064/99 M Print R1053
Dec 064/99 M Print R1053
Was the applicant given a direction on 26 August 1996 which he subsequently wilfully
Dec 064/99 M Print R1053
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.170CE application for relief re termination of employment
Telstra Corporation Ltd
(U No. 33294 of 1997)
SENIOR DEPUTY PRESIDENT WILLIAMS MELBOURNE, 27 JANUARY 1999
Termination of employment
1. The evidence in this application and curriculum vitae of Mervyn Vogt (the applicant) demonstrate that he has, for a substantial proportion of his working life, been an activist. He has had a lengthy history of employment in the sphere of education. He spent six years as a teacher with the Victorian Department of Education and some twenty years as a lecturer at the Melbourne State College (or its predecessors). During this period, he was a union member and, for the majority of the time, he was an office holder in his union.
2. On 24 February 1994, at 61 years of age, he commenced employment with Telstra Corporation Limited (the respondent) as a Telemarketing Representative (Administrative Officer 2). He was employed on the night shift at the Burwood office of the National Telecommunications Centre (the NTC). He became a member of the CPSU, the Community and Public Sector Union (the CPSU) and, subsequently, became the CPSU's night shift delegate. In 1996, he was a candidate for election to various positions in the Victorian Branch of the PSU Group of the CPSU and was elected as a Branch Conference delegate.
3. From December 1995, he commenced to produce and distribute a newsletter called "Nighthawks Newsletter" (the newsletter). There is substantial dispute between the parties as to whether or not the newsletter was what might be termed a "union publication". From about February 1996, it contained a statement that it was "authorised by the NTC Building 2 night staff members". From about April 1996, it contained the additional statement that the "views expressed here do not necessarily reflect those of the NTC SDC" (i.e. the NTC Site Delegates Committee).
4. In any event, the respondent alleges that, on 26 August 1996, the applicant was given a "direction" in relation to the distribution of the newsletter. Again, both whether or not a "direction" was given and the contents of any "direction" that may have been given are the subject of dispute between the parties. At this stage, it is sufficient to state that the direction is alleged to have been given to the applicant by Kelly Simpson, Group Manager of Product Support at the NTC. The direction is alleged to have been given by Ms Simpson during the course of a meeting at which were present the applicant, Ms Simpson and Debra Farrelly, a Team Leader in the NTC. That meeting followed a Local Consultative Committee meeting which had been attended by, amongst others, the above three and Charlotte Bartrum-Terrill, a Customer Service Representative in the NTC.
5. On or about 5 September 1996, another issue of the newsletter (Nighthawks Newsletter No. 27) was distributed. In an e-mail sent on 6 September 1996 to team leaders and others (but not to the applicant) [Exhibit V18], Ms Simpson noted that the newsletter in question "is not considered a CPSU publication nor an approved staff communication" and stated that "any copies should be gathered and shredded immediately". This was followed by a number of e-mail exchanged between the applicant and Ms Simpson [Exhibit V19] in which the distribution of that newsletter and other matter are dealt with but, as was the case with Ms Simpson's e-mail of 6 September 1996, no mention is made of any direction having been given to the applicant.
6. By letter dated 11 September 1996 [Exhibit V20], Carl Anthony, the applicant's team leader, advised the applicant as follows:
As your Manager, I, Carl Anthony - Team Leader, Product Support - National Telemarketing Centre, according to Telstra's current agreed discipline procedures, have reason to believe that your behaviour, as stated below, may constitute misconduct. I therefore require you to provide, within two days, of receipt of this advice, a written explanation stating why the said behaviour does not constitute misconduct. Attached is a copy of Clause 10 of the Telstra Corporation general Conditions of Employment Award 1996. Your attention is directed to Section 2 which is the Agreed procedures relating to Employee Conduct & Discipline.
Particulars of Behaviour:
1) That on or about Thursday 5.9.96, you distributed a newsletter entitled, Nighthawks Newsletter 27, being a document not recognised as an official union communication document.
2) That on or about Thursday 5.9.96, you wilfully disobeyed or wilfully disregarded a direction, given to you on August 26 1996, in that you distributed the Newsletter, stated in point 1 above, being a document not recognised as an official union communication document, without seeking the approval of your Group Manager.
7. In his reply dated 13 September 1996 [Exhibit V21], the applicant, amongst other things, categorically denied that he had been given any direction in relation to the distribution of the newsletter. His reply was in the following terms [the spelling, grammar and highlighting are the applicant's]:
In reply to your letter of 11 September 1996.
The question of the "alleged" behaviours constituting misconduct rests on four fundamental concepts.
One being that an instruction was given, two that such an instruction even if given would be lawful, thirdly that it is necessary for the document to be an "official union communication document" and fourthly what constitutes an "official" document.
I would state that there is no case to answer in the on either of the two "alleged" behaviours. No such instruction was given. It is noted that in the letter there is no statement of by whom such instruction was supposed to be given, at what time, or under what circumstances. There is no evidence or presentation of any documentation containing such an instruction. There is therefore no further case to answer.
Even if such an instruction were to have been issued I would contend that such an instruction would like others concerned in this matter be one without a legal basis and would therefore not constitute an "legal instruction". No officer of Telstra can be required to confirm with an instruction which does not have a valid and legal basis. Indeed an officer who did so may well find that he/she is more widely culpable and punishable in the legal system.
I make the point that had such an instruction actually have been given I would have demanded the instruction in writing, taken the matter to the Members, the Office of the CPSU and any other appropriate unions or authorities and to the local SDC. I reiterate the alleged instruction is a fabrication.
I regard this action as further discrimination by the management against me in my function a Union delegate. As such the action is prohibited under the Industrial Relations Act.
In the interests of all concerned I would recommend that this matter which is fundamentally flawed and without basis be withdrawn at this early stage and an apology given.
8. The applicant continued to publish and distribute the newsletter apparently with the same regularity as before. Nothing further appears to have happened until 10 April 1997. By written notice dated that day, the respondent provided the applicant with notification of charges under Clause 10 of the Telstra Corporation General Conditions of Employment Award 1996 (the Award). The notification [Exhibit V29] informed the applicant, amongst other things, that an inquiry into the matter would be held by Kathleen Ralston, Manager - Faults, Service - Vic/Tas Metro.
9. Attached to the notification was a copy of the charges. In all, there apparently were five charges.
However, a copy of only one of the charges was tendered as an exhibit in these proceedings. [Exhibit V30] At the outset of the hearing before me, counsel for the respondent made it clear that, as far as the respondent was concerned, for the purposes of determining this application, only one of the charges is relevant. That charge was a charge of "misconduct as specified in sub-clause 10(1)" of the Award, namely that the applicant "wilfully disobeyed a direction given to him as an employee by Ms Kelly Simpson on 26 August 1996 in regard to non-distribution of Nighthawks Newsletter 27".
10. In a memorandum dated 5 June 1997 [Exhibit V32], Ms. Ralston outlined the investigation she had conducted and, amongst other things, recommended dismissal on the above charge. By letter dated 10
June 1997 [Exhibit V31], Robert Holland, National General Manager of the NTC, stated, in so far as is relevant, that he had considered the charge, found it proven and directed that the applicant be dismissed
from the employment of the respondent. Curiously, by notice dated 4 June 1997 [Exhibit V33], i.e. the day preceding the date of Ms Ralston's memorandum, Ms Anne Diamond, National Manager, Personnel Services, had advised the applicant that Ms Ralston had found the charge proven and that he was suspended "from duty with pay forthwith".
11. The applicant subsequently appealed to the Telstra Disciplinary Appeals Board (the DAB) which, on 18 September 1997, decided, amongst other things that the charge was found proven, confirmed the penalty and directed that the applicant be dismissed. Although it was not tendered as an exhibit in the proceedings, the Commission's file contains, as an attachment to the applicant's application, a copy of a letter dated 19 September 1997 from Mr Holland to the applicant in which the latter is both advised of the DAB's decision and notified that his "dismissal from Telstra Corporation will be effective from 18 September 1997". The DAB, on 27 October 1997, published its reasons. [Exhibit V38]
12. On 30 September 1997, the applicant lodged an application in the Registry, pursuant to s.170CE(1) of the Workplace Relations Act 1996 (the Act), for relief regarding the termination of his employment on the ground that the termination was harsh, unjust or unreasonable. The matter was not settled by conciliation. A certificate was issued under s.170CF(2) of the Act and the applicant, pursuant to s.170CFA(1) of the Act, elected to proceed to arbitration.
13. In accordance with the Commission's directions, outlines of argument and affidavits were filed and exchanged. The matter was originally listed for hearing on 27 January 1998. It became apparent that, owing at least to the amount of documentation that had been made available, the hearing could not be completed on that day. The hearing of the matter was, therefore, adjourned and three days in April 1998 were set aside. A further two days in June 1998 were needed to complete the hearing of evidence. During the hearing, evidence was given by the applicant and, on behalf of the respondent, by Ms Simpson, Mr Holland, Ms Farrelly, Ms Ralston and Ms Bartrum-Terrill. After completion of the
hearing of the evidence, the parties lodged written submissions and, on 15 October 1998, addressed the Commission in relation to those submissions.
Was the applicant given a direction on 26 August 1996 which he subsequently wilfully disobeyed?
14. The first question that must be decided in this matter is whether a direction was given to the applicant on 26 August 1996 in relation to the distribution of the newsletter. As I understand the submissions of the parties, it is accepted that, if I were to conclude on the evidence that no direction was given to the applicant, then there was no valid reason for the termination of the applicant's employment and it would be reasonably open to the Commission to find therefore that the termination was harsh, unjust or unreasonable.
15. There can be no doubt that the distribution of the newsletter was the subject of some mention and/or discussion at both the meeting of the Local Consultative Committee on 26 August 1996 and the immediately following meeting on that day referred to in paragraph 4 above. It is not suggested by the respondent that any direction was given to the applicant during the first meeting. What is disputed is whether or not anything that Ms Simpson may have said to the applicant in the course of the second meeting constituted a direction.
16. Ms Simpson's evidence was that she gave a direction to the applicant. She described that direction variously as:
* a requirement that the applicant "cease distribution of the newsletters in the workplace" and a direction that he "desist from distributing the newsletters" [Simpson's affidavit, Exhibit T14, para 9], * a direction that "he desist distribution of those newsletters in the workplace" [Transcript p.174 line 14], and
* a direction that he was not to distribute the newsletter in the workplace. [Transcript p.241 line 7]
17. Ms Simpson's evidence in this respect is consistent with the evidence she gave in the DAB hearing [Exhibit V39, p.250 line 16] and with her diary note [Exhibit T13].
18. Ms Farrelly's evidence was that Ms Simpson had given the applicant a direction about the distribution of the newsletters. Both in her affidavit [Exhibit T17, para 6] and in her oral evidence [Transcript p.371], she expressed that "direction" as having been given in terms that, if the newsletter was not an official union publication, Ms Simpson "did not want them distributed in the workplace". Her evidence in this application and her evidence before the DAB [Exhibit V39, p.104] was the same.
19. Ms Bartrum-Terrill was not present when the direction was alleged to have been given. She gave evidence, however, that during the course of the Local Consultative Committee meeting on 26 August 1996, Ms Simpson had indicated to the applicant that she did not want the newsletters distributed any longer. She also gave evidence that, at a Site Delegates Committee meeting on 28 August 1996, the applicant had stated that he had been given a verbal direction not to distribute the newsletter. [Transcript pp. 387-388, Exhibit T19]
20. As against the respondent's evidence, the applicant has consistently denied that he was given any direction in relation to the continued distribution of the newsletter.
21. I have given careful and detailed consideration to all the evidence involving the alleged giving of a direction and to the demeanour of the witnesses in giving that evidence before me. On balance, I am unable to conclude that the applicant was given a direction that he was not to continue to distribute the newsletter at the workplace. I have come to this conclusion for the following reasons.
22. Where an employer is giving an employee a direction that the employee is not to act in a particular way and there is a possibility that failure to comply with such a direction will lead to some form of disciplinary action, particularly dismissal, it is imperative, in my view, that the direction be conveyed in clear and specific terms. It is clear from Ms Simpson's evidence that she was aware of the importance of directions being specific. [Transcript p.245] What is not clear from the evidence, in my view, is that any statement she made to the applicant in relation to the distribution of the newsletter was anything more that an expression of her preference that the applicant should not carry out such distribution at the workplace and during working time.
23. The evidence of Ms Farrelly does not support the contention that what was said by Ms Simpson constituted a direction. Although Ms Farrelly stated that it was her understanding that a direction had been given, that was no more than her interpretation of what had happened. She was unable to recall with any exactitude the actual words used by Ms Simpson. She was, therefore, unable, either before me or at the DAB hearing to give evidence supporting an argument that words that would constitute a direction had in fact been used by Ms Simpson.
24. The applicant is an intelligent and well educated person who is no stranger to the nuances and politics of employer/employee relationships. He was clearly conscious of the fact that the distribution of the newsletter was of some concern to management, if only because of some of its content. By that statement, I do not intend to convey either that the applicant was not entitled to publish his newsletter or that the newsletters contained views and/or criticisms that he was not entitled to express in such a form. Some of the content of the newsletters had, however, become, at least, an irritant to certain members of the management team. The applicant's more immediate supervisors clearly would have preferred that he desist from publishing those views. In effect, management had made its attitude to the content of the newsletters clear. I cannot accept that this applicant, with his experience, would not, in the circumstances, have recognised a direction as having been given if it were indeed given.
25. Equally, in the circumstances, I am unable to accept that, if Ms Simpson had wished to convey a direction to the applicant that the distribution of the newsletter was to cease, she would not have given a direction that was clear and specific and that Ms Farrelly would not have remembered the terms of the direction being of that kind.
26. Further, the subsequent conduct of the parties is inconsistent with a direction having been given.
[diamond] Firstly, I am satisfied that, if a direction of the type alleged had been given, the applicant would have had no hesitation in taking all appropriate steps immediately or as soon as possible to challenge the respondent's right to give it, including taking the issue up with his union, the other union members and his colleagues. There is the evidence of Ms Bartrum-Terrill that the direction given regarding the distribution of the newsletter was a subject of discussion at the Site Delegates Committee meeting on 28 August 1996. In general, I found Ms Bartrum-Terrill to be a most unsatisfactory witness.
Her demeanour in the witness box demonstrated a significant antipathy towards the applicant. Her evidence was contradictory and was inconsistent with minutes of various meetings.
Ms Bartrum-Terrill's evidence was that the Site Delegates Committee meeting went for several hours and that the only matter discussed was the issues of the direction having been given to the applicant.
There is no record of such a discussion in the minutes of that meeting as tendered. [Exhibit V55]
It is appropriate, at this point, to record the source of that exhibit. Although it was tendered by the applicant's counsel, it came from a bundle of documents provided by the respondent. As was the case with other minutes tendered in these proceedings, it came from a bundle of minutes provided to the respondent by Ms Bartrum-Terrill prior to the DAB hearing. As I understand it, it was never Ms Bartrum-Terrill's responsibility to take or keep the minutes of such meetings. According to her evidence, however, the copies of the minutes were handed over to management in the hope (a vain hope as it eventuated) of avoiding the necessity to give evidence at the DAB hearing.
The minutes of that meeting, as they appear in the exhibit, record no business being conducted other than the confirmation of the minutes of two previous meetings. Ms Bartrum-Terrill's explanation for the absence of any record of the discussion she alleges occurred was that the issue was a personal issue, one that concerned the disciplining of the applicant and one that was therefore discussed off the record.
[Transcript p.388] I find that her explanation lacks credibility. As I have stated earlier, and indeed as was recognised by Ms Bartrum-Terrill in her evidence [Transcript pp.395-396], the applicant was a person who stood up for himself and his beliefs. If he had been given such a direction, he would have raised it at that meeting and sought to the support of his colleagues. There would have been no reason for not recording that fact in any minutes. The absence of any such record supports a conclusion that the matter was never raised or discussed at that meeting. I do not, however, accept that Exhibit 55 is a true record of what took place at that meeting. I make no finding as to why that is the case, whether there exists or existed another more complete copy of the minutes, whether the copy contained in the exhibit has been tampered with and, if so, who may have been responsible. For the purposes of this application, I do not need to address those matters.
The minutes of the next meeting, i.e. 4 September 1996, [Exhibit V58] refer, in confirming the minutes of the 28 August 1996 meeting, to one of the attendees at that previous meeting suffering from a hangover at that meeting. Such a reference makes no sense unless the minutes of the previous meeting had contained a reference to that event. More importantly, however, the minutes of the 4 September 1996 meeting refer to three items as business arising from the minutes of the previous meeting. In my view, there is clear documentary evidence that the earlier meeting dealt both with more than what is recorded in the exhibit and with more than was attested to by Ms Bartrum-Terrill.
The minutes of the 4 September 1996 meeting do in fact record "unanimous agreement on the production and promulgation of an official NTC CPSU Newsletter to be distributed to all CPSU members across the four sites of the NTC". They also record that, in the course of the discussion surrounding that matter, the applicant referred to the newsletter that he produced and the resolution of "his members" endorsing that newsletter. There is, however, no mention at all of any direction having been given by management to the applicant. I find it extraordinary that, if a direction had been given, the fact of it having been given would not have been mentioned and recorded in the course of the discussion of this item.
Finally, there is Ms Bartrum-Terrill's admission as to her confusion about dates of meetings. [Transcript p.400] In the circumstances, I am unable to accept that the issuing of any direction was ever discussed at the Site Delegates Committee meeting on 28 August 1996.
[diamond] Secondly, when the applicant received the "please explain" letter [Exhibit V20], he immediately put the respondent on notice that he denied that any direction had in fact been given to him.
[Exhibit V21] At no stage thereafter did the respondent seek to reiterate the alleged direction either orally or in writing. I find it inexplicable that the respondent, faced with such an express denial and being well aware of the applicant's views as to his rights and entitlements and his propensity to defend his views, did not take the opportunity to reduce to writing or reiterate in writing what it thought was an appropriate direction.
[diamond] Thirdly, not only did the respondent fail to take the obvious course of making it abundantly clear that it required the distribution of the newsletter at the workplace to cease, what in fact followed was a lengthy period of absolute inactivity in this regard. The direction was alleged to have been given on 26 August 1996. The applicant's express denial of this allegation was made on 13 September 1996.
The applicant continued to publish the newsletter and distribute it at the workplace on a regular basis.
Despite this fact, nothing was said and nothing was done by management for a period of some seven months. It was not until 10 April 1997 that the charge of misconduct is laid.
Further, it should be noted that the charge in question did not concern the distribution of the numerous newsletters during this period. It related specifically to the distribution of Nighthawks Newsletter No 27. It was the distribution of that newsletter that led to the "please explain" letter and the express denial by the applicant that any direction had in fact been given. Such lack of action on the part of the respondent supports a conclusion that either no direction was given or that management was not confident that it had given any or any adequate or permissible direction or that, if, in fact, any direction was given management was not serious about its implementation and was prepared to let everyone, including the applicant, believe that such was the case.
[diamond] Fourthly, on 29 August 1996, the applicant issued a notice of meetings of Nighthawks members to be held on that night. [Exhibit V17] The notice makes no mention of any direction. Those meetings apparently carried a resolution endorsing the newsletter, a fact that was recorded in Nighthawks Newsletter No. 27, the newsletter which led to the "please explain" letter. Although, in that newsletter, the applicant referred to "a less than subtle attack" on the newsletter and recorded the resolution of CPSU night staff members', no mention is made of any direction. If such a direction had been given, the applicant's failure to refer to it in the newsletter at that time and to defend himself would have been entirely out of character, particularly in light of the resolution.
[diamond] Fifthly, the e-mail of 6 September 1996 from Ms Simpson to team leaders and others, [Exhibit V18] the e-mails exchanged between the applicant and Ms Simpson on 11, 13 and 16 September 1996 [Exhibit V19] and the Nighthawks Newsletter No. 29, whilst obviously containing statements concerning the distribution of the newsletters make no mention of any direction having been given. The e-mails sent by Ms Simpson were a clear opportunity for her to "confirm" to the applicant and/or others that a direction not to distribute the newsletters in the workplace had in fact been given.
Her failure to do so is consistent with her not having given the direction.
[diamond] Finally, I find that no reliance can be placed upon the diary entry referred to earlier in paragraph 17. [Exhibit T13] The existence of the diary entry was never disclosed to Ms Ralston during the course of her investigation. [Transcript p.382] Despite confirmation that Telstra was not relying in that investigation on any documents other than the newsletters [Exhibit V36] and the requirements of the agreed procedures applicable to disciplinary appeals, [Exhibit V27] the existence of the diary entry was not disclosed at all until some three days into the DAB hearing. [Exhibit V39, pp.250-251] Further, the entry is obviously made with a pen that has not been used to make other entries relating to the same day or to the surrounding days. In the circumstances, I could not conclude with any confidence, that the entry was made contemporaneously.
27. Having reached the conclusion that the direction was not, as was alleged by the respondent, given to the applicant, it follows that he could not be found to have wilfully disobeyed any such direction. It further follows that there was no valid reason for the termination of the applicant's employment. In the circumstances, I find that such termination was harsh, unjust and unreasonable. It is, therefore, not necessary for me to consider the other submissions made in support of the application.
28. The primary remedy prescribed by the Act is reinstatement. In Australia Meat Holdings Pty Ltd [Print Q1625], a Full Bench of this Commission stated:
It is apparent from the terms of s.170CH that the Commission must first consider reinstatement in circumstances where the Commission determines that a termination was `harsh, unjust or unreasonable'. This follows from the terms of s.170CH(6) which provides that the Commission may only consider the remedy of compensation if it `thinks that the reinstatement of the employee is inappropriate'.
29. The applicant is now 66 years of age. His evidence that he has been unable to and is unlikely to obtain secure, ongoing employment that provides remuneration of the level he was receiving from the respondent was uncontradicted. Having regard to the factors referred to in ss.170CH(2)(a), (b), (c) and
(d) of the Act, there is no prima facie reason for concluding that reinstatement would be inappropriate.
30. The respondent, however, submitted that restructuring of its operations is ongoing and is continuing to cause a substantial decrease in the numbers of its employees and the number of positions available.
That such is a fact is a matter of which I am probably entitled to take "judicial notice". On the other hand, there is no evidence before me that, as was submitted on behalf of the respondent, "there are no places within Telstra as a whole, no places within the NTC and no places within the specialised products in Burwood" into which the applicant could be reinstated. Even if there were, such evidence would not necessarily convince me that it would be inappropriate to reinstate the applicant.
31. Nor am I impressed by a submission that the reinstatement of the applicant would necessarily lead to the termination of another of the respondent's employees. That is a matter for the respondent to deal with in an appropriate fashion if a reinstatement order is made. Any employee that is dismissed for that reason will be able to exercise any available rights. Acceptance of such a submission would negate the provisions of the Act.
32. In the circumstances, I am of the view that reinstatement is the appropriate remedy. Further, I am of the view that the applicant should be compensated for any income he has lost since the termination of his employment by the respondent. An order [Print R1054] giving effect to this decision is being issued at the same time as this decision.
BY THE COMMISSION:
SENIOR DEPUTY PRESIDENT
M. Irving for Mervyn Vogt.
S. Wood for Telstra Corporation Limited.
April 14, 15, 16;
June 22, 23;
Termination of employment - unfair dismissal - applicant's
employment terminated for wilfully disobeying direction -
from December 1995 applicant produced and distributed a
newsletter "Nighthawks Newsletter" - substantial dispute
between parties as to whether newsletter was a "union
publication" - respondent alleged on 26/8/96 applicant given
a "direction" in relation to the newsletter - on or about
5/9/96 another issue of newsletter distributed - e-mail sent
on 6/9/96 to team leaders and others (not applicant) noting
newsletter not considered a CPSU publication nor an
approved staff communication - applicant requested by
letter of 11/9/96 to provide written explanation stating why
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