C2001/4322, Transcript of Proceedings [2001] AIRCTrans 2449 (21 September 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2001/4322

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - NEW SOUTH WALES BRANCH

and

O'BRIEN'S CATERING LIMITED

Application under section 170LW of the Act
for settlement of a dispute (certification
of agreement) re alleged unfair warnings given
by the company to an employee

SYDNEY

3.00 PM, MONDAY, 3 SEPTEMBER 2001

PN1

MR W. DEDULA: I appear on behalf of the Shop, Distributive and Allied Employees association, New South Wales branch.

PN2

MR E. LEAHY: I seek leave to appear for O'Brien Catering Ltd.

PN3

THE COMMISSIONER: Yes, thank you.

PN4

MR LEAHY: At this point, Commissioner, I say two things. One, I apologise profusely for not having attending the Commission at 2.15 when the matter was listed to commence and, secondly, having been informed by your associate of the matter being listed today and now, I have contacted Mr Mark Ghilardi, Industrial Relations and Compliance Manager, New South Wales, ACT, from the company and he is making his way to the Commission. I say that not to delay the proceedings at all but just to let you know that should a person come through the door and take a seat well that is Mr Ghilardi. Thank you, Commissioner.

PN5

THE COMMISSIONER: Yes, Mr Dedula?

PN6

MR DEDULA: Commissioner, this matter is in relation to a Ms Natalie Hault and it is in relation to four warnings received by Ms Hault on the 4th of the seventh 2001 and those warnings are in relation to the following: not adhering to company policy of selling goods other than those authorised by the company; not adhering to company procedure by taking the van keys home; not adhering to company procedure of unloading perishables from the van each day; and, finally, not adhering to company policy of ringing one hour prior to start time if intending to be absent. I will pass up a copy of each of these, Commissioner.

PN7

THE COMMISSIONER: Yes, thank you.

PN8

MR DEDULA: Commissioner, if I may deal with the last one first: not adhering to company policy of ringing one hour prior to start time if intending to be absent. If I go to the second part of that particular document, it is a standard required:

PN9

All employees are required to phone the branch one hour prior to start time if they are going to be absent from the shift as per policy and procedure handbook, page 14.

PN10

Mr Commissioner, this company currently have a registered agreement and if I may pass up an extract from that agreement?

PN11

THE COMMISSIONER: Thank you. Mr Dedula, the counselling record form in respect of ringing in an hour before will be exhibit SDA1 and the extract of some kind of leave will be, from the certified agreement, will be exhibit SDA2.

EXHIBIT #SDA1 COUNSELLING RECORD FORM IN RESPECT OF RINGING COMPANY PRIOR TO ABSENCE

EXHIBIT #SDA2 EXTRACT OF LEAVE

PN12

MR DEDULA: Now, clearly Commissioner, on that extract it states:

PN13

8.4 Sick leave shall be in accordance with shop employees' State award.

PN14

There is a further extract that I will pass up to the Commission and that third extract, Mr Commissioner, is - - -

PN15

THE COMMISSIONER: Right, that is in a document, I do not know what it is, but it will be exhibit SDA3.

EXHIBIT #SDA3 EXTRACT FROM SHOP EMPLOYEES' STATE AWARD, CLAUSE 18, SICK LEAVE

PN16

MR DEDULA: Exhibit SDA3, Mr Commissioner, is an extract from the shop employees' State award, clause 18, sick leave, and the highlighted area states the following, at subclause 4(a):

PN17

Agreement of sick leave shall be subject to the following ...(reads)... the nature of the illness and estimated duration of absence.

PN18

Clearly, Ms Hault has rang in to the company within the 24-hour period. The company chooses to use a policy over the appropriate clauses. What the union contends, Commissioner, is that this warning, along with the other three given to Ms Hault on that particular day, was a form of punishment and intimidation. Ms Hault appeared here in matter 1997 of 2001, unsafe work practices.

PN19

THE COMMISSIONER: What is it again?

PN20

MR DEDULA: 1997 of 2001, unsafe work practices, which appeared before yourself - - -

PN21

THE COMMISSIONER: When was that?

PN22

MR DEDULA: On the 24th of the fifth, 2001.

PN23

THE COMMISSIONER: I see, yes. This is the driving of the truck without brakes and all that sort of thing.

PN24

MR DEDULA: That is correct, Commissioner.

PN25

THE COMMISSIONER: Well, not without brakes but there was something wrong with it, yes.

PN26

MR DEDULA: We would state clearly, Commissioner, that this particular warning that we have gone to and the other three warnings, if we take into account not adhering to company procedure of unloading perishables from - - -

PN27

THE COMMISSIONER: Let me go back to SDA1, Mr Dedula. It says there at Employee Performance, "Was absent from work and phoned to notify at 7 - at 6 something which is after the designated start time."

PN28

MR DEDULA: Rang 15 minutes late according to the company policy and procedure book, Mr Commissioner, but the company policy and procedure book has no legal standing within the contract of employment.

PN29

THE COMMISSIONER: Well, I am not quite sure about that but I want to know this: what is the - you do not know what the starting time of the employee is?

PN30

MR DEDULA: The starting time of the employee is 6 o'clock.

PN31

THE COMMISSIONER: I see. Okay.

PN32

MR DEDULA: The registered agreement, M2491, which was registered in C number 22206 of 1999, states that the award - this is a stand-alone agreement except for where mentioned. At 8.4 it clearly mentions that sick leave is as per the shop employees' State award. The shop employees' State award says within 24 hours. Clearly, Ms Hault rang within 24 hours. She rang 15 minutes after her designated start time. Obviously no-one is doing any research of their own documents and we would say that any warning, be it verbal or written in respect of that instance is null and void and should be removed from the lady's record. In relation to the other warnings, Commissioner, if I may go to the warning, "Not adhering to company procedure of unloading perishables from the van each day."

PN33

THE COMMISSIONER: I make that as exhibit SDA4. Yes.

EXHIBIT #SDA4 WARNING DOCUMENT, RE UNLOADING PERISHABLES

PN34

MR DEDULA: It states:

PN35

That all perishables are to be unloaded from the van ...(reads)... she did not know she left them.

PN36

Not them, there was only one. One bottle of 250 ml orange juice which was apparently tucked behind the truck somewhere and of course this particular lady received a warning. The company is stating that these are all verbal warnings and the union is not even going to contend have them as verbal warnings, Mr Commission, because on the day that this lady was absent the truck went out of the yard. Her truck went out and who was in charge of that truck? The supervisor. And who left a bottle of orange juice on the truck again that day? The supervisor. Has that person been warned? The company have not told us and we met with the company on 19 July to discuss these issues. Commissioner, we go to the warning, "Not adhering to company policy by taking the van keys home."

PN37

Says: had no reason. On Monday, 2 July when Natalie ...(reads)... we found they had been taken home.

PN38

But yet there is still a spare set of keys on the premises and that truck left the yard. It is also a common practice that other people within the same period of time as this warning was handed, within a two week period had also taken keys home and there is no warning, written, verbal or anything. Identify it as SDA5?

PN39

THE COMMISSIONER: Take the keys home will be exhibit SDA5 and you say other people have done this?

EXHIBIT #SDA5 WARNING DOCUMENT, RE KEYS HOME

PN40

MR DEDULA: Yes, if the matter needs to go to arbitration, Commissioner, we will be bringing people to attest to the fact that the keys have gone home. The other instance is of course, Commissioner, when they - before they leave work is there not a check-off system. Who is supposed to check-off all the money and that everything is handed in before they go - leave the premises. I would think there would be a system that would say, "You cannot go, you have not checked the keys in," and if there is a system why then did Ms Hault leave the premises with the keys. To date there is no system. If we go to the last warning of course, Mr Commissioner, SDA6?

PN41

THE COMMISSIONER: Yes. Which I will mark exhibit SDA6, that is about selling goods.

EXHIBIT #SDA6 WARNING DOCUMENT, RE SELLING GOODS

PN42

MR DEDULA: This is about selling goods that are not authorised on the truck. Apparently what happened is that Ms Hault ran out of stock on the truck and what she did was she went to a service station and purchased, I think it was three cupcakes so that she would have some food on board for her last stop for her customers. Apparently this also, Mr Commissioner, was a standard procedure of the company that when people run out of stock if they ask for permission they are told that, "Yes, you can go and buy certain stock from certain areas." Well, the only mistake Ms Hault made at this point in time is that she never asked anyone, she knew it was a customer practice, so what she did was she bought some cupcakes from a service station so that her customers would have something to eat at the next stop because she did not have the cakes.

PN43

That in itself, Mr Commissioner, I can understand that if someone buys some stock that makes someone sick or whatever, I can understand that, but I mean this particular lady, what a heinous offence to go and buy something so your customers have something to eat at the next port of call. Commissioner, all these warnings of course, we had a meeting with the company on the 19th of the seventh and explained where the union was coming from with this and asked for these to be removed. The company said they were only verbal warnings, we do not even go along that they are verbal. The reason that we say this, Mr Commissioner, is the company policy and procedures do not override the award.

PN44

The company policies and procedures in respect of the three warnings that we have in relation - except for the sick warning, there has been no issue of a company procedures and policy handbook to any of the employees. I would like the company to provide to us where these people have been shown this policies and procedures book and at what stage they were told of these new changes and produce the evidence of such, and until such time, Mr Commissioner, we believe that these warnings particularly the one on the sick leave was inappropriate because it is not part and parcel of the company procedures and policies. And company procedures and policies, Mr Commissioner, are subject to the changes of the whims and fancies of companies whenever they seem to change a policy, and if those policies are not then espoused to employees on a regular basis then we cannot hold the employees to be responsible for those areas. And I can clearly say my instructions from Ms Hault are that she has not seen a copy of the company policies and procedures, if the Commission pleases.

PN45

THE COMMISSIONER: I am sorry, Mr Dedula, just about that matter that was before me on 24 May, do you remind me what your recollection of that was?

PN46

MR DEDULA: There was a letter of apology that was issued to Ms Hault in relation.

PN47

THE COMMISSIONER: Yes, what was your recollection?

PN48

MR DEDULA: At the end of that matter there was a letter - - -

PN49

THE COMMISSIONER: No, tell me about all of the - you notified something.

PN50

MR DEDULA: We notified a dispute in relation - into unsafe work practices and bullying by supervisors. Ms Hault noticed upon leaving the yard that the truck was pulling to the left, she then returned to the yard to be told that there was no problem with the truck and to get out there and do her work. She said, look there was a problem, the mechanics then got back into the truck, they seen that the truck was pulling to the left, their answer was to deflate the tyres on the right, pump them up on the left. She went out that day, she still complained there was a problem.

PN51

The next day which was a Friday she reported - after she rang me she stood on her dig and said she was not going to be taking that vehicle out. That vehicle was then taken to Bob Jane T Mart at Bass Hill. I went to Bob Jane T Mart at Bass Hill to find the vehicle. The mechanics at Bob Jane told me that Quick Snacks took the vehicle back, they measured the wheel base with a tape and then took the vehicle back. We subsequently found out the problem was the centre pin and leaf springs had sheered off and had been sheered off for a while. The company said it was not serious, we produced evidence from the NRMA saying it was serious and could have related to a serious accident. The problem there was that they were told continually by the company to go out and use it. The company have since issued a letter of apology to Ms Hault.

PN52

THE COMMISSIONER: Yes, Mr Leahy?

PN53

MR LEAHY: Yes, Commissioner. If I could just touch on the last matter spoken about by Mr Dedula. As far as we are aware the previous matter before the Commission, being a dispute notified by the SDA in relation to the driving of a vehicle has been resolved and that is over. In terms of the issues before you today, a number of things are worthwhile to point out. With respect to exhibit SDA1, that being the - I suppose actually all the exhibits to do with the council record forms given to Ms Hault on 4 July - Mr Dedula contacted me some time after those warnings were given and requested that a meeting be held with the company to discuss the warnings. On 19 July there was Eric Cook, operations manager from the company, Mr Mark Ghilardi who is present today, myself, Mr Dedula and another SDA official Mr Lincoln Kinley.

PN54

At that meeting we certainly discussed the four warnings. The company said a number of things - this is based on my recollection but whilst the form does not say this and it was recognised as being a problem with the form, they are not classified as what would be written warnings but were verbal warnings. Each one was a verbal warning. Also, they were all dated 4 July and if there is any significance in that date it is that the Employee Policy Guide and Procedure Handbook, which I am instructed was given to each employee and hopefully we can establish why records showing that employees actually signed on receipt of receiving the handbook that instructed that Ms Hault should have received a copy because we understand that employees were issued with a copy of the handbook.

PN55

Employees were put on notice that a more - management practises would be enforced more rigorously. There would be a settling in period where some practises which may have been undertaken by employees in the past may continue, but the company wanted to institute new practises and to some extent that is reflected in these warnings in the sense that four were given on the one day. And I think it is also reflected in the sense that it was given at a time when the policy handbook was just issued, so it was - in terms of them being verbal warnings, they are categories below that of a written warning and I place that as being significant. Now, in terms of the sick leave, hear what Mr Dedula has to say about the enterprise agreement and the - - -

PN56

THE COMMISSIONER: How can a verbal warning be written down?

PN57

MR LEAHY: It is a record of the verbal warning.

PN58

THE COMMISSIONER: This is a record of the verbal warning. Yes, I see.

PN59

MR LEAHY: In terms of the sick leave, appreciate what Mr Dedula has had to say about the enterprise agreement and also with respect to sick leave - appearing I think it is in clause 8 and its reference to the Shop Employees State Award. The issue for the company is, pretty simply, that it has vans that have to be on the road for its business to function economically. In order for the vans to go out, as you have hold, Ms Hault's start time was 6.00 am. For the vans to go out, the company needs some prior notice if an employee cannot make it to work so that they can put in place arrangements so the van can go out. Obviously the verbal warning is a reflection of the company's frustration at receiving short notice - that is the category I put that into.

PN60

And if it does not receive the appropriate notice it may mean the van does not go out or it goes out late. If it goes out late that affects customers that it visits because these vans go out and visit different industrial sites and work sites and they have pre-arranged times. a bit like a bus, which they are to arrive at different locations and if they do not arrive at the certain time then that reflects poorly on the business. If they miss venues at a particular time - again, that reflects poorly. So there is some desire and need for the company to have its vans go out on time. With respect to the second warning which Mr Dedula took you to - I think that being exhibit SDA4 regarding the perishables.

PN61

I cannot comment on whether the orange juice was tucked behind - or tucked away some where - hidden in the truck or whether it was obvious. I just have no instructions and in terms of whether it was put forward by Mr Dedula that maybe another employee had had control of the vehicle that day and they had actually left the orange juice there - whether that allegation was made or not, I am instructed that when the orange juice was found it was found the day following when Ms Hault had control of the vehicle so the responsibility was Ms Hault's for the orange juice being there. So I just raise that in terms of clarifying and responding to what Mr Dedula had to say.

PN62

With respect to exhibit SDA5 and the keys, Mr Dedula queried whether there is any check off system that the company has when employees leave at the end of the day. I am told that the check off system is undertaken by the employees themselves and so, as I understand it, no one would ask Ms Hault for the keys to the van. It would be expected that Ms Hault - and any other employee for that matter, actually returns the keys in the regular spot each day. Mr Dedula made an allegation that other employees had taken keys home and had been treated differently to Ms Hault in the sense that they had not received this counselling record form.

PN63

We cannot confirm that is the case and if the inference is, which I imagine it is, that Ms Hault is treated differently to other employees, then that is denied. If other employees have taken keys home then they should have received the same warning because the idea is that people are treated equally. Difficult concept some times for everyone to follow, but it is something which the company does its best to follow. Then with respect to the final warning - I think it must have been SDA6, the issue of the three cup cakes. Again, I cannot confirm that the items purchased were three cup cakes but the issues are, from the company's view point, is - one, if items are sold to its clients that it has not produced - it cannot vouch for, then there is possible occupational health and safety risks.

PN64

Secondly, there is also a risk - and by no means do I raise this allegation against Ms Hault, but I just mention it to you, that employees could possibly purchase items then charge them at a higher price and make a profit. Now, I am not making that allegation at all against Ms Hault and I have no proof against any other employees, but for those two reasons - and I would have to get instructions on whether there were others, the company takes the view that the only goods sold from its van should be goods which it can vouch for and which employees take from its premises. So that is the sense behind its policy and in wishing to enforce its policy that is the reason for another verbal warning.

PN65

Now, in terms of the meeting which we had with Mr Dedula on 9 July, my recollection is that I honestly cannot recall Mr Dedula asking for the warnings to be withdrawn. You might imagine that at that meeting that would be the first thing that Mr Dedula would ask for but my notes do not record that and indeed the meeting was not solely to discuss that. It was to discuss a whole range of issues. I think it turned out that I think a majority of the meeting was actually about occupational health and safety - about issues that we were not even intending to discuss.

PN66

And at the end of the meeting there was no follow up or request from Mr Dedula to say, "Well, what is happening with the warnings? Are you going to withdraw them? Are you going to get back to me about the warnings? Please write to me about the warnings?" which I just point to as a matter of fact because when the meeting did end those questions were raised with respect to occupational health and safety and there was correspondence from the company to the SDA about a whole range of occupational health and safety issues which were raised and which the SDA specifically asked that we respond to them on and as I understand the company did do. In terms of saying that, Commissioner, I would request that it might be appropriate if we could go into conference to discuss these matters further, of course subject to what you have to say, Commissioner.

PN67

THE COMMISSIONER: Mr Leahy, how come all these warnings occurred on one day?

PN68

MR LEAHY: Apparently it all transpired over one or two days in the sense that, I think, finding the orange juice was on the afternoon - was one afternoon and then the next day Ms Hault was sick and the keys were not in the office the day Ms Hault was sick. And then apparently the issue about goods being sold that were not authorised from the company were found out on that day when Ms Hault was sick and then the next day Ms Hault came to work and the four counselling record forms were completed. As far as I know, and I only take this from a discussion with Mr Dedula, is that Ms Hault has not received any other counselling record forms since 4 July.

PN69

THE COMMISSIONER: Yes, okay. We will go to conference.

SHORT ADJOURNMENT [3.37pm]

PN70

MR DEDULA: ...with the sick leave, Phillips Fox and Mr McArdle were responsible for the formulation of this document so the company have no area that to attempt to push something through a company procedure and policy booklet. It is quite clear they had a so-called industrial relations expert doing their document for them so it is quite clear that there is no argument there with what Mr Leahy is talking about with his business and running the business - there is no compulsion for a person to ring in before and to have someone warned verbally - apparently, for being 15 minutes late with a phone call when there is no onus upon them to ring early, is a wee bit ridiculous.

PN71

In relation to the orange juice, Mr Commissioner, I would not know who put that there and this company cannot prove that Ms Hault left it on that truck. I could not tell you who put it there and neither could they because all the sides of the trucks can be opened up with one key - they still have not changed the locks. Check off systems by employees, Mr Commissioner - I would like to see the check off system in the procedure. They seem to have a check off procedure for everything but I have not seen one so if they could deliver one to us about where the employee checks it off? And Mr Leahy did mention that the policy and procedures book was handed out recently. How recently we would like to know and how thick is this book and how long will it take to read?

PN72

You cannot just hand something to someone and say, "Have you read this? Please sign", which is what I suspect is the issue. "Here it is, sign this." And of course with the cup cakes - how does the company know that Ms Hault bought cup cakes? Does she claim back from the company which means she has to inform the company that she has bought the additional cakes. Some one would have had to inform because she would not leave them back there because it is a perishable. She would have packed them away.

PN73

So they did not find any cup cakes there so how did they find out about the cup cakes unless Ms Hault told them? So once again she must be very dishonest. And in relation to Mr Leahy saying he cannot recall anything at the meeting of 19 July, well that meeting became very heated and I told Mr Kinley from the SDA to pack up his goodies and let us go. Can Mr Leahy recall that?

PN74

MR LEAHY: I certainly can, Commissioner.

PN75

MR DEDULA: That was over the warnings. So you can recall me saying, "Pack up, let us go," but you cannot recall the warnings?

PN76

THE COMMISSIONER: We will go to conference.

NO FURTHER PROCEEDINGS RECORDED [4.20pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SDA1 COUNSELLING RECORD FORM IN RESPECT OF RINGING COMPANY PRIOR TO ABSENCE PN12
EXHIBIT #SDA2 EXTRACT OF LEAVE PN12
EXHIBIT #SDA3 EXTRACT FROM SHOP EMPLOYEES' STATE AWARD, CLAUSE 18, SICK LEAVE PN16
EXHIBIT #SDA4 WARNING DOCUMENT, RE UNLOADING PERISHABLES PN34
EXHIBIT #SDA5 WARNING DOCUMENT, RE KEYS HOME PN40
EXHIBIT #SDA6 WARNING DOCUMENT, RE SELLING GOODS PN42