The Australian Workers' Union v Harsco Metals Australia Pty Ltd
[2010] FWA 9959
•23 DECEMBER 2010
[2010] FWA 9959 |
|
DECISION |
Fair Work Act 2009
s.739—Dispute resolution
The Australian Workers’ Union
v
Harsco Metals Australia Pty Ltd
(C2010/5130)
Manufacturing and associated industries | |
COMMISSIONER RYAN | MELBOURNE, 23 DECEMBER 2010 |
Alleged dispute in relation to written warnings in relation to allegations of misconduct.
[1] On 7 October 2010 The Australian Workers’ Union (AWU) notified a dispute pursuant to s.739 of the Fair Work Act 2009 (the Act) in accordance with the dispute settlement procedure in an enterprise agreement.
[2] The dispute concerned Harsco Metals Australia Pty Ltd (Harsco) and was in relation to the Harsco Metals, Laverton, Victoria, Enterprise Agreement 2010 (the agreement).
[3] The particular issue in dispute was described in the application by the AWU as follows:
“The dispute concerns the issuing of warnings and allegations of misconduct against an employee of the company, Mr Peter Slingsby. Mr Slingsby works for Harsco at the OneSteel site in Laverton.”
[4] The particular allegations of misconduct were contained in a letter given to Mr Slingsby on 1 October 2010 by Harsco Metals. The allegation is identified in the following terms:
“It is alleged that:
• On the 13th September damage was sustained to the left hand front side of the Volvo truck. At 22.37 you reported the damage by phone to Darren Dejong. Harsco Operations superintendent, stating you had found the damage during the pre-start check of the vehicle and it must have been happened during dayshift . You also stated that you asked Steve Hoare to come over to check the damage on the vehicle prior to you actually using the vehicle.
• That you sought to mislead Harsco with respect to the identity of employee/s responsible for damage to the vehicle.”
[5] Both the AWU and Harsco Metals filed outline of submissions in accordance with directions issued by the Tribunal.
[6] The AWU’s outline of submissions concluded with the following paragraph:
“The letter of 1 October 2010 to Mr Slingsby Harsco management makes it clear that should Mr Slingsby be found to have damaged the truck or lied to the company about the incident, his employment would be in jeopardy. Mr Slingsby denies damaging the vehicle and also disputes a previous warning issued against him. As the matter is in dispute and in accordance with the disputes procedure contained in the agreement, Fair Work is asked to determine the matter, initially by conciliation and if necessary arbitration.”
[7] The final two paragraphs of the outline of submissions of Harsco Metals are in the following terms:
“Management should be allowed to complete the process of reviewing the findings of the investigators as well as the responses provided by Mr Slingsby.
It is not the role of the FWA to stand in the place of management and to determine the outcome of management review processes.”
[8] The matter in dispute was the subject of an arbitration hearing on 9 November 2010 in which both the AWU and Harsco led evidence from a number of witnesses and made final oral submissions in support of their respective cases. At the conclusion of the hearing on the 9 November 2010 I invited the parties to specifically identify what action they sought from the Tribunal in relation to the matter in dispute. I said as follows:
“When we started the process for the arbitration it was intended to be limited to the proceedings or to a time frame that related to the last time Mr Slingsby had seen and used the truck without it being damaged up until the time it was damaged, trying to work out who caused the damage. That's been overstepped a little bit, but essentially that's still the issue and that's the time frame, that's what the evidence went to. One of the things which the final submissions haven't made clear is, and I say this both in respect to the written submissions and also the oral submissions, what is the specific decision or role that you want the Tribunal to play in regards to these matters, because written submission of the applicant simply asks that Fair Work is asked to determine the matter initially by conciliation and if necessary by arbitration.” 1
[9] I then asked Mr Winter what he wanted and he responded as follows:
“I will be precise. We would like an opinion from you in relation to the evidence that you have heard today in regard to what did or did not take place on 13 or 14 September.” 2
[10] I also asked Ms Frenzel representing Harsco to also specifically identify what was sought from the Tribunal. Ms Frenzel replied as follows:
“Look, the Tribunal voicing an opinion about what may or may not have occurred based on the evidence presented today will be of guidance to the employer but nothing more. At the end of the day the employer will take into account the Tribunal's opinion, however that is expressed as a statement or whatever, and it will determine its own internal processes, taking into account the investigation it has undertaken, as well as the evidence adduced today and as well as the opinion of the Tribunal. But at the end of the day it is up to the employer to make a decision about the outcome based on the material available to it. Now, in terms of the point about the material available to it, in real terms, Commissioner, there isn't a great more material available to the company that has arisen out of close to four hours of hearing and witness evidence.
The material that came out this afternoon in the evidence is information which Mr Winter and I and Mr Hayes are very well acquainted with. There wasn't a silver bullet to point to somebody else driving the truck. We know what it is, it is what it is. The company, understanding that Mr Slingsby has rights, further rights, but the fact is the company has the right to manage reasonably and we say that we will by all means heed the opinion of the Tribunal, one would be foolish not to, but at the end of the day the company will make a decision based on the material available to it. The lucky thing for this company is that it's got the material before the hearing, it's got submissions from the union, it's got its own submissions and now it's got this bevy of evidence which was adduced this afternoon. So it's got a lot of information available to it. But at the end of the day it will make its decision based on that information, taking into account the opinion of the Tribunal. If the Tribunal pleases.” 3
[11] I note specifically that s.559 of the Act provides that Fair Work Australia is not required to make a decision in relation to an application in the terms applied for. In this matter if I deal with the application only in relation to the relief specifically sought by the AWU, I have real concerns that simply expressing an opinion in relation to the damage to the Volvo truck will not resolve the matter in dispute and may in fact simply lead to further disputation.
[12] I am also concerned that merely expressing an opinion on what happened on 13th or 14th September may simply be ignored by Harsco. The very strong position of the employer both in the conclusion of its written submissions on 25th October 2010 and Ms Frenzel’s concluding remarks quoted above make it very clear that Harsco does not believe that the Tribunal should interfere with management’s right to treat an opinion as it sees fit and that it is the company and not the Tribunal that will make a decision in relation to the allegations made against Mr Slingsby.
[13] As the matter in dispute is properly before me, given that it arises under the terms of an enterprise agreement and has been brought to Fair Work Australia under the dispute resolution procedures of the enterprise agreement, I intend to determine the issue in dispute and provide finality to the parties.
[14] I note that the specific allegation of misconduct made against Mr Slingsby was not that he damaged the Volvo truck but rather that:
“That you sought to mislead Harsco with respect to the identity of employee/s responsible for the damage to the vehicle.”
[15] In this sense the allegation had moved beyond whether or not the truck was damaged and was putting into issue the honesty of Mr Slingsby. From the terms of the letter to Mr Slingsby on 1 October 2010 it is clear that the issue of the damage to the Volvo truck was not considered to be important. Rather the issue of the truthfulness of Mr Slingsby was considered to be of paramount importance and it was in relation to his truthfulness that an allegation of misconduct was made against him.
[16] The issue of the truthfulness of Mr Slingsby was further emphasised in the letter to Mr Slingsby on 1 October 2010 where in that letter Mr Slingsby was given an opportunity to make a further response to Harsco. The final paragraph of the letter of 1 October 2010 stated that:
“You must respond honestly in this investigation. If it is found that you have sought to further misled [sic] Harsco, your employment may be terminated without notice.”
[17] The clear implication in the final paragraph of the letter of 1 October was that Mr Slingsby had already misled Harsco and that any further untruthfulness on his part would lead to termination without notice. Merely expressing an opinion on what happened on 13th and 14th September 2010 to cause damage to the Volvo truck would, in my view, not assist in the resolution of this issue. As the alleged misconduct went directly to the truthfulness of Mr Slingsby and with the clear implication in the letter of allegation that Mr Slingsby had been untruthful in his provision of information concerning the Volvo truck to Harsco, it is clear that the issue will not be resolved until a determination is made as to the truthfulness of Mr Slingsby. Given the submissions made by Harsco that it reserves to itself the right to make the final decision in relation to the incident concerning the Volvo truck, I have no confidence that Harsco would attach appropriate weight to any opinion expressed by the Tribunal in relation to the truthfulness of the evidence given by Mr Slingsby in this matter.
[18] A determination by the Tribunal that relates to the truthfulness of the evidence given by Mr Slingsby would also need to be couched in terms which provide a final resolution to the issues in dispute.
[19] Mr Slingsby gave evidence in the proceedings. He was subject to cross examination by Harsco in relation to his evidence. I found Mr Slingsby to be a credible witness. I have no reason to doubt his evidence, in particular where he very clearly and concisely gave evidence that he did not damage the Volvo truck.
[20] Mr Slingsby admitted mistakes that he had made in the past but also challenged warnings that had been given to him in circumstances where he was of the view that the warnings were unwarranted. Whilst the circumstantial evidence available to Harsco through its investigation pointed to Mr Slingsby as being the only person who could have damaged the truck, this circumstantial evidence simply does not outweigh the clear, direct and strong evidence of Mr Slingsby given under oath that he did not damage the Volvo truck. It was never in question that the Volvo truck was damaged. The only question raised by the direct allegations was whether or not Mr Slingsby was truthful in his version of events. Mr Slingsby repeated his version of events under oath. He withstood cross examination in relation to his version of events. In all respects his version of events in relation to whether or not he damaged the Volvo truck should be accepted.
[21] Mr Dejong had given evidence that on a previous occasion Mr Slingsby had damaged equipment and not owned up to it and only been found out after the damage had been reported by another employee. However, in the circumstances surrounding the Volvo truck it was Mr Slingsby who brought the damage to the attention of management when he rang Mr Dejong on the evening when he discovered the damage to the truck. It was Mr Slingsby who sought to have a fellow worker, Mr Hoare, verify the nature of the damage to the truck before Mr Slingsby used the truck to carry out his normal duties. In the proceedings and in the material filed by Harsco, it appears that the employer has made much of a slight difference in the way Mr Hoare and Mr Slingsby described the events of having Mr Hoare examine the truck. Mr Slingsby made clear in his written advice to the company and in his evidence that he did not use the truck until Mr Hoare examined the evidence. Mr Hoare’s evidence was that Mr Slingsby drove the truck from where it was parked to the billet yard so that Mr Hoare could examine the truck and then Mr Slingsby used it in his normal duties.
[22] The company sought to draw an inference that because Mr Slingsby drove the truck to the billet yard to show Mr Hoare that he was lying when he had said in his original statement that he did not use the truck until he had shown it to Mr Hoare. I find that there is nothing in the evidence of Mr Slingsby which would suggest that he was lying. In fact, his statement on its plain words was true when he said to the company in his written reports that he did not use the truck until he showed it to Mr Hoare.
[23] The fact that he drove the truck from where it was parked to the billet yard to show it to Mr Hoare does not constitute using the truck as Mr Slingsby intended that term. It was very clear that Mr Slingsby had no intention of using the truck to carry out his normal duties until Mr Hoare had an opportunity of examining the truck. That is precisely what happened and that accords directly with the sworn evidence of Mr Slingsby.
[24] If any criticism is to be levelled against any witness, the only witness I found who I had difficulties in accepting his evidence was Mr Dejong. Whilst I accept his evidence in relation to those issues concerning the investigation on the day after the damage was reported by Mr Slingsby, I draw the conclusion from simply observing Mr Dejong in the witness box that when he answered questions about the reasons for not answering his phone at night that he was not telling the truth. Mr Dejong’s evidence was that he was asleep and that he simply did not hear his phone but that his phone was on. From the demeanour of Mr Dejong when answering these questions I draw the conclusion that that is not truthful testimony.
[25] On this basis it appears that Mr Dejong either had his phone off or had his phone in a position which he simply would not be disturbed by it while he slept. If Mr Dejong had complied with his obligations as a manager, which was to have his phone on and to answer his phone when receiving calls from either of the two employees on night-shift, I am of the view that much of the difficulties arising in this case would have been avoided. If Mr Dejong had attended the workplace prior to Mr Slingsby moving the truck or using the truck in any fashion, a clearer understanding of the possible causes of the damage to the Volvo truck may have been elucidated.
[26] Whilst the investigation undertaken by Harsco appears to be thorough, it has all the hallmarks of an investigation undertaken for the purposes of establishing the material or facts which support a pre-determined outcome. The pre-determined outcome, in my view, was that Mr Slingsby was to be found guilty of having damaged the truck. The investigation was for the purpose of eliminating all other possibilities so as to ensure that a finding of misconduct could be made against Mr Slingsby.
[27] In all of the circumstances of this mater I find and determine that Mr Slingsby did not damage the Volvo truck on the evening of 13 September 2010. I further find and determine that there is no justification for any warning to be given to Mr Slingsby in relation to the damage of the Volvo truck on the evening of 13 September 2010.
[28] I further find and determine that there is no justification to any allegation that Mr Slingsby has not been truthful in relation to incidents concerning the damage to the Volvo truck on the evening of 13 September 2010.
[29] I further find and determine that there is no justification for any disciplinary action being taken against Mr Slingsby in relation to an incident involving damage to the Volvo truck on 13 September 2010. Whether or not that disciplinary action relates to the actual damage to the Volvo truck or to the information supplied to Harsco by Mr Slingsby in its investigation of that matter.
[30] I further find and determine that to the extent that Harsco continues its investigations to the incident involving damage to the Volvo truck on 13 September 2010, that such investigation must proceed on the basis that:
1. Mr Slingsby did not damage the Volvo truck; and
2. Mr Slingsby’s information and reports supplied to Harsco and his evidence in these proceedings is to be treated as being truthful.
COMMISSIONER
Appearances:
Mr C Winter for The Australian Workers’ Union
Ms R Frenzel for the respondent
Hearing details:
2010
Melbourne
9 November 2010
1 Transcript of proceedings at PN761
2 Transcript of proceedings at PN767
3 Ibid at PN771 - PN772
Printed by authority of the Commonwealth Government Printer
<Price code C, AE878417 PR505436>
0
0
0