DAB decision
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DAB Telstra Evidence

The DAB Decision with Comments

The DAB considered Charge 1 Proven and gave the following reasons:

bulletIt accepted the evidence of Kelly Simpson that a direction was given corroborated by the diary note and Ms Farrelly. (Evidence regarding wording of alleged "direction" was inconsistent)   (no mention is made of the credibility of the alleged diary note See AIRC decision)   (Ms Farrelly demonstrated and admitted memory problems)
bulletIt accepted the evidence of Bartrum –Terrill (Considered by the AIRC to be an unreliable witness, she had given confidential union documents to the management)
bulletIt rejected evidence of Mr. Vogt, in so far as it was inconsistent with a direction having been given (no reason/s or justification given for this} rejection)
bulletThe direction was considered lawful and reasonable because
bulletThe Manager Mr. Holland had discussed it
bulletThe board considered Telstra was entitled to give the direction
bulletThe board was satisfied the newsletter was not an official union publication
bulletThat the newsletter was published and distributed by MV as an individual (Though there was clear evidence that it was endorsed unanimously on a number of occasions by the membership)
bulletAccepted the evidence of Simpson, Bartrum-Terril & Farrelly that MV had acknowledged that it was an individual matter rather than a union material (the published documents and other evidence refuted this)
bulletCPSU had failed to acknowledge that the letter was an official union publication. Mr. Mufatti was present at the hearing and could have given evidence.(This supports the proposition that the CPSU was covertly sabotaging the defence) "He did not do so and the board was not surprised, given the content of the newsletter, its inaccuracy and the emotive and inflammatory language used."(This was a unanimous statement including the CPSU nominee) (These 3 allegations are made constantly but there is not one example given and in fact there were none) (it would appear that literary style was to be an element and used to suppress free speech0
bullet"The newsletter was in conflict with the agreement that the unions and Telstra would put aside their hostilities and consult." ( The Lorne Agreement was not intended to suppress free speech. The word "consult" was open to conflicting interpretation, and considered by many as a weasel word as there was no mention of outcomes ) 
bulletIndeed much of the content was expressed in such a manner that it would be difficult to see how it could be said to be printed in order to promote the views and interests of the CPSU" (That a Telstra manager should presume to make such a judgment on behalf of the CPSU is curious, but the shocker was the CPSU representative )
bulletThe board was satisfied the appellant was not directed to cease publication of the newsletter because of his position as a CPSU delegate
bulletThe appellant used the newsletter to express his personal views in respect to the management. Often in conflict with his duties as an employee.(Not one example given) The material was often inaccurate and misleading. The direction given was reasonable
bulletNotwithstanding the direction to cease distribution of the newsletter in the workplace he continued to distribute in the workplace. He handed it out at union meetings and to members of staff who requested it.(That a Union representative should join with management in such a statement, which accepts a position where a londlord or an employer should be able to control what is communicated in a union meeting is incredible. The CPSU rep would have difficulty claiming naiveté as she was a candidate for a higher degree in Industrial Relations at a University) It was distributed by MV on Telstra premises
bulletThe board was satisfied MV willfully disobeyed the direction. MV was an intelligent and experienced worker who desired to publish and distribute his newsletter. The board was satisfied that MV was determined to distribute the newsletter to his members and other members of staff who asked for it. (And this is considered a crime?} He even criticized the management’s attempt to stop the distribution in the workplace Newsletter 27

Charge 4

The board found charge 4 proven

bulletThe board was satisfied that MV had influenced the views of other employees (That anyone should make such a statement  as if it were a crime would be remarkable in other than a dictatorship of fascist state. In any normal society we all influence others, regardless of relative age) and that he was aware of his capacity to do so. MV acknowledged that he influenced some of the younger employees and that he was an educator (It is a crime to be an educator? )
bulletThe issues dealt with by MV concerned political and private matters and preferences. The matters were not always dealt with accurately and often the language used was emotive and inflammatory (how would the Board define political, private and inflammatory ?) (The Board ignored completely the question of implied constitutional rights)
bulletThe newsletter was designed to influence the private views held by employees in respect of the CEO and Management (a legitimate function of any unionist, and views which had been endorsed in mass meetings. This action is protected under the Industrial Relations and The Workplace Relations Acts ) and designed to undermine trust and faith in the management (Mass meetings had called for open inquiries into the management)
bulletThe Newsletter was not a Union publication The distribution of such material was not in the interests of employees, especially those easily influenced and upset by MV The content exceeded what was acceptable and fair criticism of Telstra by an employee
bulletBy distributing the newsletter MV created a conflict of interest. In addition MV used the newsletter to influence private and political views held by other employees and attempted to do so by publishing inaccurate (NO inaccuracy was or has since been demonstrated) articles and using inflammatory and emotive language. In these circumstances MV breached Telstra’s Code of Conduct      ( the Code was never signed or agreed to by me, though it was signed by all managers) when he distributed the Newsletter

Charge 5

Having considered all of the evidence presented the board found charge 5 not proven. The board was not satisfied the content of the newsletter "incited fear and insecurity"
The content may well have contributed to the fear and insecurity suffered by Ms Muldoon
( she had been pressured by management to the extent that she had left the stand crying, the pressuring was heard by others in the anteroom) and Ms Watson and certainly influenced the personal views held by Ms Muldoon, Ms Watson and Ms Acreman. The evidence fell short.

Penalty

The decision to dismiss should be confirmed. The misconduct was extremely serious and by its nature called for MV’s dismissal.

To require Telstra to retain MV would be unreasonable and inappropriate. ( Clearly the AIRC disagreed) MV wilfully breached a lawful direction and displayed an absolute disregard for the interests of his employer.

bulletMV improperly and inappropriately attempted to manipulate the private views held by employees by inaccurately reporting matters and using emotive language designed to undermine the management of Telstra. MV failed to consider the interests of employees such as Ms Muldoon & Ms Watson both of whom suffered emotionally as a result of the content of the Newsletter
bulletIn addition MV created a conflict of interest by improperly criticizing his employer in a manner designed to undermine staff faith and trust in Management. His criticism went well beyond what could be considered to be fair and proper criticism of an employer by an employee

Conclusion

For the reasons stated the unanimous decision of the board was as follows

Charge 5 is found not proven

Charge 1 and Charge 4 found proven

The decision to dismiss the Appellant is confirmed

Over the signatures of J.A Bretherton, B.McLeod and CPSU Nominee R. Barton

It should be noted that there was a remarkable change in the attitude of the Chair. At a late stage in the hearings the Chair called in the lawyers and indicated that in her opinion there should be an agreement. 

Such an agreement was reached by the lawyers. The agreement was that MV would be reinstated and work in another centre which was much closer to his residence.

 High level Telstra management then reneged on the agreement.

 In view of this the judgment raises many further questions.

On the 28th August MV wrote to Robertt Holland suggesting that he review his decision and requesting reconsideration in order to remove the need to take further action, without result

 
 
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