National Union of Workers v Woolstar Pty Ltd

[2015] FWC 2228

[2015] FWC 2228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

National Union of Workers
v
Woolstar Pty Ltd
(C2014/7790)

COMMISSIONER ROE MELBOURNE, 1 APRIL 2015

Resolution of dispute in accordance with the dispute resolution procedure of the Woolstar Pty Limited Wodonga Regional Distribution Centre and the National Union of Workers Enterprise Agreement 2013-2015. Dispute concerning warning issued to Mark Landgren and Clause 3.3 Counselling and Disciplinary Procedure.

Introduction

[1] The dispute is about a verbal warning issued to Mr Mark Landgren on 2 September 2014 and a first written warning issued to him on 11 September 2014. The National Union of Workers (NUW) argue that the issuing of the warnings was inappropriate and that they should be set aside because:

● The alleged conduct did not in fact occur.
● There is insufficient evidence to substantiate the allegations.
● There is uncertainty about which allegations have been made out and form the basis for the first warning.
● The issuing of the warnings was harsh considering the circumstances and mitigating factors.

[2] The parties agree and I am satisfied that the relevant steps of the disputes settlement procedure have been followed in respect to the dispute. The disputes settlement procedure (Clause 3.2 of the Woolstar Pty Limited Wodonga Regional Distribution Centre and the National Union of Workers Enterprise Agreement 2013-2015) applies to “disputes and grievances in the workplace, including any dispute or grievance about the operation of this agreement”. Step 4 of the procedure provides that if the issue is not resolved at earlier steps it “shall be submitted to a member of FWC for conciliation and if necessary, arbitration”. Conciliation of the matter was not successful and the parties agreed that the matter proceed to arbitration.

[3] The counselling and disciplinary procedure in the Agreement (Clause 3.3) applies in the following circumstances:

“In circumstances where a Team Member’s conduct or performance is not acceptable. The procedure shall apply to each particular case of inappropriate or unsatisfactory conduct or performance. To avoid doubt, not all inappropriate or unsatisfactory conduct or performance will be grouped within the same broad category (eg breach of company code of conduct) for the purposes of this procedure.”

[4] I am satisfied that Woolworths (Woolstar is a related entity of Woolworths) believed that Mr Landgren’s conduct or performance was not acceptable and that there were two separate but related incidents of inappropriate conduct and that therefore the procedure governed the actions of Woolworths, Mr Landgren and his representative the NUW, in respect to that alleged unacceptable and inappropriate conduct.

To what extent can FWC arbitrate the dispute?

[5] The procedure includes the provision that:

“Any dispute over the operation or application to this procedure shall be settled in accordance with the disputes procedure of the Agreement.” (Clause 3.3 of the Agreement)

It is possible that the word “to” is a typing error and it should read “of”. However, it is not necessary to determine that matter as I cannot see that it makes any difference to the meaning.”

[6] The NUW argues that the term “operation or application” includes the appropriateness of the decision to initiate and take disciplinary action whilst Woolworths argues that it is confined to whether the procedure was properly followed. In support of its contention Woolworths refer to the heading of the clause which is “Counselling and Disciplinary Procedure.” Woolworths observe that the clause does not deal with or regulate the reasons why Woolworths might commence disciplinary procedures and it does not specifically state that the Fair Work Commission (the Commission) can examine the merits of any action. Woolworths argues that the procedure in Clause 3.3 gives Woolworths the discretion to issue warnings and that a decision by the Commission to override that discretion would be beyond power.

[7] Section 739 of the Fair Work Act 2009 (the Act) provides:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or
(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effectas subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[8] Effectively Woolworths argues that Clause 3.3 of the Agreement limits the powers under the disputes procedure in respect to disciplinary matters to matters of procedure and that to deal with a dispute about the merits of a warning would breach Section 393(3) of the Act.

[9] I accept that in the main Clause 3.3 is about fair process and procedure. That process and procedure requires Woolworths to follow a series of steps and graduated warnings in cases of inappropriate or unsatisfactory conduct or performance. The procedure is activated “in circumstances where a Team Member’s conduct or performance is not acceptable” and can be used in “each particular case of inappropriate or unsatisfactory conduct or performance”.

[10] The disputes resolution procedure of the Agreement Clause 3.2 applies to “disputes and grievances in the workplace, including any dispute or grievance about the operation of this agreement”. I am satisfied that a dispute about the fairness of a warning issued to an employee is within the scope of the disputes settlement procedure of the Agreement. I am satisfied that the use of the word “any” is in this context expansive not narrowing. Unless another provision of the agreement explicitly limits the scope, the word “any” does not suggest a mutual intention to limit the scope of disputes which the Agreement otherwise empowers the Commission to determine.

[11] Should the provision in Clause 3.3 be read as narrowing the broad scope of the disputes procedure to limit its use in the case of disciplinary matters to “any dispute over the operation or application to this procedure”? I am satisfied that the provision does so narrow the scope. However, the use of the word “any” is expansive and not narrowing. The use of the term “operation or application” considered in context also does not suggest limitation. If it was the mutual intention to restrict the matters which can be subject to disputes resolution to disputes over whether or not the procedural requirements had been followed then one would expect this to be explicit or for there to be clearer words of limitation. If the words “operation and application” had been omitted it is likely that the disputes would be limited to disputes over the procedure. If the word operation had been included but not application it would be arguable that the scope of disputes which can be dealt with would be limited to procedure. Considered in context the word “application” is the action of putting the procedure into operation and “operation” is about how the procedure is applied; or the act, process or manner of operating. Absent any indication to the contrary, the action of putting the procedure or a step of the procedure into operation is not confined to the action of following the procedural steps after the procedure or a particular step of the procedure has been initiated.

[12] I am satisfied that the introductory words of the procedure “in circumstances where a Team Member’s conduct or performance is not acceptable the following procedure shall be followed’ require a finding that there has been conduct or performance which is not acceptable prior to initiating disciplinary action in accordance with the steps of the procedure. The words that follow: “the procedure shall apply to each particular case of inappropriate or unsatisfactory conduct or performance” require that inappropriate or unsatisfactory conduct be established. A dispute about a finding by management of such conduct is a dispute about the operation or application of the procedure. The same applies to a dispute about whether or not the team member’s conduct or performance has failed to improve. Steps beyond the initial verbal counselling are prefaced by the words “if the team members conduct or performance does not improve”.

[13] The procedure mandates that if conduct or performance is unsatisfactory or inappropriate a verbal warning shall be given in the first instance. With two exceptions all the subsequent steps are mandatory if conduct or performance does not improve. The Fair Work Commission does not have the ability to interfere with the implementation of these mandatory steps if there is inappropriate or unsatisfactory conduct or if the team member’s conduct or performance has not improved.

[14] The first discretionary step is the step after the first verbal warning and it provides that if after the first verbal warning “the team members’ conduct or performance does not improve “the team member shall be counselled formally by the Company which may issue a first written warning.” Considered in context the company has the discretion at this point in the process to either issue a further verbal counselling or proceed to issue a first written warning. The Fair Work Commission does not have the ability to exercise this discretion.

[15] The second discretionary step is that if after a final warning there is further failure to meet expectations this may result in the termination of employment. There could be a dispute about whether or not there has been a further failure to meet reasonably set expectations. It is not necessary to determine whether or not there can be a dispute about the appropriateness of a decision to terminate employment.

[16] I am satisfied that the following are examples of disputes about the operation or application to, or of, the counselling and disciplinary procedure:

● A dispute over an alleged failure to implement the required steps or elements of the procedure.
● A dispute over a decision to group a particular case of inappropriate or unsatisfactory conduct with earlier cases of conduct or performance.
● A dispute over a management decision that conduct or performance is not acceptable or that there had been “inappropriate or unsatisfactory conduct or performance”.
● A dispute over a management decision that a team member’s conduct or performance had not improved which is a precondition to move to the next step in the procedure.
● A dispute over a management decision that there had been a further failure to meet reasonably set expectations following a final warning.

[17] I am not satisfied that a dispute over a matter of procedure which is not specified or implied by the provisions of Clause 3.3 can be determined in accordance with the disputes procedure. This would not be a dispute “over the operation or application to this procedure.” I am satisfied that “this procedure” in the expression “the operation or application to this procedure” is confined to the procedures specified in or implied by Clause 3.3.

[18] In the circumstances of this case I am dealing with a dispute about a finding by management that there has been inappropriate and unacceptable conduct in respect to the first verbal warning and a dispute over a finding by management that there was no improvement in conduct because of a further instance of related unacceptable and inappropriate conduct in respect to the first written warning. The NUW argued that the two cases should not be grouped but this was not strongly pressed. I am satisfied that the conduct in both cases related to an allegation of inappropriate conduct towards a particular co-worker and it was reasonable for them to be grouped for the purposes of the procedure.

[19] In resolving the dispute I cannot make a determination which is in conflict with the provisions of the Agreement.

[20] Based upon the above analysis of the matters which are within the scope of the expression in Clause 3.3, “any dispute over the operation or application to this procedure” I am satisfied of the following:

● I can deal with the dispute over whether or not the alleged conduct was inappropriate and unacceptable and did in fact occur. In doing so I can consider if there is sufficient evidence to substantiate the allegations.

● It is relevant to consider which allegations have been made out but provided there was conduct which was inappropriate and not acceptable there is no ability to interfere with the issuing of the relevant warning.

● It is not open to the Commission to deal with a dispute about whether or not the issuing of the warnings was harsh considering the circumstances and mitigating factors

● It is not open to the Commission to consider any alleged procedural unfairness unless it is covered by the procedure in Clause 3.3 or unless it is relevant to finding whether or not the alleged conduct did in fact occur or whether or not the alleged conduct was inappropriate and unacceptable.

[21] I will only deal with the evidence and submissions in respect to the conduct which formed the basis for each of the warnings to the extent that it is relevant to the question of whether or not the alleged conduct was inappropriate and unacceptable and did in fact occur. I will not deal with the NUWs contentions in respect to procedural fairness or the harshness of the action taken. I will also not deal with the NUWs contention that the first verbal warning took into account a list of matters some of which Woolworths had accepted had not been made out. In respect to the first verbal warning I only need to be satisfied that at least one of the matters constitutes conduct which was inappropriate or unacceptable and did in fact occur. It is possible that the way in which the company’s concerns and findings are expressed might be a breach of the requirement in the Clause 3.3 procedure that “at each step the team member will be advised of the Company’s concerns, the required actions and the timeframe to remedy the concerns.” However, the NUW did not allege that the circumstances of the first verbal warning constituted a breach of this procedure.

Approach to be taken to resolution of the dispute

[22] Woolworths submitted that the Fair Work Commission should be very reluctant to interfere with the decision making of management and its prerogative to issue warnings under Clause 3.3 of the enterprise agreement. Woolworths suggested a higher bar for determining any issues in contention and that if I found that it was open to the Commission to resolve issues about the merits the test should be whether or not it was open to the employer to issue the warnings and whether there was sufficient evidence to support the findings. Woolworths referred to various cases where the Commission, or its predecessors acting under different legislative constraints, expressed views about managerial prerogative in respect to operational matters and discipline matters.

[23] For the reasons outlined earlier I am satisfied that the Agreement itself constrains the scope of the matters the Fair Work Commission can consider. There is no particular requirement about how Woolworths must conduct an inquiry into allegations prior to reaching a conclusion and issuing warnings in accordance with the procedure. This ensures that the intrusion on managerial prerogative is limited. If the parties had wished to impose some additional limitations on the work of the Commission in resolving the disputes then they would have done so in the terms of their Agreement. I see no justification to impose such additional limitations.

[24] I will examine the disputed facts and determine on the balance of probabilities whether the conduct is established by the evidence and whether or not that conduct was inappropriate or unacceptable.

Was there unacceptable and inappropriate conduct associated with any of the matters which led to the first verbal warning?

[25] Originally there were seven findings which formed the basis for the first verbal warning. After a review initiated by the NUW the company only pressed five matters. The matters came to be investigated following a complaint by another employee, Mr Hanrahan. Woolworths accepted that Mr Landgren had behaved appropriately in respect to the particular matter complained of by Mr Hanrahan which had led to the investigation. Mr Hanrahan had alleged that he was allocated to work in the chiller in place of Mr Livermore and that this was victimisation. Investigation established that this action by Mr Landgren was appropriate given limitations on what Mr Livermore could do. It is also relevant that Mr Hanrahan sought to withdraw his complaint during the investigation and accepted that he was paranoid and that his perception of events may not have been accurate.

[26] The first two matters Woolworths relied upon were related. Woolworths found that Mr Landgren knew that Mr Hanrahan, Mr Marx and Ms Cassar had a poor working relationship but despite this he allocated them to work in the same area. The related finding was that Mr Landgren had been asked by his team leader to keep Mr Hanrahan and Ms Cassar in separate work areas but had knowingly allocated them to work together.

[27] I am not satisfied that the first matter was unacceptable and inappropriate conduct. The evidence from both the management and the employee witnesses was that in a large warehouse it is not uncommon for some workers to have difficulties or issues with each other. It would be impractical and inappropriate to change rosters and work allocation to accommodate such difficulties in relationships. However, I accept the evidence from management that on rare occasions it is deemed appropriate or necessary to keep workers separate and to ask those who allocate work to achieve such separation.

[28] Mr Landgren did consult with Mr Benfeld about moving Mr Hanrahan into the chiller on the day in question (Monday 4 August 2014) but it is not suggested that he raised the issue of Ms Cassar or Mr Marx working in the same area at the same time. Mr Landgren accepted during the investigation that he had been asked by his team leader to keep Mr Hanrahan and Ms Cassar separate. The notes of the interview report Mr Landgren saying that “in the heat of the moment I didn’t do that. I was reactive - put all the put away drivers next door - I do it”. 1 In a later interview he said “I won’t lie I was asked by Matt Benfield to keep Marty and Meaghan Cassar separate. I may have dropped the ball on that day...”2 Mr Landgren gave evidence in the proceedings that he was told about keeping Ms Cassar and Mr Hanrahan separate by another person who had the “SPOC” role and not by his manager.3 However, during his interview Mr Landgren agreed that he was “told” to keep them separate and it is reasonable to infer that this meant that he knew that it was a management requirement. Even though there may be a difference between “asking” something to be done and directing or requiring it to be done, I am satisfied that it was rare for management to request that workers be kept separate and that failure to ensure that this was implemented was inappropriate conduct. Management concluded that Mr Landgren took this action knowingly having regard to the other findings.

[29] The issues about Mr Hanrahan generally were not back of mind issues for Mr Landgren. For example, Mr Landgren gave evidence that it was common knowledge that Mr Hanrahan did not like working in the chiller and a lot of people were disenchanted about the perception that he was given special treatment. 4 I am satisfied that Mr Landgren made two inquiries about Mr Hanrahan on the day in question. In his first interview Mr Landgren said that he didn’t know or care about the relationship between Mr Hanrahan and Mr Marx and Ms Cassar. I find this unconvincing given that he had been told to keep Ms Cassar and Mr Hanrahan separate. I am also satisfied based upon the material in the other interviews, that Mr Landgren would have been aware of earlier complaints and incidents involving Mr Hanrahan and Ms Cassar and Mr Marx. I am satisfied, having considered all of the interview statements which were before the decision maker Mr Sandell, that the conduct of Mr Hanrahan and the conduct towards Mr Hanrahan was an issue of considerable controversy and attention in the workplace at the time. In this context I accept the conclusion that it is likely that Mr Landgren acted knowingly. I am satisfied that the conduct in placing Mr Hanrahan with Ms Cassar despite being asked not to do so was inappropriate conduct.

[30] The second two matters relied upon were also related. Woolworths found that Mr Landgren requested confidential information regarding restrictions on Mr Hanrahan’s work availability from his team leader and was told that it was not his concern and then continued to make inquiries. It was also found that Mr Landgren shared sensitive information about the fact that Mr Hanrahan was not required to work in the chiller on Monday 4 August despite the fact that he was rostered to work there with another employee, Mr Marx. On Tuesday 5 August 2014 Mr Marx is alleged to have said that if Mr Hanrahan isn’t going there then I’m not going there. 5

[31] I am not satisfied that the interview notes establish that Mr Landgren requested confidential information from his team leader. The investigator, Mr Sandell, accepted that Mr Landgren was not told that the information that Mr Hanrahan was being moved from the chiller was confidential. 6 Mr Landgren asked Mr Harris why Mr Hanrahan was not in the chiller when he was rostered to be there. Mr Harris told him that there are occasions when a variation to the roster is required and that he would look after it.7 Mr Landgren was acting in the SPOC role on that day. In the SPOC role Mr Landgren had some responsibility for the appropriate allocation of labour and rotation of workers and I am not satisfied therefore that Mr Landgren was requesting confidential information in asking the question. On the same day Mr Landgren asked another supervisor if Mr Hanrahan could be used in all areas. Mr Landgren says that that supervisor responded “yes”.8 The NUW argued that if Mr Landgren is to allocate labour and achieve fair rotation of work this is information which he would reasonably require. It is a different question to the one about work in the chiller. I accept Mr Sandell’s evidence that it was not necessary for Mr Landgren to ask this second question as he could have just left Mr Hanrahan out of any moves on that day given that Mr Harris had implied that it was a sensitive issue. I am therefore satisfied that asking the two questions does demonstrate that Mr Landgren had a particular interest in Mr Hanrahan’s location on that day and was paying particular attention to him.

[32] Mr Marx said that two people had told him that Mr Hanrahan had refused to work in the chiller. Mr Marx claimed that Mr Hanrahan had told people that he didn’t have to go in the chiller. Mr Marx refused to reveal the identity of the persons who had told him that Mr Hanrahan had not worked in the chiller on Monday 4 August. When he was specifically asked about Mr Landgren he said that it wasn’t him who had told him. 9 Mr Sandell concluded that Mr Landgren had been the source of the information because very few people were across the fact that Mr Hanrahan had been moved out of the chiller by Mr Harris.

[33] Mr Marx and Mr Landgren denied that Mr Landgren was the source of the information. The only basis upon which they were disbelieved was the fact that very few other people had the information and a general suspicion that Mr Landgren may have been paying special attention to Mr Hanrahan. I am not satisfied that there was a reasonable basis to conclude that Mr Landgren was the source of the information. I accept that if he had been the source of the information this would have been inappropriate and unacceptable conduct given that Mr Landgren was aware of the sensitivity of the issue.

[34] The final matter relied upon is a general finding that Mr Landgren paid extra attention to Mr Hanrahan and how he was performing and what areas he works in. If this was established and it was not justifiable on business grounds then it would be inappropriate and unacceptable conduct given that Mr Landgren had some role in work allocation and rotation. The context for this finding is important. Mr Hanrahan’s conduct and performance had led to him having a disciplinary record. Mr Hanrahan complained about his treatment by a number of other workers. Mr Hanrahan was not a union member and had not participated in recent protected industrial action. It was suggested that there had been a history of some hostility towards him by others.

[35] Some of those interviewed as part of the investigation said that they believed that Mr Landgren paid extra attention to Mr Hanrahan. Others including Mr Landgren’s team leader Mr Benfield felt that Mr Hanrahan was difficult and that Mr Landgren was good at his job. Mr Benfield did however say that Mr Hanrahan and Mr Landgren did not have any time for each other. 10 Mr Landgren did point out to a manager that Mr Hanrahan’s performance rate was 55% and Mr Landgren did say in an interview that performance was one factor he took into account when moving employees. This is an example of extra attention but not necessarily an example of inappropriate or unreasonable behaviour. The fact that Mr Landgren failed to keep Ms Cassar and Mr Hanrahan apart and that he asked several questions about what restrictions might apply to Mr Hanrahan provide some support for the conclusion that Mr Landgren may have been paying Mr Hanrahan particular attention. The observations of managers in support of the conclusion were also relevant but they generally lacked specificity.11 A major focus of the managers’ observations was the way in which they perceived Mr Landgren carried out the SPOC role and there were no general findings made in respect to that matter.

[36] Management had cause to be concerned that Mr Landgren may have been singling out Mr Hanrahan. There was good reason to raise these matters with Mr Landgren. I am satisfied that Mr Landgren paid extra attention to Mr Hanrahan and that they did not have a good relationship. In this sense I accept the finding made by Woolworths. The evidence that this extra attention was inappropriate was not particularly strong. However, the finding that Mr Landgren was paying extra attention to Mr Hanrahan strengthens the finding that Mr Landgren behaved inappropriately in knowingly failing to keep Ms Cassar and Mr Hanrahan separate despite having been asked to do so.

[37] The failure of Mr Landgren to keep Ms Cassar and Mr Hanrahan separate despite having been asked to do so, and in a context where I am satisfied that Mr Landgren was paying Mr Hanrahan particular attention, was inappropriate and unacceptable conduct. Management did have a basis to use the counselling and disciplinary procedure.

Was there unacceptable and inappropriate conduct associated with any of the matters which led to the first written warning?

[38] A few days after Mr Landgren was issued with the first warning he made a complaint about Mr Hanrahan. He alleged that Mr Hanrahan had deliberately placed empty pallets in an area which is clearly designated for pallets of full product and is generally used for that purpose. Mr Landgren was working in that area and was in the process of putting pallets of full product in the location. In the process of investigating the complaint management came to two conclusions. Firstly, they concluded that Mr Hanrahan had not deliberately placed the pallets in Mr Landgren’s work area but that it had been a mistake and when it was brought to Mr Hanrahan’s attention he immediately rectified it. Secondly, they concluded that there were significant discrepancies between Mr Landgren’s version of the events and the evidence shown on the CCTV footage and as a result they concluded that Mr Landgren had made the complaint vexatiously as payback for Mr Hanrahan’s earlier complaint which had resulted in Mr Landgren receiving the first warning.

[39] I have no doubt that Mr Landgren was upset when Mr Hanrahan placed the pallets in his work area. I have no doubt that he was angry given that it had been Mr Hanrahan’s complaint which had led to the first warning and that he strongly felt that the first warning was unfair and unjustified. This led Mr Landgren to assume that Mr Hanrahan’s actions were deliberate. I have also no doubt that Mr Landgren was concerned not to have a confrontation with Mr Hanrahan in order to avoid further disciplinary action. In these circumstances I consider it perfectly understandable and not unreasonable that Mr Landgren would make a complaint.

[40] I do not put any particular weight on inconsistencies between Mr Landgren’s and Mr Bold’s statements in these proceedings when compared to the interview statements they made during the investigation. Given the time lapse between the two it is understandable that some details may be forgotten. Mr Landgren readily conceded that what was in his interview statement(s) was the correct version. I accept that although Mr Bold did not explicitly say in his interview that he believed Mr Hanrahan put the pallets in the wrong place deliberately I think it was the clear implication of his interview statement. 12 However, I do put weight on the inconsistencies between the CCTV evidence and the interview statements.

[41] I am satisfied of the following:

● Mr Landgren alleged in his interviews and in the Fair Work Commission proceedings 13 that as soon as the workspace had been cleared Mr Hanrahan immediately moved in to unload empty pallets into that workspace. The CCTV shows that in fact several minutes elapsed. Mr Bold also alleged that Mr Landgren was away collecting new stock when Mr Hanrahan was starting to unload empty pallets into the workspace when the video clearly shows that Mr Landgren and Mr Bold were standing with the replenished stock some time earlier.14

● Mr Landgren alleged that Mr Hanrahan rammed the pallets in. The CCTV shows that the pallets were not rammed in. It was not until the fourth pallet was laid out that the pallets were pushed against the guard rail and there is no visible sign that this was done with any particular aggression or in an abnormal manner. Mr Landgren was quite specific in his interviews and in his evidence to the Tribunal that Mr Hanrahan rammed the first pallet in quickly and hard and that it hit the guard rail. 15

● Mr Landgren alleged that Mr Hanrahan only moved to correct his error when he saw the team leader Mr Benfield approach. The CCTV shows that there is approximately one minute and fifty seconds between the time Mr Hanrahan started corrective action and the time Mr Benfield appears in the CCTV. I am satisfied that it would only take 15 seconds to walk from the office or blue room to where a person would become visible on the CCTV when walking towards the area in question. Mr Landgren and Mr Bold gave evidence that it may have taken Mr Benfield longer than that to walk the distance but they do not suggest that it could have been as long as one minute and fifty seconds. 16

● Mr Hanrahan corrected his error when it was drawn to his attention by Mr Alex Hector not when Mr Benfield approached. Mr Bold effectively acknowledged this in his original interview but supported Mr Landgren’s version in his statement for the Commission hearing. 17

[42] I found it difficult to understand how Mr Hanrahan could make this error innocently given that the space is clearly marked to be used for full product and that Mr Hanrahan regularly worked in the area and that Mr Landgren and Mr Bold were close by with pallets of full product to be unloaded into the area. Mr Benfield in his interview said that he believed it was possible that Mr Hanrahan could have simply made a mistake. Mr Wilson gave evidence that he had seen other workers make this mistake. Mr Wilson gave evidence that it was understandable that those laying out empty pallets would want to keep clear of those who were collecting empty pallets. However, I am satisfied that this could easily have been achieved without laying down the empty pallets in the wrong location. I am satisfied that there was clear evidence known to management of Mr Hanrahan’s hostility to Mr Landgren, Mr Marx and Ms Cassar.

[43] I am not entirely comfortable with the conclusion that Mr Hanrahan’s actions were innocent and I am satisfied that Mr Landgren had good cause to be upset and to complain. However, I am satisfied that the best explanation for the significant errors in Mr Landgren’s account is that he embellished the account in order to make it more likely that Mr Hanrahan would get into trouble. That action is clearly inappropriate and unacceptable conduct. Mr Landgren’s statement that he didn’t want Mr Hanrahan to be severely dealt with does not alter my conclusion because this concession was made at a time when it was obvious to Mr Landgren that management was considering the possibility that Mr Landgren’s complaint may have been vexatious.

Determination of the dispute

[44] I have decided that there is no basis for me to intervene to alter the disciplinary outcome imposed upon Mr Landgren.

[45] This is the first disciplinary dispute which has been elevated in the disputes settlement procedure of this Agreement to the Fair Work Commission. The NUW has made it clear that it has made and will continue to make every effort to resolve such disputes at the local level. It is understandable given some of my findings and observations that the NUW and Mr Landgren considered this to be an important matter which needed to finalised through all the steps of the disputes settlement procedure. Mr Landgren has been employed with the company for more than nine years. I am satisfied that he takes his job very seriously and tries very hard to do his best and is willing to take on responsibility. The procedure provides for warnings to be removed after a specified period.

COMMISSIONER

Appearances:

Mr D Mujkic appeared for the NUW.

Mr L Connolly appeared for Woolstar.

Hearing details:

2015

Melbourne

March 19

 1   Exhibit W1, Attachment BS4.

 2   Exhibit W1, Attachment BS14.

 3   PN313.

 4   PN380.

 5   Exhibit W1, Attachment BS8.

 6   PN1022.

 7   Exhibit W1, Attachment BS9.

 8   Exhibit W1, Attachment BS4.

 9   Exhibit W1, Attachment BS10.

 10   Exhibit W1, Attachment BS11.

 11   PN1131.

 12   PN77.

 13   PN427 to PN432.

 14   PN60.

 15   PN412 to PN417.

 16   PN132, PN629 and PN770.

 17   PN69.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562627>