Transport Workers' Union of Australia v TNT Australia Pty Limited
[2013] FWC 7880
•9 OCTOBER 2013
[2013] FWC 7880 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 739 - Application to deal with a dispute
Transport Workers' Union of Australia
v
TNT Australia Pty Limited
(C2013/4159)
DEPUTY PRESIDENT SAMS | SYDNEY, 9 OCTOBER 2013 |
Dispute in accordance with a dispute settlement procedure - confrontation between two employees - inappropriate conduct of supervisor - use of abusive language towards a supervisor - both employees given final written warnings - whether issuance of final written warning lawful and reasonable - disciplinary action by employer a matter of managerial prerogative subject to reasonableness - policy disallowing applications for promotion - policy does not render issue of final written warning unreasonable - issue of final written warning lawful and reasonable.
[1] This decision will determine an application for the Fair Work Commission (the ‘Commission’) to deal with a dispute in accordance with the dispute settlement procedure under the TNT - TWU Fair Work Agreement 2011 - 2013 [AE886059] (the ‘Agreement’) . The application, under s 739 of the Fair Work Act 2009 (the ‘Act’) was lodged on 2 May 2013 by the Transport Workers’ Union of Australia (the ‘Union) and names the respondent as TNT Australia Pty Ltd (‘TNT’).
BACKGROUND
[2] The dispute may be shortly explained from the F10 lodged by the Union which seeks the following relief (by order) from the Commission:
‘i. A finding that the placement of a final written warning on the file of Mr Anthony Gray is unjust in the circumstances; and
ii. An order that TNT remove the final written warning from Mr Gray’s personnel file.’
[3] Cl 12.5 and 12.6 of the Agreement deal with the conciliation and arbitration of a dispute in these terms:
‘12.5 | If the matter remains in dispute, it must next be submitted to Fair Work Australia (FWA) for conciliation. For this purpose, it is agreed that the action FWA may take includes arranging conferences of the Parties or their representatives at which FWA is present; and arranging for the Parties or their representatives to confer among themselves as conferences at which FWA is not present. | |
12.6 | If the matter is not resolved in conciliation conducted by FWA, the Parties agree that FWA shall proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the Parties to the dispute. In relation to such an arbitration, the Parties agree that: | |
(a) | FWA may give all such directions and do all such things as are necessary for the just resolution of the dispute, including but not limited to those things set out in Division 3 of Chapter 5 of the Fair Work Act 2009. | |
(b) | Before making a determination FWA will give the Parties an opportunity to be heard formally on the matter(s) in dispute. | |
(c) | In making its determination FWA will only have regard to the materials, including witness evidence and submissions, put before it at the hearing and will disregard any admissions, concessions, offers or claims made in conciliation. | |
[4] At the outset, I note there is no jurisdictional challenge to the Commission’s powers in determining this dispute by arbitration. For completeness, I note the dispute has been subject to conciliation proceedings before the Commission. However, these conferences were unsuccessful.
THE EVIDENCE
[5] The following persons gave written and/or oral evidence in the proceeding:
For the applicant
● Mr Antony Gray - dockhand; and
● Mr Ray Shortill - Union Organiser.
For the respondent
● Mr Olaf Harms - dockhand (under summons);
● Mr Peter Alexopoulos - dockhand (under summons);
● Mr Christopher Marinucci - dockhand (under summons);
● Mr Vincent Scott - dockhand (under summons);
● Mr David Charlesworth - Regional Director, TNT Express;
● Mr Jerry Cignarella - Operations Supervisor; and
● Mr Robert Ryan - Regional Security Manager - TNT.
Union’s Evidence
Mr Anthony Gray
[6] Mr Gray has worked for TNT at the Enfield depot since August 2004. In his statement, he set out his version of an incident with Mr Cignarella at about 7:50am on 15 January 2013. At the time, that he had noticed that Mr David Buckley, another dockhand, had been absent from the workplace for approximately half an hour. Mr Gray said that he had previously raised the issue of Mr Buckley taking long cigarette breaks. However, nothing had been done by management about his complaint. He believed Mr Buckley’s long absences put pressure on him with his own work.
[7] Mr Gray said that he approached Mr Cignarella and said words to the effect of ‘He’s been gone for half an hour now.’ However, Mr Cignarella did not respond. Mr Gray then walked over to Mr Marinucci, Mr Scott and Mr Alexopoulos, who were standing close by. He complained to them that Mr Buckley had been gone for about half an hour and that ‘Jerry does nothing about it.’ Mr Cignarella overheard him and then approached him so that he was ‘a few centimetres’ from his face. He was yelling. Mr Gray said the following exchange occurred:
Cignarella: | If you don’t like the way I do things, don’t say it behind my back. Say it to my face. |
Gray: | I did say it to your face. What are you going to do about it? |
Cignarella: | If you’ve got a problem, we’ll take this outside. I’ll poke your eyes out. |
Gray: | Mate, you’ll lose your job. |
Cignarella: | If you think I care about this job, I don’t need this job. |
[8] As he walked about, Mr Gray spat a fingernail he had chewed off his finger onto the floor. Mr Cignarella approached him aggressively again and a further exchange occurred to the effect of the following:
Cignarella: | Don’t spit on the floor! |
Gray | I’ll do what I want. |
Cignarella | Is that so? I’ll take you outside now and I’ll end you! |
Mr Gray believed that these comments made by Mr Cignarella were intimidating and unprovoked.
[9] Mr Gray said that TNT conducted an investigation into the incident and he was interviewed on 18 January 2013. TWU delegate, Mr Scott Brindley was also at this meeting. Mr Gray attached a copy of the transcript of his interview to his statement. He was given a letter on 1 February 2013 setting out that he was being placed on a Final Written Warning. This letter was expressed as follows:
‘I refer to our meeting of 15 January 2013, in the presence of Scott Brinley, TWU Delegate, regarding your behaviour earlier that morning towards your supervisor, Jerry Cignarella.
At the meeting I asked you what had occurred earlier. You responded that you had approached Jerry in respect to other dockhands taking excessive time for breaks and you indicated Mr Cignarella responded by threatening to “take it outside”. I asked if you had used any “inappropriate” language toward Mr Cignarella, which you denied. I advised you that you were ‘stood down’ with pay, until such time as an investigation could be arranged as there was conflicting advice on what had occurred.
Following completion of the Investigation, including a review of the statements that had been made by witnesses to the incident,it was established that you had used inappropriate language towards Mr Cignarella, which you had previously denied and this was the reason for Mr Cignarella’s reaction to you.
The type of behaviour both yourself and Mr Cignarella demonstrated will not be tolerated with TNT’s workplace, and as a result you are both being issued with a final warning for your unaccepted behaviour.
You are further advised that if there is a repeat of your inappropriate behaviour you will be subjected to disciplinary action up to and including termination of your employment with TNT.
A copy of this letter will be placed on your company file as a record.’
[10] Mr Gray believed that it was unfair that he had been subject to the same disciplinary action as Mr Cignarella, when it was Mr Cignarella who had initiated the confrontation and had ‘used more serious and threatening language.’ He was concerned about the warning because he was looking to further his career and would not be considered for any other positions within TNT, while this warning was on his file. He stressed that he did not plan to repeat the incident, but he was worried about it being used to terminate his employment.
[11] In cross examination, Mr Gray said that on that morning he had been working between Chutes 21 and 35. His supervisor was Denise O’Sullivan. The sortation belt had stopped, so he had taken the pallet jack down to A dock to pick up more pallets for the work area. The supervisor there was Mr Cignarella. He agreed Mr Cignarella was not his supervisor.
[12] Mr Gray was referred to the transcript of the interview between himself and Mr Ryan. He agreed that he had gone down to A Dock to ask where Mr Buckley was. He did this because Mr Cignarella wanted him to do Mr Buckley’s work for him. He agreed that Mr Buckley was working on Chutes 26 to 28 that day. It was Mr Cignarella’s duty to look after the people who work on A Dock under the chute and at the back of A dock.
[13] Mr Gray had started chatting to Mr Marinucci, Mr Scott and Mr Alexopoulos, when the three of them had called him over to ask what had happened when he spoke to Mr Cignarella. Mr Gray denied they were all good friends of his. However, they were work friends and they might have been on his Facebook friends’ list. He did not believe Mr Harms was present at the time.
[14] Mr Gray denied saying ‘Shut the fuck up, you idiot’ when speaking to Mr Cignarella. When it was put to him that he had said ‘I’ll do what I want, when I want and where I want, you fucking idiot’, Mr Gray denied the ‘last bit’. He denied swearing directly at Mr Cignarella. He further denied calling Mr Cignarella a ‘cocksucker’, an ‘idiot’ or a ‘dickhead’. After being told to watch his mouth, he denied saying ‘Why don’t you watch yours when I kick your teeth in?’ and ‘Make me, cunt’. He further denied trying to provoke a physical response from Mr Cignarella and noted that Mr Cignarella was bigger than he was.
[15] Mr Gray was shown CCTV footage of the incident and asked what he had first said to Mr Cignarella. When he had passed Mr Cignarella for the first time he had told him to ‘Go get Buckley, he’s been gone twenty minutes now’. It should have only taken 5 minutes to smoke a cigarette and Mr Buckley took 20 or 30 minutes at a time. Mr Gray denied approaching Mr Cignarella - rather Mr Cignarella had approached him when he was talking to Mr Marinucci, Mr Scott and Mr Alexopoulos. He admitted using ‘coarse language’ when talking to the other three dockhands. This was normal in the workplace. While he might have said something like ‘I’m sick of it ... for fuck’s sake’, he agreed Mr Cignarella was not far away and may have heard him. However, he had not intended anything to be heard directly by Mr Cignarella. If he had, he would have said it to him directly.
[16] Mr Gray agreed that he had said ‘What are you going to do about it?’ to Mr Cignarella, but claimed he was referring to him going to get Mr Buckley. This was not meant to be a provocative statement. He believed this was an appropriate way to talk to a supervisor and he had done so before. When asked whether using the phrase ‘I’ll do what I want’ was an appropriate way to speak to a supervisor, he noted that Mr Cignarella was not his supervisor. Nevertheless, he believed it was an appropriate way to speak to a supervisor, if they were going to hassle him in that manner.
[17] Mr Gray was again referred to the video. He agreed that he had followed Mr Cignarella. When asked if a heated exchange had occurred after this, he said that he had been pretty calm. He had just repeated ‘Go get Buckley’. After Mr Cignarella had said they should go outside, Mr Gray had said that he would lose his job.
[18] Mr Gray agreed that he had had previous warnings for his conduct at TNT, but this was related to his punctuality, rather than behaviour. While an incident had occurred with Malcolm Bull where he had failed to follow a direction, he had understood the outcome of that incident to be a ‘file note’, rather than a ‘warning’. He had never seen the document marked ‘Verbal Warning’. He agreed that he had had ‘plenty’ of warnings in relation to poor attendance. He had been late for his shift 61 times in the financial year 2009-2010.
Mr Ray Shortill
[19] Mr Shortill is an Official of the Union who is responsible for the industrial interests of his members at TNT’s Enfield site. Mr Shortill referred to four documents attached to his statement. Three of these documents had been produced by TNT in response to an Order for Production.
[20] The first of these was a warning letter issued to Mr Cignarella on 28 September 2010 issued by Mr Fabio Lucchesi, Depot Operations Manager, for breaching the TNT Workplace Harassment and Discrimination Policy. The second of these was a transcript of the interview between Mr Ryan and Mr Cignarella. The third was a Final Written Warning issued to Mr Cignarella on 24 January 2013. It was in the following terms:
‘I refer to our meeting of 15 January 2013, regarding your behaviour earlier that morning toward dockhand Anthony Gray.
At this meeting I asked you what had occurred earlier. You responded that you had approached Anthony Gray in respect to offensive comments he had made that were directed at you. You indicated a verbal confrontation occurred between you and Mr Gray. During this confrontation according to your recollection, a number of profanities were directed at you.
By your own recollection you reacted to Mr Gray’s words in an aggressive manner.
I asked if you had threatened Mr Gray but you could only recall going face to face with him.
I advised you that you were stood down with pay, until such time as an investigation could be arranged into the incident, as there was conflicting advice on what had occurred.
Following completion of the investigation, including a review of witness statements that had been made, it was established that you had used aggressive and threatening behaviour towards Mr Gray.
Although at the time you did not recall the threat to Mr Gray to “take it outside”, witness statements indicate to the contrary.
The type of behaviour that both you and Mr Gray demonstrated will not be tolerated within TNT’s workplace, and as a result you are both being issued with a Final Warning for unacceptable behaviour.
You are further advised that if there is a repeat of your inappropriate behaviour, you will be subjected to disciplinary action up to and including termination of your employment with TNT.
I have noted that the days following the incident, you had sought medical assistance and you at present receiving treatment [sic].
A copy of this letter will be placed on your company file as a record of this.’
[21] The fourth document referred to by Mr Shortill was a statutory declaration of Mr Vladica Stamenkovic. Mr Stamenkovic said that there were numerous complaints about Mr Cignarella in relation to intimidation, bullying and victimisation and that he had been subject himself to intimidation by Mr Cignarella. Management would not disclose any disciplinary measures taken against Mr Cignarella. Mr Stamenkovic said that he required a witness when approached by Mr Cignarella due to his ‘fabricated stories’ (Little weight was given to this statement as Mr Stamenkovic was not available for cross examination).
Subpoenaed witnesses
Mr Olaf Harms
[22] Mr Harms is a dockhand at the Enfield depot. He had an interview with Mr Ryan in relation to what had occurred on 15 January 2013 and had signed a document marked ‘Statement of a Witness’ setting out what had happened that morning. In this statement, he said that he had been talking to Mr Marinucci and Mr Scott at the front of the A1 and A2 docks. Mr Gray had walked over to them. He had observed Mr Gray talking to Mr Cignarella about four or five metres away. He was complaining about Mr Buckley taking too long on smoko. He thought he had heard Mr Gray say something like ‘Why does he get away with it?’, but Mr Cignarella did not respond. Mr Cignarella had sat down and appeared to be writing something in a diary.
[23] Mr Harms continued that Mr Gray had come up to them and had complained about Mr Buckley. He had then said in a loud voice, ‘Fucking supervisors and management, they don’t do nothing, you keep telling them but nothing gets done’. Mr Cignarella had then said, ‘If you have got something on your mind or a problem come and say it to me.’ Mr Gray had responded, ‘I did fucking come and see you but you’re doing nothing about it.’ Mr Cignarella appeared to ignore this and Mr Gray said words to the effect of, ‘I just told you, you fucking cunt, you’re just sitting there doing nothing about it.’
[24] Mr Harms’ statement set out that Mr Cignarella had got up and walked towards Mr Gray, saying, ‘Watch what you fucking say’. Mr Gray had stepped forward to stand right in front of Mr Cignarella. Mr Harms stressed that he thought that he was ‘just standing his ground’. Mr Gray had replied, ‘Fuck you, you fucking cunt, what are you going to do about it?’ Mr Cignarella had leaned his face into Mr Gray’s, so that they were ‘eye to eye’. The exchange went back and forth. Mr Harms had the impression that Mr Gray was trying to provoke Mr Cignarella, because he was smirking.
[25] Mr Harms said that he heard other dockhands laughing at Mr Cignarella. Mr Gray continued his provocative behaviour and Mr Cignarella had said words to the effect of ‘If you want to take it further, let’s go out the front.’ The situation gradually settled and Mr Cignarella walked away. Mr Gray had started talking to the group again, saying that he was going to take the matter further. Mr Marinucci and Scott both said that Mr Cignarella should not have gotten out of his chair. Mr Harms noted that Mr Marinucci and Mr Scott were good friends with Mr Gray and he thought they would ‘gang up’ on Mr Cignarella.
[26] In cross examination, Mr Harms agreed that he had not written his statement, but had been asked questions by Mr Ryan, who had printed out a document and asked him to check it was correct and then sign it. He had not really read it - just skimmed it. He had not thought to change it, as he did not think it would be a big deal. If he had known it was, he might have asked for a support person to be present.
[27] Mr Harms said that both Mr Gray and Mr Cignarella had used profane language. He agreed that Mr Cignarella’s behaviour was physically confronting. He had come right up to Mr Gray’s face a number of times.
[28] Mr Harms could not recall having heard of a policy at TNT whereby having a Final Written Warning on file, meant that somebody could not apply for other positions within the Company.
[29] In response to a question from me, Mr Harms said that the words he had recorded in his statement of what Mr Gray and Mr Cignarella had said were true to his recollection.
Mr Peter Alexopoulos
[30] Mr Alexopoulos has been an AM shift dockhand at TNT’s Enfield depot for the past twenty years. He had been interviewed by Mr Ryan about the incident on 15 January 2013. He said that the statement that arose from the interview was correct to his knowledge.
[31] The statement set out that he had been working on A2 and A3 docks with other dockhands. The sortation belt had stopped due to mechanical failure. He had stood around with Mr Marinucci, Mr Scott and Mr Harms. Mr Gray had approached them, saying loudly words to the effect of, ‘Other dock hands seem to be missing, gone for about 20 minutes. Why isn’t he managing his people?’ Mr Cignarella had been sitting about four or five metres away and got up and walked over to them. He had said words to the effect of, ‘If you have got something to say, say it to me.’ Mr Alexopoulos could not recall what was said between the two of them, but could recall Mr Cignarella saying words to the effect of ‘If you want to resolve this, then we can go to the car park.’ In oral evidence, Mr Alexopoulos agreed that the exchange between Mr Gray and Mr Cignarella had been heated. However, he could not recall if they were swearing at each other.
[32] In cross examination, Mr Alexopoulos said that he could not recall whether Mr Cignarella’s behaviour was physically confronting. However, it was Mr Cignarella who had first approached Mr Gray.
[33] Mr Alexopoulos was also unaware of a policy at TNT Enfield under which an employee who is given a Final Written Warning is ineligible to apply for jobs for a certain period of time.
Mr Christopher Marinucci
[34] Mr Marinucci has worked as an AM shift dockhand at TNT’s Enfield depot for eight years. He had also been interviewed by Mr Ryan about the incident on 15 January 2013. He said that the statement that arose from that interview was correct to his recollection.
[35] His statement set out that on that morning, he had been engaged in unloading line haul trailers and sorting the freight from those trailers. He was supervised by Mr Cignarella at the time. The sortation belt had broken down and he was talking to Mr Scott, Mr Alexopoulos and Mr Harms. Mr Gray approached them and said something about being unhappy that other dock hands got to take long cigarette breaks, while he was always questioned about taking toilet breaks. Mr Cignarella was at his desk about four or five metres away and approached Mr Gray. He stood over him and said words to the effect of ‘If you’ve got something to say, say it to my face. If you don’t like the way I run the show, I will take your eye out.’ Mr Gray responded in words to the effect of, ‘Go ahead, you will lose your job.’ Mr Cignarella responded, ‘I don’t care about my job, if you are worried about the job I will take you out the front of the yard and tear you apart.’ Both of them had used a lot of ‘curse words’. He agreed that both Mr Gray and Mr Cignarella were swearing and that there was a heated altercation between the two of them. In oral evidence, Mr Marinucci stressed that coarse language is commonly used in the workplace. He had told Mr Ryan this at the time of his interview.
[36] In cross examination, Mr Marinucci said he believed that Mr Cignarella’s behaviour was physically confronting. He had approached Mr Gray, pointed at him and stood over him. He came close to his face.
[37] Mr Marinucci was aware of a TNT policy under which an employee, subject to a Final Written Warning, cannot apply for further positions at TNT for a certain period of time. He understood that period to be twelve months. He could not remember who had told him about it, but it had come from Management, through the Union. He understood that there had been people who had not moved from part time to full time positions under this policy. He was not sure if the policy was in writing or not.
Mr Vincent Scott
[38] Mr Scott has worked as an AM dockhand at TNT’s Enfield depot for five years. He had also been interviewed by Mr Ryan about the incident on 15 January 2013.
[39] In his statement mr Scott explained that on that morning he had been working with an electric pallet jack to move pallets of freight from A dock to other areas. The sorter had stopped due to mechanical failure, so he pulled over between A2 and A3 docks to talk to Mr Alexopoulos, Mr Marinucci and Mr Harms. He was not sure if Mr Gray was there at that point. They were discussing a dock hand who had a reputation for taking long cigarette breaks. Mr Scott said he himself was talking loudly about this so that Mr Cignarella could hear him. Mr Gray had said words to the effect of, ‘Jerry does nothing about it.’ Mr Cignarella was sitting at his desk about four or five metres away. He got up, approached the group and got close to Mr Gray’s face and said words to the effect of, ‘If you don’t like the way I do things, don’t say it behind my back, say it to my face.’ Mr Gray had responded in words to the effect of, ‘I said it to your face, what are you going to do?’ Mr Cignarella was yelling, ‘Come on we will take this outside, I will take your eye out. I don’t need this job to support my family.’
[40] Mr Cignarella then walked away and Mr Gray spat on the floor. Mr Cignarella turned around, moved close to Mr Gray and said a couple of times, ‘Don’t spit on the floor’. Mr Gray had responded, ‘I’ll do what I want’. Mr Cignarella said, ‘I’ll end you’. He then went and sat back down. Shortly afterwards, Mr Cignarella passed Mr Scott and gave him a ‘death stare’.
[41] In oral evidence, Mr Scott acknowledged that they were trying to get some response out of Mr Cignarella by talking loudly, as they wanted something done about their problem. He could not recall Mr Gray swearing at Mr Cignarella. He had just said that Mr Cignarella ‘did nothing about it’ and had said it loudly. He denied that Mr Gray had used the language alleged by Mr Harms. He agreed that he was friends with Mr Gray. However, they had not really discussed this matter.
[42] In cross examination, Mr Scott claimed that Mr Cignarella approached Mr Gray in an angry, physically confronting manner. He had stood over Mr Gray and they were face to face.
[43] He was now aware of a policy under which a person, subject to a Final Written Warning, could not apply for further positions at TNT for a certain period, but had only been known about it for about two weeks. He could not say whether it was written down.
For TNT
Mr David Charlesworth
[44] Mr Charlesworth is the Regional Director of TNT Express. He provided a statement in the proceeding, but was not required for cross-examination. He is responsible for managing Depot Managers and Area Managers.
[45] In his evidence, Mr Charlesworth deposed that he had received a Security Report on 21 January 2013 from Mr John Garvey, Security Director for the Asia Pacific Region, in relation to an incident that had occurred at the Enfield Depot between Mr Gray and Mr Cignarella. This security report included a number of witness statements. The report concluded that both Mr Gray and Mr Cignarella had behaved inappropriately.
[46] Mr Charlesworth said that he contacted Mr Fabio Lucchesi, the Depot Operations Manager on the same day he received the Security Report, who had recommended that a Final Written Warning be issued to both employees. Mr Charlesworth agreed with this recommendation. His view was that, given Mr Cignarella was a supervisor, the language used by Mr Gray was ‘extremely offensive and disrespectful’. He was also of the view that the language used by Mr Gray had triggered the incident. Nevertheless, Mr Cignarella’s response was totally unprofessional. The conduct was sufficiently serious for him to have recommended termination, if there had been a repeat incident.
[47] Mr Charlesworth agreed that both employees had prior warnings on file. He annexed a copy of a Written Warning given to Mr Gray on 11 October 2010 in relation to poor attendance. It set out that he had been late for work, without an acceptable explanation 61 times over the 2009-2010 financial year and 18 more times between 5 July and 30 September 2010. It also set out that if he was late, as a performance management measure, he was to contact his supervisor on his arrival at work. He was to advise of an acceptable, unavoidable reason for his lateness.
[48] Mr Charlesworth annexed to his statement, a copy of a document headed ‘VERBAL WARNING - UNACCEPTABLE BEHAVIOUR’ and addressed to Mr Gray. It was expressed as follows:
‘I refer to our meeting of 24/10/12 in the presence of Nick Oustambisidis, Union Delegate, regarding your behaviour on the 16/2012 in which I walked in to the dockhands locker room and found yourself sitting on a chair playing with your phone. When questioned in regards to the reason why you were there your reply was that you were having a break.
When asked if you had notified your supervisor that you were having a break the response was no and that no one tells there [sic] supervisor. You were then asked to return to your work area and the response was I will return when I’m ready. This behaviour is unacceptable.
The fact you chose not to follow a clear directive immediately when ask [sic] even though you eventually returned to do the job it is still unacceptable and must not continue. You are expected at all times to act in a professional and dignified manner and your behaviour on 16/10/12 is totally unacceptable and must not continue.
This letter is formal notification that this behaviour cannot continue and confirms a verbal warning for your conduct on 16/10/12. A copy of this letter will be placed on your company file as a record of this.
Please be aware that continued inappropriate behaviour may result in further disciplinary action, up to and including the termination of your employment with TNT Australia Pty. Limited.’
Mr Jerry Cignarella
[49] Mr Cignarella has been an Operations Supervisor at the TNT Enfield Depot for five years. He works on the AM shift and is responsible for the supervision of 20 dockhands. He reports to Mr Malcolm Bull, AM Operations Manager. There are approximately 63 dockhands on the average AM shift.
[50] In written evidence, Mr Cignarella deposed that on the morning of 15 January 2013, he had been working as the supervisor on the A Dock. He had not been supervising Mr Gray at the time. However, he had in the past. There was no operational reason for Mr Gray to be at the A dock, but he was there chatting to friends, who were in Mr Cignarella’s team. He said that a transcript of an interview conducted by Mr Ryan accurately reflected how the incident unfolded. He annexed a copy of this interview to his statement.
[51] In the course of that interview, Mr Cignarella told Mr Ryan that he had been sitting under an induction point and he had heard Mr Gray making abusive comments. He had looked up to see Mr Gray looking in his direction. He told Mr Gray to watch his mouth. Mr Gray responded by saying, ‘Shut the fuck up, you idiot.’ Mr Cignarella had got out of his chair and approached him. He told him again to watch his mouth and that if he had anything to say, he should say it to his face. He admitted he had become agitated at this point. Mr Gray had responded, ‘I’ll do what I want, when I want and where I want you fucking idiot.’
[52] Mr Cignarella had taken offence at this and the discussion had become heated. Mr Gray had called him a ‘cocksucker’, an ‘idiot’ and a ‘dickhead’. He admitted he was pointing his finger at Mr Gray when he told him again to watch his mouth. Mr Gray responded, ‘Make me, cunt’. At around this point, Mr Gray spat on the floor and Mr Cignarella said, ‘Don’t spit on the floor, or the ground, it’s disgusting and unhygienic’. He had said that if Mr Gray wanted, they could discuss this in the car park and he (Mr Cignarella) would bring his pen and take notes. Mr Cignarella said that Mr Harms had approached him shortly afterwards to say that if Mr Gray had spoken like that to another supervisor in another business, he’d be sacked.
[53] Mr Cignarella elaborated in the interview on Mr Gray’s frustration with Mr Buckley’s failure to ‘pull his weight’. He had told Mr Gray to ‘let it go’ and that he would monitor Mr Buckley. Mr Gray had variously referred to Mr Buckley as a ‘bludging cunt’ and a ‘prick’ and said that the ‘management in this place is fucked’. This last comment had been made at the time of the incident on 15 January.
[54] Mr Cignarella admitted that he had used ‘profane’ language, but could not specifically remember what he had said, although it might have been something like, ‘watch what you fucking say’. He agreed that he had said that they should talk further about the issue in the car park, but he meant after work, when they had both cooled down. In hindsight, he should have just said that he did not appreciate Mr Gray’s language and walked away to discuss the matter later.
[55] Mr Cignarella denied that he had used the phrase, ‘I will take your eye out’. He could not recall Mr Gray using the words, ‘Go ahead, you’ll lose your job’. He had not replied ‘I don’t care about my job. If you are worried about the job, I will take you out the front and tear you apart.’
[56] Mr Cignarella said that he and Mr Gray usually got on ‘tremendously well’, although he admitted that this sounded surprising. He agreed with the proposition that Mr Gray was ‘a bit of a whinger’. His work ethic was ok, but he had to tell him on occasion to stop playing games on his phone and get back to work.
[57] In his statement, Mr Cignarella said that it was common for people to swear in general discussion in the workplace. However, abusive swearing or abuse of a supervisor was not common. The comments made by Mr Gray were abusive, provocative, threatening and out of the ordinary. He felt strongly that they were intended to provoke a physical response. He had heard Mr Gray laugh during the incident and had seen a smile on Mr Scott’s face.
[58] Mr Cignarella said that he accepted the Final Written Warning given to him and was remorseful for his actions. He expressed regret that the incident had occurred. He had behaved inappropriately, but Mr Gray had instigated the incident. He again denied using the phrases, ‘I’ll poke your eyes out’ or ‘I’ll take you outside and end you’.
[59] In cross-examination, Mr Cignarella said that Mr Gray had not been working at A dock on the day of the incident. He had walked over from about fifty metres away. He agreed Mr Gray had said things that caused him to react. Mr Cignarella disagreed with the proposition that he had a ‘short fuse’. He agreed that after Mr Gray had said derogatory things to him, he had walked over to him until he was millimetres away from his face. They were face to face. Mr Cignarella acknowledged that he was slightly taller than Mr Gray. Mr Cignarella agreed that coming up close to someone’s face in that manner was intimidating and that he approached Mr Gray in this fashion a number of times. Mr Gray had also approached him in the heat of the moment. He had been angry and Mr Gray had seemed angry - it was a mutual argument.
[60] Mr Cignarella said that the work environment could be ‘passionate’ in that it was a fast paced business and that he, as a frontline supervisor, had to make decisions very quickly. At times, there was not time to explain why a direction was issued and it was expected to be followed. It was not unusual for ‘passionate’ incidents to occur at the Enfield depot. However, he emphasised that the incident on 15 January 2013 did not reflect how he would usually deal with such an incident.
[61] Mr Cignarella affirmed that he had asked Mr Gray to go to the car park so that they could ‘cool down’ and have a rational discussion. On previous occasions, once people had ‘cooled down’, having had time away from each other, disputes had been ‘shrugged off’. He was aware of the vernacular meaning of ‘Let’s take this to the car park’ and differentiated this from ‘Let’s talk about it in the car park.’ However, he was asking Mr Gray to meet him in the car park a few hours later, after they had both had some time away from each other to regroup. He had not been saying that Mr Gray should go to the car park with him at that time. The meal room was unsuitable as there were too many people there. Even so, there would have been no point in having a fight in the car park, as they would still be on TNT property.
[62] Mr Cignarella said that he was sure that Mr Gray had called him a ’fucking idiot’, a ‘cock sucker’, an ‘idiot’ and a ‘dickhead’. It was not possible that another dockhand had used those words.
[63] Mr Cignarella deposed that this was not the first time that Mr Gray had tried to provoke him in this fashion. However, he had reacted better on other occasions. When he had taken Mr Gray to task over his language on other occasions, Mr Gray had responded, ‘I’ll say what I want, when I want and where I want. I love this place’.
[64] Mr Cignarella said that his relationship with Mr Gray was ‘much better now’, although it had previously been good. The relationship between dockhands and supervisors was somewhat difficult to explain. As supervisor, he should be a role model and a good listener and he would resolve their issues where he could. His behaviour had been unbecoming in someone who was a supervisor and he accepted that this was why he had received a warning letter. He had apologised to Mr Gray about it and they had shaken hands. When asked whether his behaviour could have been seen as physically confronting, Mr Cignarella responded that, while it would never have ended in a physical fight, they were both ‘in each other’s face’.
[65] Mr Cignarella was shown his earlier warning letter attached to Mr Shortill’s statement and could recall the incident that had given rise to it. He and the other person involved, who had since died, had spoken regularly, as this person had had personal problems and Mr Cignarella had been trying to help him. The issue between them had been due to the fact that this person had Hepatitis C, which Mr Cignarella had referred to as a ‘disease’. The other person had taken offence at this and Mr Cignarella had been apologetic. However, he was issued with a warning letter. He had not been issued with any other warnings, other than the one arising from the incident on 15 January, 2013.
[66] Mr Cignarella said that he had not previously been aware of a TNT policy which stopped persons, subject to a final warning, from applying for further jobs with TNT.
Mr Robert Ryan
[67] Mr Ryan has been employed by TNT for approximately eleven years and has been the Regional Security Manager for New South Wales and the ACT since 2007.
[68] Mr Ryan received a call from Mr Lucchesi on the morning of 15 January 2013 asking him to meet him at his office. He met Mr Lucchesi and Mr Cignarella there. Mr Cignarella had told him that at about 7:50am, he had been supervising dockhands on A2 and A3 docks, when there had been an incident involving himself and Mr Gray. Mr Harms, Mr Marinucci, Mr Scott and Mr Alexopoulos had been nearby when it had occurred. After being told this, Mr Ryan went back to his own office and watched the archived CCTV footage of the area in which the incident had taken place.
[69] Mr Ryan said that Mr Harms had come to his office later that morning and the following conversation ensued:
Ryan: | Olaf, I have been told that earlier this morning on A dock you witnessed a heated verbal exchange between supervisor Jerry Cignarella and dock hand Anthony Gray. Is that right? |
Harms: | Yeah, I didn’t want to get involved but Anthony and his mates Vinnie and Chris are ganging up on Jerry and they will tell all sorts of bull shit to get him into trouble. |
Ryan: | Are you prepared to make a signed statement regarding this matter? |
Harms: | Yeah I will to help Jerry. |
Ryan: | Would you like a support person present whilst you make this statement? |
Harms: | No, I’m not in the union and I don’t want anyone else to know that I made it unless I have to. |
[70] Mr Ryan said that he had attempted to interview Mr Marinucci, Mr Scott and Mr Alexopoulos, but they would only be interviewed in the presence of a TWU delegate. Mr Brinley was present on 17 January 2013 when all three read and signed their statements. Each were given a copy. Mr Gray was recorded electronically in the course of a formal interview. Mr Ryan attached a copy of this transcript to his statement. Mr Cignarella was also interviewed and a copy of this transcript was also attached to Mr Ryan’s statement.
[71] Mr Ryan said that he had completed a general investigation report on 21 January 2013 and forwarded it for review to Mr John Garvey, Security Director, his direct Manager. Mr Garvey forwarded it to the relevant TNT managers and HR. The report set out a description of the alleged incident and the investigation. Under the heading of COMMENTS/CONCLUSION, was recorded the following:
‘I would like to reiterate that Mr Gray, Mr Marinucci and Mr Scott have a close working relationship. Prior to providing a formal statement Mr Marinucci informed me that Mr Cignarella reacted to unnecessary and unsavory [sic] comments directed at him by Mr Gray, however, when providing a formal statement in the presence of his delegate he was more subdued.
Mr Scott after completing his formal statement, was asked by TWU delegate Mr Brinley if he wanted to include in his statement that he was concerned about repercussions from Mr Cignarella, asserted that he did not want to include this as all of the managers and supervisors at this site are out to get him. I am of the perception from previous observations of Mr Scott in the workplace that he has enmity towards all managers and supervisors at this depot.
Mr Harms advised me that he was only making the statement as he is firmly of the view that Mr Gray, Mr Marinucci and Mr Scott would collude to lessen any blame that could be apportioned to Mr Gray.
It would appear that all witnesses whilst differing as to apportioning the blame to either have all indicated that they heard Mr Cignarella offer to take Mr Gray out to the car park to sort the matter out. Mr Cignarella when questioned about this statement attested that he did not remember making this statement however says that if he did then he would have only done so to indicate that later when both had finished their respective shifts they could talk about this incident as mature adults. He also indicated that Mr Gray is much younger than him therefore he would never offer to become involved in a physical confrontation with him.’
The report recommended that disciplinary action be taken against Mr Gray for abusing a supervisor and disciplinary action be taken against Mr Cignarella for the unprofessional manner in which he had handled the incident.
[72] In cross examination, Mr Ryan agreed that the purpose of allowing someone to have a support person present, in the context of a formal interview during a workplace investigation, was to allow them a ‘fair go’ in the interview process. While Mr Harms had waived the opportunity to have a support person present, Mr Ryan emphasised that he had told Mr Harms that the interview was in relation to the incident that had occurred between Mr Cignarella and Mr Gray. Mr Harms had told him what had happened and Mr Ryan had typed the statement out as he spoke.
[73] Mr Ryan had taken four statements (Messrs Harms, Marinucci, Scott and Alexopoulos) and interviewed two other persons (Mr Gray and Mr Cignarella). He agreed with the proposition that four of those accounts told one story and the other two told another. He agreed that Mr Harms had initially been reluctant to supply a statement. He had not asked Mr Marinucci, Mr Scott or Mr Alexopoulos to provide a statement, without a support person present. He denied that the presence of the Union delegate influenced the weight he gave to a witnesses’ evidence.
[74] Mr Ryan was shown a reference in the Investigation Report to Mr Scott having been supportive of Mr Gray’s account, ‘as expected’. It was worded like this because it was known that Mr Scott and Mr Gray were very close. He had expected both Mr Scott and Mr Marinucci to be supportive of Mr Gray, as they were friends. He denied that he had been prejudiced against Mr Scott’s evidence due to this fact.
[75] Mr Ryan agreed that he had come to the conclusion that the confrontation was instigated by the behaviour of Mr Gray. This was because the CCTV footage showed that Mr Gray had gone to an area in which he was not working. While there was no audio, he had come to the conclusion that Mr Gray had made a comment, or comments, while passing Mr Cignarella. The reaction of Mr Cignarella suggested that further comments were made to him. He agreed that this was based on an assumption as Mr Gray was out of the frame when he made some of these comments. He had also concluded that Mr Gray had become aggressive towards Mr Cignarella, although he agreed that the CCTV footage showed Mr Cignarella first approaching Mr Gray in a physically confronting manner.
[76] Mr Ryan was referred to the transcript of interview with Mr Cignarella and to the comment made by Mr Cignarella that viewing the CCTV footage was ‘bringing back memories’. He understood this to mean that he was recalling what had happened. He would not necessarily expect someone to remember what had happened three days after the event - it would depend on a number of variables such as stress or suspension from duty. He believed he had given all of the interviewees a ‘fair go’.
[77] Mr Ryan conceded that he was not aware of a policy under which an employee who has been given a final written warning, was unable to apply for further positions at TNT for a certain period of time. However, given his senior position, it would not necessarily mean he would be aware of such a policy, if it did exist.
SUBMISSIONS
For the Union
[78] In written submissions, Mr T Warnes submitted that there were competing versions of what had been said and done at the time of the incident on 15 January 2013. On both the evidence of Mr Gray and Mr Cignarella, Mr Gray had passed a comment to other dockhands about the failure of his complaint about the work ethic of another dockhand, to be addressed.
[79] Mr Warnes said that swearing was not uncommon in the workplace and neither Mr Gray, nor Mr Cignarella denied using profanities or heated language. However, there was controversy between the parties as to exactly what had been said. Mr Gray’s evidence was that Mr Cignarella had said ‘We’ll take this outside, I’ll poke your eye out’ and ‘I’ll end you’. In the interview with Mr Ryan, Mr Cignarella denied saying this. Similarly, Mr Cignarella said that Mr Gray had threatened him - an allegation which Mr Gray denied.
[80] Mr Warnes noted that Mr Cignarella had previously received a warning letter on 28 September 2010 for breaching the TNT Workplace Harassment and Discrimination Policy in which he had been advised to ‘always consider how [his] behaviour will be viewed by other people’ and ‘to be more circumspect in [his] interactions with employees’.
[81] Mr Warnes said that Mr Cignarella had indicated in the interview with Mr Ryan that while the incident was ‘regrettable’, he would react in the same way if a similar situation arose. Mr Warnes submitted that the statutory declaration of Mr Stamenkovic illustrated that Mr Cignarella was untrustworthy and had a history of harassment.
[82] Mr Warnes said that Mr Cignarella’s position of authority aggravated the seriousness of his conduct, as did his history of harassment. His behaviour should have been a model to others. His admitted reference to continuing the discussion in the car park, was threatening. The other threats, while contested, were also serious. Mr Warnes observed that Mr Gray did not have a similar history.
[83] Mr Warnes submitted that the assertion in the Final Written Warning issued to Mr Gray that he had ‘used inappropriate language towards Mr Cignarella, which [he] had previously denied’ was a misrepresentation of Mr Gray’s statement in the interview. He had not denied using inappropriate language, but denied directing any comments to Mr Cignarella.
[84] Mr Warnes noted that Mr Gray had been working for TNT for nine years and was considering seeking career progression within the Company. The policies of TNT in relation to the Final Written Warning would prevent him doing so and this was unjustly detrimental to his career. The issuing of a Final Written Warning was not proportionate to Mr Gray’s conduct. It was also unjust, as Mr Cignarella had been subject to the same disciplinary action for what was more serious misconduct. Mr Warnes submitted that the Commission should issue orders rescinding the Final Written Warning or, alternatively, downgrading it to a Written Warning.
[85] In oral submissions, Mr Warnes added that it was clear from the CCTV footage that Mr Cignarella had used his physical presence to impose on Mr Gray in the course of the confrontation. The version of events which should be preferred was that Mr Gray had walked into A dock, which was under the supervision of Mr Cignarella, while the conveyor belt had broken down. He passed Mr Cignarella on his way to talk to some other dockhands and commented that Mr Buckley was late back from his cigarette break again. Mr Gray was frustrated that his complaint was again ignored by Mr Cignarella. He discussed the problem with Mr Scott, Mr Alexopoulos and Mr Marinucci. While Mr Gray did not recall Mr Harms being there, it appeared that he had been there as well.
[86] Mr Warnes put that it seemed that Mr Cignarella had heard his name mentioned and reacted in such a way as to cause an altercation between the two of them. Mr Cignarella had engaged in a number of threats, being that they should ‘take it outside’, that he would ‘poke your eye out’ and ‘end you’. Mr Gray had been sufficiently concerned about these threats to refer to ‘innocent people dying’ in his interview with Mr Ryan.
[87] Mr Warnes emphasised that the Union did not submit that Mr Gray had acted in a ‘calming manner’ which would have resolved the situation. Coarse language had been used in the conversation with his fellow dockhands, but this was not directed to Mr Cignarella. While Mr Scott’s evidence was that Mr Gray had been speaking deliberately loudly so that Mr Cignarella could hear them, this was not the evidence of Mr Marinucci. He noted that Mr Scott had also been concerned as to the behaviour of Mr Buckley and perhaps, it was in his mind, that their conversation be heard by Mr Cignarella. He suggested that Mr Gray’s comments were ‘smart alec’ in nature, but the issuing of a Final Written Warning was disproportionate.
[88] Mr Warnes submitted that the Commission should place significance on the fact that Mr Gray and Mr Cignarella had been subject to the same disciplinary action for very different behaviours. It was not submitted that Mr Gray was blameless - both parties were involved in the confrontation. There had been a provocation, but it was not directed at Mr Cignarella. However, Mr Gray’s behaviour had been verbal in nature, while Mr Cignarella had ‘stood over’ Mr Gray. Mr Harms had suggested that the antagonism was mutual, but agreed that Mr Cignarella had been physically intimidating. Mr Gray only had the odd ‘written verbal warning’ on his file, while Mr Cignarella already had a written warning on his.
[89] Mr Warnes said that it appeared to be unclear as to how the policy in relation to written warnings would affect Mr Gray’s prospects of promotion. It seemed to be policy ‘on the run’. None of the employees knew about it and there had been an assertion that a Final Written Warning barred a person from applying for jobs at TNT for 24 months, while a Written Warning would similarly bar a person for 12 months. It was possible that this policy did not exist and was just a ‘figment’ arising from this dispute. In any event, the Union would be seeking clarification of this issue.
[90] Mr Warnes submitted that, from the outset, all the Union had asked from TNT was that the Final Written Warning be downgraded to a Written Warning. Due to the lack of clarity of the supposed policy, it was arguable that a Written Warning should not have any effect on further job applications by Mr Gray. However, a Final Written Warning obviously had further implications for Mr Gray’s continued employment. Mr Gray had worked at TNT for nine years and had never previously been cautioned for aggressive behaviour.
[91] Finally, Mr Warnes addressed the submission made by TNT that the Commission should not overrule decisions by Management to issue warnings, as this is a matter of managerial prerogative. He submitted that the disputes resolution clause at cl 12.6.A set out that the Commission had the ability to do all things necessary for the just resolution of a dispute.
For TNT
[92] Mr M Brennan, submitted that the evidence disclosed that Mr Gray had made a comment to Mr Cignarella while passing him to speak to his friends working on Mr Cignarella’s shift. In the course of the confrontation that followed, Mr Gray had used highly inappropriate and provocative language, including the phrases ‘Shut the fuck up you idiot’ and ‘I’ll do what I want, when I want and where I want you fucking idiot’. He had referred to Mr Cignarella as a ‘cocksucker’, an ‘idiot’ and a ‘dickhead’. He had responded to Mr Cignarella telling him to watch his mouth by saying, ‘Why don’t you watch yours while I kick your teeth in’ and ‘Make me cunt’. Mr Cignarella had admitted that his responses were unprofessional.
[93] Mr Brennan said that Mr Ryan had undertaken a thorough investigation of the incident, which involved interviewing Messrs Gray, Cignarella, Harms, Scott, Marinucci and Alexopoulos. He had recommended in a report sent to Mr Charlesworth, that disciplinary action be taken against both Mr Gray and Mr Cignarella. Mr Charlesworth discussed the matter with Mr Lucchesi and noted that both employees had previous written warnings on file. He noted that Mr Gray had been issued a previous written warning for taking an unauthorised break and refusing to return to work on 26 October 2012. He had also been issued with a warning on 11 October 2010 for being late a total of 79 occasions between June 2009 and September 2010. On 24 January 2013, both employees were issued with a document marked ‘Final Written Warning - Unaccceptable Behaviour’.
[94] Mr Brennan drew particular attention to the statement of Mr Harms in relation to the conduct of Mr Gray and Mr Cignarella. Mr Harms’ view was that Mr Gray, Mr Scott and Mr Marnucci would collude to lessen blame attributable to Mr Gray. Mr Harms’ evidence should be preferred.
[95] Mr Brennan drew further attention to the record of interview with Mr Gray, in which he was asked by Mr Ryan if he had directed ‘derogatory and profane comments’ towards Mr Cignarella. Mr Gray had responded, ‘That’s incorrect’. The reference in the Final Written Warning to Mr Gray denying that he had used inappropriate language towards Mr Cignarella was therefore a correct one.
[96] Mr Brennan submitted that Mr Cignarella was expected to act appropriately in his capacity as supervisor and had failed to do so. Similarly, Mr Gray had failed to show respect for supervisors and management at the Enfield Depot. The language he had directed at Mr Cignarella was provocative and would have been inappropriate, had it been directed to any employee of TNT. Mr Brennan specifically denied that Mr Cignarella had a history of harassment. He submitted that the issuing of a Final Written Warning was proportionate to Mr Gray’s misconduct.
[97] Mr Brennan said that the issuing of warning letters was a matter of managerial prerogative and should not be lightly overruled by the Commission. TNT had a positive obligation to warn Mr Cignarella and Mr Gray that inappropriate conduct would not be tolerated and had the potential to put their employment with TNT in jeopardy. TNT opposed any orders being made by the Commission in this matter.
[98] In oral submissions, Mr Brennan further put that the onus to show why, on the balance of probabilities, the warning letter should be rescinded, was on the Union. The evidence disclosed no reasonable basis for this outcome. The submission of TNT was that Mr Gray had provoked the incident by using loud, inappropriate language and referring to Mr Cignarella in derogatory terms. Mr Scott’s and Mr Harms’ evidence supported this conclusion.
[99] Mr Brennan said that it was admitted that Mr Cignarella had acted unprofessionally. However, his conduct was only relevant in relation to his interaction with Mr Gray - he had accepted his Final Written Warning. However, Mr Cignarella specifically denied allegations that he had used phrases like, ‘I’ll poke your eye out’ and this was not put to him in cross examination. The evidence of Mr Harms and the CCTV footage supported Mr Cignarella’s version of events that he had reacted strongly to verbal abuse.
[100] Mr Brennan noted that Mr Gray’s own evidence disclosed that he had used inappropriate language like ‘I’ll do what I want’. The evidence of Mr Alexopoulos and Mr Marinucci was of little assistance to the Commission as they could not recall very much, although both remembered that ‘curse’ words were used in the course of a heated exchange. Mr Scott had made clear that there was a loud conversation designed to provoke a response from Mr Cignarella. It appeared that Mr Gray, Mr Scott and Mr Marinucci were close friends.
[101] Mr Brennan referred to TNT’s policy or convention in relation to employees subject to warnings being barred from applying for further positions at TNT. This case was not about the reasonableness of the policy or the knowledge that people had of it; this arbitration related to whether the Final Written Warning issued to Mr Gray should stand. The evidence made clear that it should. Nevertheless, Mr Brennan said that his understanding of the policy was that it applied to lower level positions at the Enfield Depot, which explained why Mr Ryan was not aware of it. Operational Managers at the Enfield Depot would have been aware of the ‘unwritten convention’ that persons would be excluded from promotion for a period of time after having a warning letter on their file. He understood this to have been the case since 2007. He noted that in any event, a warning letter on file would always be taken into account when an employee applied for a promotion or to another position with TNT.
[102] Mr Brennan said that TNT did not submit that the Commission did not have jurisdiction to overturn the issue of a warning letter under the disputes resolution clause. Rather, he emphasised that the decision should not be taken lightly. He referred the Commission to three authorities which supported the proposition that there needed to be strong reasons for the Commission to disturb such decisions of management; See: The Australian Workers’ Union v Alcoa Worlds Alumina Australia Limited [2012] FWA 9222 (‘AWU v Alcoa’); John Lysaght (Australia) Limited - Port Kembla - Slit Recoil Line Award [1994] NSWIRComm 18; and CPSU, the Community and Public Sector Union v Australian Broadcasting Corporation[2002] AIRC 336.
[103] In reply, Mr Warnes agreed with the final submission made by Mr Brennan that the Commission should be cautious in exercising such a power. Nevertheless, if the Commission found that the giving of a Final Warning to Mr Gray was unjust, the Commission had a specific power to deal with it.
CONSIDERATION
Findings on the confrontation
[104] Despite the video footage disclosing Mr Cignarella approaching the applicant, I have no doubt at all that it was Mr Gray who initiated the confrontation. On his own evidence, Mr Gray was upset that Mr Buckley was outside for 20 minutes having a cigarette and that Mr Cignarella, as Mr Buckley’s supervisor, had apparently done nothing about it. It was plain that Mr Gray was directly challenging Mr Cignarella’s authority in circumstances where Mr Cignarella was not even his supervisor and both Mr Cignarella and Mr Buckley worked in a different area to Mr Gray. This was extraordinary. By what right had Mr Gray to challenge a supervisor, let alone one who he had nothing to do with?
[105] The Union submitted that Mr Cignarella had started the confrontation by walking some 4-5 metres to challenge him. However, this is not a true characterisation of what occurred. I have no doubt the applicant had deliberately intended Mr Cignarella would hear his complaints about Mr Buckley when he was talking to his work colleagues, Messrs Scott, Alexopoulos, Marinucci and Harms. Mr Scott’s evidence was that both he and Mr Gray were talking loudly so Mr Cignarella would hear them. The four subpoenaed witnesses all gave statements to the Company shortly after the incident. None of them resiled from their statements in the witness box. Their evidence supports a conclusion that Mr Cignarella must have heard what Mr Gray was saying, because Mr Cignarella approached him. He had said words to the effect of ‘If you’ve got something to say, say it to my face’.
[106] Mr Gray denied using the profanities referred to by Mr Cignarella in his evidence (See paras [51]-[52]). Given that Mr Marinucci and Mr Harms both described both of them using coarse and profane language, I have difficulty accepting Mr Gray’s protests of innocence. Moreover, Mr Harms believed Mr Gray was trying to provoke Mr Cignarella when he said, for example, ‘Fuck you, you fucking cunt, what are you going to do about it?’ He said they were both ‘going at it’.
[107] I note that Mr Scott could not recall any swearing, which is somewhat difficult to reconcile with Mr Cignarella’s own admissions that they were both using profanities. Perhaps his lack of recall can be explained by him being a friend of Mr Gray and he was colouring his evidence to assist his friend’s case.
[108] During the course of the argument, it was suggested that swearing in the workplace was not uncommon and that this altercation was just an innocent example of the usual custom and practice. While I accept that the standards of communication between employees, including between supervisors and employees in a truck depot, is hardly what one might hear in a convent, there is a world of difference between ordinary workplace rough banter and language which is directly threatening, aggressive and confrontational. I am satisfied this incident was a reflection of the latter and both men were screaming at each other using the language that Mr Cignarella said was used by both of them.
[109] There was also a suggestion that because Mr Cignarella was a larger built man than Mr Gray, it was Mr Cignarella who had been physically intimidating. In my view, Mr Gray was no ‘shrinking violet’ in this confrontation. So much so is apparent from his own evidence. Mr Gray acknowledged that he had spat a fingernail on the floor in front of Mr Cignarella, seemingly unconcerned at such grubby conduct. In my view, whether he spat or spat a fingernail is irrelevant. Given the context of their confrontation, this was a blatant act of disrespect and defiance designed to deliberately further antagonise Mr Cignarella (which it did). In addition, given the significant age difference between the two (Mr Gray was 29 and Mr Cignarella 55), I do not accept that Mr Cignarella posed any physical threat to Mr Gray, despite his offer to take him outside to the car park. In any event, Mr Gray was far too cunning to fall for that invitation.
[110] That said, I found Mr Cignarella to be a thoughtful and truthful witness. He was quietly spoken and not driven to wild rhetoric or exaggeration. It was clear he had been pushed to the limit by Mr Gray. He did not seek to ‘gild the lily’ in order to portray himself as the innocent victim. He readily acknowledged his mistakes; conceded his conduct was wrong; regretted it and accepted his final written warning.
[111] By contrast, I found Mr Gray to be less than candid with the Commission in order to minimise his culpability for the confrontation. I also believe he was less than frank with Mr Ryan when he denied swearing at Mr Cignarella. To claim his swearing was not directed toward Mr Cignarella was disingenuous. Moreover, the evidence also demonstrated that he was not shy from challenging persons in authority. In October 2012, he received a warning for the very thing he complained about with Mr Buckley - taking long rest breaks. When told to go back to work, he replied, ‘I will return when I’m ready’.
[112] There was a submission advanced that a previous warning for punctuality could not be relied upon by TNT because it was for a different reason to this warning. This is nonsense. There is no practical distinction to being warned for inappropriate behaviour and being warned for poor punctuality. They both go to issues of conduct and performance which TNT was perfectly entitled to take into account in the aggregate assessment of an employee’s suitability. Indeed, one might well understand why Mr Gray would wish to deflect attention from his poor punctuality record. In 2009 and 2010, he was late for the commencement of his shift on 79 occasions! This was not disputed. It is little wonder a written warning was issued with an abysmal record such as this.
[113] As to the other employee witnesses, I would discount Mr Scott’s evidence where it conflicts with Mr Cignarella, as he was plainly a friend of Mr Gray who was less than frank when it came to criticising his friend. On the other hand, I found Mr Harms’ evidence to be persuasive, particularly given he was a hostile witness who had not wanted to be involved in the first place (see para [69]).
[114] I would make three further comments about this case.
[115] Firstly, Mr Warnes’ emphasis on Mr Cignarella’s previous warning seriously overstates its significance. As Mr Cignarella made clear in his evidence, it was a much more benign issue related to the understandable sensitivity of another person in respect to his serious health issues (see para [65]). It had nothing to do with allegations of aggression or threatening behaviour. Mr Cignarella was not challenged on this evidence.
[116] Secondly, I indicated during the course of the proceeding, reliance on a statement of Mr Stamenkovic, who was unavailable for cross examination and where no corroborative evidence existed, must be given very little weight. Moreover, Mr Stamenkovic’s claims do not sit comfortably with Mr Cignarella’s behaviour and demeanour in the witness box. If he was such an intimidating, aggressive character, he did a very good job of hiding it in the witness box. In any event, I give no weight to Mr Stamenkovic’s statement.
[117] Thirdly, I appreciate that Mr Gray will not be eligible to apply for promotion over a period of time with a final warning on his file. I accept Mr Warnes’ submission that this policy was largely unknown and was contradictory. TNT conceded it was more of a local convention, than a prescriptive policy. I consider this situation to be unsatisfactory. It is a serious issue for the Union and its members. While I am not critical of the convention per se, it is inappropriate not to promulgate in writing, such a policy if that is what TNT intends to apply to such circumstances. I recommend TNT do so, if it has not already done so.
[118] Nevertheless, the fact that Mr Gray cannot apply for promotion for a period of time does not outweigh the fairness or appropriateness of the disciplinary action taken - which I do not intend to reverse. Mr Gray, and all employees, are on clear notice (if they were not already) that such behaviour in the workplace will likely have adverse consequences.
CONCLUSIONS
[119] In my view, both Mr Gray and Mr Cignarella were mutually responsible for the heated and unacceptable confrontation on 15 January 2013. It could have ended in a serious safety risk to themselves and/or other employees. I consider TNT’s disciplinary action, of them both receiving final written warnings as restrained, balanced, appropriate and fair in all the circumstances. Indeed, I consider that Mr Gray’s provocation of Mr Cignarella and his less than frank responses in his interview with Mr Ryan, might have landed him with a more serious disciplinary result than he actually received. He should be in no doubt of what any further incident of misbehaviour or poor performance might result in.
[120] As I do not intend to disturb the decision of TNT in respect to Mr Gray’s final warning letter, it is unnecessary for me to give any detailed consideration of the authorities referred to me, dealing with management prerogative, suffice to observe the following.
[121] In my opinion, the employer’s right to discipline employees is not only a management prerogative, in the strict sense, but there is a positive obligation on an employer to have a clear, sustainable and practical disciplinary process in the workplace. The process should be well known and understood by the workforce and applied consistently and fairly. It seems to me without such a process, there is the likelihood of frequent disputation and the possibility of a complete descent into chaos. In this respect, I refer to what Williams C said in AWU v Alcoa on the very question of management’s right to issue warning letters. At para [110], the Commissioner said:
‘[110] If I am wrong on this jurisdictional question I agree with the respondent that this sort of dispute is one where the Tribunal should not easily interfere in the decisions of management. The opportunity for every verbal counselling session, file note or warning letter issued by Alcoa’s supervisors and managers to be subject to arbitration would inevitably have a debilitating effect on the management of the respondent and erode their ability to properly discharge their duties. The employees of Alcoa do retain the critical protection that should a supervisor or manager take unwarranted disciplinary action resulting in their dismissal this can be challenged. In such cases their rights enshrined in the Agreement and the Act to pursue a remedy from unfair dismissal can be activated and the company’s actions will then be fully reviewed and where appropriate can be overturned.’
[122] That said, the right of the employer to manage the workplace as he/she sees fit, has always been restrained by the caveats that an employee shall not be required to comply with unlawful or unreasonable directions. Of course, the notion of what is reasonable, in any given set of circumstances, is probably the most commonly argued concept in industrial relations. It will mean different things to different people. Nevertheless, the commonly held principle is that the exercise of management prerogative will not be unreasonable, if a reasonable person standing in the shoes of the employer, would or could have made the decision.
[123] In Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited[2011] FWA 8288, Lawler VP helpfully set out the contemporary state of the law in respect to managerial prerogative. I respectfully adopt His Honour’s analysis. At para [7]-[12], His Honour said:
‘[7] The law recognises that there is an area of managerial prerogative in which an employer has the right to make decisions on how to manage their business. In Re Cram, ex parte N.S.W. Colliery Proprietors Association Limited the High Court observed that “many management decisions, once viewed as the sole prerogative of management, are now correctly seen as directly affecting the relationship of employer and employee”. That case was concerned with whether the jurisdiction of the federal tribunal (under the then legislation based on s.51(xxxv) of the Constitution) to make an award in settlement of a dispute was constitutionally limited so as to prevent any interference with managerial decisions. The High Court rejected any such limitation, observing:
“... we reject the suggestion, based on the remarks of Barwick C.J. in Melbourne & Metropolitan Tramways Board, that managerial decisions stand wholly outside the area of industrial disputes and industrial matters. There is no basis for making such an implication. It is an implication which is so imprecise as to be incapable of yielding any satisfactory criterion of jurisdiction: see Federated Clerks Union. Indeed, the difficulty of making such an implication is accentuated by the fact that the extended definition of ‘industrial matters’ proceeds on the footing that many management decisions are capable of generating an industrial dispute.
These considerations indicate that the objection voiced by O’Connor J. in Clancy to the regulation and control of business enterprises by industrial tribunals is not a matter that goes to the jurisdiction of the tribunals. Rather it is an argument why an industrial tribunal should exercise caution before it makes an award in settlement of a dispute where that award amounts to a substantial interference with the autonomy of management to decide how the business enterprise shall be efficiently conducted.”
(footnotes omitted)
[8] Subject to express terms, there is an implied term in the contract of employment that the employee will comply with the lawful and reasonable directions of the employer. This is one of the principal ways in which the employer’s managerial prerogative arises from a legal perspective and forms the basis on which an employer may be said to have a right to make and vary policies that employees are required to observe.
[9] As was observed by the Full Bench in Woolworths v Brown:
“[24] In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.”
[10] However, managerial prerogative in relation to employees (including the employer’s right to make and vary policies that employees are required to observe) is subject to legal constraints. It may be constrained by statute or the terms of an award. It may also be constrained by the terms of a contract of employment or a statutory agreement that the employer chooses to make. For example, an enterprise agreement might provide that all work must be carried out in accordance with a roster pattern specified in the agreement. In that example, unless the agreement also confers a right on the employer to vary the roster pattern, the employer has bound itself not to require employees to work a different roster pattern. In particular, an employer can bind itself in a statutory collective agreement not to change a policy or policies without, for example, the agreement of a relevant union or a majority of employees.
[11] If an employer’s exercise of managerial prerogative is not prevented by statute, an award, a statutory agreement or the contract of employment, the basis for a tribunal such as Fair Work Australia, acting as an arbitrator of a dispute, interfering with what would otherwise be a lawful exercise of managerial prerogative (such as the making or varying of a policy which employees are required to observe) was laid down Australian Federated Union of Locomotive Enginemen v State Rail Authority of New South Wales (XPT case):
“It seems to us that the proper test to be applied and which has been applied for many years by the Commission is for the Commission to examine all the facts and not to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable. The test of injustice or unreasonableness would embrace matters of safety and health because a requirement by an employer for an employee to perform work which was unsafe or might damage the health of the employee would be both unjust and unreasonable. The ACTU submitted to us that we should apply the test as to whether the demand of the employer was just and equitable having regard to all the circumstances. It is our view that under any given set of facts the test suggested by the ACTU would not lead to a different decision from the test which the Commission has applied over time. Accordingly in reaching our decision we have approached the matter from the point of view of making a judgement whether the request of the SRA that the XPT be manned by one man is unjust or unreasonable.”
[12] I proceed on the basis that an exercise of managerial prerogative will not be unreasonable in this sense if a reasonable person in the position of the employer, could have made the decision in question.’
[124] With this in mind, TNT’s decision to issue a warning letter to Mr Gray was obviously not unlawful. Moreover, it is evident from my earlier comments, that the decision was not unreasonable; indeed, quite the opposite.
[125] Finally, for the aforementioned reasons, this dispute is resolved and the proceeding is concluded.
DEPUTY PRESIDENT
Appearances:
Mr T Warnes for the Transport Workers’ Union of Australia
Mr M Brennan for TNT Australia Pty Limited
Hearing details:
2013.
Sydney
15 August
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