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Inquiry & DAB

First Appeal (DAB)

Disciplinary Appeals Board

The appeal was to be heard by the Disciplinary Appeals Board. (DAB)

DAB was composed of 3 members , 

A representative of Telstra Management, 

A representative of the Union concerned, 

An "Independent" Chairperson paid by Telstra and constantly used by Telstra in that capacity.

At the time of the "Please Explain" MV was candidate for CPSU State Secretary.

At the time of the charges MV was candidate for CPSU delegate to Trades Hall

Management Bullying and violation of Workplace Relations Act

14th May 1997 MV was verbally attacked in the workplace at his phone by Kelly Simpson. In the presence of his fellow workers and in the hearing of customers he was accused of "having interfered with the democratic process" in that he had spoken to a non union member of staff and had influenced her opinion. MV asked for the name of the person concerned it was refused. MV asked for the instruction in writing, it was refused. MV asked a number of times for KS to cease the harassment of him as a union representative. MV then informed her that she was in violation of the Industrial Relations Act, Human Rights Act and the Telstra Code of Conduct. MV then laid 8 charges against KS with the NTC Manager Robert Holland the complaint was signed by two independent witnesses. On the 22nd July he replied that all charges were dismissed by Robert Holland who stated that there was insufficient evidence on all charges.

 

DAB

Legal Representation

The CPSU was aware of the events. MV requested legal assistance both as a union member also as a Union representative.

Surprised at the cool reception from the union

MV pressed the issue at the State Conference at which he was a delegate

The conference required the national executive to give legal support in the case

MV was sent to the union solicitors.

3 times MV walked out on the lawyer stating that the attitudes expressed really belonged with an employer organization

Second Opinion

MV so concerned that called Law Institute asked for name of legal expert in area of unfair dismissal was given the names of 3 and a free half hour consultation with the chosen one

From the list chose a Phillip Dinning.

Gave Dinning information and documentation told him has no funds

PD states was so concerned that he would give advice and assistance for free (pro bono) up to the point where his firm would incur cost.

PD advice was that the charges were very badly drafted and "impossible to answer"

He states that the matter was "of major concern to the CPSU , and all other unions."

He further states "the proper function of a union delegate is being interfered with by Telstra and Telstra is attempting to fetter that function by the laying of charges which are both unfair and invalid"

He also considered that there were beaches of Natural Justice

MV sought to have Mr Dinning recognized as his solicitor by the CPSU that was denied and MV was forced back to the union’s solicitor.

Briefing

2 days before the DAB hearing MV was called in the evening to the office of the barrister.

At the end of the briefing MV being open and honest in his dealings revealed that he was a member also of the CEPU and the Media Arts Alliance and that there was likely to be another solicitor at the hearing.

There was a look which passed between the two which MV wondered about

The next day at 4 PM MV received a call from the Union solicitor who stated that after MV has left they had a long talk

Result they felt there was something he should know though it should make no difference to the case

Conflict of Interest

TELL ME ! The barrister’s wife works for Telstra, but it should not make a difference. What does she do ? You guessed it she is a lawyer with Telstra.

MV response get me another barrister NOW.

On investigation MV discovered that the particular Solicitor and Barrister had been friends for years and had a radio program together.

Next morning MV briefed a new barrister in the car park

This is this very young barrister’s first case in the Industrial Relations Area.

Given the structure of the board MV is not hopeful of a positive result

DAB Hearing was held on 31/7/97, 1/8/97 and 5/8/97

Team manager Carl Anthony

Group Manager Kelly Simpson

Centre Manager Robert Holland

Personnel Manager Simon Woodyard

Telstra Legal Counsel Renato Marasco

It is believed that Rob Cartwright (originally from CRA) orchestrated the case from the Telstra sidelines though he later denied ever having heard of me when we met face to face at a Telstra AGM. I find this proposition to have a creidbility gap.

Chairperson Judy Bretherton

Telstra Rep Bill McLeod

CPSU Original Nominee Steve Ramsey who for some reason was replaced by Ruth Barton

Expressions of Support

Letter of support received from Australian Civil Liberties Union. They prima facie suggested it was a court of "Star Chamber" and Telstra of using "bully boy" tactics to silence a whistleblower and "a violation of free speech".

The Branch secretary of the CEPU Len Cooper came to the hearing and tendered a letter which stated that their union (of which I was a dual member) They had members at Burwood and the CEPU said (their) interests have been more than adequately represented by Mr. Vogt". They also stated that they encourage their reps to prepare and distribute information in the workplace.

The CPSU forced MV to ask Len Cooper secretary of the CEPU to leave the hearing or they would withdraw legal assistance from MV.

At the start of the proceedings Telstra had tried to change the wording of 3 of the charges. Even the DAB would not permit them to change charge 5 in such a manner that it was in nature a different charge.

Why Telstra was permitted to reword the charges is still not clear to me

During the proceedings Telstra had to withdraw charges 2 & 3 (Policy charges)

The DAB would not permit them to proceed with charge 5 (fear & insecurity)

Closing Argument on behalf of Telstra

Charge 1

bulletDirection given, lawful & reasonable, disobeyed
bulletKS evidence clear, DF corroborates, KS made diary note
bulletMeeting took place after another meeting where Bartrum-Terril was present
bulletMV says no direction given
bulletB-Terril says at a union meeting in Sept. MV said KS advised him verbally not to distribute others at meeting thought it a joke as it was not in writing
bulletMV cease distribution in the workplace
bulletMV admission memory of meeting less than precise
bulletMV evidence self serving
bulletAdmmitted at one point MV quite heated & said You are not going to prevent me from producing the newsletter. In all likelihood this would have flowed from a directive regarding distribution
bulletThe direction was lawful and reasonable
bulletKS,DF & BT all say MV admitted it was and individual not a union issue
bulletNewsletter mv claimed copyright expressed his views
bulletHis own witness said he wrote it and provided content
bulletWhen pressed by KS the union was non responsive as to whether the publication had union support
bulletAdverse inference should be drawn from CPSU failure to call any evidence Mr Mufatti of the CPSU sat throughout the proceedings and could easily have given such evidence.
bulletIf not union publication lawful and reasonable for Telstra to treat MV as it would any other employee
bulletNo suggestion MV directed to stop distribution because of his status as a union delegate therefore not under Workplace Relations Act
bulletActivity must be for purpose of furthering/protecting the industrial interests of the Union and within the limits of authority
bulletMuch of the criticisms of management has little bearing on industrial interests
bulletPersonal interest conflict with duty as employee Blyth Chemicals Ltd v Bushnell(1993)
bulletNewsletter directed at work related matters only
bulletDistribution at union meetings is clearly distribution in the workplace. Meetings were held with permission of Telstra on Telstra premises
bulletMV was aware of the direction and deliberately disobeyed it
bulletIt may be presumed that a delegate that a delegate can distribute proper union material.
bulletDuties to obey Australian Telecommunications Commission v Hart(1982) As with dress a reasonable employer should be to determine what is distributed at the workplace
bulletThe material was designed to reflect badly on Telstra. Much of the material was misleading and wrong
bulletThe civil liberties argument is misconceived. This is a matter which concerns the rights of employers
bulletThe Board should find that MV was in a position of influence and had a great capacity to influence employees
bulletMV newsletters were misleading, adopted emotive and inflammatory language and were critical of management
bulletIn Newsletter 26 he said "Telstra has in effect lied to us"
bulletAn out of context quote from BRW 29/4/96 is an other example of a misrepresentation (this was a blatant lie the quote was in fact accurate and fully in context. This is so blatant I felt I had to interpose)
bulletMV quotes answers to questions put to Mr Holland. Were out of context and misquoted. (/this was again a fabrication by the lawyers)
bulletMV never had CPSU approval
bulletMV attacks go beyond industrial interests of members. Went to management competency and prerogative
bulletNot surprising the night crew(and the night crew alone) (rubbish it was widespread on all shifts) developed a lack of faith and trust in management
bulletAt heart of Mr Vogt’s concerns was a desire for a complete overhaul in management philosophy at Telstra. His preference was of course for the Richard Semmler approach. (????? And I thought they were on Telstra’s side. Or do they have something against democracy and fairness????)

 

 

Closing Argument on behalf of Vogt

bulletdenies instruction would have asked for in writing and gone to union. If workworkplace had been used would have asked KS to define. If instruction not to distribute would have ceased even if unlawful direction
bulletKS claimed diary note, diff pen no other example of the use of that pen anywhere in the diary
bulletRalston had no information of the diary note
bulletIf doubt on diary note then KS evidence not credible
bulletNo specific direction given
bulletFarrelly evidence vague could not recollect who was there
bulletCould not recall specific words used by KS
bulletBartrum-Terril used word advised not directed
bulletMr V is credible has the contemporary note in newsletter
bulletEven if instruction given have to prove it was heard and understood
bulletWould have to prove wilfully disobeyed
bulletAfter "please explain" MV used differed manner of distribution
bulletAS a matter of law MV entitled under union rules
bulletFreedom of Association under ILO 1994 General Survey para 128 also convention No.87 ratified by Australia
bulletMembers had voted in support of Newsletter
bulletUnder Industrial Relations Act (1996) (now 298k & l of Workplace Relations Act) must not dismiss or disadvantage for union activities
bulletCharge 4 improper influence no conflict of interest
bulletInformation which allegedly caused fear in Muldoon & Watson was already in public domain (in the press radio and union statements)
bulletIf there is a penalty it should not be dismissal
 
 
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