court Act 1999 (Cth), the Federal Circuit Court Rules 2001 and case management considerations (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175) leave was granted.
At the trial on 14 March 2017 Senior Counsel for the respondent told the Court his client relied on:
a)the defence filed 22 August 2016;
b)the affidavit of Ms Moysey filed 6 December 2016;
c)the affidavit of Ms Moodie filed 6 December 2016;
d)the affidavit of Mr Said filed 6 December 2016;
e)the affidavit of Mr Greer filed 6 December 2016;
f)the affidavit of Mr Frans filed 6 December 2016;
g)the respondent’s submissions filed 28 February 2017;
h)the respondent’s final submissions on liability filed 16 March 2017; and
i)the respondent’s amendments to the applicant’s chronology filed 16 March 2017.
Applicant’s Case
In submissions filed 10 February 2017 the applicant’s case was summarised as follows:
“1. The Applicant’s case, put simply, alleges that the Respondent contravened the Fair Work Act 2009 (FW Act) and its Employment Agreement with the Applicant by acting in breach of its own policies, and disciplining the Applicant without any basis.
…
4. It is uncontroversial that the Applicant’s employment is governed by, amongst other instruments:
(a) his Employment Agreement dated 6 November 2008;
(b) the Yarra Trams Enterprise Agreement 2012 – Operations (Yarra Trams EA) approved on 19 November 2012; and
(c) the Yarra Trams Disciplinary Counselling Policy and Procedures (Yarra Trams Disciplinary Policy).
…
7. On any reading of the events that took place on and incidental to 4 June and 18 October 2013, the Respondent’s conduct concerning the Applicant was in stark breach of the above clauses of the Yarra Trams Disciplinary Policy. Clearly, the respondent failed to afford the Applicant procedural fairness and natural justice.
…
27. The conduct of the two Disciplinary Meetings are in stark contravention of the Disciplinary Policy. As above, the Yarra Trams EA required the Respondent to follow this policy when contemplating – or executing – disciplinary proceedings against the Applicant. For each of the innumerate occasions that this does not occur, the Respondent breached the Yarra Trams EA and, by operation of s.50, contravened the FW Act.
28. Further, it was a written term of the Applicant’s employment that he could only be relocated subject to prior consultation. As a result of the improper disciplinary procedures, the Applicant was relocated to the Essendon depot without any consultation.
…
32. By reason of the above matters, this Honourable Court should award the remedy sought in the Applicant’s Further Amended Statement of Claim….”(footnotes omitted)
Respondent’s Case
In submissions filed 28 February 2017 the respondent’s case was summarised as follows:
“1. This case concerns an attempt by the Respondent to investigate and take action in respect of serious allegations of bullying by a group of employees said to include the Applicant. These were allegations that the Respondent was bound to investigate and take action in respect of. Further, they were allegations that the Respondent had a duty to deal with in confidence in order to protect those who had reported this behaviour and expressed concerns about retribution.
2. At the end of that process, and not satisfied with the Applicant's blanket denial the Respondent moved the Applicant along with a number of other employees to different base depots. Other than a warning, no other sanction was imposed upon him.
3. It is in this context that the Applicant's complaint about process (for that is what his case amounts to) is to be considered. In short, the Respondent submits that:
(a) the Yarra Trams Enterprise Agreement 2012 - Operations (Enterprise Agreement) and the disciplinary policy it refers to (Disciplinary Policy) need to be read in the practical common sense way referred to by Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184. So read, it is clear that neither the Enterprise Agreement nor the Disciplinary Policy had application to the visit to the Preston Depot on 4 June 2013 or to the two VECCI reports.
(b) Further, it is a complete misreading of the Disciplinary Policy to read that part of the policy providing guidance to employees charged with conducting disciplinary matters as conferring substantive rights on the Applicant of the type sought to be agitated here.
(c) Once the Respondent had determined that subject to any matters raised by the Applicant disciplinary action was warranted the Disciplinary Policy was brought into play, and applied.
(d) As to the allegations of breach of contract, all that the contract states is that the Applicant's initial posting after training would be determined after consultation. No substantive right not to be transferred to a different location during the currency of his employment without consent was conferred.
…
13. The Applicant's claim concerns the events of 4 June 2013 and 18 October 2013. Contrary to the assertions in the Applicant's outline, these events cannot be considered in isolation from the complaints which had been made prior to 4 June 2013 and subsequently detailed in the Bullying Report.
Prior to 4 June 2013 - Bullying allegations and the direction not to post materials
14. On 22 May 2013 Yarra Trams received a complaint from one of its RPO Supervisors who was relieving at the East Preston Depot, Deborah Moysey.[13] Ms Moysey' s 22 May 2013 email attached photographs of material displayed on the wall of the RPO office at East Preston Depot which Ms Moysey described as "offensive, adolescent and bullying". The posted materials included:
[13] Annexure DM-2 (pages 10 to 19) to the Affidavit of Deborah Moysey sworn on 5 December 2016 (Moysey Affidavit).
(a) a poster titled "East Preston Depot - Fire Wardens I First Aiders I OH&S Representatives" where a hole had been made through the photograph of the OH&S Representative;
(b) an anti-bullying poster which had been defaced to read "United we stand against bullying of swappers ... by the next 2IC";
(c) a picture of "the Terminator" with a Rail Tram and Bus Union sticker stuck on the top of the Terminator's head;
(d) slogans including "the wrong way" and "far too loud";
(e) a picture of characters from the television show "the Sopranos";
(f) a picture of six individuals in Roman attire with the faces of a number of East Preston Authorised Officers superimposed (including the Applicant) and with "Club X" handwritten in red marker.
…
27. By 4 June 2013, it was clear that Yarra Trams had to act to protect employee safety at the East Preston Depot. Ms Moysey had made a series of complaint in relation to conduct at the East Preston Depot. Those complaints did not just include the posting of unauthorised materials that was considered to be offensive - they also included people spitting on RPO's equipment (their HHDs), and conducted apparently targeted at Ms Ross including her phobia of moths and at Ms Moysey herself. These were serious allegations, and it was appropriate that they be investigated.
..
29. The immediate issue which presented itself was the posting of unauthorised materials. Mr Said had given an express instruction, which was then to be passed down to all RPOs, not to post unauthorised materials in the workplace. That instruction had apparently been disobeyed, most likely on the night shift of 3 June 2013 by a member of members of Team B.
…
32. The events of 4 June 2013 have been dealt with in the evidence of multiple witnesses. Focussing on the matters that are relevant to the current Further Amended Statement of Claim, Mr Said spoke to each of the Team B RPOs (and their supervisor, Mr Polomarkakis), to determine whether each employee had seen the material that had been posted in the RPO Room, if so when, if they knew who had posted it, and about the recent briefing not to post unauthorised materials. As was made clear by Mr Said this was not a disciplinary meeting.
…
36. Following the attendance at the East Preston Depot on 4 June 2013 by Mr Said and Ms Moodie, a complaint was made by the Rail Tram and Bus Union (RTBU) in relation to the conduct of those interviews. Phil Altieri, Secretary of the RTBU, demanded "immediate action" be taken. In subsequent emails, Mr Altieri demanded a "full independent investigation" into the events of 4 June 2013, and that this investigation be into the behaviour of "Yarra Trams Management" on 4 June 2013, and not a "re-investigation" into the posting of material at East Preston Depot.
…
38. Separately to the VECCI Investigation into the 4 June 2013 events, Yarra Trams engaged a different independent and experienced workplace relations practitioner, Ellie Stephens, a Senior Workplace Relations Consultant with VECCI, to conduct an investigation into the bullying allegations that had been made by Ms Moysey (Bullying Investigation).
39. While the Bullying Investigation was conducted in a way that protected employee confidentiality, it was not conducted in secret. In mid to late July 2013, Mr Greer and Mr Said went to East Preston Depot and gave a briefing to each team of RPOs to advise them that VECCI had been engaged to undertake a review into the working relationships of RPOs at East Preston Depot. Mr Greer told the East Preston RPOs that if anyone wanted to come forward to be interviewed by VECCI to raise matters of concern then they should let Yarra Trams know.
40. As a result of these briefings, some employees came forward with matters they wished to raise. Arrangements were made for VECCI to undertake interviews with those employees who came forward. A number of them said they wished the interviews to be outside of normal hours. They said they were fearful of other RPOs at East Preston knowing that they were speaking to VECCI.
41. In addition, the Applicant's union, the RTBU, was aware of the Bullying Investigation. During the period July to September 2013, when VECCI was interviewing employees and preparing the report, Mr Greer and Mr Altieri had a number of discussions about the investigation into Ms Moysey's complaint. In the course of those discussions, Mr Altieri generally attempted to discredit the investigation and referred to it as a "witch hunt". He also asked when the report would be available.
42. The interviews conducted by VECCI, with employees who had come forward to report matters, formed the basis of the findings in the report by Ms Stephens of VECCI dated 4 October 2013 (Bullying Report). There was nothing unusual or untoward in Yarra Trams engaging an independent expert to investigate allegations of bullying at its workplace. Similarly, there was nothing unusual or untoward about the confidential nature of the investigation of the bullying allegations. Given the insidious nature of the conduct alleged, and the concerns expressed by those who said they had been subject of the conduct, it was appropriate to protect the confidentiality and anonymity of the employees who were voicing their concerns. To do otherwise would be to risk that those employees who were the victims of bullying conduct would say nothing, and the conduct towards them continuing.
43. Further, the bullying investigation was the process through which the allegations were tested (at least in a preliminary way) and articulated. A disciplinary process could not commence until there were allegations to put to an employee and the decision had been made to pursue them.
…
47. Once the Bullying Report was provided to Yarra Trams, Yarra Trams then took steps to put the allegations to the various employees involved, and to give them an opportunity to respond. It also involved Mr Altieri of the RTBU, as the representative of the employees who attended each of the employees' (including the Applicant's) disciplinary meeting, being provided with advance notice of the nature of the allegations against the employees. Mr Greer encouraged Mr Altieri to discuss the details of the report with the employees prior to the disciplinary meetings.
48. Having previously met with a number of the other employees, with Mr Altieri present, but being unable to meet with the Applicant because of absences from work, Mr Greer conducted a disciplinary meeting with the Applicant (with Mr Altieri present) on 18 October 2013.
…
52. After a break to consider the Applicant's responses to the allegations, Mr Greer resumed the disciplinary meeting and told the Applicant and Mr Altieri that the action he intended to take in relation to the Applicant was a transfer to Essendon B Team effective immediately, a final warning and reduction in pay which would be achieved by demotion to the lower-paid position of a Customer Service Employee. Mr Altieri expressed the view that regression in pay was not fair to the Applicant. Mr Greer stopped the meeting for a further break, to consider Mr Altieri's view.
53. During this second break, having regard to what Mr Altieri had said about the proposed reduction in pay, and the impact on Mr Halici and what he had said about his own circumstances, Mr Greer decided not to proceed with the proposed reduction in pay. The outcome for the Applicant was therefore a final warning, and a transfer to the Essendon Depot. This limited sanction necessarily gave the Applicant the opportunity to improve his behaviour.
54. The decision to redeploy the Applicant to another depot, as it did with all of the members of the Gang (other than the Gang's leader, Mr Stevie, whose employment was terminated) would not appear to have been a sanction as such but rather a mechanism falling within the broad managerial prerogative enjoyed by Yarra Trams. It was, in any event, clearly appropriate. Consistent with Yarra Trams' obligations under the OHS Act, Mr Greer took the view that, in his role as manager, he needed to protect and look after the 20 or so staff remaining at East Preston Depot and provide them with the opportunity to do the best job that they could in an environment free from bullying behaviour. Nothing was said by the Applicant in the meeting of 18 October 2013 which would warrant him being treated differently from the other employees alleged to have been members of "the Gang"…”(footnotes omitted)
The Agreement
In these proceedings the applicant sought, inter alia, the imposition of penalties for and compensation as a result of alleged breaches of the Agreement under section 546 of the FW Act constituted by a contravention of clause 11 of the Agreement.
Pursuant to section 54 of the FW Act the Agreement operated from 19 November 2012. Part 1 of the Agreement set out what were described as “Common Conditions” and included clause 11 which was headed “Disciplinary Counselling” and provided:
“11.1 Staff discipline will continue to be conducted in accordance with the Yarra Trams Disciplinary Counselling Policy and Procedures, which may be amended by agreement between Yarra Trams and the RTBU from time to time.
11.2 The parties agree to jointly undertake a review of the existing Yarra Trams Disciplinary Counselling Policy and Procedures within three months of the start of the agreement (the "Review"), which will include but not be limited to:
(a) A review of the policy to be consistent with the principles of the Leadership Framework;
(b) Including the Release Letter in the policy;
(c) Ensuring the timeliness of the disciplinary process;
(d) Separation of the investigation process into accidents and incidents from the disciplinary process;
(e) A review to ensure the policy reflects a 'just culture' approach to dealing with the disciplinary process;
(f) ensuring an effective appeal mechanism; and
(g) Making any amendments to ensure the process is consistent with the principles of natural justice and procedural fairness.
11.3 Yarra Trams will implement any disciplinary procedure agreed with the RTBU for all employees having regard to the matters identified in the Review within four months of the start of this agreement. The parties will not unreasonably withhold their agreement to a revised disciplinary procedure.”[14]
[14] It was not controversial that clauses 11.2 and 11.3 of the Agreement were not relevant for the purposes of these proceedings
The Policy
The “Yarra Trams Disciplinary Policy and Procedures” (“the Policy”) referred to in clause 11.1 of the Agreement provided, so far as is presently relevant:
“Personnel Management Procedures
Disciplinary Counselling Policy and Procedures
1. Purpose
It is the policy of Yarra Trams to have fair, equitable and consistent disciplinary procedures in the workplace for the purpose of ensuring acceptable behaviour.
2. Scope
Yarra Trams is a customer service organisation. The community demands that the employees of Yarra Trams behave towards member of the public and each other in a reasonable and rational manner. Yarra Trams has standards of behaviour to which all employees of Yarra Trams are required to adhere.
3. BASIC PRINCIPLES
3.1 Opportunities to Explain and Defend
Individuals who may not be conforming to required standards and/or against whom disciplinary action is being contemplated are entitled to:
(a) be informed of the complaints against them and be given reasonable opportunity to explain their behaviour and to answer each allegation against them.
(b) to present their view in respect to any decision reached at the conclusion of the counselling process.
3.2. Timelines
Disciplinary procedures should be commenced and completed as soon as possible following the alleged incident provided that all of the relevant facts including where appropriate, written witness statements are available, and the employee concerned is advised of each step in the disciplinary process.
3.3 Establishment of Facts
An investigation should be conducted promptly and all reasonable steps should be taken to obtain the relevant facts especially detailed responses and explanations of the allegations and complaints against the employee concerned.
Where an employee’s conduct warrants investigation by Yarra Trams and where there are also police investigations going on in relation to the matter, Yarra Trams investigation should continue but care should be taken to ensure that no interference is made to the Police’s investigation.
It should be remembered that police may be investigating different issues; they may be looking at possible criminal charges which will have to be proved beyond reasonable doubt.
3.4 Time Allowed to Modify Behaviour
Except in instances of serious misconduct where termination is warranted employees should be allowed reasonable time to modify their behaviour. The time required will depend on the nature of the behaviour and whether other steps such as training are required for a change to occur.
3.5 Employee Representation
Employee are entitled to have their Union or other nominated representative involved in each step of the procedure.
The nature of the procedures in the disciplinary counselling process do not warrant the involvement of barristers and solicitors.
3.6 Confidentiality of Records
Matters discussed with employees and Records of discussions and any related correspondence is confidential and to be treated as such. Any records established under this process are to be stored in a secure area and accessible only at the discretion of the Director Human Resources and Organisational Development.
…
6. DISCIPLINARY COUNSELLING PROCEDURES
6.1 Introduction
This document is for the assistance of all staff who have responsibilities in respect to the disciplinary counselling process. The information in this document does not stand alone and must be read in conjunction with the Disciplinary Counselling Policy.
All staff who have responsibilities in respect to the disciplinary counselling policy must ensure that the disciplinary counselling procedures are in accord with the contents of this document and the Disciplinary Counselling Policy.
Industrial tribunals have held that a resignation in the face of a threat of dismissal is a dismissal. Supervisors should therefore note that whilst following the procedures set out in this document, if any employee resigns, he or she may still have recourse to unfair dismissal provisions under the Fair Work Act. It is necessary to ensure that these procedures are followed despite the submission of a resignation by an employee. It should be noted that an employer is not obliged to accept a resignation submitted by an employee.
7. STEPS IN THE DISCIPLINARY COUNSELLING PROCESS
(a) Where there is clear evidence of misconduct which justifies action, the following procures shall apply:
(i) Interview with verbal reprimand;
(ii) Written warning;
(iii) Final written warning;
(iv) Final action including advice to Union.
While the sequence above would normally be followed, there will be some instances of serious misconduct where the first step in the process may be the issue of a final written warning, or even a recommendation for dismissal. At the end of each procedure the employee should be informed of appeal rights. That should be documented and also acknowledged by the employee.
Note 1
Minor breaches of discipline will be carried out by the responsible Manager and the employee will be given the opportunity of representation from his/her respective Union. Serious breaches of discipline which might lead to dismissal will be carried out by a nominated senior Manager with assistance provided from the Human Resources Department.
Note 2
Where an employee has been involved in an accident/ incident that requires investigation, the employee is to be removed from his/ her primary duties and provided with alternate duties until the investigation is completed.
(b) A clear written record of each step in the disciplinary procedure should be kept (Refer to c400fo159 Employee Record of Interview) and include:
(i) the person or persons present at each such procedure;
(ii) the allegations and/or complaints made to the employee at or during such procedure including witness statements;
(iii) a list of all documents made available to the employee during such procedure including witness statements;
(iv) a detailed outline of the employee’s response and/or explanation of each allegation and/or complaint during such procedure;
(v)an outline of any representations made by or for the employee during such procedure;
(vi) the conclusion reached at the end of each such procedure;
7.1 Interview of Employee
(a) Interviews should be conducted by the appropriate supervisor of the employee concerned as soon as possible. The employee should have the opportunity to have an interpreter if necessary. The employee should be asked if any assistance from the Union or other nominated representative is required and whether any reasonable further time to consider and to prepare a response to the allegations made against him/her is required. The supervisor should keep detailed and comprehensive noted of the incidents and the fact that the employee was interviewed. Form c400fo159 Employee Record of Interview may be used for this purpose.
(b) The interview would generally follow the sequence below: -
(i) the misconduct causing concern would be pointed out to the employee; the employee should be given details of the substance of all the allegations and the evidence, if any, upon which the allegations are based;
(ii) the supervisor should frequently ask the employee if there is anything he/she wishes to say or add and each subsequent statement should be recorded both as to the question and the response;
(iii) the employee would be given the opportunity to respond to the allegations; the employee should be given a number of opportunities to add anything that he/she wishes to add and should be encouraged to put forward any evidence, material or submissions that he/she wishes to make in answer to or in mitigation of the allegations made;
(iv) if after hearing the employee’ response to the allegations and receiving other material the supervisor is of the belief that the allegations have been established, the supervisor would then issue a reprimand and explain what is expected of the employee. This requirement should be clearly detailed and specific and the employee should be advised of the consequences should the misconduct be repeated.
(c) The number of times a person is interviewed on the same matter will vary according to the type of misconduct. In some cases, because of the gravity of the misconduct, dismissal may be recommended immediately, even before an oral or written reprimand was issued.
(d) In cases where an employee refuses to attend an interview to discuss a misconduct matter, or to respond to a written request for an explanation , the supervisor is to:
(i) Advise the employee he/she is off pay until he/she attends the interview and explain that it would be in his/her best interests for his/her point of view to be put to Yarra Trams.
(ii) After the record of interview is signed by the supervisor, the opportunity should be given to the employee to sign acknowledgement of the contents, and/or comment in writing.
(iii) If the employee declines to sign, the supervisor should endorse the appropriate section along the following lines: -
(iv) “Employee given opportunity to acknowledge but declined”.
(v) A copy of the completed “Record of Interview” should be offered to the employee, and to their representative if involved in the discussions. The supervisor should also retain a copy.
(e) In accordance with the Yarra Trams Enterprise Bargaining Agreement 2009 Appendix One – Tram Operations Clause 7 “ATTENDING OFFICE”, an employee who is being interviewed shall be allowed full pay for any time necessarily absent from ordinary duty.
7.2 Final Written Warning
A final written warning is to be issued by the appropriate supervisor after obtaining his or her supervisor’s approval and after giving the employee the opportunity to respond to the allegations.
In most situations, the issue of a final warning would follow a series of interviews with the employee. There would be occasions when the employee’s behaviour results in the issue of a final warning on the first occurrence.
The final written warning should include details as explicit as possible of the advice given to the employee and contain material advising the employee as to what is required from the employee and, where appropriate what behaviour modifications are anticipated and a subsequent review date. The supervisor must ensure that the review process is properly implemented and documented.
The employee is required to sign a copy of the written warning to indicate he or she had received it and understood the consequence of further misconduct which has resulted in the issuing of the written warning. (Refer to c400fo159 Employee Record of Interview). If the employee refuses to sign, the supervisor should endorse the appropriate section along the lines, “employee given opportunity to acknowledge but declined”. A copy of the final written warning should be forwarded to the Human Resources Department.
Where the employee so requires, a union delegate is to be advised of the fact that the warning had been issued and of the circumstances surrounding the matter…”[15]
[15] It was not controversial that the other clauses of the Policy were not relevant for the purposes of these proceedings.
The Evidence
I do not intend to recite all of the evidence at trial, however all of that evidence, and the submissions made by the parties, has been considered and taken into account so far as they are relevant to deciding the liability questions the parties agreed were before the Court.
Before turning to the evidence of each of the witnesses for both the applicant and the respondent, it is timely to say something about their evidence generally. Subject to what follows I did not form the view that the witnesses in this case were lying or that they deliberately set out to mislead the Court to the extent that the whole of their evidence was unreliable.
The applicant’s evidence
The applicant
Be that as it may, the applicant’s evidence however left the firm impression that he well knew where his interests lay in this litigation and schooled himself to give his evidence accordingly.
The applicant gave evidence and was cross-examined. The applicant adopted the affidavit referred to earlier[16]. In that affidavit the applicant deposed inter alia:
[16] Exhibit A3.
“..13. Throughout my entire time at the East Preston Depot, from early 2009 – 18 October 2013, not one of these Supervisors ever raised a single complaint or concern with me about how I conducted myself in the workplace or how I worked or communicated with any other employee of the respondent.
14. Prior to October 2013, the only disciplinary action that I can recall ever being taken against me was in or around 2010 when my then Supervisor, Mark Prokopis, docked me 10 minutes of time for attending work late.
15. As regards to customer complaints I can recall three occasions being made aware that a customer has made a complaint against me. One of these complaints occurred in or around April 2013, however, I cannot remember the date of the others save as to say that they occurred in the years prior to this.
16. On each of these occasions, I was provided with a written summary of the complaint that had been received and asked to provide a written response. These summaries were provided to me during my attendance at the East Preston Depot for my rostered shift and my Supervisor would ask me to read and provide a written response in my own time.
17. On each of these occasions, once I had provided my written response, I never heard another thing about them from my Supervisor or anyone else.
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The photowall
21. At the East Preston Depot, there was a blank wall located in crew briefing room area. For the entire time that I worked at the East Preston Depot, it was common practice for pictures and photographs of a personal nature to be posted anonymously on the blank wall (photowall).
22. I have never posted any material of any kind on the photowall. I have never written anything or manipulated anything that I have ever seen on the photowall. To the best of my recollection, I have never seen any other person post anything on the photowall from about 2010.
23. The highest involvement I ever had with the photowall is in relation to a photo of myself standing on a beach with my wife’s cousin, a former AFL player in or about June 2005 on a holiday in Mykonos. In about 2010 I was looking at a version of the photo on my phone that had been photoshopped so that my face and (sic) been swapped on to my wife’s cousin’s body and his onto mine. As I laughed at the photo, a colleague of mine that I undertook training with back in 2008, Dorothy Camilleri-Wozniak, asked to see the photo. Dorothy said that she found the photo funny but couldn’t see how it had been photo-shopped, I printed off a colour copy at home on A4 paper and handed it to her in the briefing room so she could have a closer look. I left the photo on the table of the briefing room.
…
24. The next day or so I noticed that someone has posted this photo on the photowall. The photo stayed up there for many months and at different points in time I noticed that additions had been made to the picture – for example, a wedding dress was placed on top of my wife’s cousin, a dog had been imposed in the background, Cate Blanchett’s face was imposed on top of my wife’s cousin etc… I never paid much attention to what was placed on this photo of me and took it as a bit of fun.
25. The photowall was in plain sight and could be viewed, at some time or another, by any employee of the respondent that worked at – or visited – the East Preston Depot.
26. On or about May 2013, all photos on the photowall were removed. Some of the photos displayed on the photowall at the time it was removed has been there for approximately three years. Along with the photowall being removed, the Union notices on the Union cork board to the left hand side of the door were also removed.
27. After the photos were removed, a reproduction of the famous painting Napoleon at the St Bernard Pass, by Jacques-Louis David was anonymously posted in the crew room (poster).
…
28. On or about 25 May 2013, the poster was anonymously torn down and I saw it scrunched up sitting in the bin in the crew room.
29. Prior to June 2013 I was not aware of a single complaint ever having been made about any material that was posted to the photowall, nor do I recall ever receiving a written direction about what was (and what was not) to be posted on the photowall.
4 June 2013
30. On 4 June 2013, I was rostered on the afternoon shift, which commenced at 4:00pm.
31. I was in the RPO room, also known as the briefing room, at the East Preston Depot and my Supervisor, Nick Polomakarkis (“Nick”) was briefing the shift of approximately 13 workers.
…
32. Shortly before 4:00pm, one of the RPO Team Leaders, Mr Mohammed Said (Said), and a Human Resources Manager, Ms Sharon Moodie (Moodie), walked into the briefing room without notice. I had met Ms Moodie on one occasion when she conducted a training session on equal opportunity (I think this was in or around 2011), but asides from this I cannot recall seeing her at the East Preston Depot.
33. Mr Said told us words to the effect “this is Sharon Moodie from HR” and began read a script from a piece of paper in his hand. He said words to the effect that unauthorised material has been posted to the photowall despite his instructions and that he and Moodie were there to investigate. He said that this was not a disciplinary meeting and therefore we did not have the right to Union representation.
34. I did not know what instructions Said was referring to.
35. Said concluded by saying that if someone did not enter an interview room with him they would be considered to be disobeying a lawful direction and stood down without pay immediately.
…
38. After this was said, a number of workers immediately starting firing questions at Said along the lines of: “how is this not a disciplinary procedure if we are to be stood down?” and questioning why the Union couldn’t be present, or at least any co-workers present as a support person.
…
54. At approximately 5.40pm, I was finally directed to attend an interview with Said, I went into the board room where Said had been interviewing people. I was shown 5 to 6 photos and I was asked “do you know who did this?” I said words to the effect “I don’t recall any of these being put up, I don’t recall seeing anyone put anything up”. He appeared to take notes of my answers. He didn’t ask me to sign what he had written, nor did he show me what he had written.
55. I asked Said for a copy of the script that he read out to everyone at 4:00pm, he said he would provide it to me at a later date but he never did.
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5 June 2013 report of incident to my Union
60. On 5 June 2013 I reported the incident to Phil Altieri, asking that the matter be investigated as I believed that the conduct of Yarra Trams’ management was tantamount to bullying, harassment, intimidation, deprivation of basic human rights, civil liberties and was contrary to law.
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Interview by VECCI
64. On 10 September 2013, I was interviewed by Joseph Kelly, Workplace Relations Consultant from VECCI.
65. I was never given a notice from VECCI as to why I was being interviewed or what the terms of reference VECCI had for its investigation. I was notified of the time and place for my interview by Said but he did not tell me what the purpose of the interview was.
…
66. I was never told whether I was the subject of any contemplated disciplinary proceeding.
67. I attended the interview with VECCI on 10 September 2013 as it was my understanding that it was investigating the conduct of Yarra Trams and the incident that had occurred on 4 June 2013. Present at the interview was myself, Mark Teasdale of the Union, Joseph Kelly and another woman from VECCI (I cannot recall her name).
68. On 30 September 2013, Joseph Kelly sent me an email with a typed transcript of the recording of my interview with VECCI that I confirmed was accurate.
…
69. I was not told when the VECCI investigation would conclude, what would be the likely outcome or whether I could have a copy of the final report.
CEO Newsletter
70. On 11 October 2013, the CEO of the Respondent, Clement Michel, released a notice that was circulated to all staff relating to the dismissal of an employee following the display of unauthorised materials in the authorised officers’ room at the East Preston Depot.
71. The notice said that the Respondent had sought an external independent investigation into the posting of the materials and that it revealed a deeper culture of inappropriate behaviour by a small number of people within the authorised officers team, including intimidation, bullying and victimisation.
…
72. I was completely shocked and very upset when I saw this notice for a number of reasons. First, I was shocked that the East Preston Depot was labelled has (sic) having such a terrible culture – in my five years at the Depot I had always had friendly relations with every colleague and was never a witness to any bullying behaviour, nor had I ever been told by anyone that they felt intimidated or bullied.
73. Second, I could not believe that the CEO would publish to the entire workforce that East Preston had such a poor culture. It was such a targeted statement at the authorised officers that worked at the East Preston Depot that our reputations amongst colleagues would be undoubtedly tarnished. At the time, there was a workforce of more than 2,000 employed by the Respondent while only there was only approximately 30 authorised officers at East Preston.
74. Third, this was the first time that I had learnt that the Respondent had engaged an external independent investigation into the posting of materials. Apart from the incident on 4 June 2013, I was not aware of any complaints being made about the photowall or the posting of material anywhere else in the East Preston Depot.
The Disciplinary Hearing of 18 October 2013.
75. On 18 October 2013, I commenced work at the East Preston Depot at 6:00am.
76. I was on the road performing my usual duties until my lunch break at 10.45am and had no access to my email account. I returned to the East Preston Depot and was told to go directly for a meal break as opposed to performing any paperwork as I had already been working for my maximum time of 4.45 hours before a break.
77. A colleague of mine, Simon Fraser, drove me to my house (around a five-minute drive) during my break so that I could check on some fencing work that was being performed at my house. While Simon and I were at my house, Simon received a call from whom I believed to be our acting Supervisor, Larry Selinas (Selinas) asking if he knew where I was because I had left my mobile phone at the East Preston Depot. Simon said that I had to go straight back to the depot so we got into his car and returned.
78. When I arrived back at the Depot, Selinas said to me words to the effect “you are required to go to EROC and I am required to take you there”. After this Selinas ushered me into his van to drive me to EROC. Michael Azzopardi (another colleague of mine) had also been summonsed and we sat in the van together as Larry drove us to EROC. I asked Selinas “what is this about” he said “I don’t know; I’m just required to take you there”
79. When I arrived at EROC, Altieri was arriving at the same time. I saw James Frans and asked him “what is this about?” and he responded with words to the effect “I know why you’re here but I can’t tell you.” I was stunned by this response and sat in the waiting area while Michael Azzopardi was taken into Trevor Greer’s office.
80. Shortly after I was called into the room to have a meeting with Mr Trevor Greer, Said and Altieri.
81. Mr Greer started the meeting by stating that the reason was I was (sic) called to EROC was because of an investigation conducted by VECCI that concluded that I was a member of a gang and a bully. Mr Greer stated that there were 13 separate complainants who accused me of being part of a gang of bullies who intimidate revenue protection officers and that I had bullied or intimidated these 13 separate people.
82. Greer told me that VECCI had produced a report that was 480 pages long and on the basis of it the Respondent found me to be guilty of all allegations and that a decision was made to discipline me which is why I had been called to EROC. Greer said that the Respondent’s board had seen the 480-page report and were disgusted by my conduct and they wanted me terminated, however he had been convinced by Said not to dismiss me. I was advised by Greer that Clement Michel was reduced to tears after reading the 480 page report.
83. I went into shock and became absolutely distraught. I began crying, saying words to the effect “how could you do this to me? I’m 50 years old and trying to have a child!”
84. Mr Alteri (sic) intervened at this point and questioned Mr Greer as to the allegations and said words to the effect of “what charges? We have not seen any paperwork that detail any charges, Yarra Trams have not followed their own policies by not providing alleged offenders an opportunity to view and respond to the allegations.”
85. Mr Alteri (sic) continued to state “What sort of investigation is this, when you have already found Tahsin guilty before you have even heard his side of the story. This is a kangaroo court and natural justice and procedural fairness has not been afforded.”
86. Mr Greer then read from a document stating the discipline outcome was a:-
(a) First and final warning;
(b) transfer to Essendon B team effective immediately with my behaviour being monitored; and
(c) regression in pay to a Customer Service Employee.
87. I could not believe what was happening. I said that I denied all 13 complainants allegations against me and said words to the effect “if this has been going on for so long why have I never been asked to change? If I have done something wrong then I will apologise.”
88. Mr Altieri then said that was unjust for the Respondent to heavily discipline me based on hearsay and to penalise my family with regression in pay to a much lower wage.
89. Mr Greer called for a short break of ten minutes which I spent with Mr Altieri.
90. Upon returning from the break, Mr Greer stated that he has reconsidered his decision relating to regressing my pay to a Customer Service Employee. He reiterated that the final warning (sic) and forced transfer to Essendon will remain.
91. It was requested by Mr Greer that I sign the document titled Employee Record of Interview. I refused to sign it as I was not given a proper opportunity to respond to the allegations, as they were never shown to me. Further, the document did not contain all that was said as it did not include any of the objections raised to the procedure the Respondent had followed…
92. Mr Altieri also refused to sign the Employee Record of Interview.
93. I was told that my next shift would commence at the Essendon Depot that Sunday (less than 48 hours), but as I was still obviously overcome with emotion Greer said to me “you’re in no positon to start work Sunday, take some paid time off” I was not able to go back to work for another 2 weeks while I recovered.”
When asked about the notice from the CEO to the respondent’s staff about the Bullying Report the applicant initially sought to say he wasn’t sure when he saw it, then claimed everyone at the Depot was stunned by it, then admitted it was shortly after 11 October 2013 he was aware of it.
The applicant accepted that what he had said in an earlier affidavit filed in these proceedings about a standard practice of posting “inoffensive pictures” on the RPO wall at the Depot was inconsistent with his claim to Ms Moodie on 4 June 2013 that he was offended no one had asked him if he was aggrieved by his picture being on the wall in the RPO room at the Depot.
The applicant agreed in cross-examination that the respondent should test the allegations of bullying before going to the step of invoking the formal disciplinary procedure, and that the rights of the victim (of any misconduct) should be balanced against those who were alleged to be involved.
The applicant also agreed the complaints of bullying at the Depot by Ms Moysey were something to be concerned about, and that it was only once the respondent had actually gone and tried to find out exactly what was happening that it might be appropriate to escalate matters and invoke the formal disciplinary process.[17]
[17] Transcript 14 March, page 55, lines 27 to 29
The applicant also accepted in light of the Bullying Report the respondent had to take action, and that part of that would involve bringing formal disciplinary action against the people identified as being part of the gang.[18]
[18] Transcript 14 March, page 74, lines 4 to 6
In relation to the events of 4 June 2013 the applicant admitted he couldn’t recall the detail of what was said by Ms Moodie that day. The applicant also admitted that Ms Moodie may have said the meeting was not a disciplinary interview and acknowledged that Ms Moodie was there to conduct an investigation.[19] The applicant admitted the record of interview from that day seemed “accurate enough”.[20]
[19] Transcript 14 March, page 60, line 33 to page 61, line 31
[20] Transcript 14 March, page 63, line 27
In relation to the events of 18 October 2013, the applicant accepted he knew beforehand there were allegations of bullying at the Depot by Danny Stevic and other people.[21] In his evidence the applicant acknowledged being told about the Bullying Report and the allegations it made at that meeting.
[21] Transcript 14 March, page 74, lines 12 to 13
The applicant agreed Mr Altieri was with him at the disciplinary interview on 18 October 2013, the “script” was read to him, he was told the respondent had formed the view he was part of the gang and he was asked to respond to that allegation and the action the respondent intended to take as a result.[22] The applicant also accepted the “gist” of what he had said in response was captured in the record of interview. [23]
[22] Transcript 14 March, page 74, line 25 to page 75, line 8
[23] Transcript 14 March, page 79, line 36 to page 80, line 6
Whilst it was clear the applicant was embarrassed by his involvement in the events in question at times there was a certain defensiveness and a tendency to generalisations in his evidence which was concerning. The applicant’s evidence was also notable for not revealing any insight into or acknowledging any possibility that he might have at least some responsibility for the course that events took.
Overall the applicant’s evidence left the clear impression that he believed he was absolutely in the right and he refused to even countenance a different interpretation could be taken by the respondent of events (and his involvement in same) at the Depot on the basis of the Bullying Report let alone that the respondent could take the disciplinary action it did against him on the basis of that.
Mr Altieri
Mr Altieri is the Secretary of the Union’s Bus Victorian Branch, Assistant Branch Secretary of the Union’s Victorian branch and the Union’s National President. Mr Altieri gave evidence and was cross-examined. Mr Altieri adopted the affidavit referred to earlier.[24]
[24] Exhibit A4.
Mr Altieri’s evidence was he was involved as the Union’s representative in the events in 2013.
In his evidence before the court Mr Altieri accepted the Policy had to be applied in a common sense way[25] and the respondent should not “invoke” the Policy “willy-nilly”, and only do so when it had done some work to ascertain that there is substance to the allegations being made.[26]
[25] Transcript 14 March, page 89, line 43
[26] Transcript 14 March, page 90, lines 32 to 35
In relation to the 4 June 2013 meeting at the depot Mr Altieri accepted that Ms Moodie told him the respondent was not holding a disciplinary meeting.[27]
[27] Transcript 14 March, page 91, lines 11 to 12
Mr Altieri also didn’t dispute that, as Ms Moodie had said, that this was consistent with the respondent not treating that meeting as an invocation of the disciplinary process under the Policy.[28] Mr Altieri accepted that subsequently he had not suggested what had gone on at the meeting was not in accordance with the Policy.[29]
[28] Transcript 14 March, page 92, lines 20 to 21
[29] Transcript 14 March, page 93, lines 44 to 46
Crucially for the purposes of these proceedings, Mr Altieri conceded in cross-examination the Policy was only applicable where disciplinary action was to be taken against an individual.[30]
[30] Transcript 14 March, page 94, lines 15 to 41
Mr Altieri conceded the Union had never suggested in correspondence to the respondent any breach of the Policy in relation to the meeting on 4 June 2013.[31]
[31] Transcript 14 March, page 95, lines 42 to 46
Mr Altieri acknowledged the respondent, through Mr Greer and Mr Moore (the respondent’s human resources manager), had briefed the Union in early October 2013 about the “gist” of the allegations that had been made against employees in the Bullying Report.[32]
[32] Transcript 14 March, page 97, lines 4 to 5
When asked why that meeting hadn’t been mentioned in his affidavit Mr Altieri said he had been asked, when preparing his affidavit, to give “a story” or “a position” on “the disciplinary hearing itself”, which was on 18 October 2013.[33]
[33] Ibid, lines 32 to 35
In cross-examination it was Mr Altieri’s evidence that as far as he was concerned the matter only became “disciplinary” after he had met with Mr Greer and Mr Moore, and that in his mind it was likely that if the respondent believed “the picture” “painted” about “the stuff” in the Bullying Report it was “inevitable” that there was going to be some disciplinary action.[34]
[34] Transcript 14 March, page 100, line 37 to page 101, lines 12
Mr Altieri acknowledged that what Mr Greer had said to the applicant and what the applicant was alleged by the respondent to have done was “pretty much” reflected in the script of that meeting and was what was relied on by the respondent and in evidence in these proceedings.
Mr Altieri also agreed that there were breaks during the meeting on
18 October 2013 and the applicant had been asked for his response to the allegation, and that response was “pretty much” reflected in the documents relied on by the respondent in these proceedings evidencing their compliance with the Policy.[35]
[35] Transcript 14 March, page 103, line 12 to page 104, line 3
Mr Altieri also agreed the respondent had (through Mr Greer) considered those responses before deciding on the disciplinary action that would be taken against the applicant, which the applicant was advised of at the meeting on 18 October 2013.
Mr Altieri is a very experienced union official and gave his evidence with great care. Whilst Mr Altieri adopted the evidence given in his affidavit he readily conceded points raised in cross examination.
Mr Polomarkakis
Mr Polomarkakis is employed by the respondent and was, at the time of the incidents in 2013, one of the RPO supervisors at the Depot. Mr Polomarkakis gave evidence and was cross-examined. Mr Polomarkakis adopted his affidavit referred to earlier.
In cross-examination Mr Polomarkakis agreed he had briefed the B team in May 2013 about the respondent’s direction that there was to be no unauthorised material on the walls of the RPO room at the Depot. Mr Polomarkakis was pressed to recall if he could identify particular pictures that had been found to have been on the wall but could not do so, but nonetheless accepted, when taken to examples of those, that they were not appropriate in a workplace.[36]
[36] Transcript 15 March, page 121 to 123
Mr Polomarkakis agreed that at the meeting on 4 June 2013 RPO’s had been told by the respondent (through Mr Said) that it was not a disciplinary meeting.[37]
[37] Transcript 15 March, page 124, line 44
In re-examination Mr Polomarkakis said of the pictures he was shown during the investigation that they were variously childish and racially explicit, but maintained no one had come to him to complain of bullying.
The Respondent’s Evidence
Ms Moysey
Ms Moysey was an RPO relief supervisor at the time of the events in 2013 and was one of those who complained to the respondent about bullying issues at the Depot. Ms Moysey’s affidavit was read by the respondent and she was not required for cross-examination. I accept her evidence.
Ms Moodie
Ms Moodie works for the respondent as an employee relations advisor and was involved in the investigation into complaints about issues at the Depot in 2013. Ms Moodie gave evidence and was cross-examined. Ms Moodie adopted her affidavit referred to earlier.
In cross-examination Ms Moodie was asked about the preparation of her affidavit, her involvement in the events leading up to, at and after the meeting of 4 June 2013. Ms Moodie’s evidence as to the purpose of that meeting, and that it wasn’t disciplinary, was unshaken in cross-examination.
Ms Moodie was also asked questions in cross-examination about her involvement with those who were interviewed for the Bullying Report and what she knew of the allegations they made. Overall Ms Moodie’s evidence left the clear impression she only had limited involvement in the events of 4 June 2013 and subsequently had only been involved in providing information to those who prepared the Bullying Report.
Mr Said
Mr Said was the team manager responsible for RPO’s at the Depot at the time of the events in 2013. Mr Said was called to give evidence and was cross-examined. Mr Said adopted his affidavit referred to earlier.
Mr Said was an impressive witness. In cross-examination he reiterated that the respondent didn’t just discipline people and it would investigate and find out exactly what the allegation was before doing so.
Mr Said was asked in cross-examination about his involvement in the disciplinary meeting on 18 October 2013. Mr Said’s evidence was his role on 18 October 2013 was to take the minutes. Mr Said’s evidence of what went on up to, at and following the meeting on 18 October 2013 in his affidavit was unshaken in cross-examination.
Mr Said’s evidence left no doubt in my mind that his evidence of what went on or was said should be accepted.
Mr Greer
Mr Greer is employed by the respondent as Manager, Customer Service. Mr Greer was called to give evidence and was cross-examined. Mr Greer adopted his affidavit referred to earlier. In that affidavit Mr Greer deposed inter alia:
“…2. In my role as Manager, Customer Service I am responsible for the performance of Customer Service employees and Revenue Protection Officers (RPOs), also called Authorised Officers, employed by Yarra Trams.
…
11. On Wednesday, 22 May 2013 at approximately 7:02am, I was copied on an email from Deborah Moysey (Relief Revenue Protection Supervisor) to Mr Said attaching photographs of material displayed on the wall of the RPO office at East Preston Depot which Ms Moysey described as “offensive, adolescent and bullying”. Ms Moysey reported that other staff found the material offensive but they were unwilling to remove it as they felt they ran the risk of being bullied if they said anything. The covering email also described allegations made by employees at the depot, that equipment they were required to use in discharging their duties, the handheld device (HHD), had been spat on by another employee. These allegations were accompanied by a request from those employees that they use the same HHD and be issued with alcohol wipes in order to protect themselves from this abuse. Annexed and marked “TG1” (pages 1 to 10) is a copy of Ms Moysey’s email and the attached photographs.
…
21. On 27 May at approximately 7:26am, I received an email from Ms Moysey requesting a meeting with me to discuss bullying at East Preston Depot. Annexed and marked “TG8” (pages 32 to 33) is a copy of that email.
Discussions at East Preston Depot on 4 June 2013
22. I am aware that, on 4 June 2013, Mohamed Said and Sharon Moodie held discussions with a number of Authorised Officers at East Preston Depot for the purpose of investigating why further material had been placed on the walls at East Preston Depot despite Mr Said’s direction.
30 September VECCI report
23. On 6 June 2013, Phil Altieri, Secretary of the Rail Tram and Bus Union (RTBU) wrote to Clement Michel, CEO of Yarra Trams advising that he had received several complaints from employees of Yarra Trams about how they were treated on 4 June 2013 and making a number of allegations about what occurred on that day (the RTBU Complaint). Mr Altieri demanded “immediate action” be taken. Annexed and marked “TG9” (pages 34 to 36) is a copy of the letter from Mr Altieri.
24. On 19 June 2013 Mr Altieri wrote a further letter to Mr Michel demanding a “full independent investigation” into the events of 4 June 2013. Annexed and marked “TG10” (pages 37 to 39) is a copy of the letter from Mr Altieri.
…
27. In late June or early July 2013, Yarra Trams engaged VECCI to conduct an investigation into the RTBU Complaint. Joseph Kelly, a Workplace Relations Consultant with VECCI, was engaged to conduct this investigation. I was not involved in the engagement of VECCI to investigate the RTBU Complaint. The decision to engage VECCI was made by Mr Petale.
28. On 3 July 2013, Mr Petale wrote to Mr Altieri advising that Yarra Trams had engaged, through VECCI, the services of Joseph Kelly to conduct the investigation. Annexed and marked “TG13” (pages 45 to 46) is a copy of the letter from Yarra Trams.
29. Mr Kelly’s investigation was completed, and a report produced, on 30 September 2013 (the 30 September Report). Annexed and marked “TG14” (pages 47 to 578) is a copy of the 30 September Report.
30. I am advised by Mr Moore that he asked VECCI to bring Appendix G (“allegations and discussion of findings”) into the body of the report rather than having it as an appendix so that the report was less cumbersome. Annexed and marked “TG15” (pages 579 to 1102) is a copy of the revised 30 September Report.
31. On 1 November 2013, I sent the 30 September Report (without the annexures) to each of the thirteen employees who participated in the interviews conducted by VECCI from July to September 2013, including Mr Halici. Annexed and marked “TG16” (pages 1103 to 1118) is a copy of my letter and the 30 September Report.
14 October VECCI report
32. At around the same time that VECCI was engaged to conduct the investigation into the RTBU Complaint, Yarra Trams also engaged VECCI to investigate Ms Moysey’s complaint. Ellie Stephens, a Senior Workplace Relations Consultant with VECCI, was engaged to compile this report. I was not involved in the engagement of VECCI to investigate Ms Moysey’s complaint. Mr David Moore (Employee Relations Manager) engaged VECCI to conduct this investigation.
33. In mid to late July 2013, I went to East Preston Depot with Mr Said. We gave a briefing to each team of RPOs to advise them that VECCI had been engaged to undertake a review into the working relationships of RPOs at East Preston Depot. I told the East Preston RPOs that if anyone wanted to come forward to be interviewed by VECCI to raise matters of concern then they should let Yarra Trams know. As a result of these briefings, I understand that some employees came directly to Yarra Trams with matters they wished to raise with VECCI and that other employees went directly to VECCI.
34. Arrangements were made for VECCI to undertake interviews with those employees who came forward. A number of them said they wished the interviews to be outside of normal hours. They said they were fearful of other RPOs at East Preston knowing that they were speaking to VECCI.
35. During the period July to September 2013, when VECCI was interviewing employees and preparing the report, I had a number of discussions with Mr Altieri about the investigation into Ms Moysey’s complaint. In the course of those discussions Mr Altieri generally attempted to discredit the investigation and referred to it as a “witch hunt”. He also asked when the report would be available.
36. The report was provided to Yarra Trams on 4 October 2013 (4 October Report). I received a copy of the 4 October Report from Mr Moore. Annexed and marked “TG17” (pages 1119 to 1317) is a copy of the 4 October Report.
…
39. The report detailed complaints made by 13 employees who had been interviewed by the investigator, five of whom had been engaged in supervisory positions. It recorded that whilst these employees had made signed statements, they did not wish to participate as official “complainants” because they were concerned about victimisation. It went into considerable detail regarding the complaints made by staff who believed they had been targeted by “the gang”. Given the large number of people who had made statements, the fact that a number of those who made statements corroborated allegations made by others and the fact that both supervisory and non-supervisory employees had come forward, my view was that the report and its conclusions were credible.
40. I was shocked by what I read in the report and formed the view that absent some substantive basis for dismissing the conclusions it detailed, action was warranted. The allegations in the report included photos of employees with holes poked into their face, racist behaviour, spitting on HHDs and placing a moth in the locker of an employee who was generally known to have a phobia about moths causing her significant distress including screaming and crying.
41. I am responsible for the wellbeing and safety of the RPOs. I expect all employees to be able to come to work and not be fearful about what might happen to them when they are just doing their job. No one should feel pressured not to do their job and fear repercussions or offensive photos designed to intimidate if they do the job Yarra Trams is asking them to do. RPOs work in teams. They are dealing with members of the public who can be aggressive in their response. An RPO needs to know that the other RPOs at the depot are doing everything they can to assist their work colleagues in carrying out RPO duties. All workplaces should be harmonious and supportive but for RPOs it is essential. When I read the description of what was occurring at East Preston Depot and the fears of the employees, it was obvious to me that immediate action was required and that potentially transferring each of the employees in the group away from East Preston Depot might be necessary. I wanted to know what explanation there could be for individuals to be part of a group which took or accepted the behaviour in the workplace described in the 4 October Report against their work colleagues.
…
44. In considering the action to be taken in response to the conduct alleged in 4 October Report, I took into account that fact that the report said that Mr Stevic was the leader of the “gang”. The action I was considering in respect of Mr Stevic was more serious than the action for other members of the “gang”. I considered that, subject to what each employee said when we spoke to them and in the absence of the employee providing a compelling explanation, I would consider termination of employment for Mr Stevic and for the other employees a final warning, transfer and a reduction in pay (which would be achieved by demotion to a position with reduced pay). I informed my manager Mr McGann that this was the action I was considering.
…
46. Whilst I was of the view that the report was credible and detailed very serious allegations warranting action, I wanted to hear what each employee who the report identified as members of the “gang” had to say about the allegations in the report.
47. To enable this to occur, I set up a process so each employee could be told about the report, have an opportunity to respond and put any matters they wanted me to consider before I decided what action, if any, to take in relation to each employee that I was to meet with. I also wanted to ensure each employee would have a union representative to assist them. I arranged meetings with Danny Stevic, Nick Polomarkakis, Robert Prowd, Carlos Corado, Andrew Simovic, Tolga Veli, Michael Azzopardi, Tashin Halici and Upkar Chaudhry by sending a call in notice by email. I also spoke to Mr Altieri to tell him that the report contained serious allegations of inappropriate behaviour by at least 13 complainants and very similar stories about bullying and restricting staff in the performance of their work. Mr Altieri did not ask me any questions or seek any specific information about the content of the report. I told Mr Altieri that I intended to meet with each of the employees who were alleged to have been involved in the behaviour discussed in the report and arranged for him to attend each meeting.
48. Mr Altieri requested a copy of the 4 October Report. A number of employees had expressed concern about intimidation by members of the “gang” if their identities were revealed. In order to try and address that issue, Mr Moore began redacting the report to remove employee names from the report. The difficulty with this approach was that, once the report was redacted it was difficult to understand the content. In order to overcome this issue Mr Moore and I then arranged to brief Mr Altieri on the 4 October Report. At that meeting Mr Moore went through the report with Mr Altieri and read specific parts of the report to Mr Altieri. Mr Altieri was encouraged to discuss the details of the report to the employees prior to the disciplinary meetings. This briefing occurred before I met with the individual employees and Mr Altieri to get the employees’ responses to the report.
…
51. Having previously met with a number of the RPOs who are identified in paragraph 47 above, with Mr Altieri present, to discuss the findings of the 4 October Report, I arranged to meet Mr Halici (whom I had previously been unable to meet because of absences from work) on 18 October 2013. I also arranged for Mr Altieri to attend again as a support person, by inviting him by email. Annexed and marked “TG19” (pages 1322 to 1324) is a copy of my email to Mr Altieri sent at 10:42am on 18 October 2013.
52. My meeting with Mr Halici to discuss the findings of the 4 October Report and obtain his responses took place on 18 October 2013. Mr Said and Mr Altieri also attended that meeting.
…
53. When I finished reading from the script, Mr Halici yelled at me referring to his age and said that he and his wife were on a program to have a baby and how could I do this.
54. Mr Altieri said that he wanted a copy of the report and that Yarra Trams was failing its own process. I responded that it was not appropriate to provide a copy of the report as Yarra Trams needed to protect the individuals who had stated they feared retaliation. Mr Altieri then said he wanted to give Mr Halici an opportunity to respond. I wrote down word for word what Mr Halici said and this is in the Employee Record of Interview.
…
55. After Mr Halici finished speaking, I said that we needed to have a break to consider what Mr Halici had said. I went outside to consider what Mr Halici and Mr Altieri had said and to discuss this with Mr Said. To my mind, nothing that Mr Halici said explained why the 13 employees who had made statements about bullying would have concocted those allegations or should not otherwise be believed. In addition, Mr Halici did not acknowledge that the behaviour was occurring and was unacceptable. Nor did he assert that whilst the behaviour was occurring he was not involved and/or had spoken out against it.
56. In the circumstances I believed that the appropriate action was a final warning, a reduction in pay (which would be achieved by demotion to a position with reduced pay) and a transfer away from East Preston Depot. In my role as manager, I needed to protect and look after the 20 or so staff remaining at East Preston Depot and provide them with the opportunity to do the best job that they could in an environment free from bullying behaviour. I discussed with Mr Said what depots had vacancies and where Mr Halici should be transferred. We agreed that a transfer to Essendon B Team was the appropriate transfer.
57. When the meeting resumed, I told Mr Halici and Mr Altieri the action I intended to take which was a transfer to Essendon B Team effective immediately, a final warning and reduction in pay to a Customer Service Employee. In response to my putting this position, Mr Altieri said words to the effect that the regression in pay was not fair because Mr Halici was already being penalised by the transfer. In order to consider this point, I stopped the meeting for a further break.
58. During the break I considered Mr Altieri’s request. I considered what Mr Altieri had said about the reduction in pay. I thought about the impact on Mr Halici and what he had said about his own circumstances and decided that I would not proceed with the reduction in pay…
59. I asked Mr Altieri and Mr Halici to sign the record of interview but neither was prepared to do so…”
It was common ground that to the extent the Policy uses the phrase “misconduct” that the Court should approach that phrase on the basis of misconduct warranting disciplinary action by the respondent (as determined by the respondent) against an employee rather than as that term has been defined in case law.[79]
[79] See for e.g. Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20 or under s.12 FW Act regarding serious misconduct.
It is also important to note that these proceedings are not intended to provide an opportunity for the applicant to raise whatever issues he wishes to about the disciplinary action the respondent took against him. These proceedings “are not analogous to unfair dismissal proceedings or judicial review of administrative decisions. As such the Court should not be distracted by issues such as the overall fairness of the decision in question or whether it was based on flawed information.”[80] Notwithstanding that is undoubtedly the case, and as I understood Senior Counsel for the applicant to accept this in final submissions, the applicant appeared to advance his case on this basis. Indeed at times the applicant’s submissions on how the words in the Policy should be interpreted seemed redolent with the approach of Lewis Carroll’s Humpty Dumpty.[81]
[80] See Wijethunge v Australian Rail Track Corporation Limited (No.2) [2016] FCCA 3014 at [87], see also comments in Khiani v Australian Bureau of Statistics [2011] FCAFC 109 in context of appeal from dismissal of general protection application under part 3-1 of the FW Act.
[81] “When I use a word” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose to mean…” Lewis Carroll (Charles L Dodgen), Through the Looking Glass, Chapter 6, page 205 (1934).
The applicant’s closing submissions addressed what were said to be the contraventions of the Policy.[82] The respondent’s closing submissions also addressed the Policy.[83] Each of these submissions have been referred to and considered earlier in light of the facts in this case.
[82] See Exhibit A8 paragraph 59 to 155.
[83] See inter alia Exhibit R8 paragraphs 99 to 147.
I accept the respondent’s submission that disciplinary action is not a form of joint decision making. There is no warrant on the words of the Policy to suggest otherwise. The question does not arise in these proceedings whether there was a “valid reason” for the respondent’s disciplinary action as it would were this an unfair dismissal application.
Given that it’s uncontroversial, the relevant clause of the Agreement required compliance with the Policy what was required by the Agreement was, as Jessup J said in Australian Rail, Tram and Bus Industry Union v KDR Victoria Proprietary Limited trading as Yarra Trams [2014] FCAFC 24 at [9]:
“..that staff discipline be conducted in accordance with a clearly identified document, the disciplinary policy.” (emphasis added)
The Policy for present purposes would appear to be divided into at least two parts. The first part (Clauses 1 to 5 inclusive) and the second part so far as is presently relevant (clauses 6 to 7 inclusive).
The applicant submitted this second part “would appear to be the commencement of the Disciplining Counselling Process” and the respondent submitted the introduction to the following clauses made clear they were separate from the clauses which preceded them. The respondent pointed to the introduction at clause 6.1 as making clear:
“This document is for the assistance of all staff who have responsibilities in respect of the disciplinary counselling process”
The respondent contended when read with the explanatory notes in clause 7 of the Policy it made clear this (second) part of the Policy did not establish substantive rights and was more akin to a user manual and intended to assist staff responsible for disciplinary processes.
Relying on what was said in Goldman Sachs JB Were Services Pty Ltd v Nikolich (2007) 163 FCR 62 at [161] the respondent submitted the provisions of this part of the Policy don’t impose enforceable obligations. I agree. As the respondent submitted this is “clearest when one considers the opening words of paragraph 7.1(b)” which when read together with what follows clearly “expresses an expectation but not a requirement or guarantee.”
As the respondent said in submissions in October 2013 it received the Bullying Report which contained evidence “from 13 complainants who had stepped forward and described a bullying culture by a group or gang” at the Depot (of which the applicant was identified to be a member).
The respondent could not ignore that evidence and in the circumstances it made the assessment that the evidence was “sufficiently clear” to justify the disciplinary action being taken against inter alia the applicant. As the findings set out earlier make clear that is what the respondent then set out to do.
The plain words of the Policy makes clear its procedures (in so far as they are requirements) are to be adapted to the circumstances of a particular case. This is what happened in this case.
Clause 3.2 of the Policy requires that disciplinary procedures should be commenced and concluded as soon as possible following the alleged incident provided that all relevant facts, including where appropriate written statements are available. This is what happened in this case.
Up until the receipt of the Bullying Report any investigation by the respondent was not into the applicant and the respondent had most certainly not decided to take disciplinary action against him.
Clause 3.3 of the Policy requires that an investigation should be conducted promptly and all reasonable steps should be taken to obtain the relevant facts, including where appropriate witness statements are available, and the employee concerned is advised of each step in the disciplinary process. In this case, once the respondent had conducted an investigation and had the Bullying Report, the Union and the applicant were advised of the proposed interview of the employee referred to in clause 7.1.
The allegation against the applicant and the reason why (and what) disciplinary action the respondent intended to take against him was disclosed adequately and with sufficient particularity that the applicant was able to respond to it. Moreover the applicant was given a genuine opportunity to respond to same and that was considered and taken into account before the respondent determined to take disciplinary action.
The applicant appears to regard the events of 4 June 2013 as an event that attracted the operation of the Policy. The applicant’s case appears to, inter alia, conflate a fact-finding investigation with a disciplinary process. As the turn of events referred to earlier in these reasons makes clear, the respondent did not take steps to take disciplinary action against or commence a disciplinary process concerning the applicant until the Bullying Report had been provided to it.
On the evidence of the respondent’s witnesses, which I accept, there is no warrant, on a plain reading of the words of the Policy, to be satisfied that the events of 4 June 2013 as I have found them would attract the application of the Policy. The respondent was not contemplating or taking disciplinary action against the applicant in June 2013. The Policy requires the respondent to do certain things when (and only when) taking disciplinary procedures against an employee (such as the applicant). That is what happened in this case in October 2013.
I reject the applicant’s claim that the terms of the Agreement and the Policy were applicable to the events of 4 June 2013.
I accept the submission of the respondent at paragraphs [99] to [146] of exhibit R8 as to the construction of the Policy. I am satisfied the applicant was given an opportunity to explain and defend.[84]
The disciplinary process was commenced and completed as soon as possible after[85] the receipt of the Bullying Report. The respondent took all reasonable steps to obtain the relevant facts behind the allegations by obtaining the Bullying Report.[86] The respondent’s staff ensured the disciplinary and counselling procedures were in accord with the disciplinary and counselling policy (the Policy). Having regard to the content of the Bullying Report the respondent complied with clauses 7(a) and (b) of the Policy. In the circumstances the interview with the applicant met the requirements of clause 7.1 and the respondent met the requirements of clause 7.2.[87] Accordingly, and for the reasons set out above, I reject the applicant’s claim the respondent contravened either the Policy or the Agreement or both.
[84] See paragraphs 112-120 of exhibit R8. Note also natural justice requires that the applicant be given the opportunity to put his case prior to termination, in response to the allegations to be relied upon by the decision-maker: University of Ceylon v Fernando [1960] 1 WLR 223 at 232; Ridge v Baldwin [1964] AC 40 at 132 per Lord Hodson; but not necessarily to be informed of any prior investigation into his conduct which investigation ultimately had no effect on the applicant’s rights without the further step of referral to the actual decision-maker (the Respondent): Pearlberg v Varty [1972] 1 WLR 534 at 547 per Lord Pearson, at 550 per Lord Salmon; Re New South Wales Bar Association; Ex parte Evatt (1967) 67 SR (NSW) 232 at 235; Edelsten v Health Insurance Commission & Ors (1990) 96 ALR 673.
[85] See paragraphs 121 to 125.
[86] See paragraphs 126 to 128.
[87] See paragraphs 132 to 146.
Breach of contract
Given the conclusion arrived at in relation to the applicant’s claims regarding the Agreement and the Policy I don’t believe it is strictly necessary to determine all of the applicants claim’s regarding this allegation. Nevertheless for completeness I will address the competing contentions on this claim by the applicant and explain why I believe this allegation too cannot be sustained.
The applicant’s final submissions addressed this issue as follows:
“156. In addition to the above, the Yarra Trams Disciplinary Policy has been incorporated into the Applicant’s employment with the Respondent by way of his original offer of employment that says as follows:
There are a number of Yarra Trams’ policies other than those specifically here referenced that apply to your employment conduct. They are detailed in the Yarra Trams’ Personnel Policies and Practices Manual and you will be further expected to become familiar with all of these policies and to comply with all their conditions in so far as they are applicable to yourself. Yarra Trams reserves the right to review and revise these policies from time to time.[88]
157. Plainly, if the Respondent has conducted itself in breach of the Disciplinary Policy it has not only contravened the FW Act (for the reasons above), it has also breached the Employment Agreement.
[88] TH-7, page 21. FASOC at [6(b)].
158. A further term of the Employment Agreement reads as follows:
The location of your employment is as specified above; however, it may be necessary in future for this to be changed, subject of course, to prior consultation.[89]
159. It is uncontroversial that on 18 October 2013, the Respondent unilaterally relocated the Applicant from East Preston Depot to the Essendon Depot and that this occurred without prior consultation. The only carve-out to this mandatory requirement to first consult with the Applicant prior to re-locating him is for the Respondent to first establish that such a move was necessary – this requires more than being desirable or practical. In this regard, the Respondent relies upon the fact that the Applicant had been found to be a member of a “gang” of bullies and it was therefore necessary to split them up. For the reasons detailed above, and given there being no evidentiary basis to come to this conclusion, such a finding was not open to be made and there is no evidence before the Court to suggest that the re-location of the Applicant was “necessary”.”
[89] TH-7, page 19; FASOC at [6(a)].
The respondent maintained its opposition to this claim and its position is final submissions was as follows:
“153. While it is not adverted to at all in the Applicant’s submissions dated 9 February 2017, the Further Amended Statement of Claim does at paragraphs 6(b) and 42 claim that the Respondent breached the Applicant’s contract of employment by engaging in conduct which (the Applicant claims) contravened the Disciplinary Policy. Such a submission – if it is still pressed by the Applicant – ought to be rejected.
154. The term of the Applicant’s offer of employment which the Applicant relies upon relevantly provides as follows:[90]
[90] Exhibit JF-1 to the Frans Affidavit, Respondent’s Case Book 1645.
“Duties in Employment
Yarra Trams expects that you will devote your time and attention to the faithful and diligent performance of such duties as are within your competence and training and as Yarra Trams may require from time to time. You will be expected, to the utmost of your ability, to promote the interests of Yarra Trams and protects its property. There are a number of Yarra Trams’ policies other than those specifically here reference that apply to your employment conduct. They are detailed in the Yarra Trams’ Personnel Policies and Practices Manual and you will be further expected to become familiar with all of these policies and to comply with all their conditions in so far as they are applicable to yourself. Yarra Trams reserves the right to review and revise these policies from time to time.”
155. The language of the paragraph above does not evidence an objective intention of the parties to incorporate the terms of the employer’s policies into the contract of employment. Quite the contrary, the paragraph merely indicates that various policies apply. The legal force that such policies have – if any – is to be derived from the policies themselves or (to the extent that the Disciplinary Policy contains substantive rights) clause 11.1 of the Enterprise Agreement. The circumstances which were found by the Court to have applied in Riverwood International v McCormick (2000) 177 ALR 193 do not apply here.
156. Further, the language of the “Duties in Employment” clause, set out above, can be contrasted with the express terms of “House Rules and Safety Standards” clause, which expressly incorporate an external document:
“House Rules and Safety Standards
A copy of Yarra Trams Quality, Environment and Safety Induction Handbook accompanies this offer and forms part of your Contract of Employment. You are urged to read and become familiar with its content.” (emphasis added)
157. Had the parties intended to incorporate that terms of the Disciplinary Policy, they could have used the same express language as set out above. They did not do so. It is to be inferred that the parties, in drafting the Duties in Employment clause in a different form to the House Rules clause, did not intend to incorporate all policies into the contract.
158. The considerations against a finding that the Disciplinary Policy is incorporated into the contract of employment – merely because of the use of the word “apply” – are even stronger when one considers the effect of clause 11.1 of the Enterprise Agreement. Yarra Trams accepts that Clause 11.1 of the Enterprise Agreement gives the Disciplinary Policy the force of statute, in so far as it contains substantive rights and obligations. In the circumstances, it is unnecessary (and unlikely to have been intended by the parties to the contract) to give the policy separate contractual force: Byrne & Frew v Australian Airlines Limited (1985) 185 CLR 410.
159. In any event, and even if contrary to the Respondent’s submissions the Court finds that the Disciplinary Policy has contractual force, it can only be binding to the extent that the Disciplinary Policy contains substantive rights and obligations. The Respondent refers to and repeats its submission above in relation to the extent to which particular clauses of the Disciplinary Policy contain substantive obligations.
160. For the reasons above, Yarra Trams did not breach the Applicant’s contract when it engaged in the disciplinary process on 18 October 2013, including its decision to warn him and to transfer him to the Essendon Depot. As to the events of 4 June 2013, the Respondent refers to and repeats the submissions immediately above, as well as the submissions above in relation to the non-application of the Disciplinary Policy to the 4 June 2013 visit.”
In relation to that part of the claim regarding a breach of contract on the basis of transfer from the Depot the respondent’s position was:
“150. Paragraph 28 of the Applicant’s submissions refer to the matter pleaded in paragraph 6(a) of the Further Amended Statement of Claim to make out a claim of alleged breach of contract. The Applicant points to a clause of the employee’s contract, which provided for the employee’s initial appointment to occur after consultation. The clause does not prohibit Yarra Trams from transferring the Applicant from one Depot to another, nor does it place restrictions on the Yarra Trams’ discretion to do so.
151. Yarra Trams operates a metropolitan-wide network of trams and tram depots. It was a matter entirely within Yarra Trams’ discretion to relocate the Applicant to any of its depots.
152. Further and in the alternative, Mr Greer consulted with the Applicant in relation to the proposed transfer to Essendon in the 18 October 2013 meeting, before making his decision to transfer him. He told the Applicant what was proposed and gave him an opportunity to respond. A person’s right to be consulted does not confer a right of veto. He also consulted with him in relation to the start date at Essendon.”
As in McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903 the language of the Policy makes clear it is to be used by managers in implementing disciplinary processes.
In relation to the applicant’s argument the Policy had some contractual force, the fact that the Policy itself is replete with qualifications that clearly reserve to the respondent the right to determine the appropriate course (such as that in clause 7.2) disqualifies the Policy itself as a contractual obligation. Further the language in the applicant’s letter of employment is not of a kind expressing a contractual promise by the respondent.
The terms of the applicant’s offer of employment, which he relies upon to make out this claim relevantly provides as follows:[91]
[91] Exhibit JF-1 to the Frans Affidavit, Respondent’s casebook page 1645.
“Duties in Employment
Yarra Trams expects that you will devote your time and attention to the faithful and diligent performance of such duties as are within your competence and training and as Yarra Trams may require from time to time. You will be expected, to the utmost of your ability, to promote the interests of Yarra Trams and protect its property. There are a number of Yarra Trams’ policies other than those specifically here reference that apply to your employment conduct. They are detailed in the Yarra Trams’ Personnel Policies and Practices Manual and you will be further expected to become familiar with all of these policies and to comply with all their conditions in so far as they are applicable to yourself. Yarra Trams reserves the right to review and revise these policies from time to time.”
The offer of employment also contained the following clause:
“The location of your employment is as specified above; however it may be necessary in future for this to be changed, subject of course, to prior consultation.[92]”
[92] TH-7, page 19; FASOC at [6(a)].
As the respondent noted in submissions, the language of the paragraph dealing with “Duties” does not evidence an objective intention of the parties to incorporate the terms of the respondent’s policies into the applicant’s contract of employment.
Moreover, the clause dealing with “location” does not prohibit the respondent from transferring the applicant from one depot to another, nor does it place restrictions on the respondent’ discretion to do so.
Given this, the existence of the Agreement (which refers to the Policy) and operation of same by statutory force[93], I accept the respondent’s submissions at paragraphs [150] to [160] in exhibit R8 and I reject the applicant’s claim/s that the respondent breached his contract of employment, by either the decision to transfer or for the reasons set out above, any alleged breach of the Policy.
[93] Byrne & Frew v Australian Airlines Limited (1995) 131 ALR 422 established that awards operate by force of the statute. The Full Court decision in ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325 held that the same position applies to statutory agreements such as the Agreement in this case; see also Visscher v Giudice (2009) 239 CLR 361.
Conclusion
The applicant’s case has been advanced with great passion. The applicant presented as having an unwavering conviction that he had been wronged by the respondent. Following a 3 day trial at which the applicant had every opportunity to make good his claims I have concluded they are not made out; that the applicant has engaged in a subjective reconstruction of events through the prism of an overweening amour propre and the allegations he made when tested were not sustained.
For the reasons set out above the application should be dismissed. Given s.570 of the FW Act any application for costs is to be filed within 14 days and any response 14 days thereafter. Any application for costs will be determined on the papers unless the parties request otherwise.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Judge O'Sullivan
Date: 28 April 2017
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