Mark D'amato v Toyota Motor Corporation Australia Limited (Tmca)
[2011] FWA 6710
•6 OCTOBER 2011
[2011] FWA 6710 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Mark D’amato
v
Toyota Motor Corporation Australia Limited (TMCA)
(C2011/5353)
Vehicle industry | |
COMMISSIONER GAY | MELBOURNE, 6 OCTOBER 2011 |
Alleged dispute concerning refusal to recognise “employee representative” or shop steward as specified in the Agreement.
[1] The following decision, now edited, was given at the conclusion of proceedings on 14 September 2011.
[2] “I will not repeat what I have said at the adjournment in relation to the benefits in providing an immediate response in these cases rather than have the alternative which would be a lengthy delay. I would hope that it be apparent that there is no detriment in so proceeding because I have paid close regard for the contentions of the parties and for all the evidence.
[3] It is important however that it be understood that non recitation now of some part of the narrative, or of the evidence, or of the submissions, means that that aspect or view has not been considered. That is a frequently heard mantra, of course, that one has had regard for all of the evidence, but I have intently followed the progress of the case. I have been aided by the submissions, the written statements filed, and for the way in which Mr McLean for Mr D’amato and Mr Pill for Toyota Motor Corporation Australia Limited (Toyota) have presented their cases.
[4] I should say jurisdictionally, and do this fleetingly; I am satisfied that jurisdiction does inhere in Fair Work Australia today as a consequence of the referral in clause 19.3 “Dispute Avoidance Procedure” of the Toyota Motor Corporation Australia (TMCA) Workplace Agreement (Altona) 2010 (the Agreement) [AE879426 PR999783], for which in turn section 595(3) of the Fair Work Act 2009 (the Act) has application and, were it necessary, s.739(4).
[5] I will deal briefly with the matters of the scope and consideration issue which was ventilated in relation to the agreed questions. It is unnecessary to say too much about this, but I do want to say something. For a range of reasons which do not rely on Toyota’s concession or alternative argument, I have read up the phrase “as found by Toyota”, as this in my view, is necessary to do justice in resolving the parties’ dispute. Read down, this would be only a gravity or penalty argument.
[6] It could be such an argument, or question, is conferred. But I am unable to consider gravity alone, divorced from the possibility of the evidence disclosing that the acts complained of either did not occur or in some significant manner occurred in a way materially different to that contended for by Toyota, which in turn, would or might, compel a different conclusion. It is unnecessary to take that matter further as a result of the ultimately flexible way Toyota pressed home its argument, and I am appreciative of that.
[7] The parties will be aware that I have been directed to several provisions of the Agreement. I will not go through all of these, but it is important to mention those that are most important, that is, clause 34.10 “Final Written Warning” of the Agreement, which warning issued by Toyota is sought to be removed and clause 106.2 “Employee Representation” of the Agreement, under which clause Toyota has informed Mr D’amato of its grounds for refusing his further recognition as an employee representative. I have also had regard for the operation of clause 106.3 “Employee Representatives Responsibilities” of the Agreement, which relevantly obligate employee representatives to act to advance the Agreement and the shared objectives of the parties to which it gives voice.
[8] As a general backdrop, the parties have gone to great lengths in this Agreement to legislate and explain behavioural matters which in many other workplaces see much controversy in interpretation and understanding. The parties are well familiar with their own most detailed provisions and they need not be recited by me. Relevantly, they seek to achieve, in my understanding, and this is in the briefest of summaries - a safe working environment where status or a lack of status does not enhance or lessen the rights for all Toyota employees to coexist respectfully. They are very important elements of the Agreement.
[9] I turn to the evidence. There is a stark conflict in the evidence in this case in the competing accounts of Mr D’amato and Ms Taleski, and to a much lesser extent, Mr Gallardo. The factual accounts cannot mutually coexist so opposed are they to events and meanings.
[10] On Mr D’amato’s narrative, and again I do this in the briefest summary, he sought for Ms Taleski to sign a petition in an entirely unexceptional and passive way. He accepted her decision to decline to sign without further comment or objection at each of their two relevant conversations. Ms Taleski’s account is that Mr D’amato’s demeanour was quite forceful; it was really determined in that he asked two or three times for Ms Taleski to sign after she had indicated that she knew about the petition, had seen it, and did not wish to sign.
[11] When, on Ms Taleski’s account, she referred to her status as a Toyota newcomer to Mr D’amato, and that she did not wish to sign, “if you know what I mean”, Mr D’amato’s demeanour is said to have changed as did his tone of voice, its volume and his position as he moved closer to Ms Taleski, looked straight in Ms Taleski’s eyes and said, “No, I don’t know what you mean.”.
[12] Ms Taleski’s evidence is that she again said words to the effect of, “I’m new and don’t want to sign any petition.”. In Ms Taleski’s account, Mr D’amato returned after only a very short time to inquire, "Are you on a contract?" referring, Ms Taleski understood, and I have accepted, to her status as a temporary fixed term contract employee. When Ms Taleski said, “Yes”, her evidence was that Mr D’amato said words to the following effect, “You know at the end of the contract I have an important influence in any event as to whether you stay or not.” .
[13] When Ms Taleski did not respond, Mr D’amato is said to have repeated this comment in slightly varying terms more than once. When Ms Taleski continued working on the line, Mr D’amato said words to the following effect, “This could affect your future.”. When Ms Taleski declined yet again, she thinks for the fourth or fifth time, Mr D’amato desisted and left the area. That is, of course, on Mr Taleski’s version.
[14] I am presented with the capacity on the final submissions of the advocates to make a broad range of findings, and I am not going to do that. I do not believe it is necessary. It is though necessary to prefer or accept the evidence of either Ms Taleski or Mr D’amato, and that is the reason I set it out a moment ago.
[15] I have accepted that the encounter took the form contended for by Ms Taleski. I accepted Ms Taleski’s evidence over that of Mr D’amato, not only on the basis of demeanour but as a result of my understanding of all the events and how they interrelate. Ms Taleski presented as entirely believable and, in my view, a witness of truth. Regrettably for Mr D’amato I have accepted the principal description of his evidence as submitted by Mr Pill.
[16] I am choosing not to make closer adverse findings. I have no desire to do that, and there is no real need to do that. Having found that the action complained of occurred, in which course I should say I have been fortified by the small, but important, degree permitted by the evidence of Mr Galladro, who I thought to be an entirely conscientious witness, it is necessary to consider whether this conduct is such as to ground the responsive measures of Toyota, which has been the subject, as is apparent from the submissions, of very full argument and development by Mr McLean for Mr D’amato.
[17] I have accepted Mr McLean’s contentions as to the strict construction of clause 34.5 “Steps and Responsibilities in Application” of the Agreement requiring that earlier matters, such as Mr D’amato’s 2004 warning, not be considered when issuing further disciplinary action, or having regard for what penalty should apply.
[18] I have accepted Ms Slattery’s evidence that she did not know of this aspect and it played no part in her decision-making and recommendations to the final decision-maker.
[19] I have not been concerned with the limited meaning given by the Agreement to bullying and have considered whether the conduct complained of was intimidating and threatening, including as to the future employment of Ms Taleski. It is entirely inconsequential whether or not such an influence was within Mr D’amato’s power. That is immaterial.
[20] In my view, it was clearly of that nature. That is, it had the character, on its face, to call into question (for that was its purpose) the possibility of adverse action or some treatment of Ms Taleski as an inducement for her to sign.
[21] That sort of behaviour is in my view, squarely at odds with the parties’ caring behaviours, and it was quite wrongly directed to Ms Taleski. Such behaviour is of the serious type which for an employee of Mr D’amato’s considerable service, warrants the issue of a final warning. I might say that I too am disregarding the earlier 2004 matter.
[22] Because in any view the behaviour is also inimical to the responsibilities of an employee representative, it must be thought of as so serious as to warrant de-recognition.
[23] I would answer question one by declaring that Mr D’amato’s conduct as revealed by all the evidence was sufficiently serious to warrant being considered gross for the purpose of clause 34.10 “Final Written Warning” of the Agreement; and further, that such conduct provided grounds for Toyota refusing to recognise Mr D’amato for the purposes of clause 106.2. I now adjourn.”
COMMISSIONER
Appearances:
A McLean of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU) appearing with
A Sachinidis and C Marmara.
S Pill, solicitor, with J Romano for Toyota Motor Corporation Australia Limited.
Hearing details:
2011.
Melbourne:
September 13, 14.
Printed by authority of the Commonwealth Government Printer
<Price code A, AE879426 PR515137>
0
0
0