Vong v Sika Australia Pty Ltd
[2010] FMCA 1021
•24 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VONG v SIKA AUSTRALIA PTY LTD | [2010] FMCA 1021 |
| INDUSTRIAL LAW – Application under ss.807 and 841 of the Workplace Relations Act 1996 for alleged contraventions of s.792 – termination for reasons that included a prohibited reason – contravention established. |
| Workplace Relations Act 1996 (Cth) ss.736, 761, 763, 765(3), 778,792, 807, 809, 841 |
| ABC v Media, Entertainment and Arts Alliance (2005) 144 IR 103 Australian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 CPSU v Commonwealth (2007) 241 ALR 151 Dowling v Fairfax MediaPublications Pty Ltd (2008) 172 FCR 96 McIlwain v Ramsey Food Packaging (2006) 154 IR 111 MUA v Burnie Port Corporation (2000) 101 IR 435 NUW v Quenos Pty Ltd (2001) 108 FCR 90 |
| Applicant: | PAULO VONG |
| Respondent: | SIKA AUSTRALIA PTY LTD ACN 001 342 329 |
| File Number: | SYG 2401 of 2009 |
| Judgment of: | Lloyd-Jones FM |
| Hearing dates: | 8 & 9 March 2010 |
| Delivered at: | Sydney |
| Delivered on: | 24 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Joseph |
| Solicitors for the Applicant: | Slater and Gordon Lawyers |
| Counsel for the Respondent: | Mr R. Warren |
| Solicitors for the Respondent: | Carroll & O'Dea Lawyers |
DECLARATION:
The Respondent contravened s.792 of the Workplace Relations Act1996 (Cth) by dismissing the Applicant from his employment with the Respondent for a reason that included a prohibited reason under the Act.
ORDERS
In relation to the issues of compensation and reinstatement, the parties are directed to confer in an attempt to reach agreement on these issues.
If that conference fails to reach agreement, the parties are ordered to provide written submissions in respect to reinstatement, compensation and penalty. The Applicant is to file and serve submissions by
14 February 2011 and the Respondent to file submissions in reply by 28 February 2011.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2401 of 2009
| PAULO VONG |
Applicant
And
| SIKA AUSTRALIA PTY LTD ACN 001 342 329 |
Respondent
REASONS FOR JUDGMENT
The proceedings
This is an application under s.807 and s.841 of the Workplace Relations Act 1996 (Cth) in relation to alleged contraventions of s.792 of the Workplace Relations Act.
The Applicant in these proceedings, Mr Vong, was employed by Sika Australia Pty Ltd (“Sika Australia”) during the period 1 July 1994 until his termination on 1 June 2009. Sika is an international company which produced a broad range of chemical products which are used in construction and other industries. Sika operates from various sites across Australia and the Applicant was employed at the Wetherill park site, located at 55 Elizabeth Street, Wetherill Park, New South Wales.
The Applicant worked as a process worker for Sika Australia from his commencement date until 2004. In 2004 he was promoted to the position of team leader for the admixture area and this position involved the supervision of a small team of workers.
On 1 June 2009, the Applicant, Mr Vong, was dismissed from his employment with Sika Australia. The circumstances surrounding this dismissal are disputed between the parties and form the substantial basis for the present proceedings.
The Applicant relies on the following affidavit evidence:
a)Affidavit of Paulo Vong sworn 21 August 2009 (“1st affidavit of Paulo Vong”) – read with no objection;
b)Affidavit of Paulo Vong sworn 8 December 2009 (“2nd affidavit of Paulo Vong”) – read with no objection;
c)Affidavit of John Vaeila sworn 2 March 2010 – paragraph 16 & 17 not read;
d)Affidavit of Bruno Mendonca sworn 2 March 2010 – paragraph 21 not read; and
e)Affidavit of Paulo Vong sworn 2 March 2010 (“3rd affidavit of Paulo Vong”) – read with no objection.
The Applicant called the following witnesses to give oral evidence:
a)Mr John Vaelia [T - 08/03/2010, p.18-p.22];
b)Mr Bruno Mendonca [T - 08/03/2010, p.22 –p.26]; and
c)Mr Paulo Vong [T - (08/03/2010) p.11 – p.18].
The Applicant provided the following exhibits:
a)Exhibit A1 – Applicant’s personnel file;
b)Exhibit A2 – Clock card for Mr Valter;
c)Exhibit A3 – Letter to Mr Punch – correspondence re: availability of Mr Scott; and
d)Exhibit A4 – Letter to Mr Pasfield – Carroll and O’Dea Lawyers.
The Respondent relies on the following affidavit evidence:
a)Affidavit of Matina Litsas sworn 16 February 2010;
b)Affidavit of Alexandre Buckoski De Souza sworn 16 February 2010; and
c)Affidavit of Peter Bruce Scott sworn 16 February 2010.
The Respondent called the following witnesses to give oral evidence:
Ms Matina Litsas [T - (08/03/2010) p.33, T - (09/03/2010) p.43-76]; and
Mr Alexandre Buckoski De Souza [T - (09/03/2010) p.76-83].
The Respondent provided the following exhibits:
a)Exhibit R1 – correspondence re: request for further and better particulars.
Applicant’s claim
The Applicant claims that up to his termination on 1 June 2009, he had been a member of the National Union of Workers (‘NUW’) for approximately 5 years. He submits that up until May 2009 he had not received any disciplinary action from Sika Australia. The Applicant tendered Exhibit ‘A1’ which is a copy of his personnel file in support of this submission.
The Applicant, Mr Vong, states that on 20 May 2009 at approximately 7:45am, he slipped and fell whilst at work. He suffered injuries to his right arm, hips and ribs. Mr Vong was working with his colleague, Mr King, who attempted to call Mr Alexandre Buckoski De Souza (Operations Manager of Sika Australia) and Ms Matina Litsas (Human Resource Manager for Sika Australia). Mr Vong submits that Mr King was unable to reach either at that time. Mr Vong was then driven to Symbion Imaging at Wetherill Park by Mr King. Mr Vong submits that the doctor there recommended that he proceed with an X-Ray of his injuries. While in the waiting room with Mr King, Mr Vong was approached by Ms Litsas and Mr Buckoski and words to the following effect were exchanged:
Ms Litsas: Why didn’t you inform us?
Mr King: I could not get in contact with you.
Mr Vong states that the doctor recommended he be placed on light work duties following a review of his X-Rays (1st affidavit of P. Vong at [9]-[12]).
On 22 May 2009, at approximately 1:30pm, Mr Vong received a phone call from Ms Matina Litsas asking him to attend a meeting with her and Mr Alexandre Buckoski De Souza. Mr Vong indicated that he was advised by Ms Litsas that he required an observer for the meeting. Mr Vong appointed Mr Vaelia as his observer. During this meeting, Mr Vong was advised by Sika management (being Matina Litsas and Alexandre Buckoski De Souza) that he was to be suspended, pending the outcome of an investigation into certain allegations against him. Mr Vong was advised of his suspension both verbally and in writing. The notice of suspension indicated that Sika Australia intended to undertake a wide ranging investigation into Mr Vong’s conduct at work. [1st affidavit of P. Vong at [12] – [14]).
Mr Vong states that he was then contacted by Ms Matina Litsas on 26 May 2009 and words to the following effect were exchanged:
Ms Litsas: There will be a meeting on Thursday 28 May 2009
Mr Vong: I will bring a representative to the meeting
Ms Litsas: You can confirm the meeting with me tomorrow, I am fine with that (1st affidavit of P. Vong at [14]-[15]).
At approximately 1:00pm on 28 May 2009, Mr Vong arrived at Sika Australia to meet with Mr Bruno Mendonca, an Organiser with the NUW, and advised him of the situation. [1st affidavit of P. Vong at [16]). Mr Mendonca accompanied Mr Vong to the board room where the meeting was to take place. Ms Matina Litsas and Mr Alexandre Buckoski De Souza were present. Mr Vong submits that a conversation to the following effect took place:
Ms Litsas: Here is a form that confirms that you are here as an observer and not as a representative. We need you to sign this.
Mr Mendonca: I am here as a representative (1st affidavit of P. Vong at [16]).
Mr Vong then submits that Ms Litsas and Mr Mendonca argued about this issue and then words to the following effect were exchanged:
Ms Litsas: I will get an observer for Paulo
Mr Mendonca: Have you asked Paulo about this?
Ms Litsas: Are you OK with this?
Mr Vong: I want Mr Mendonca to represent me
Ms Litsas: Bruno cannot represent you. I am asking Bruno to leave. Bruno you have five minutes to leave the premises or I will be calling the police unless you agree to be here as an observer and sign the form. If you do not agree to be here as an observer I will appoint someone else.
Mr Vong: I would like to have Mendonca here as my representative. I do not know the legal side of things.
Ms Litsas: If you do not participate in the meeting you know the repercussions. We will have a further disciplinary meeting. I will have a discussion with our advocate and management and see where we are going from here. (1st affidavit of P. Vong at [16]).
At this point the meeting was terminated and Mr Vong and Mr Mendonca left.
At approximately 2:00pm on the same day, Mr Vong claims he received a phone call from Ms Litsas. They had a conversation to the following effect:
Ms Litsas: You need to come back to work right now.
Mr Vong: I am on the M4 and driving. I will call you back as soon as possible (1st affidavit of P. Vong at [17]).
At approximately 2:20pm that day, Mr Vong submits that he called Ms Litsas back and had the following conversation:
Mr Vong: I cannot come back. I need to pick up my children.
Ms Litsas: Get your wife to pick up your children.
Mr Vong: My wife is at work in Concord. She cannot pick them up. I can come to work tomorrow at 6am if that is ok with you.
Ms Litsas: You can come back at 7:30.
Mr Vong: Okay.
Ms Litsas: Mr Buckoski and I do not want Mendonca here. We want to have a disciplinary meeting.
Mr Vong: I will call you back. (1st affidavit of P. Vong at [17]).
Mr Vong submits that he then called Mr Mendonca and advised him that Ms Litsas wanted him to come to a disciplinary meeting on the following day. He advised Mr Mendonca that he wanted him to be present at the meeting the following day. Mr Vong then phoned Ms Litsas back and advised her words to the following effect:
I want my representative at the meeting as well. Please call me back if there is a problem with that (1st affidavit of P. Vong at [20]).
On 29 May 2009 Mr Vong arrived at the premises at approximately 7:30am and met Mr Mendonca. Mr Mendonca accompanied Mr Vong and met with Mr Alexandre Buckoski De Souza and Ms Litsas in the reception area. Mr Vong attests that a conversation to the following effect took place:
Ms Litsas: Bruno is not welcome here. He needs to get off the premises in 5 minutes or I will call the police. Paulo, you stay and I will appoint an observer for you.
Mr Mendonca: Have you spoken to Paulo about this?
Ms Litsas: Are you OK with this?
Mr Vong: I want Bruno to represent me.
Ms Litsas: You can start at 8:30am on Monday morning
Mr Vong: Okay (1st affidavit of P. Vong at [21]).
Mr Vong states that he walked Mr Mendonca to his car. Mr Alexandre Buckoski De Souza then approached the two and had exchanged words to the following effect:
Mr Buckoski De Souza: Do you want to go back to work now.
Mr Vong: Yes (1st affidavit of P. Vong at [22]).
Mr Vong states that Mr Buckoski De Souza was then joined by Ms Litsas and they exchanged words to the following effect:
Ms Litsas: You go back to work now. The company is paying you.
Mr Vong: I am not your slave. Don’t point at me and scream at me like that.
Mr Mendonca: Is this the way you treat your workers?
Ms Litsas: I will call the Fairfield police.
On 1 June 2009 Mr Vong states that he arrived at work at approximately 6:00am and started his normal shift. After his lunch break at approximately 11:45am, he claims that Ms Litsas approached him and offered to take him to the doctor for a check up because of his injury on 20 May 2009. Ms Litsas took Mr Vong to the doctor’s surgery. He states:
She took me to the doctor’s surgery. When my name was called, Ms Litsas said words to the following effect to me:
“Can I come with you?”
I said words to the following effect to her:
“Yes”
We then went in and saw the doctor.
When the doctor asked me to take my clothes off during the consultation he told Ms Litsas to go outside. Some 5 minutes later, Ms Litsas knocked on the doctor’s door and asked to come back in. Ms Litsas said words to the following effect to the doctor:
“How is he?”
The doctor said words to the following effect:
“He needs to stay on light duties”
Ms Litsas then said words to the following effect:
“Is the injury part of compensation?”
The doctor said words to the following effect:
“Yes”
As we were driving back to work, Ms Litsas took a call on her mobile phone. She said words to the following effect:
“We are coming to the office now. We are appointing an observer for Paulo”
Mr Vong states that when they returned to the Sika premises, Ms Litsas phoned Mr Buckoski and requested that he meet them in front of the office. He states that words to the following effect were exchanged:
Mr Vong: “I am going back to work”
Ms Litsas: “You have a meeting with Mr Peter Scott, Mr Buckoski and myself”
Mr Vong: “I need my representative here”
Ms Litsas: “So you don’t want to have a meeting with the general manager”
Mr Vong “I want my representative there”
Ms Litsas: “you have no choice and no right to a representative. I will appoint an observer for you”
Mr Vong claims that Ms Litsas then telephoned Mr Vaelia and asked him to attend. When Mr Vaelia arrived the following exchange occurred:
Mr Vaelia: “Paulo does not want me to represent him”
Ms Litsas: “He has no choice. Otherwise we will appoint someone else to be his observer”
Mr Vong: “I want my representative to be present”
Mr Vaelia: “Why don’t you want Bruno there? He knows a bit about the law”
Ms Litsas: “If he knew the law he would not have misled you guys on the unlawful strike”
Mr Vaelia: “We are meant to move forward not go back to the past”
Mr Vong: “This has nothing to do with me. I need my representative”
Ms Litsas: “You will not have Bruno as your representative here”
Mr Vong claims that Ms Litsas briefly left and when she returned, she handed Mr Vong an envelope. Words to the following effect were exchanged:
Ms Litsas: “We gave you a chance and you refused our company policy so this is your termination letter. I will walk with you to your locker and you can clean your stuff up”
Mr Vong: “I also have to get my things out of the office”
Ms Litsas: “No, Alex Buckoski and I will send it to you”
Mr Vong: “I want to get my children’s photos”
Ms Litsas retrieved the photos for Mr Vong. The letter provided to Mr Vong stated the following:
Dear Sir,
1. On 18 May 2009, Mr Buckoski, Sika Australia’s Operation Manager approached you to discuss overtime with you. You were asked who had authorised for you to do overtime, you replied that Prem from Logistics had authorised you to do overtime. After investigation it was confirmed that your claim was untrue.
2. On 19 May 2009, you attended a meeting to discuss what had occurred on the previous day and to clarify conflicting answers. Mr Buckoski asked Prem (in front of you) if he had authorised you to undertake overtime. You interrupted and said “This was all a misunderstanding because I (PV) thought that the reason we had to do overtime on Friday (15.5.09) carried over till Monday (18.5.09)”. At 11:45am Mr Buckoski then met with yourself and Hashim (Team Leader Production) and Prem to reinforce that no overtime was to be authorised without Mr Buckoski’s permission.
3. At around 3:00pm, on 19 May 2009, Mr Buckoski was walking through the admixture area and saw a Plant Operator working. Mr Buckoski approached the employee and asked him what he was doing in the admixture area as clocking off time was at 2:00pm. The employee replied to Mr Buckoski that you had authorised him to do overtime. Mr Buckoski said “Paulo Vong does not have the authority to authorise overtime, you must leave now”. The employee then left the premises at 3:20pm.
4. Mr Buckoski sent you an email to what had occurred (on 19.05.9) of the incidents of the day before (18.5.09), which you received and acknowledged.
5. On 20 May 2009, whilst you were waiting to have an x-ray with Mr Buckoski for an injury you may have sustained, you spoke with Mr Buckoski and advised him that you had authorised Valter Feriera to undertake overtime, without Mr Buckoski’s permission, although you were fully aware that you did not have the authority to do so. Mr Buckoski sent you an email to confirm the discussion that had actually occurred between yourself (PV) and Mr Buckoski re: your admission of authorising overtime without Mr Buckoski’s permission, and requested that you confirm that the conversation had occurred between you two as was true and accurate. You replied to this email to confirm the discussion between Hashim, yourself and Mr. Buckoski that you had all agreed for Valter to undertake overtime, and this was in fact incorrect.
6. Subsequently, Mr Buckoski and I asked you to come in for a meeting and asked you to bring an observer. You elected to have Johnny Vaelia from the Laboratory Department to observe the meeting on your behalf. You were then suspended with pay, whilst a thorough investigation in the matter of misconduct in regards to providing false information and insubordination was completed.
7. On the 26 May 2009, I had a formal meeting with Matina Litsas, Human Resource Manager and Mr Buckoski to report to the findings of the HR Manager’s investigation. I confirmed that, on the balance of probabilities, you had provided false information and engaged in insubordination toward Mr Buckoski. Consideration was given to your dismissal for gross misconduct. However, I indicated that I wouldn’t want to go down that path of dismissing you, because of your length of service and your work experience.
8. After consideration of you work record, I have made the following determination:
“Mr. Vong is to be advised that, having regard to his employment history, and notwithstanding recent matters, Sika Australia will consider his response to the allegations made against him and the facts presented. Based on the witness statements, we have determined that Mr Vong did provide false and [mis]leading information and that he was insubordinate to Mr Buckoski without justification.
Both of these allegations once proven on the balance of probabilities have serious consequences attached to them, one of which is termination of employment. But in this instance as an act of good faith, and taking into consideration his many years of service with Sika, the company has decided to keep him in employment.
Mr Vong will be demoted to the position of Plant Operator effective immediately. This demotion will lead to a reduction in salary.”
9. On 27 May 2009, you were directed to attend for a meeting on 28 May at 1pm. You said okay. Matina Litsas, HR Manager, asked you who you would bring as an observer; you said you wanted Bruno Mendonca [Union Organiser] to be your observer.
10. You, and Mr. Mendonca from the NUW, attended the meeting. Also present was Mr Buckoski and Ms Litsas (HR Manager). The disciplinary meeting was intended to advise you of the findings, invite your response, inform you of the outcome of the investigation and the proposed penalty.
11. Mr Mendonca declined to accept he was present as an observer and insisted he was acting as a representative. This position was not accepted by Sika Australia Pty Limited. Mr Mendonca indicated he would give ‘his member’ directions to which questions to answer and which to not answer and that he would not remain silent during the proceedings. He was invited to read and sign and or agree to the protocols for an observer and refused.
12. A series of verbal conflicts then arose and subsequently you and Mr. Mendonca left the office after you refused to be interviewed.
13. After a review of the incident, it was determined that you were to return to Boardroom so that we could have a meeting, with an appointed observer, other than Mr Mendonca.
14. Ms Litsas, tried then to call a number that was listed on your payroll records and your wife picked up the phone. Ms Litsas asked your wife if you had a mobile number and she said that you didn’t have a mobile number but that she would try and get in contact with you (PV) and get you to call Ms. Litsas back [Ms Litsas was surprised to hear this as you had been in an interview with her recently when a mobile phone in your possession rang and you answered it!]
15. Sika Australia waited for a response from you and when we didn’t receive a call back, Ms Litsas and Mr Buckoski went to the Admixture area to see if anyone had your mobile number.
16. Ms Litsas and Mr Buckoski then went to the Admixture contact white board and noted your contact number was smudged off the board. Ms Litsas then went and asked Peter King [your site delegate], for your mobile number and he said he didn’t have it. Ms Litsas and Mr Buckoski then saw Mr Stephen Collins on the way back to Head Office and asked him for the mobile number. Mr Collins provided the number to them promptly.
17. Ms Litsas then called you and directed you to come back to work immediately. You said you would try and get of the M[4] and come back. At 2.20pm Ms Litsas received a message on her work email advising that you were not coming back to work as you were on your way to pick up your “kids”.
18. Ms Litsas rang you and directed you to come back to work noting that Sika was still paying you. You advised Ms Litsas that you had to pick up your kids that that technically you were clocked off and therefore did not need to come. Ms Litsas advised you that this was unacceptable, but that she understood.
19. Ms Litsas then advised you to come to work at 6:30am on Friday 29 May 2009 so that Sika Australia can have the disciplinary meeting and that Mr Mendonca was not invited to this meeting (as he would no cooperate with our policy as to observers) ant that we would appoint an observer for you or you could appoint somebody else.
20. Ms Litsas also advised you, that if you were to disobey this directive the company could not guarantee you that the outcome would be a good one, those were the facts. You replied that you (PV) wanted “Bruno there with me”, in which Ms Litsas advised you that Bruno would be requested to leave the premises and that Ms Litsas would call the police if he refused. Ms Litsas then changed the time and advised you to be here at Sika workplace at 7:30am and you said okay.
21. Mon the 29 My at 7:30am, Ms Litsas and Mr Buckoski met with you and Mr Mendonca. Ms Litsas advised Mr Mendonca that he was to leave the premises immediately as he was not needed for this meeting. He refused and again Ms Litsas asked him to cooperate and comply with our observer policy, and he declined, again.
22. Ms Litsas then advised you that Sika Australia will not be conducting the meeting now and that you were to return to work on Monday, 1 June 2009, but in view of the situation and your decision not to cooperate with the Company, upon given specific directions by the Company, we will have to review our decision and take into consideration your non-cooperation in this matter. Ms Litsas then advised you that the Company will come to a final decision and will let you know on Monday 1st June 2009 the outcome.
23. You were then approached (with Mr Buckoski), and directed to resume work. After some further discussion and conflict with Mr Mendonca you returned to work (29.5.09).
24. After careful consideration of all of these matters, your conduct (separate from that of Mr Mendonca) and your refusal to obey a reasonable direction to attend for further interview, and not withstanding the consideration you were to be given (see paragraph 8) you are advised that your employment is terminated effective forthwith. The Company elects to pay you in lieu of notice and you are required to return any company property and leave the premises forthwith. [This confirmed the verbal advice Ms Litsas have just given you].
25. You will be issued with a separation certificate and a statement of service.
Peter Scott – General Manager, Sika Australia Pty Ltd.
Oral evidence
Mr Vong
Mr Vong gave direct evidence to the Court and was cross-examined on the contents of his three affidavits in these proceedings. He appeared as a genuine witness, despite English not being his native language. Mr Vong indicated he was originally from East Timor and spoke the dialect of Tetum. Mr Vong was substantially cross-examined in relation to his version of the events leading up to his termination.
When questioned by the Respondent’s counsel as to whether in fact Mr Mendonca had displayed aggression towards Ms Litsas, he indicated that Mr Mendonca had been quite civil to Ms Litsas. Mr Vong was also cross-examined in relation to his testimony that Ms Litsas told him he had ‘no right to a representative’ at the disciplinary meeting. When it was put to Mr Vong that Ms Litsas in fact said that he doesn’t need a representative at the meeting, he indicated:
“She said you don’t have a right, no choice, to have a representative. You’ve got no right”.
Further evidence was led in relation to accounts that Mr Mendonca was speaking in Portuguese to Mr De Souza. Mr Vong indicated that he did not understand nor speak the Portuguese language.
Mr Vaeila
Mr Vaelia was cross-examined on his affidavit testimony that Ms Litsas displayed an aggressive manner. It was put to Mr Vaelia that Ms Litsas displayed a forceful tone rather than an aggressive one. Mr Vaelia stated:
“He came at me aggressive. She sounded aggressive, she did”.
There was minimal oral testimony provided by Mr Vaelia.
Mr Mendonca
Mr Mendonca appeared in Court to give evidence and was cross examined. He presented as a credible witness. He was largely questioned in relation to the allegations about his aggressive demeanour during his attendance at the Sika work premises, which Mr Mendonca denied. He was further questioned on his insistence in relation to representing Mr Vong and whether it was his intention to speak for him at the disciplinary meetings. Mr Mendonca stated that it was not his intention to speak for Mr Vong. He indicates:
What I was seeking to do, I think, in my role and capacity as a union official was to ensure that there was fair process. To ensure that there may not have been questions that allude Mr Vong in – or steering Mr Vong in a direction that, you know, he wouldn’t be able to appropriately answer. Just to ensure that the process was fair and that Mr Vong gets due process and a fair process and outcome.
Sika Australia Enterprise Agreement
The Applicant refers to provisions of the Sika Australia Enterprise Agreement that provides for the handling of disputes within the company:
37. Disputes procedure
37.1 The parties to this Agreement commit themselves to ensure they comply with the following principles:
(1) the parties undertake to resolve any grievances, or industrial disputes on the basis of goodwill, consultation, discussion, open communication and the disclosure of all relevant facts;
(2) all grievances must be properly investigated and potential disputes receive fair, prompt and careful attention and consideration;
(3) any dispute arising out of employment shall be referred by the delegate representative appointed by the employee(s) for this purpose to the appropriate Company representative (appointed by the company)
(4) failing settlement at this level between the Company and the delegate, the delegate may refer the dispute within a reasonable time to the Union organiser who will take the matter up with the Company. All reasonable efforts shall be made by the Company and the Union organiser to settle the matter, but failing settlement the Union organiser shall refer the dispute to the Union secretary who shall take the matter up with the Company or the Company’s nominated representative;
(5) at any time either party shall have the right to notify the dispute to the Industrial Registrar of the Commission;
…
The Application
The Applicant’s solicitors filed an Amended Application on 25 November 2009, which seeks orders from this Court on the basis of allegations that s.792 and s.793 of the Workplace Relations Act have been breached by the Respondent, Sika Australia Pty Ltd. The specific allegations relate to s.793(1)(a) and 793(1)(j). Relevantly, section 792 provides:
Dismissal etc. of members of industrial associations etc.
(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee's prejudice;
(d) refuse to employ another person as an employee;
(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person as an employee.
(2) Subsection (1) is a civil remedy provision.
Note: See Division 9 for enforcement.
(3) For the purposes of paragraph (1)(d), an employer does not refuse to employ another person if the employer does not intend to employ anyone.
(4) An employer does not contravene subsection (1) because of paragraph 793(1)(i) unless the entitlement described in that paragraph is the sole or dominant reason for the employer doing any of the things described in paragraphs (1)(a), (b), (c), (d) and (e) of this section.
(5) A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) terminate a contract for services that he or she has entered into with an independent contractor;
(b) injure the independent contractor in relation to the terms and conditions of the contract for services;
(c) alter the position of the independent contractor to the independent contractor's prejudice;
(d) refuse to engage another person as an independent contractor;
(e) discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor.
(6) Subsection (5) is a civil remedy provision.
Section 793 stipulates a number of prohibited reasons:
(1) Conduct referred to in subsection 792(1) or (5) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
(a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or
(b) is not, does not propose to become or proposes to cease to be, a member of an industrial association; or
(c) in the case of a refusal to engage another person as an independent contractor--has one or more employees who are not, or do not propose to become, members of an industrial association; or
(d) has not paid, or does not propose to pay, a fee (however described) to an industrial association; or
(e) has refused or failed to join in industrial action; or
(f) in the case of an employee--has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or
(g) has made, proposes to make or has at any time proposed to make an application to an industrial body for an order under an industrial law for the holding of a secret ballot; or
(h) has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law; or
(i) is entitled to the benefit of an industrial instrument, an order of an industrial body or the Australian Fair Pay and Conditions Standard; or
(j) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person's rights under an industrial instrument; or
(k) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or
(l) has given or proposes to give evidence in a proceeding under an industrial law; or
(m) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions--is dissatisfied with his or her conditions; or
(n) in the case of an employee or an independent contractor--has absented himself or herself from work without leave if:
(i) the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and
(ii) the employee or independent contractor applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or
(o) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:
(i) lawful; and
(ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules; or
(p) in the case of an employee or independent contractor--has not paid, has not agreed to pay, or does not propose to pay, a bargaining services fee.
(2) If:
(a) a threat is made to engage in conduct referred to in subsection 792(1) or (5); and
(b) one of the prohibited reasons in subsection (1) of this section refers to a person doing or proposing to do a particular act, or not doing or proposing not to do a particular act; and
(c) the threat is made with the intent of dissuading or preventing the person from doing the act, or coercing the person to do the act, as the case requires;
the threat is taken to have been made for that prohibited reason.
Specifically, Mr Vong alleges that a reason, or at least part of the reason he was dismissed was due to his membership of the NUW (s.793(1)(a)); and that he made, or was proposing to make, a complaint to a person or body (in this case the NUW) having the capacity under industrial law to seek compliance with that law, or the observance of a person’s rights under an industrial instrument (s.793(1)(j)).
Application under s.793(1)(a)
The Applicant’s primary allegation is that he was dismissed for a reason, including the reason that he was a union member. Counsel for the Applicant submits that the dismissal letter issued to Mr Vong is instructive. In particular, reference is made to paragraph [24] of this letter which states:
After careful consideration of these matters your conduct (separate from that of Mr Mendonca) and your refusal to obey a reasonable direction to attend for a further interview, and not withstanding the consideration you were to be given (see paragraph 8) you are advised that your employment is terminated forthwith.
It is submitted that prior to the events of 1 June 2009, Mr Vong was facing, at worst, a possible demotion for the allegation of insubordination (affidavit of Mr Peter Bruce Scott (General Manager of Sika Australia) at [7] – [8]). Such disciplinary measures were dependant on Mr Vong’s explanation of events scheduled to be given at the disciplinary meetings arranged by Sika Management. Additionally, Mr Scott recalled Ms Litsas saying that if Mr Vong did not cooperate with Sika’s ‘processes’ he would be dismissed (affidavit of Peter Bruce Scott at paras.7-8).
It is submitted that cooperation with Sika’s processes, in reality, meant that Vong had to relinquish his right to have assistance from the NUW, specifically in the form of Mr Mendonca. He had to relinquish his right to representation by the NUW of which he was a member. It is submitted that on an objective review of the decision to dismiss Mr Vong, it was his insistence on having his union representative present at the disciplinary meetings organised by Sika that “cost him his job”.
It is clear and undisputed that Mr Vong wanted Mr Mendonca to assist him actively in disciplinary meetings with Sika management, not in the way envisaged by the “observer” form (Annexure “ML11” to the affidavit of Matina Litsas sworn 16 February 2010) that would have rendered Mr Mendonca merely a spectator. It is submitted that Mr Vong was aware of the difference between having Mr Mendonca there as an active representative and it is submitted that this is clear from the exchange of conversation with Mr Vaelia on 1 June 2009 (affidavit of Mr Vaelia at [8]- [10])
In his written submissions, Mr Joseph argues that s.793(1) generally needs to be viewed in its statutory context as part of the overall protections provided by the Freedom of Association provisions. Those protections are wide ranging and beneficial in nature: MUA v Burnie Port Corporation (2000) 101 IR 435 at [51]. It is submitted that s.793(1)(a) does not simply protect an employee from being dismissed due to their membership – i.e. simply that they hold a union member card. It is submitted that the proper view of the subsection is that it ought to be construed as providing protection to union members who may wish to avail themselves of the benefit of union membership in what may be described as ordinary union activities: Australian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 at [134] – [150]; NUW v Quenos Pty Ltd (2001) 108 FCR 90 at [124] – [125]; Dowling v Fairfax MediaPublications Pty Ltd (2008) 172 FCR 96.
In the present circumstances, Mr Vong was a union member. It is submitted that Mr Vong did what any union member would do and contacted the union for assistance and representation after he was advised he was facing disciplinary action. It is submitted that it is not a matter of controversy to say that people become members of a union primarily to obtain assistance with issues at work.
Mr Joseph submits that Sika’s ‘policy’, as contained in ‘ML11’ purported to stop Mendonca from doing or saying anything that would be of assistance to Mr Vong during his disciplinary meeting. It is submitted that this policy purported to remove the ‘basic right’ of representation that Mr Vong was seeking to exercise as a union member.
It is submitted that it does not matter that Sika sought to portray Mr Vong’s insistence on representation as his refusal to comply with a lawful direction. It is contended that characterisation ignores the facts established by the evidence and in the context of the events as they unfolded. The reason (or one or the reasons) for Sika terminating Mr Vong’s employment was his insistence on exercising the ‘most basic of rights’ as a union member.
It is submitted that the issue is whether Sika, in terminating Mr Vong’s employment (as an individual) did so for reasons that included a prohibited reason: McIlwain v Ramsey Food Packaging (2006) 154 IR 111 at [355] referred to with approval in CPSU v Commonwealth (2007) 241 ALR 151 at [113] per Branson J.
Application under s.793(1)(j)
It is submitted that in the alternative to the submissions above, Mr Vong would also be able to rely on the terms of s.793(1)(j) of the Workplace Relations Act. This relates to Mr Vong’s attempts to engage Mr Bruno Mendonca on a number of occasions between 27 May 2009 and 1 June 2009, prior to his termination. It is submitted that Mr Vong’s communications with Mr Mendonca and his clear request to Sika, on a number of occasions, to have Mr Mendonca represent him at various disciplinary meetings amount to ‘any inquiry or complaint’ for the purpose of s.793(1)(j).
Further, it is submitted that the NUW is an organisation of employees that, at all relevant times, was registered under the Workplace Relations Act. It was a person or body that had capacity to seek:
i)Compliance with the Workplace Relations Act, specifically Part 12 (Division 4) 14 and 16 of the Act; and/or
ii)The observance of a person’s rights under an industrial agreement being the Sika Australia Pty Limited New South Wales Enterprise Agreement 2006 (‘the Agreement’), specifically Mr Vong’s rights to representation and assistance under the disputes procedure under cl.37 of the Agreement (Annexure ‘PV2’ First Affidavit of Paulo Vong sworn 21 August 2009).
It is submitted that the Respondent’s claim in relation to s.793(1)(j)(ii) allegation, that the disputes procedure in the Agreement (Annexure “PV2”) was void at the relevant time because of Schedule 8 to the Workplace Relations Act and therefore could not be enforced, is incorrect for a number of reasons. Firstly, it is submitted that it does not matter if the disputes procedure contained rights that were not enforceable. Once an allegation is made that a dismissal was (in part) for a prescribed reason and the jurisdictional facts are established, then it becomes a question of assessing the motivations of the employer in the context of the reverse onus. It is submitted that it does not matter if Mr Vong’s approach to the NUW had been misconceived or vague. Further, it is submitted that it does not matter whether the NUW had any actual ability to enforce compliance with a particular law or industrial instrument. Mr Joseph contends that Mr Vong’s approaches to the NUW (and proposed approach on 1 June 2009) were sufficient where it is established that he was clearly concerned for his employment and believed he needed help from someone who held a greater knowledge of any ‘rights’ that he may have: Dowling v FairfaxMedia Publications Pty Ltd (supra) at [82] – [84].
Secondly, it is submitted that the disputes procedure in this case was not void. Clause 15A of Schedule 8 only applies tot disputes procedures to the extent that they are ‘about the application of the agreement’. This phrase, it is submitted, has its antecedents in s.170LW of the pre-Work Choices legislation, although in s.170LW the wording of the section included dispute “over the application of the agreement”. The use of the word ‘over’ rather than ‘about’ as is presently used, the s.170LW provision has been held to require characterisation of a dispute to decide whether it has sufficient nexus with the agreement itself: ABC v Media, Entertainment and Arts Alliance (2005) 144 IR 103 at [79] – [89]. It is submitted that in the present circumstances the dispute was about the right to union representation during a disciplinary interview. The disciplinary process generally was not dealt with in the Agreement (‘PV2’). For that reason it is submitted that his was not a dispute ‘about the application of the agreement’. Finally, it is submitted, that even if the model disputes procedure applied pursuant to Schedule 8 of the Act, that procedure does not preclude people from having representation – [e.g. 701(2)(a)].
It is submitted that in light of the termination letter, it was Sika’s view of Mr Vong’s conduct (being his insistence that his union representative be present) that was a central reason for his dismissal. It is submitted that according to Matina Litsas, if Mr Vong demonstrated that he was prepared to follow Sika’s ‘processes’ then his employment would have been preserved. Ultimately, once it was clear that Mr Vong wanted to have active union representation in any disciplinary process, (and to ensure observance of any legal rights), Sika would terminate his employment (affidavit of Matina Litsas at [44]-[46]).
Section 809 – the reverse onus
In Applications of this nature, where jurisdictional facts exist and allegations are made, s.809 of the Workplace Relations Act applies.
s. 809 - Proof not required of the reason for, or the intention of, conduct
(1) If:
(a) in an application under section 807 relating to a person's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise.
The Applicant submits that this has the effect of reversing the burden of proof so it is for the Respondent, Sika Australia Pty Ltd, to prove that Mr Vong was not terminated for the reason, or part of a reason stated in his complaint.
Respondent’s evidence
Oral testimony of Ms Litsas
Ms Litsas confirms that she had been the Human Resources Manager for Sika since April 2008. Prior to that she had been HR Manager at Salgo for a period of four months, an HR Advisor at Merc Sharp and Dome for a couple of months and an HR Advisor at Qantas. Ms Litsas confirmed that the Sika Australia Pty Ltd (NSW) Enterprise Agreement 2006 was an agreement reached between Sika and the National Union of Workers. However, once she was questioned about the operation of this agreement and throughout the remainder of her evidence, Ms Litsas became evasive and repeatedly requested the questions asked to be either repeated or rephrased. A sequence of questions in respect to the operation of the Enterprise Agreement ended in the following way:
Mr Joseph: Now, do you see that this is a dispute procedure that is contained in the 2006 Enterprise Agreement that applies? Do you see that document before you?
Ms Litsas: Yes.
Mr Joseph: Alright, my question to you was this: you said that you still apply the Enterprise Agreement – it still obviously applies at the site- and I asked you whether it continued to apply the dispute procedure in relation to the disputes arising out of people’s employment. That is my question.
Ms Litsas: I think so.
I gained the impression that whenever difficult or embarrassing questions were raised in cross-examination, Ms Litsas adopted an approach of indicating that she did not understand the question and that she sought it to be put in a different form or repeated. I believe this was deliberate to either avoid the question or wait until it was rephrased into a form that she believes she could answer without compromising herself. However, later in her evidence, Ms Litsas made a number of concessions which indicated her lack of knowledge of the operation of Human Resources legislation and administration. I will refer to these issues in more detail below.
Oral evidence of Mr De Souza
Mr De Souza confirmed that he had joined Sika Australia on 4 May 2009, which was only two weeks before the dispute involving Mr Vong occurred. He indicated that he had introduced a new system to authorise overtime a week before the incident involving Mr Vong. The balance of Mr De Souza’s evidence concerns discussions and meetings that he attended concerning disciplinary action and finally dismissal of Mr Vong.
Evidence of Mr Scott
Mr Warren indicated that he sought to read the affidavit of Peter Bruce Scott however he was not available for cross-examination due to an internal error in communications of the company and was not informed of the dates of the hearing. Mr Scott’s evidence is important to be received by the Court. He states that it was clear from the evidenced adduced in cross-examination of the last two witnesses that Mr Scott made the final decision. There was nothing controversial in Mr Scott’s affidavit and leave was sought of the Court to either tender it or to have the affidavit read in these proceedings in accordance with r.15.29A of the Federal Magistrates Court Rules where cross examination is dispensed with. Mr Joseph indicated that his client was opposed to this course and his instructing solicitors had written to the other side informing them that all witnesses needed to be available for cross-examination. Significantly, it is the ultimate decision maker that is not available for cross-examination.
I indicated to the parties that I would allow the affidavit to be read but it would carry very little weight. I indicated that the parties must realise that reasons exist as to why the affidavit should not be allowed in but there are also counter arguments why it should.
Respondent’s submissions
Mr Warren submits that the issue is whether Sika Australia was in breach of the provisions of the Workplace Relations Act and whether such a breach of the Act occurred in the way pleaded. The claim pleaded is that Sika terminated Mr Vong for a reason or part of a reason that included that he was a union member, or that he had made an enquiry or compliant. He submits that the pleading does not state that Mr Vong made a request for a representative, and that was denied, because the Workplace Relations Act does not give Mr Vong that right.
Mr Warren acknowledges that the National Union of Workers is a body having the capacity under an industrial law to seek compliance with that law or the observance of a person’s rights. However, Mr Warren advances the argument that the rights of the union go no further and submits that the proposition being advanced on behalf of Mr Vong must be found in the statute because it cannot be found in the industrial instrument. Mr Warren contends that if the NUW has a right to represent Mr Vong, it must be found in the statute because it is not in the industrial instrument.
Mr Warren referred the Court to Schedule 8 of the Workplace Relations Act – Transitional Treatment of Staff Employment Agreements and State Awards at para.15A – Dispute Resolution Processes which states:
15A(1) A preserved collective state agreement is taken to include a term requiring disputes about the application of the agreement to be resolved in accordance with model dispute resolution process
15A(2) Any term of the reserve collective state agreement that would otherwise deal with the resolution of those disputes is void to that extent.
The Agreement (first affidavit of Paulo Vong, annexure “PV2”) which is the Sika Australia Pty Ltd NSW Enterprise Agreement 2006, is a preserved collective state agreement and has been relied upon by Mr Vong in these proceedings. Mr Mendonca, in his affidavit at para.[20] states that he was called in for support of Mr Vong in a dispute and that he obtained that right under cl.37 of the Sika Enterprise Agreement, particularly sub-clause (4) which states:
(4) failing settlement at this level between the Company and the delegate, the delegate may refer the dispute within a reasonable time to the Union organiser who will take the matter up with the Company. All reasonable efforts shall be made by the Company and the Union organiser to settle the matter, but failing settlement the Union organiser shall refer the dispute to the Union secretary who shall take the matter up with the Company or the Company’s nominated representative;
Mr Warren submits that the Enterprise Agreement does not provide for a union organiser to represent an employee at a disciplinary meeting. However, Mr Mendonca in his evidence calls into support cl.37 of the Enterprise Agreement. This again appears in Exhibit R1 and the union, on behalf of Mr Vong, relied upon this provision. Mr Warren submits that the provision ceased to have effect as a result of s.15A of Schedule 8 of the Workplace Relations Act which, in effect, renders the provision void. Consequently, it is submitted that irrespective of:
i)Mr Mendonca’s evidence;
ii)Exhibit R1;
iii)wording of the Enterprise Agreement
there is nothing in that provision or the dispute procedure that Mr Vong can call upon for assistance.
Mr Joseph asserts that the NUW has representative rights and that Mr Vong could call upon the NUW for assistance. However, Mr Vong and the NUW’s rights come from statute, being the Workplace Relations Act under Part XV which deals with the right of entry. Section 736 sets out the objectives of this part and states:
In addition to the object set out in section 3, this Part has the following objects:
(a) to establish a framework that balances:
(i) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches of industrial laws, industrial instruments and OHS laws; and
(ii) the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment;
(b) to ensure that permits to enter premises and inspect records are only held by persons who understand their rights and obligations under this Part and who are fit and proper persons to exercise those rights;
(c) to ensure that occupiers of premises and employers understand their rights and obligations under this Part;
(d) to ensure that permits are suspended or revoked where rights granted under this Part are misused.
Mr Warren submits that it is an object of Part XV to establish a right of organisations to represent their members, balanced against a right of employers to conduct their business without undue interference or harassment. It is submitted that there is nothing in the evidence that has said that the employer in this case was attempting to penalise Mr Vong for participating in a legal strike. There is nothing in the evidence that suggests that the employer was denying the union’s right to notify the Australian Industrial Relations Commission of a dispute, nor is there anything in the evidence that says that the union was in some way prevented from conducting its legitimate rights contained within the statute. The statute specifically deals with the right of organisations to represent their members in terms of the right of entry.
Mr Warren submits that there is nothing in Mr Mendonca’s evidence that says:
I was trying to access premises with a right of entry
There is nothing that says he was denied a right to pursue his statutory rights. Rather, he was saying that he was denied a right pursuant to the dispute procedures (as discussed above) that is no longer in operation.
In Part XV – division 6 – Right of entry to hold discussions with employees, s.760 states:
A permit holder for an organisation may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. For this purpose, eligible employee means any employee who:
(a) on the premises, carries out work that is covered by an award or collective agreement that is binding on the permit holder's organisation; and
(b) is a member of the permit holder's organisation or is eligible to become a member of that organisation.
Mr Warren acknowledges that Mr Mendonca may have been a permit holder although there is no evidence of that before the court. Section 761 states:
The permit holder may only enter the premises under section 760 during working hours and may only hold the discussions during the employees' mealtime or other breaks.
Mr Warren acknowledges that this did not occur in this matter.
Section 763 – Limitation on Rights – Entry Notice, states:
This Division does not authorise entry to premises, or subsequent conduct on the premises, unless all the following conditions are satisfied:
(a) the permit holder gave an entry notice to the occupier of the premises at least 24 hours, but not more than 14 days, before the entry;
(b) the entry notice specifies section 760 as the section that authorises the entry;
(c) the entry is on a day specified in the entry notice.
It is noted that there are further restrictions in s.765(3) which states:
(1) This Division does not authorise a permit holder to enter, or remain on, premises if the permit holder fails to produce the permit holder's authority documents for inspection when requested to do so by an affected employer or by the occupier of the premises.
(2) This Division does not authorise a permit holder to enter, or remain on, premises if:
(a) an affected employer or the occupier of the premises requests the permit holder to comply with an occupational health and safety requirement that applies to the premises; and
(b) the request is a reasonable request; and
(c) the permit holder fails to comply with the request.
Note: The Commission may make an order under section 771 if the request is unreasonable.
(3) This Division does not authorise a permit holder to enter, or remain on, premises if:
(a) an affected employer or the occupier of the premises requests the permit holder to do either or both of the following:
(i) to hold discussions in a particular room or area of the premises;
(ii) to take a particular route to reach a particular room or area of the premises; and
(b) the request is a reasonable request; and
(c) the permit holder fails to comply with the request.
Note: The Commission may make an order under section 771 if the request is unreasonable.
(4) For the purposes of subsection (3), if an affected employer or the occupier requests the permit holder to hold discussions in a particular room or area, or to take a particular route to reach a particular room or area, the request is not unreasonable only because it is not the room, area or route that the permit holder would have chosen.
Mr Warren submits that the statutory right to represent, and the right of the union to represent, is a restricted right that is contained within the Rights of the Entry provisions of the Workplace Relations Act. Further, there is no decision of the High Court, the Federal Court or this Court that addresses the issue in respect of the right of a union to represent a member during a disciplinary proceeding. There are rights to make certain applications under the Workplace Relations Act and there are rights to do a number of things, but there is no statutory right for a union official to represent a union member in disciplinary proceedings. It could be said that the company went beyond what was necessary by informing Mr Mendonca that he could attend as an observer. The observer letter or form on its proper construction permitted a person to attend disciplinary proceedings as an observer and an observer could advise the attendee to request an adjournment to obtain advice.
Mr Warren contends that the disciplinary procedures allowed the observer to prompt the attendee to seek an adjournment to undertake a private conversation with the observer but the company insisted on its right to hold the investigation. Mr Warren acknowledged that this may lead to certain consequences. However, it must be distinguished from other procedures. The union may take unfair dismissal applications before what was then known as the Australian Industrial Relations Commission and now, Fair Work Australia. That may be taken on behalf of its member but that is a very different process from the matter currently before this Court. If a union takes an unfair dismissal application then that process brings into action notions such as procedural fairness and other procedural issues that are not present in this matter.
Mr Warren contends that the decision in Australian Meat Industry Employees’ Union v Belandra (supra) can be distinguished on its facts. In that decision, his Honour North J was considering the provisions of s.298L(1) of the previous Act which is essentially in similar terms as s.793(1) of the revised Act and considered whether the persons concerned fell within (a) and was a member of an industrial association. In that case, Belandra Pty Ltd which carried on the business of processing meat gave several undertakings in respect to the termination of employees. They were then reengaged but not by the original organisation. Consequently, the industrial instrument that applied to those employees changed, and his Honour North J found that was a deliberate effort to deny those employees of entitlements and the benefit of an industrial instrument. His Honour made other broad reaching statements with respect to what is now s.793(1)(a). Mr Warren advances the argument that none of these findings are relevant to the matter currently before this Court, where the issue being considered concerns a union seeking a right to represent a member. The argument advanced is that if that right to represent does not exist, and the right to represent is not a prohibited reason, then the Applicant’s case must fail on its merits.
Mr Warren argues that the statute determines the course of these proceedings. The refusal to allow the union to represent a member during a disciplinary process, to the full extent that representation demanded (i.e. capacity to talk on behalf of the member) and the refusal therein, is not a prohibited reason and therefore the action fails.
Mr Warren contends that if the preserved collective State agreement (“PV2”) had remained in force, there may have been an argument. However, the Respondent maintains the position that subsection 4 of cl.37 of the Sika Enterprise Agreement does not give that right of representation at disciplinary proceedings.
Consideration
Ms Litsas was asked a series of questions during cross-examination about the introduction of the ‘observer form’ which was required to be signed by anybody who attended a disciplinary meeting as an observer and excluded union representation. Paragraph 39 of Ms Litsas’ affidavit is being examined.
Mr Joseph: … the meeting you are referring to there on 28 May, Mr Buckoski was present; is that right?
Ms Litsas: That’s correct.
Mr Joseph: Alright. Now, you say that Mr Mendonca, you see there you say “I want you to recognise your position as an observer at this meeting”?
Ms Litsas: That’s correct.
Mr Joseph: Alright. Now, I want to put to you that he did not – Mr Mendonca – did not say to you, “I will give my member directions as to which question he will answer and which ones he will not answer”?
Ms Litsas: He did say that.
Mr Joseph: Alright. You say, “Your position is not recognised as such and you are, in fact, just an observer”. And again you repeat that, “No, you are just an observer and you cannot speak throughout the disciplinary meeting”; that’s right?
Ms Litsas: That’s correct.
Mr Joseph: On what basis were you saying that?
Ms Litsas: On the basis we had introduced an observer letter, and he was to follow internal policy.
Mr Joseph: Alright. And just remind me again, how did it become policy? How would the observer form become policy?
Ms Litsas: We introduced it.
Mr Joseph: Who’s “we”?
Ms Litsas: Well, myself representing the company.
Mr Joseph: I see. So you introduced it? That’s how it became policy; is your evidence?
Ms Litsas: I’m not sure what you’re asking.
Mr Joseph: I’ll ask the question again. I asked you how it became policy. You remember I asked you some questions earlier about this, and you said “we introduced it” and I said, “Who’s ‘we’”? and you’ve now answered that, I understand it representing Sika’s company policy, and I’m paraphrasing, so if I misunderstand it, you can fix it up?
Ms Litsas: Yes, this was a document to assist us ensuring that we didn’t have rude and disruptive behaviour.
Mr Joseph: And you introduced this under your authority, in effect, is that what you are saying?
Ms Litsas: Upon advice.
Mr Joseph: From Mr Doubel?
Ms Litsas: That’s correct.
Mr Joseph: Alright. The idea being that this would assist you in effectively shutting down any involvement of any third party in disciplinary meetings?
Ms Litsas: Could you ask the question again.
Mr Joseph: The purpose of it was to shut down, was to stop any involvement of any third party such as a union representative in discipline meetings?
Ms Litsas: Yes.
The cross-examination of Ms Litsas then moved to another aspect of the Affidavit and the following sequence of questions occurred:
Mr Joseph: Now you say:
“I want you to come back to work at 6:30am so we can have this disciplinary meeting, at which we will provide you with an opportunity to defend the allegations against you”
- so that was clearly what the meeting was about.
Ms Litsas: that’s correct.
Mr Joseph: You were going to be – it was going to be interactive and the questions were going to be asked and you wanted answers?
Ms Litsas: that’s correct.
Mr Joseph: and you said:
“Bruno is not invited to the meeting as he will not cooperate”
Ms Litsas: That’s correct.
Mr Joseph: And you said “if Bruno attends he will be requested to leave the premises and I will call the police if he does not”. Is there any reason for that? – I mean the comment about the police?
Ms Litsas: Yes. Bruno is very aggressive, so I didn’t want to have that prior to that meeting.
Mr Joseph: Because the next day when he actually came with his union representative – Mr Vong turned up with his chosen representative you say:
“No, Bruno has to leave the premises immediately as he is not needed for this meeting”
- is that right?
Ms Litsas: That’s correct.
Mr Joseph: What did you mean “not needed”?
Ms Litsas: This was an internal meeting with the company and Mr Vong – so as far as I was concerned, Bruno was not required for this meeting.
Mr Joseph: So just be clear on this, you were saying that he had no rights to union representation in this meeting?
Ms Litsas: Who had no rights, sorry? Can you re-ask the question?
Mr Joseph: Mr Vong had no right to have his union organiser there?
Ms Litsas: No, I was happy to have someone represent Mr Vong.
Mr Joseph: No, that’s not the question I asked madam. I asked you – you said it was an internal matter and I am just seeking to clarify your evidence, by asking a further question, which is; so your position was that Mr Vong had no right to have his union organiser present in your view?
Ms Litsas: Yes.
Mr Joseph: You agree with that proposition, is that what you’re saying?
Ms Litsas: Yes.
The sworn testimony of Ms Litsas demonstrates that there were a number of inconsistencies in the Human Resources role carried out by her at Sika Australia. Her initial evidence indicated that she believed that the Sika Australia Pty Ltd (NSW) Enterprise Agreement 2006 was operative and the provisions of the dispute resolution procedures at para.37 of that document (see above) were still operative. Despite the amendments to the Workplace Relations Act by the Work Choices provisions introducing Schedule 8, paragraph 15A, the management of Sika Australia held the view, at least by the Human Resources Manager and presumably on her advice the remainder of the Executive Staff, relied on this assumption.
In these circumstances, it must be assumed that employees such as Mr Vong and the union representative such as Mr Mendonca also operated on the understanding that the dispute resolution procedure contained in the Enterprise Agreement was still operational and a request to proceed under those provisions was reasonable in that case. No evidence has been advanced to suggest that the provisions of the Workplace Relations Act were adopted by the management of Sika Australia and that all of the relevant parties were advised.
This observation is supported by testimony given by Ms Litsas in respect to the adoption of internal policies. Under general management practice, policies are generally adopted by the management of an organisation after a review process, setting out guidelines to ensure that the organisation is complying with its obligations under various statutory regimes. In respect to human resources, these policies are usually published for the benefit of all relevant parties so that it is clearly understood what is expected of the organisation and its staff in relation to industrial issues, together with the requirements of the relevant legislation.
On Ms Litsas’ evidence, she has introduced the ‘observer form’ or letter on her own initiative on the advice of external consultants, without any apparent approval from management or advice to staff. This is even more interesting when it is considered that Ms Litsas believed that the Enterprise Agreement still had full operation, including the dispute settling provisions under cl.37 which made no reference to a form of this nature. Ms Litsas was attempting to force two of the parties that are signatory to the Enterprise Agreement, to sign a form which is not part of that settlement procedure and is clearly contrary to the Enterprise Agreement’s operation.
This resulted in a set of circumstances where the employee involved, Mr Vong, and his union representative, Mr Mendonca, believed that they were seeking to enforce a right which is contained in an authorised Enterprise Agreement to attend a disciplinary hearing. However, Ms Litsas, who also believes that the Enterprise Agreement is still in full operation, was attempting to enforce the execution of a document that she had introduced, that was contrary to the agreed terms of the Enterprise Agreement. Further, in her sworn testimony she confirms that it was her view that she had the right to deny Mr Vong from having his union organiser present during a disciplinary hearing. Regardless of what industrial regime Ms Litsas believes she is operating under, whether it be the Enterprise Agreement or the provisions of the Workplace Relations Act, she is in breach of both and ultimately the outcome will be the same in both cases.
The provisions of Schedule 8 of the Workplace Relations Act as amended by the Work Choices provisions has eliminated from the Enterprise Agreement, the operation of cl.37 and I am satisfied that this aspect of this case needs no further attention.
Under the revised provisions of the Workplace Relations Act, s.778 becomes relevant, which provides:
(a) to ensure that employers, employees and independent contractors are free to become, or not become, members of industrial associations;
(b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations;
(c) to provide effective relief to employers, employees and independent contractors who are prevented or inhibited from exercising their rights to freedom of association;
(d) to provide effective remedies to penalise and deter persons who engage in conduct which prevents or inhibits employers, employees or independent contractors from exercising their rights to freedom of association.
The circumstances of this matter relate to an employee with 15 years service, who commenced with the company as a process worker and has been rewarded for his diligence, with a promotion to the position of Team Leader in the Admixture area of the production facilities. His employment file indicates that he is a very competent employee and has no record of disciplinary action against him. In the period prior to the present issue, there had been considerable pressure to reach production targets and Mr Vong and some of his team, had been undertaking overtime in an attempt to reach the company’s production targets. Immediately before the dispute in issue, there was a number of changes to the management structure and new approval procedures were introduced for the approval of overtime. The evidence in this matter does not indicate whether these changes were effectively notified to all staff and such instructions were understood. However, Mr Vong, in his role as team leader, believed that it was important to achieve the designated targets and that this could only be done with the undertaking of overtime.
Mr Vong came in dispute with management for the unauthorised approval of overtime and this was going to be addressed, initially by an inquiry (of which there is little effective information before the Court as to how this inquiry was undertaken), but the result was that Mr Vong was to be disciplined. Mr Vong can communicate in English as a second language, with his native tongue being an East Timor dialect of Tetum. Mr Vong was advised that he was required to appear before a disciplinary session, made up of a number of executives of the organisation, including the Human Resource Manager. He was naturally concerned and sought the assistance of his union organiser to be his representative at that hearing.
He clearly articulated to Ms Litsas that he lacked knowledge of the procedures and legality of a disciplinary hearing and wanted the assistance of his union organiser. His evidence indicates that he fully understood the significance of this procedure and indicated his concern, particularly with the potential ultimate sanction of losing his job. He understood, as did Mr Mendonca as the union representative, that such a request was appropriate under the provisions of the Enterprise Agreement, which they, together with the Human Resource Manager, understood still operated.
Nothing in any of the affidavits, or oral evidence of any witness, indicated that due to the new provisions of the Workplace Relations Act, cl.37 of the Enterprise Agreement no longer operated. When Mr Vong indicated his intention to have Mr Mendonca as his representative, Ms Litsas set in motion her policy to deny Mr Vong the right of his union representative to assist him in the disciplinary hearings. In her sworn testimony, Ms Litsas confirms that this was her intention. I am satisfied that this action establishes a breach of s.778 of the Workplace Relations Act and brings s.792 and s.793 into play.
As the Respondent has not addressed its case under the framework of s.809, where the Respondent is required to bear a reverse onus to prove that Mr Vong was not terminated for the prohibited reasons alleged, Mr Vong’s application, supported by the evidence, must be viewed favourably.
If Mr Vong was to submit to the process that Ms Litsas was insistent upon, it meant that Mr Vong was forced to relinquish his right to have assistance from the NUW, specifically Mr Mendonca, who would represent and protect his interests. To participate in the disciplinary hearing, Mr Vong was forced to relinquish his right to representation by the NUW of which he was a member. On an objective review of the decision to dismiss Mr Vong, I find it to be a direct result of his insistence on having his union representative present at the disciplinary meeting. Mr Vong has given unequivocal evidence that he wanted Mr Mendonca to assist him actively in the disciplinary meeting with the Sika Australia management. If Mr Mendonca had accepted and agreed to sign the ‘observer form’ he would have been rendered a spectator with no rights to intervene at any stage on Mr Vong’s behalf. Mr Vong has clearly stated his deep concern in respect to appearing at the disciplinary hearing, fearing that his innocent or naive responses could be highly detrimental to his position and seriously threaten his job security.
I rely on the decisions in Australian Meat Industry Employees’ Union v Belandra Pty Ltd (supra) at [134] – 150]; MUW v Quenos (supra) at [124] – [125] and Dowling v Fairfax Media (supra) that s.793(1) of the Workplace Relations Act should be construed as providing protection to union members who may wish to avail themselves of the benefit of union membership, in what may be described as ‘ordinary union activities’. The circumstances of this matter clearly fall within that interpretation of the section. In this matter, Mr Vong relied on his union membership and called for assistance in representation from the union organiser, after he was advised he was facing disciplinary action. Having the option to engage this type of assistance is the primary reason for individuals to become members of a union, particularly in respect to situations in their work environment. There can be no dispute that this is the reason that Mr Vong insisted on the presence of Mr Mendonca, a person that Mr Vong viewed as being competent in the areas that were crucial to his interests.
The regime that Ms Litsas was attempting to enforce removed the basic right of representation that Mr Vong was seeking to exercise as a union member. As indicated, Ms Litsas in her attempt muzzle Mr Mendonca, pursuing the use of an ‘observer form’ contrary to the provisions of the Enterprise Agreement, or the operation of the Workplace Relations Act, amended by the Work Choices provisions. Both are issues that Ms Litsas should have been fully aware in her position as Human Resource Manager. It is not for this Court to determine whether it was her incompetence or inability to address the difficult situations which frequently occur in the area of industrial relations.
I am satisfied that the authority in McIlwain v Ramsey Food Packaging (supra) at [359] and CPSU v Commonwealth (supra) at [113] establishes that Mr Vong’s employment was terminated for reasons that included a prohibited reason.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM
Date: 24 December 2010
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