William James Whitaker v Australia Post
[1995] IRCA 612
•17 Nov 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim for UNLAWFUL TERMINATION - whether PROCEDURAL FAIRNESS - code of conduct inquiry and APPEAL procedure - whether there was a VALID REASON for the termination
INDUSTRIAL RELATIONS ACT 1988 Ss 170DC, 170DE, 170EA
WILLIAM JAMES WHITAKER - v - AUSTRALIA POST - WI 95/1357
BEFORE: BOON J
PLACE: PERTH
DATE: 17 NOVEMBER 1995
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1357
BETWEEN: WILLIAM JAMES WHITAKER
- Applicant
AND: AUSTRALIA POST
- Respondent
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 17 NOVEMBER 1995
THE COURT ORDERS THAT:
The application is dismissed.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1357
BETWEEN: WILLIAM JAMES WHITAKER
- Applicant
AND: AUSTRALIA POST
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 17 NOVEMBER 1995
REASONS FOR JUDGMENT
This is an application under Section 170EA of the Industrial Relations Act for an order for reinstatement and compensation arising out of the alleged unlawful termination of the applicant's employment by the respondent.
The applicant, Mr Whitaker, alleges that the termination of his employment contravened the provisions of the Industrial Relations Act in a number of ways. In the first place, it is alleged that he was not given an opportunity to respond to allegations made against him within the meaning of Section 170DC of the Act. The respondent, Australia Post, denies that it breached the provisions of Section 170DC and says that Mr Whitaker was counselled verbally on several occasions about his conduct and further was given an opportunity at two separate inquiries plus an appeal to respond to allegations made against him.
Secondly, Mr Whitaker says that the termination of his employment occurred without a valid reason or was in any event harsh, unjust or unreasonable within the meaning of Section 170DE of the Act. Australia Post denies that it breached the provisions of Section 170DE and states that the termination of Mr Whitaker's employment occurred for valid reasons, namely that he failed to behave in an acceptable manner to fellow employees within the Post Office.
BACKGROUND
Mr Whitaker is 48 years of age, is a married man and has five children. He has been employed by Australia Post since 18 June 1985. At the time of his termination, he was a Postal Service Officer Grade 2 earning an annual salary of $26,468. Until August of 1994, Mr Whitaker was employed at the Claremont Post Office. Following complaints by a customer and by his fellow staff members at the Post Office, Mr Whitaker's conduct became the subject of an inquiry. As a result of the inquiry and its outcome, Mr Whitaker was transferred to the Maddington Post Office. After he had been working there for several months, his conduct was once again the subject of complaints by fellow staff members. A second inquiry was held after which Mr Whitaker's employment was terminated. The nature of the allegations made against Mr Whitaker and the inquiry process will be dealt with in greater detail below.
Craig Palmer, an Australia Post employee at Claremont for eight years, was called by Mr Whitaker to give evidence. Mr Palmer is the Acting Assistant Postal Manager at Claremont. He agreed with Mr Whitaker that a Mr Rick Cornis, a fellow employee, had kept a folder of pornographic literature in a locker at the Claremont Post Office. Mr Cornis has since retired from Australia Post. Mr Palmer was not aware of any complaints made about Mr Cornis. In his evidence-in-chief, Mr Palmer said that he had occasionally overheard Mr Whitaker making inappropriate personal remarks to customers. Mr Palmer's evidence was that there was nothing inappropriate in Mr Whitaker's dealings with male customers or the elderly, but that he did make inappropriate remarks to female customers. Mr Palmer also heard Mr Whitaker occasionally make inappropriate remarks to female members of staff. Mr Palmer's evidence was that Mr Whitaker's inappropriate remarks usually contained a double meaning or sexual innuendo. He said that he remembered on one occasion a regular customer who was pregnant was asked by Mr Whitaker for a ringside seat at the birth. Mr Palmer said that everybody in the Claremont Post Office could hear these remarks but the customer didn't seem to mind. He said, however, that other customers who overheard were embarrassed by these remarks. Mr Palmer said that Mr Whitaker made these inappropriate remarks quite often, at least once a day.
Mr Palmer remembered another occasion on which Marie Munt, a former Australia Post employee aged around 50, was serving a male customer. Mr Whitaker joined in the conversation and Mr Palmer heard Mr Whitaker suggest that Ms Munt go out with the customer. That didn't seem to matter because they were already having a joke. However, Mr Whitaker then said that "Marie probably had cobwebs". Ms Munt became upset and ran out the back. Mr Palmer himself was embarrassed by the remark. Mr Palmer said that later on he became a supervisor at the Claremont Post Office. He didn't receive complaints from people about Mr Whitaker's behaviour but in retrospect he felt he should have done something about it.
Mr Whitaker then called Carol Bootherstone to give evidence. Ms Bootherstone has been an Australia Post employee since 1990. She worked with Mr Whitaker in the Claremont branch but is now Postal Manager at Fremantle. She gave evidence that when she first started at Claremont during her training she was talking to someone at the counter and Mr Whitaker came past and patted her on the bottom. She told him off soundly for it and Mr Whitaker didn't speak to her for a long time afterwards. Ms Bootherstone said that if the weather was cold Mr Whitaker would often say to female staff and to customers "Is it cold in here or are you just pleased to see me?". Ms Bootherstone's evidence was that Mr Whitaker would make this remark if a customer came in with casual clothes on which were perhaps a bit transparent. Some of the customers were obviously embarrassed by it. Some customers, however, seemed to enjoy such remarks. Ms Bootherstone also said that if a staff member was in a bad mood Mr Whitaker would say "Didn't you get any last night?".
Her evidence was that on some occasions Mr Whitaker would say things that were really disgusting. On one occasion, Mr Whitaker said to Ms Bootherstone that even though she was married she was still a virgin as she'd never "had a man with a big enough penis to give her a proper fuck". Ms Bootherstone was upset by this. She said that she made it clear at the beginning what she felt about his remarks. Sometimes she would ignore it and sometimes she told him not to be stupid. She said that the female staff didn't give him the impression that they were encouraging him. Sometimes, however, they would laugh at a joke he would make.
Ms Bootherstone said that sometimes Mr Whitaker would admire a brooch or a necklace on a female customer. He'd ask the customer to lean forward so that he could admire it. This was generally done with young women or those with a low cut top on. Ms Bootherstone's evidence was that virtually every day he made inappropriate comments to customers and staff. She said that she also saw Mr Whitaker stack the queue in that he would manipulate the queue so that he would be serving young attractive women or his army friends.
Ms Bootherstone was also involved in an alleged incident just before Mr Whitaker was transferred from Claremont. A regular customer, Michelle Noonan, had handed Mr Whitaker a hockey stick for posting. Ms Bootherstone was busy with her back to Mr Whitaker. She looked up and saw Willa Currie's face, and this made her turn around. She faced Mr Whitaker who was standing with his arms outstretched holding the hockey stick near the bottom of her skirt. She asked Mr Whitaker what he was doing and he jiggled the stick around and then posted it. Ms Currie's evidence was that Mr Whitaker had been jiggling the hockey stick under Ms Bootherstone's dress, making as if to lift up the dress.
The next person to give evidence was a customer, Michele Noonan. Ms Noonan is a young, attractive woman aged about 30. She is an employee of Gryphon Traders and attends the Claremont Post Office on a daily basis, sometimes up to three times per day. Ms Noonan said that she had noticed that Mr Whitaker served mostly female customers if he could. He avoided serving male customers by ducking behind the counter and keeping busy until it was time to serve a female customer. Initially, Ms Noonan didn't have a problem with him. She thought Mr Whitaker was just friendly. As time went on, however, the remarks he made to her became more and more personal. It made her uncomfortable. On one occasion, he grabbed hold of her hand and asked why she didn't have any rings. He said "What's the matter, wouldn't anyone have you?". This upset Ms Noonan as she felt that he was putting her down. Mr Whitaker also told Ms Noonan that he had lots of rings at home and if she'd like to she could come home with him and he'd give her one. Ms Noonan also complained that Mr Whitaker consistently maintained eye to chest contact with her. This made her feel uncomfortable. Ms Noonan's evidence was that she heard Mr Whitaker regularly make sexual remarks to staff and customers. These remarks were not at all appropriate.
Ms Noonan gave evidence that on 17 August 1994 she was wearing an extra large T‑shirt with a Gryphon logo on it. Mr Whitaker served her and told her that she only wore those T-shirts so that he could look at her "titties". Ms Noonan was disgusted, went back to work and rang Australia Post. She recited the incident and made a formal complaint about the matter. A few weeks after Ms Noonan made the complaint, she received a phone call from a female whom she judged to be in her thirties. This woman said that she was acting on behalf of Bill Whitaker and said that she'd drag Ms Noonan through every court in the country as Ms Noonan had been telling stories about Mr Whitaker. This was understandably distressing to Ms Noonan. Although there was some suggestion made on behalf of Australia Post that Mr Whitaker's wife was the person who made the call, there was simply no evidence before this Court on which such a finding could be made. That kind of behaviour, however, is a cause for great concern and is totally unacceptable.
Kylie King, another employee at the Claremont Post Office, also gave evidence. She said that she worked on the counter at the Claremont Post Office next to Mr Whitaker. This enabled her to hear a great deal of what he said. Her evidence was that Mr Whitaker sometimes spoke suggestively to female customers. Mr Whitaker said things which could be taken in two ways. He would allude to meeting customers socially after work. Ms King said that some ladies seemed to take this quite well but others didn't. Some female customers said when Ms King served them that they were glad that Mr Whitaker was not serving them. Ms King said that Mr Whitaker made remarks to staff as well. She said that he made suggestive remarks virtually every day. Mr Whitaker would ask Ms King if she'd "had any last night". This made Ms King uncomfortable. Ms King said that she was new and took her lead from the others. It became known that she did not have a boyfriend at the time. Mr Whitaker would suggest that he set her up with male customers. Ms King was made to feel uncomfortable and she didn't like that.
Ms King said that she remembered the incident with Michele Noonan. Mr Whitaker was serving about a metre away from her. She remembered that Ms Noonan was wearing a T-shirt with a logo. She said that this T-shirt was not tight or indecent. She couldn't remember the exact words Mr Whitaker said but he said something to Ms Noonan along the lines that her T-shirt was encouraging him to look at her chest.
Ms Willa Currie gave evidence that she had been a Postal Services Officer at Claremont since October 1989. When she started, Mr Whitaker was already an established member of the staff. Her evidence was that Mr Whitaker quite often used sexual innuendos with customers and members of the staff. He would often remark on customers' brooches, necklaces and things around the chest area. She formed the conclusion from observing him that he was looking at their breasts in a leering manner. The general flavour of the remarks Mr Whitaker made were of a double meaning type. Ms Currie described Mr Whitaker as a "perve". She said he behaved like this on a daily basis. Ms Currie also remembered the Marie Munt incident. Ms Currie had become quite friendly with Ms Munt and knew that she had recently been out on a date. Ms Munt had been widowed for some time. Ms Munt remarked that her date had gone well and that she'd had a nice time. Mr Whitaker then said to Ms Munt "Good on you love, I bet that got rid of the cobwebs". According to Ms Currie, Ms Munt went bright red and her eyes filled with tears. Ms Munt had to walk away from the counter for some time. Ms Currie heard Mr Whitaker sometimes make remarks to Ms Munt about the fact that she was celibate. These remarks were obviously unwelcome to Ms Munt.
Ms Currie also said that at the time her boyfriend worked in the country and came to Perth every second weekend. Whenever her boyfriend had been down for the weekend, Mr Whitaker would make embarrassing remarks on the following Monday about what Ms Currie had been up to on the weekend. This happened to the extent that Ms Currie would dread going to work on a Monday.
Ms Currie remembered the incident when Michele Noonan posted a hockey stick. Mr Whitaker served her. Carol Bootherstone was standing serving in front of the trap door. Mr Whitaker held the hockey stick behind Ms Bootherstone and moved it up and down behind her dress. Ms Currie was at the counter along from Mr Whitaker and she could see all of Mr Whitaker and all of Carol Bootherstone. She said Ms Bootherstone had a long skirt on and Mr Whitaker had the hockey stick underneath her skirt and moved it up and down. He didn't actually lift up the skirt. Ms Bootherstone looked around and saw the expression on Ms Currie's face. Ms Bootherstone swung around to see what was going on. Ms Currie's evidence was that at this stage Mr Whitaker had walked up to put the stick through the chute.
Ms Currie said that she didn't think to complain about Mr Whitaker's behaviour as she was aware that other complaints about his behaviour had been made earlier to Ron Clarkson and to her knowledge nothing had been done. She didn't think that anything would be done if she complained. She also didn't complain because she had to work with Mr Whitaker and she didn't want to inflame the situation.
Ron Clarkson, the former Postal Manager at Claremont, gave evidence. He said that he left Claremont in mid 1994. He remembered an incident concerning a young female employee of Viva Colour. One of the managers of Viva Colour came in complaining that one of her young female staff was going to leave her employment with Viva Colour as she didn't like the continual sexual innuendo from Mr Whitaker when she visited the Post Office. Mr Clarkson suggested that the complaint be put in writing but this was declined by the complainant. Mr Clarkson called in Mr Whitaker and talked to him about the incident. Mr Whitaker denied making any sexual innuendo. Mr Clarkson said to Mr Whitaker that the lady hadn't made a complaint but that it was best not to say anything of that nature in future or "you'll get caught".
Some time later Mr Clarkson had received another complaint from a customer about Mr Whitaker's behaviour. He went to the customer's house with his Area Manager. The customer was a young woman in her late teens or early twenties. The customer was visibly upset when discussing the incident. She complained that Mr Whitaker had made a comment to her comparing her breasts to car headlights. Mr Clarkson later put to Mr Whitaker what the customer had complained about and Mr Whitaker denied the incident. The customer would not make a formal complaint so Mr Clarkson formally counselled Mr Whitaker. Mr Clarkson wrote it down on a disciplinary form and also told Mr Whitaker not to do it again. As per Australia Post procedure, Mr Clarkson gave Mr Whitaker a copy of the disciplinary form and one copy was put in Mr Whitaker's file for destruction after six months. As far as Mr Clarkson was aware, the form was destroyed after six months as no further formal complaints were made against Mr Whitaker within that time. Mr Clarkson said that he remembered Mr Whitaker apologising to the manager of Viva Colour when she attended again at the Claremont Post Office. Mr Whitaker had not admitted making the remarks but had said that if he had said anything to offend the young girl then he apologised.
Stuart Adair, the Postal Manager of the Claremont Post Office, also gave evidence. In July 1994, Mr Adair was Mr Whitaker's supervisor and was second in command at the Claremont Post Office. Mr Adair said that he heard Mr Whitaker often say things that had a double meaning. Mr Adair never received any customer complaints until Michele Noonan complained in August 1994. Mr Adair's evidence was that a lot of Mr Whitaker's comments seemed to have double meanings and Mr Adair did not know if it was in fun or if it was double edged. When Michele Noonan telephoned to complain about the T-shirt incident, she first spoke to Craig Palmer and sounded very distressed and was crying. Mr Adair spoke to Ms Noonan and found out the nature of the complaint. He didn't immediately take it up with Mr Whitaker because what Ms Noonan was alleging went beyond Mr Adair's jurisdiction. Mr Adair then spoke to the Area Manager in accordance with the Australia Post Code of Conduct. Mr Adair spoke to Mr Whitaker on the following Monday, as the day after the complaint Mr Whitaker was not at work. Mr Adair believed that Mr Whitaker should not be serving on the front counter until the matter was resolved. He went to Mr Whitaker's house on the Monday to inform him by letter that he had been suspended. Mr Whitaker's response was one of shock and he was in a state of disbelief. He was taken aback by the allegations and he denied them. Mr Adair said that after Mr Whitaker was suspended on one occasion he had a customer who expressed her relief that Mr Whitaker had gone and that she would not have to have him serve her again.
Mr Whitaker was unrepresented at the trial. In relation to the Claremont incidents, Mr Whitaker's evidence consisted of a flat denial that the incidents complained of ever happened. As to the Michele Noonan incident, he said that he had never used the word "titties" in his life. Mr Whitaker said that when Ms Noonan first started coming into Claremont she was keen on him and she became upset that he "fobbed her off". Mr Whitaker denied rubbing Ms Noonan's hand and denied maintaining eye to chest contact with her. He also denied inviting her over to his house so that he could give her a ring. He said that the only time he might have touched her hand was inadvertently in passing over a parcel.
Mr Whitaker also denied making any offensive remarks to Marie Munt. He said that she worked there so long ago that he could remember very little about her.
As to the Viva Colour employee, Mr Whitaker said that she was only 14 or 15 years old and he would never make any comments of a sexual nature to a girl of that young age. Mr Whitaker did remember one incident with Kerry Taymen, the manager of Viva Colour, who came into the Post Office once when it was raining. She was wearing a white blouse which was undone. Mr Whitaker said to her "Careful, you might fall out. You'd better do it up". He said that Mrs Taymen gave him a hard time. Mr Whitaker hinted that Mrs Taymen's evidence was not to be trusted as she had been going through a bad time and was having marital problems because, as he put it, "her husband was drawn to the young female employee". He described the incident with the young Viva Colour employee as a storm in a teacup. Mr Whitaker further denied the "headlights" incident.
As to the incident with the pregnant customer, he said that she was an old girlfriend of his and had said that her husband would not be attending the birth. Mr Whitaker said as a joking gesture that the whole staff would come and help. The customer was a friend of his and this was a friendly comment made in a joking manner. He said that it was not inappropriate in the way that he said it. Further, Mr Whitaker denied ever saying to Kylie King or Carol Bootherstone "Did you get any last night?". Mr Whitaker further denied manipulating the queuing system so that he could serve Michele Noonan and other female customers.
As to the alleged hockey stick incident, Mr Whitaker said that the hockey stick was handed over the counter to him and he made as if to play a cricket stroke. He raised the stick behind him as a cricket bat and lowered it to just near his feet. Mr Whitaker denied putting the hockey stick anywhere near Ms Bootherstone's dress.
Mr Whitaker denied ever asking Willa Currie about her sex life over the weekend.
Mr Whitaker said that if he ever said anything to upset any of the staff it was done unintentionally and nobody had ever told him to stop making any comments. He denied that Ron Clarkson had every spoken to him about any alleged incidents or that he'd ever been warned, either orally or by way of a disciplinary form, by Mr Clarkson.
Mr Whitaker said that the women in the office went to equal employment opportunity training and when they returned they said they "could set us up and destroy us any time they liked". As a result of this, Rick Cornis warned Mr Whitaker to be careful. Mr Whitaker said that Mr Cornis kept pornographic material in a locker at the Claremont Post Office, had a pornographic tape for the computer and sometimes showed pornographic videos in his office behind a closed door. Nobody ever complained about Mr Cornis' behaviour.
Mr Whitaker alleged that all of the allegations relating to his time at the Claremont Post Office were fabricated by the staff and said that the female members of staff were engaged in a conspiracy to have him removed from his job. This was denied by each of the female staff members who gave evidence.
THE FIRST CODE OF CONDUCT INQUIRY
After Michele Noonan lodged a formal complaint against Mr Whitaker, he was notified by letter dated 22 August 1994 that an inquiry would be held into his conduct as an employee of Australia Post. The letter says in part:
"The subject of the inquiry will be that during a period of time up to and including 18 August 1994 you
(a)consistently failed to behave in a courteous manner to your fellow employees and
(b)that at 3.00 pm on 17 August 1994 you behaved in a manner unbecoming of an Australia Post employee when speaking to a customer."
The inquiry was conducted by Bryan Thomas, the Manager of the Personnel Services Branch at the GPO in Perth. Mr Whitaker was suspended with pay until after the inquiry. The letter clearly stated that the inquiry officer would interview Mr Whitaker during the inquiry and that he would have the opportunity to put his views. The letter concluded:
"If the inquiry officer finds your misconduct proven, he may recommend the following disciplinary action:
*Dismissal,
*transfer to another position at the same or a lower level,
*or further counselling."
Mr Whitaker's evidence in relation to the first code of conduct inquiry was somewhat confusing. At first he said that at the outset Mr Thomas called him into the GPO on 26 August 1994 and was very pleasant and explained what was going on. He said Mr Thomas "decided I was guilty as charged and then I was asked for my explanation". Mr Whitaker said that he told Mr Thomas that none of it had ever happened. He said that Mr Thomas read out some of the complaints and they came as a great surprise to him. Mr Whitaker said that he wanted copies of all the statements so that he could respond but he never received them. Mr Whitaker said that he understood that they would investigate the matter again and that they would then send him a copy of the statements and ask him for his response and this was never done. Once he received a letter dated 6 September 1994 stating that the charges were found to be proven he hit "panic mode" and contacted a union officer.
During cross-examination, Mr Whitaker said that Mr Thomas had not said that he was guilty at the start of the inquiry. He said that Mr Thomas said this at the end of the hearing on 26 August. Later on during his cross-examination, he said that Mr Thomas had not said this on 26 August but said it on the second occasion when he came to speak to Mr and Mrs Whitaker and advised them of the outcome of the inquiry. Mr Whitaker said that Mr Thomas never put to him the allegations and did not ask him for his response during the inquiry.
Bryan Thomas gave evidence that he has been an Australia Post employee for over thirty years. He didn't know Mr Whitaker before he conducted the inquiry. Mr Thomas said that the rules under which he conducted the inquiry consisted of:
The Australian Postal Corporation Act 1989, Section 89
The Australia Post - Award Discipline Process Instructions Manual - July 1987.
APTU Award clause 7 dated 17/1/1994.
Mr Thomas said that the manual sets out the code of conduct process. It is the manual prepared nationally by the Human Resources Department of Australia Post and is an internal document developed in consultation with unions. Mr Thomas said that initially he visited Michele Noonan and interviewed her. He then interviewed the Postal Manager at Claremont and each of the Claremont staff individually. Once he had obtained statements from those people he arranged for Mr Whitaker to attend his office. He gave him an opportunity to have a union officer present. Mr Whitaker attended at his office at the GPO on 26 August 1994 and an interview was conducted in the presence of Mr Watkins, a union official, and Mr Whitaker's wife. Mr Thomas explained the code of conduct process and the possible outcomes if the charges were proven. He took notes at the interview and said that they were a reasonably accurate record. Mr Thomas said that at no stage on that date did he indicate to Mr Whitaker that he had found the allegations substantiated. He explained to Mr Whitaker that after hearing all of the evidence he would make a decision. Mr Thomas said that he did not make any decision until after he'd heard from Mr Whitaker. He said that Mr Whitaker did not request a copy of his notes of interview with the other staff. Mr Thomas read out the allegation from Michelle Noonan and further read from his notes and explained what particular allegations had been made against him by the other staff. The particular allegations put to Mr Whitaker by Mr Thomas were:
The allegations made by Michele Noonan in relation to her T-shirt and in relation to the rings and why she wasn't married. Mr Whitaker denied the allegations and could not recall talking about rings on her finger.
The comment in relation to "Is it cold in here or are you just pleased to see me?".
He made comments with sexual innuendo or connotation.
The Viva Colour incident.
The hockey stick incident involving Ms Bootherstone.
Mr Thomas's notes show that Mr Whitaker from the outset of the meeting argued that the charges were a total fabrication and were at the instigation of Carol Bootherstone.
After hearing all of the evidence, Mr Thomas found each of the charges proven and recommended that Mr Whitaker be transferred to another location and that he undergo EEO Awareness training. Mr Whitaker was notified of this result in writing and Mr Thomas went personally to his house to explain his decision to Mr and Mrs Whitaker. He indicated that Mr Whitaker had a right to appeal to a board of reference but that the board of reference, if it found the misconduct proven, would also have open to it the options of dismissal, transfer or further counselling.
Mr Whitaker, although he denied that he was guilty, decided not to proceed with any appeal.
THE EQUAL OPPORTUNITY COUNSELLING
Timothy Law, a locum social worker with the Australia Post Employee Counselling Service, gave evidence that on 6 October 1994 he spent a little over two hours in the Employee Counselling Office with Mr Whitaker. Mr Thomas had given Mr Law a rundown on the events leading up to the Code of Conduct inquiry. Mr Law said that he regarded the allegations against Mr Whitaker as "Benny Hill type humour" which was not appropriate in the 1990's. Mr Law said that he was to help Mr Whitaker understand what it was about his behaviour which was unacceptable. He said that they engaged in a sensible conversation and Mr Whitaker listened appropriately. Mr Law said, however, that he was not confident that Mr Whitaker had taken what he had said on board and that he had not altered Mr Whitaker's perception of the world.
On the following day, Mr Law was present as a third person when Mr Whitaker received counselling by Sally Jetson, an expert at equal employment opportunity legislation. Ms Jetson ran through the Australia Post equal employment opportunity training course on a one-to-one basis with Mr Whitaker. She went through the equal employment opportunity legislation, what was deemed acceptable behaviour and what was no longer deemed acceptable. Her discussion was in general terms. Mr Law said that he believed the outcome to be that Mr Whitaker listened politely, received the training in good faith but that no great windows had been opened for him.
Mr Whitaker's evidence was that he was upset at the time of the counselling because he did not believe that he was guilty of the allegations which had been made against him.
THE TRANSFER TO THE MADDINGTON POST OFFICE
Mr Thomas gave evidence that following his transfer from the Claremont Post Office, Mr Whitaker spent some weeks at the General Post Office in the city working in the Human Resources Department. He did not experience any problems with Mr Whitaker's behaviour during that time. Following the results of the Code of Conduct inquiry, Mr Whitaker was transferred to the Maddington Post Office. At that time, the Maddington Post Office was solely staffed by women, apart from Mr Whitaker and the part time box sorter.
In Mr Whitaker's Summary of Facts, he states that "over a six week period immediately prior to his being stood down, the applicant's personal file was left by Zena Lamb on the floor of the Post Office, so that it was readily accessible by his fellow employees. Rhonda Bellis quoted something from it in the course of conversation on one occasion. It remained there notwithstanding the applicant's request to Zena Lamb that it be kept secure." It was Mr Whitaker's position that his fellow staff at the Maddington Post Office knew about the matters which had been complained of in relation to the Claremont Post Office inquiry.
Zena Lamb, the Postal Manager at the Maddington Post Office, gave evidence that she has been with Australia Post for nine years. She is also an harassment contact officer with Australia Post. Harassment contact officers are trained to give information to people who contact them about alleged harassment.
Ms Lamb said that Mr Whitaker came to Maddington as a result of a staff review at the Maddington Post Office. The GPO advised her that she could have a supernumerary person and they sent Mr Whitaker to fill that position. She had a conversation with someone at the GPO and she was briefed on Mr Whitaker's alleged conduct at Claremont. Ms Lamb said that she did not pass that information on to her staff as it was confidential. She said that she received a file on Mr Whitaker and she looked through it sometime in January. There was very little in the file about the alleged harassment at Claremont. Ms Lamb said that she left the file in a white envelope addressed to her. She used to take it home in her brief case. Underneath her bench, she had a box and she kept the envelope in that box. To her knowledge nobody looked at the file except herself. She only read it at home.
Ms Lamb said that some of the female employees cane to her as the harassment contact officer and asked her for information about sexual harassment in relation to Mr Whitaker. She gave the employees information about what they could do, but they didn't want to take their complaints about Mr Whitaker any further. Ms Lamb said that she felt bound by confidentiality rules not to take the matter further if the employees did not want to do so.
Marie Kinsella, an Australia Post employee in her early fifties, gave evidence that she has worked at the Maddington Post Office ever since 1972. Ms Kinsella's evidence was that before Mr Whitaker left Maddington, she did not know anything about his history at Claremont. Ms Kinsella said that when Mr Whitaker started work at Maddington he worked alongside her. Mr Whitaker did not know the machines at first and she was trying to help him along. She said she was "unable to pay attention to myself because of Mr Whitaker's behaviour" and for the first time since she had started with Australia Post she had problems balancing her accounts. Ms Kinsella recalled one incident in which a customer had to post something to New Zealand and that customer was so upset by Mr Whitaker's behaviour to her that she had to go and have a drink after her encounter.
Towards the end of 1994, Ms Kinsella had to keep bending down in the course of checking a sign near to where Mr Whitaker stood. Mr Whitaker said out loud "I like to see her bend down". Ms Kinsella said she was embarrassed enough to be upset.
On another occasion Ms Kinsella went to have a break at around 2.15 pm. When she came back inside Mr Whitaker said "Is it very hot outside or are you having a hot flush?". Ms Kinsella said that she was embarrassed because there were customers around.
Ms Kinsella said that she asked to be moved away from Mr Whitaker from one side of the office to a different counter. It upset her that she was distracted enough to have problems with her balances.
Jo-anne Brinkworth gave evidence that she had been a Postal Services Officer at the Maddington Post Office since 1992. She said that initially her relationship with Mr Whitaker was quite good. She felt that she was the friendliest of the Maddington staff towards Mr Whitaker. She said that Mr Whitaker was easy going and that he reminded her of her husband, who is an outside manual worker. She said that his way of speaking was different from the way people normally spoke in the Post Office. She said that people were normally more reserved.
After Mr Whitaker had been working at Maddington for a while, she remarked to Ms Lamb that Mr Whitaker would benefit from seeing an harassment training video. She said this because of the things Mr Whitaker was saying.
Ms Brinkworth said that after Mr Whitaker had been there for some time he started to make remarks about her habit of holding her arms across her chest when she was carrying small objects around the office. She felt that he was making a reference to her covering her breasts. This happened on more than one occasion. Ms Brinkworth was unaware that she had this habit but after Mr Whitaker's remarks it made her conscious of it. She said that she thought about it all the time and made a concerted effort to keep her hands down by her side when she was walking around. This made her a little uneasy and she didn't know how to deal with it.
Ms Brinkworth remembered another occasion when she was serving at the counter and she said to a female customer that she had a headache. Mr Whitaker said "Do you know how to get rid of headaches - sleep in the nude". Ms Brinkworth said that every now and again Mr Whitaker made remarks of a sexual nature.
Ms Brinkworth said that if Mr Whitaker ever said anything to her she mentioned it to Zena Lamb. Ms Lamb asked if she wanted to make an harassment complaint but Ms Brinkworth said no because she didn't want to become involved. She discussed it with her husband but she didn't want to be responsible for Mr Whitaker possibly losing his job.
Ms Brinkworth said that she did not read Mr Whitaker's personal file. She was not aware of the Claremont Post Office incident until months after Mr Whitaker left Maddington. Ms Brinkworth said that she took the sexual overtones in conversations with Mr Whitaker in a lighthearted manner. She said that that is her personality. She didn't know how to answer Mr Whitaker back as she was not good at that kind of thing.
Natalie Brougham, a 20 year old Postal Services Officer, gave evidence that she was a permanent employee at the Gosnells Post Office but relieved at Maddington during lunch hours and on two or three full days per week. She worked with Mr Whitaker but had never carried on a meaningful conversation with him. She is an attractive young woman with a quiet personality.
Ms Brougham said that on 11 January 1995, at the end of the working day, she was working next to Mr Whitaker. At the end of each day, the postal employees take their money order drawers out from under the counter and take them around the back to be locked away. They wait until the customers are out of the Post Office and the doors are locked for security reasons. Ms Brougham said that she had taken the money order drawer out and put it on the floor while she was doing other things. While she was facing Mr Whitaker, she bent down and picked up the money drawer. As she was coming up from the floor, Mr Whitaker looked straight at her and said "You shouldn't bend over like that. It's like looking down a wind tunnel". Ms Brougham said that she felt embarrassed but didn't say anything at the time. She mentioned it the next day when she went back to her normal office at Gosnells. Her boss at Gosnells notified Zena Lamb and Ms Lamb gave Ms Brougham a complaint form to fill in if she wanted to. Ms Brougham thought about it for a while. She said that Mr Whitaker made her uneasy and she knew that if she worked at the Maddington office more often she'd be rostered on with him. She explained to her Postal Manager at Gosnells that she didn't want to be rostered on with Mr Whitaker, but she knew that if she was asked to go to Maddington she had to work with him if they were rostered together. Ms Brougham said that after thinking it over for a while she filled in the complaint form.
Mr Whitaker's explanation of this incident was that the air conditioning at the Maddington Post Office kept breaking down. It would get very hot in the Post Office and occasionally they would have the main doors open. When he walked over to the area where Ms Brougham worked he may have said that it was like a wind tunnel there because of the fresh air coming through the doors. Ms Brougham said that this was not possible. She was certain that the remarks had been directed at her. Further, the remarks were made as she had lifted up the money drawer. She would not have been doing that unless the main doors were locked, for security reasons.
Mr Whitaker gave evidence that from his second day at Maddington Zena Lamb, Rhonda Bellis and others kept pressure on him all the time. He said that Rhonda Bellis didn't like him and that his attitude was always criticised. Mr Whitaker said that on one occasion the box sorter said to him "What's that book?". Mr Whitaker said that he found that it was his personal file which was in a white folder sitting on the floor. The second page mentioned the harassment complaints at Claremont. He said that he complained to Zena Lamb about the file being in a public space, but she ignored him Despite Mr Whitaker's reservations, I am satisfied from the evidence of the Maddington Post Office employees that none of them knew about his history at Claremont, with the exception of Zena Lamb who kept it to herself. Mr Whitaker said that the Maddington Post Office employees changed their minds about him overnight at the same time as his file appeared. He said that somebody was exciting the situation. There were three women controlling the Maddington Post Office called "the trio". They were Zena Lamb, Jo-anne Brinkworth and somebody called Tracey.
Mr Whitaker said that although the alleged incident with Natalie Brougham happened on 11 January he was not stood down until 2 February. He had trouble remembering who Natalie was. Mr Whitaker's evidence in relation to the complaints made against his behaviour at the Maddington Post Office was that all of the complaints were untrue. He felt that the staff had got together and decided to get rid of him. It was a conspiracy similar to the conspiracy at Claremont.
Each of the female employees from the Maddington Post Office denied they were involved in any kind of conspiracy against Mr Whitaker.
THE SECOND CODE OF CONDUCT INQUIRY
On 2 February 1995 Mr Whitaker was handed a notification of an inquiry which stated in part that
"This is a formal notification that an inquiry will be held into your conduct as an employee of Australia Post.
The subject of the inquiry will be that:
(a)On 11 January 1995 you failed to behave in an acceptable manner to fellow employee, Ms N Brougham, resulting in the lodgment of a formal complaint of harassment; and
(b)that your conduct in general towards fellow employees within the Post Office since taking up duty at Maddington is adversely affecting the office and network retail operations."
Mr Whitaker was suspended without pay and was notified that the inquiry officer, Barrie Butterworth, Manager Delivery Information and Analysis Branch, would interview him during the inquiry and that he would have the opportunity to put his views. It was made clear that if the misconduct was proven the inquiry officer could recommend dismissal, transfer to another position at the same or lower level or further counselling.
The inquiry officer, Barrie Butterworth, gave evidence that he had been with Australia Post for over forty years. He gave evidence that in March 1995 he conducted a Code of Conduct inquiry into Mr Whitaker's conduct at the Maddington Post Office. He prepared a report dated 7 March 1995 which was an exhibit at the hearing of this matter. Mr Butterworth's evidence was that he organised with the Area Manager for the Maddington Post Office to interview the employees at Maddington. He arranged to use the spare room at the Gosnells Post Office and transported each of the employees separately to Gosnells and took them back before bringing over the next employee. His report sets out the allegations those employees made at these interviews. He then interviewed Mr Whitaker. He had never met Mr Whitaker before and he did not know any of the people involved in the inquiry.
Mr Butterworth interviewed Mr Whitaker at an office in the GPO. Before the inquiry he had received a telephone call from Mr Clohessy, Mr Whitaker's union representative, and he'd advised Mr Clohessy that he would interview everybody and then make a decision. Mr Clohessy asked for a copy of the complaint by Natalie Brougham. When Mr Whitaker came to the inquiry, Mr Butterworth mentioned that he understood that Mr Whitaker had a copy of the complaint as a copy had been sent to Mr Clohessy. Mr Whitaker did not say that he had not received a copy and did not ask for another copy.
Mr Butterworth put to Mr Whitaker the "wind tunnel" incident. Mr Whitaker said that he didn't know what Mrs Brougham was complaining about and that he'd never said anything like that. At the time of the inquiry, Mr Whitaker didn't say anything about the air conditioning or that he had made the wind tunnel remark in relation to a draught coming in through the door. Mr Butterworth said that the other women from the Maddington Post Office had made other complaints about his behaviour and Mr Whitaker denied the alleged behaviour. Mr Whitaker continued to talk about other things such as the trio of women running the Maddington Post Office. Mr Butterworth continually tried to get back to the allegations made against Mr Whitaker but Mr Whitaker refused to listen. Mr Whitaker repeatedly denied that he was guilty. On at least three occasions, Mr Butterworth tried to spell out the allegations to Mr Whitaker but he would simply break in and deny them. Mr Whitaker went on to discuss why these allegations couldn't have happened and said that he was on the counter while the women were out the back. He said that there was a trio of ladies conspiring against him. Mr Butterworth said that in talking to the staff at the Maddington Post Office he was convinced that none of the staff wanted to work on Saturday mornings on roster with Mr Whitaker. Mr Whitaker failed to accept that he had done anything wrong.
Mr Whitaker's evidence was that he kept asking for copies of the statements and that Mr Butterworth refused to give them to him. Mr Butterworth said that this was not so. Every time he tried to broach the subject Mr Whitaker simply didn't want to hear about it. Mr Whitaker said that he wasn't interested in what they said as nothing like that had ever happened. Mr Butterworth said that he had the notes of interview on the table in front of him and that he would have let Mr Whitaker have them if he had asked for them. Mr Whitaker said that when he arrived at the Butterworth inquiry he walked into the room and Mr Butterworth said "I have investigated these complaints and found them proven". Mr Whitaker said that Mr Butterworth said this before he gave him an opportunity to respond. Mr Whitaker said that from the beginning he asked Mr Butterworth for the statements of witnesses but he said that he couldn't give him the statements. Mr Whitaker did not accept that he was given an opportunity to respond to the allegations. Mr Whitaker's argument is that he should have been presented with the evidence properly and said that he was denied natural justice.
At the conclusion of the inquiry, Mr Butterworth accepted the evidence of the female staff over that of Mr Whitaker. Mr Butterworth's report concludes
"Mr Whitaker's defence to the charges was one of complete ignorance of any wrong doing and denial of the allegations.
The ages of the female staff have been quoted above to show that they range from nineteen through to fifty-three. Yet it is apparent that Mr Whitaker's conduct has had an adverse effect on them all. The interviews indicated that within about a ten week period of Mr Whitaker starting at Maddington, the point had been reached where a well organised and productive office had degenerated to a situation where:
i) Staff were unhappy to come to work;
ii)staff had requested the Postal Manager not to place them on the same counter as Mr Whitaker;
(iii)staff did not want to be rostered on duty with him as the only other staff member on Thursday evenings and Saturday mornings; and
(iv)in the case of the relief officer, had reached the stage where she was considering asking not to be sent to Maddington while Mr Whitaker was in the office.
Recommendation
After finding the charges proven, having regard to the serious nature of the misconduct which was the subject of the Code of Conduct inquiry at Claremont late last year and which resulted in him being transferred to Maddington and receiving one to one counselling by an external EEO consultant, and considering all the options available to me under the Code of Conduct, I recommend that Mr Whitaker be dismissed from the service of Australia Post.
The basis for my recommendation is that this is the second time in just under six months that Mr Whitaker's conduct has been the subject of a Code of Conduct inquiry, with all charges proven. The latest charges clearly indicate that he failed to take heed of professional counselling and advice that future such instances of unsatisfactory conduct would be viewed seriously and could result in his dismissal."
Mr Whitaker was advised of the findings of the inquiry by letter dated 15 March 1995. The closing paragraph of that letter reads
"You have a right of appeal against this decision if you consider it to be harsh, unreasonable or unjust. You must lodge your appeal with the General Manager, Australia Post, GPO Box 9000, Perth, WA 6001 within 21 days of the date of this notification."
THE APPEAL
Mr Whitaker exercised his rights of appeal as notified in the letter of 15 March 1995. On 23 March 1995 Mr Whitaker wrote a letter of appeal. He also lodged a claim in this Court because of the time limit for filing applications. A Mr Kennedy was brought over from the eastern states to hear the appeal. Mr Whitaker said that he sat down and read out the allegations against him. Mr Whitaker explained to him that he was innocent. The appeal was unsuccessful.
THE CREDIBILITY OF THE WITNESSES
This Court heard evidence from ten witnesses including Mr Whitaker. Each of the witnesses called gave a version of events markedly different from that given by Mr Whitaker. Mr Whitaker's own witnesses contradicted his evidence. For Mr Whitaker's evidence to be accepted, it would be necessary for this Court to find that every one of the nine witnesses, apart from Mr Whitaker, was being untruthful. Although this is not a matter to be decided by weight of numbers, I find that the weight of the evidence is overwhelmingly against Mr Whitaker and on balance I prefer the evidence of the other witnesses over that of Mr Whitaker.
Having said that, there is some doubt in my mind about what really happened in relation to the hockey stick incident at Claremont. There was some conflict of evidence in relation to that. In the overall scheme of things, however, that incident was not important in determining Mr Whitaker's termination of employment.
WAS THERE A BREACH OF SECTION 170DC?
It is Mr Whitaker's contention that he was not given an adequate opportunity to respond to allegations made against him. It is not necessary for me to go once again into the substance of those allegations as they have been dealt with elsewhere in this judgment. Suffice it to say that I accept the evidence of Mr Thomas, Mr Butterworth and others that Mr Whitaker was counselled verbally, and was given plenty of opportunity at the two Code of Conduct inquiries and the subsequent appeal to present his version of what happened. I find that there was no breach of Section 170DC of the Act as Mr Whitaker was given an opportunity to respond to allegations.
WAS THERE A VALID REASON FOR THE TERMINATION?
The allegations made against Mr Whitaker are not of the very serious sexual harassment type where a male employee of a rank superior to a female employee presses for sexual favours or makes unwelcome sexual advances with the threat of an adverse effect on the female employee's employment if those advances are resisted. However, Mr Whitaker's conduct to his fellow employees both at Claremont and Maddington and to members of the public was totally inappropriate for an employee of Australia Post. Australia Post as a service organisation has a duty to members of the public who enter its premises. Mr Whitaker's conduct, particularly at Claremont, resulted in customers being upset, angry or embarrassed on more than one occasion. This had a detrimental effect on the service Australia Post's customers felt they were receiving.
Further, Australia Post has a duty to protect its employees from the kind of behaviour engaged in by Mr Whitaker. Each incident complained of would, on its own, perhaps not have justified dismissal. This is a situation, however, where Mr Whitaker engaged in a course of conduct over many years whereby he embarrassed, humiliated or distracted his fellow female employees on a regular basis. This had a detrimental effect on the atmosphere at both the Claremont and Maddington Post Offices while Mr Whitaker worked there. Mr Whitaker, in denying that any of these events ever happened, refused to take responsibility for his actions. Because of this, there is little prospect that Mr Whitaker's behaviour will change. Mr Whitaker's conduct at the Maddington Post Office occurred in a context in which he had been through the Claremont Code of Conduct inquiry and had received EEO training. Mr Whitaker had been warned on more than one occasion that any further conduct of this nature could result in termination of his employment.
For these reasons, I am satisfied that there was a valid reason for the termination and that the termination was not harsh, unjust or unreasonable within the meaning of Section 170DE of the Act.
The application is therefore dismissed.
I certify that this and the preceding 26 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate
Date:
Mr Whitaker appeared in person
Counsel for the respondent: Mr M L Greenland
Solicitors for the respondent: Greenland Brooksby
Hearing date: 24, 25, 26 October 1995
Judgment date: 17 November 1995
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