C2001/3844, Transcript of Proceedings [2001] AIRCTrans 2143 (31 August 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER JONES

C2001/3844

AUSTRALIAN LIQUOR HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

and

SERCO SODEXHO DEFENCE SERVICES
PTY LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re alleged failure by the company
to follow the dispute resolution procedure in
the award in relation to an employee

SYDNEY

10.07 AM, FRIDAY, 10 AUGUST, 2001

Continued from 18.7.01

Adjourned sine die

PN147

THE COMMISSIONER: No changes to appearances? Ms Tavener, it's your application.

PN148

MS TAVENER: Thank you, Commissioner. Thank you for relisting this matter for us. The situation as it is, is that, as you would recall, the matter was last before you on 18 July of this year for conciliation. At that conciliation conference you made a recommendation that the parties go away to meet to discuss issues that appear to have arisen in relation to communication difficulties between the parties. I am happy to advise that we have done that. However our application today is for further conciliation of this matter on the basis that the situation has somewhat worsened since we were last before you and perhaps it might be of assistance if I handed up a chronology of the events that have happened.

PN149

THE COMMISSIONER: Do you want that marked as an exhibit?

PN150

MS TAVENER: If that's appropriate.

PN151

THE COMMISSIONER: Well, it's up to you.

PN152

MS TAVENER: I would probably rather it was not marked as an exhibit, Commissioner.

PN153

THE COMMISSIONER: Well, we won't mark it as an exhibit. Do you have a copy, Mr Townsend?

PN154

MR TOWNSEND: Yes, I do, Commissioner.

PN155

MS TAVENER: As you can see from that chronology, if perhaps we move through to 2 August. On 2 August, a meeting was held between Mr Ray Wombold who is the site manager at the site and myself and Sasa Dejeinvic, who is the member. Various allegations were put to Sasa at that meeting in relation to his attitude in the performance of his duties as a security guard and at that meeting his employment was terminated.

PN156

It is our submission today, Commissioner, the situation has obviously been aggravated by the termination of his employment on 2 August and that in the circumstances the company was on notice that we did have an ongoing dispute in relation to this matter and specifically in relation to the application of the dispute resolution procedures as outlined in the award. It is our submission today that it's simply unfair in the circumstances and given the history of this matter for the company to act as they have in sacking Mr Dejeinvic whilst we are in dispute and we reiterate our submission that we made on 18 July which is that we still haven't had a proper opportunity to consider and respond to the reasons which the company rely on for termination Mr Dejeinvic's employment with the company.

PN157

We would ask today, if possible, that the matter be conciliated with a view to actually reaching some resolution of the matter and a proper application of the dispute resolution procedures that are outlined in the award. In the alternative if you are of the view that that's not appropriate or suitable in the circumstances, we would seek that our application in relation to unfair dismissal of Mr Dejeinvic be expedited so that it may be dealt with more quickly, if it please the Commission.

PN158

THE COMMISSIONER: Thank you, Ms Tavener. Mr Townsend?

PN159

MR TOWNSEND: Yes, if the Commission pleases, I think my friend has generally outlined the development since last we were before the Commission. The circumstances were, as I recall at the last hearing, that we put a position that the issue is not in relation to a dispute between the union and the company, it is a matter of a disciplinary substance. We say that we, up until the present issue, that we conducted ourselves properly. We did put on transcript on the last occasion that there had been a number, I think about eight complaints about the employee.

PN160

We had followed due process. We had had the person in. We counselled the person. He had been given a final warning and that was put in writing and I think that was very clear in its substance. On our position regarding the attitude of the employee we - since that occasion, there was a meeting between Peter Baxter of the company and the union in relation to the Commission's recommendation that a meeting should take place in respect of communication. My understanding at that meeting that Peter Baxter informed the union that he had no problems with the communication at the Kuttabul site.

PN161

It was my understanding that the union didn't raise any issue with communication. They did raise the issue of the person involved and overall I understand there was also an allegation from the union that the Commission had found that the company was in breach of the disputes procedure clause at the last hearing. We say that is totally incorrect. That was never said and never put in our view although we haven't had a copy of the transcript, but in my recollection of it that was never the case. Since then, Commissioner, there has been a couple of developments.

PN162

There was a report made to the company by a Dianne Bron, who is a Petty Officer at Kuttabul, Marine Headquarters, and I will hand that up.

PN163

THE COMMISSIONER: Do you wish that marked, Mr Townsend?

PN164

MR TOWNSEND: Not necessarily, Commissioner. Now firstly, Commissioner, I must say that the Kuttabul site in terms of the Navy is a very distinct and important site. They expect security to be of quite a high flavour at that site as they do elsewhere, but particularly at that site and this report to the company was from, as I say, the Petty Officer Dianne Bron and reported that she had found Mr Dejeinvic "laid back in his chair reading the newspaper" and in her view that he would not have been able to see who was coming or going from the building and also his appearance "leaves a lot to be desired".

PN165

She has sent that to Rick Attard who is the security supervisor for Serco Sodexho at the site. That was on the 26th, the letter went, the incident was on 25 July. On the 26th again, there was another report come in from Pauline Harper who I understand is a Petty Officer in the Navy and that again was sent to Mr Rick Attard who is supervisor for Serco Sodexho and I'll hand up a copy of that.

PN166

This was to do with, and I might read it, it might be easier, Commissioner. It says it's to Mr Rick Attard:

PN167

Please be advised that as a supervisor of a level 2 pass ...(reads)... with the period of time Ms Booth ...

PN168

Now Ms Booth is an employee of Serco Sodexho:

PN169

... has been called away from this office to relieve levels 1 and 6 security officers ...(reads)... would be appreciated.

PN170

Sir, I might add that both those letters, of course, are from the Petty Officers but that is a letter from our customer. There's another note here from Susan Booth, who is a pass officer, Maritime Headquarters and that is to the Rick Attard, the security supervisor and Ray Wombold, site manager, and of course as I've said before Susan Booth is an employee of Serco Sodexho. Ms Booth had this to say:

PN171

I would like to advise of an incident that occurred at Maritime Headquarters ...(reads)... it will never happen again, thank you, Susan Booth.

PN172

Sir, following those complaints, Mr Wombold did advise Mr Dejeinvic that he wished to have a meeting with him. That meeting was held on 2 August. Present at the meeting was Mr Wombold and Mr Rick Attard and there was Sasa Dejeinvic and Julieanne Travener and Mr Wombold outlined these complaints to him. During the discussion Mr Dejeinvic claimed that he'd gone to see Lieutenant Commander Beamish about security issues.

PN173

Mr Wombold had spoken to Lieutenant Commander Beamish and he was advised by Lieutenant Commander that Mr Dejeinvic had rung to see if he could see him and he said he could. The discussion with Lieutenant Commander Beamish was simply to do with that the company was trying to get rid of him and could he write a reference. This was put to Mr Dejeinvic and Mr Dejeinvic, as I understand it, did not deny that was the case.

PN174

Now, sir, following that interview Mr Dejeinvic was terminated immediately, but he was paid in lieu of notice and all other entitlements that she was entitled. Now, sir, we say that Mr Dejeinvic has had every opportunity to change his ways as his conduct has been unsatisfactory for quite a long period of time. He has, as I said previously sir, had eight complaints up to the last hearing. There's another three complaints there, one from one of his own workmates who was trying to perform her duties and was let down badly.

PN175

He has been warned about his conduct. He has caused the company and other employees to be embarrassed in the eyes of the customer and, sir, in particular, he has damaged our relationship with the customer. We say, sir, that he has repeatedly not displayed the professionalism that is required from a security officer. We say, sir, quite candidly that we believe that he is slack in the way he carries out his duties and indeed it is our view that he has made no attempt to correct the feature of the way he operates and, sir, he has disregarded our counselling.

PN176

He has disregarded what we had to say in the written warning and, sir, we say that any relationship between Mr Dejeinvic and the company has ended. Sir, in respect to the union's decision in this, as I understand it, they have or will today, file an unfair dismissal notice application. We say, sir, that is the correct course for the union to follow. We say this is a disciplinary matter. We have taken what we believe to be the correct and proper redress with this former employee and the union has one avenue open to it and that is through section 170CE of the Act. If the Commission pleases.

PN177

THE COMMISSIONER: I take it from that, Mr Townsend, that you don't see conciliation being a process available today because of there is no longer an employer/employee relationship, is that correct?

PN178

MR TOWNSEND: Yes, sir, we don't see that any further mediation or discussion on these issues would be of any help.

PN179

THE COMMISSIONER: Thank you, Mr Townsend. Ms Tavener, have you got anything to add to that position?

PN180

MS TAVENER: Perhaps, Commissioner, if I could just at this stage direct your attention to the chronology which I've provided this morning. Our argument is simply that the procedures that have been adopted by the company in relation to dealing with this matter are at fault and are in breach of clause 17 within the award. With respect to the arguments that have been put forward by my friend relating to the merits of whether it was the correct decision or not to terminate Mr Dejeinvic's employment, we would say in response to that that we've not had a proper opportunity to consider whether that was the correct decision or not because the union is at a disadvantage in the sense that we have not had a proper opportunity to respond to the allegations that have been put forward by the company to justify the dismissal and this is the basis of our application today.

PN181

If you care to look at the chronology, you can see on the first page on 5 July, the company met with Mr Dejeinvic and at that meeting Mr Baxter attended along with Mr Wombold from the company. Sasa was in attendance at that meeting along with one of our delegates and one of our union organisers. At that meeting, Peter Baxter advised Mr Dejeinvic that "you won't be terminated you will be moved". The union says based on that statement that it was quite clear back at the meeting on 5 July that the company had already reached a decision to move Mr Dejeinvic from his duties for the reason we're not sure, but we assume it is because they were motivated by perhaps him being an active union delegate at the site and hence they wished to move him to another site.

PN182

So we say, based on that statement, that back at 5 July the company already had a decision in mind that the conduct of the meeting on 5 July was simply a charade which was gone through with the parties in order to appear to comply with the dispute resolution procedures in the award, but we say, in fact, this was not the case. On 10 July, a letter in fact dated 10 July was issued by the company to Mr Dejeinvic which purports to be a final warning in relation to his unsatisfactory attitude in relation to his behaviour towards other security staff members.

PN183

We say that the meeting on 5 July was, as I said, it appears to be a charade. We say the company had already reached a decision back then. Mr Dejeinvic at that meeting was certainly put on notice that the company had problems with his behaviour and his attitude towards other staff members. However, it's my understanding that no actual warning was given to him at that meeting in relation to his performance. So on 10 July when the company then decided to issue what it calls a final warning, we say that on the facts that simply can't be a final warning because no warning was given on 5 July.

PN184

So the company's attempt to provide him with a warning on 10 July when in fact there was no factual basis to provide that warning. So we say based on that scenario Mr Dejeinvic has not been afforded proper procedural fairness in relation to exploring these issues relating to his alleged attitude problems at work. We secondly say that he has been denied a right to have proper union representation at these meetings and I refer to the meeting on 2 August at which Mr Dejeinvic was terminated.

PN185

I attended that meeting with Mr Dejeinvic and I was told at that meeting by Mr Wombold that I was there in a witness capacity only and that I inferred from that that I was not entitled to make any arguments or any submissions on behalf of Mr Dejeinvic. Prior to that meeting on 2 August, in fact on 27 July, the union was informed that Mr Wombold wanted to have a meeting on 28 July, being a Saturday, at 5.30 pm. That meeting didn't go ahead obviously because of the short notice relating to the meeting and it was then arranged to go ahead on 1 August, at which time none of the union representatives could attend, so we arranged a mutually convenient time, being 2 August.

PN186

Prior to that meeting, I had a telephone conversation with Ray Wombold, the site manager, in relation to the issues that would be put to Mr Dejeinvic at that meeting and Mr Wombold advised me that the purpose of the meeting with Sasa is that it is simply a counselling session and that it does not relate to a potential warning or the provision of a warning to Sasa. I then had a second telephone discussion with Mr Wombold on 31 July, at which time Mr Wombold advised me that there were various allegations which were going to be put by the company and discussed and these are the allegations which my friend has gone into in great detail this morning.

PN187

In that telephone discussion with Mr Wombold, I requested copies of those allegations so that we could again be properly prepared to have a constructive discussion on 2 August and Mr Wombold advised me that the records of the allegations were in email format and my understanding was that he either refused to provide them or said that he could not provide them because they were in email format. So our basic submission is that prior to the meeting on 2 August we were under the understanding and in fact led to the understanding by the site manager of the company that this meeting would only be a simple counselling session and it would in fact not relate to the potential warning, let alone the termination of his employment.

PN188

We say that prior to the meeting on 2 August, if we go back to 10 July, we say that the warning that was given to him in writing then was in fact not a final warning and prior to that we say the meeting at North Sydney on 5 July was not a properly convened meeting in the sense that there was not proper procedural fairness allowed to our member. He didn't have an opportunity to respond to those allegations and to date we've not properly addressed those allegations with the company.

PN189

So it is our submission today, Commissioner, that if due process and procedural fairness be allowed to our client that we be able to properly discuss these issues with the company and that the factual assertions that have been made by the company and presented to Mr Dejeinvic in writing be properly explored and responded to by the company and that he be given a proper opportunity to respond to those.

PN190

We also say, as I said before, the sequence of events whereby the company is attempting to warn him in relation to his performance, effectively they've given him one written warning and we say that the events that have happened subsequently to that written warning on 10 July are not sufficient to warrant his summary dismissal on 2 August.

PN191

We hope that the matter could be resolved by the Commission making a recommendation or an order that we meet in order to properly discuss the issues, if the Commission pleases.

PN192

THE COMMISSIONER: I see the circumstances to when this matter was last before me has been somewhat changed in that action has been taken which resulted in the termination of the applicant or the person involved in the matter that has been before me to date, with that position being obvious and with the employer indicating that they believe that the course now that is available to the applicant is through the section 170CE procedure, that I have some difficulty certainly in ordering the parties to convene.

PN193

Indeed I have some difficulty in making a recommendation to that, except to say that as is always the case with terminations, the procedures for conciliation don't just rest with the Commission. It is always available to the parties at any stage and indeed sometimes when we get into arbitration there is a need anyway by members of the Commission to break off the parties into conciliation. So the process of conciliation is an ongoing situation.

PN194

Therefore I don't see any need to recommend to the parties in a formal sense that that process should cease or indeed should not be taken up. I believe section 170CE therefore is probably the best course available now to the parties as far as expediting it and I assume, like you were saying, Ms Tavener, that you would like to see it fast tracked. That is a control which is beyond me even to dictate because there is a system in trying where certain procedures are adopted with the Commission in processing these claims, and indeed, what I would suspect that what developments have been over the recent days that there are many in this by now ahead of Mr Dejeinvic in this case. But I'm prepared to go as far as if the application comes in to recommend that the application be conciliated in an urgent sense, and from thereon in I'd suggest I've got no control over the operation, so if that indeed becomes a result of the conciliation not being successful.

PN195

So the summary. I'm not prepared to recommend that the parties enter into a conciliation process, and that the process of 170CE be followed, and that I will endeavour to have the conciliation process fast tracked, but the arbitration, the situation is that should that result in the conciliation, the next stage of conciliation being unsuccessful is beyond my control. I'd indicate to the parties that conciliation is always available to them as individual groups to the processes. Having said that and I think there is nothing further to add I will close this application as it now stands and I assume from what has been said that the union will now make an application under section 170CE. This Commission stands adjourned.

ADJOURNED INDEFINITELY [10.39am]