C2002/675, Transcript of Proceedings [2002] AIRCTrans 269 (29 January 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT02085
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/675

HEALTH SERVICES UNION OF AUSTRALIA

and

GRACE McKELLAR REHABILITATION CENTRE (BARWON HEALTH)

Notification pursuant to section 99 of the
Act of a dispute re alleged workplace
harassment and intimidation

MELBOURNE

9.40 AM, WEDNESDAY, 16 JANUARY 2002

PN1

MR L. ATKINSON: I appear on behalf of Health Services Union of Australia.

PN2

MR CORBOY: I appear for VHIA, with MR D. COOK of Barwon Health.

PN3

THE COMMISSIONER: Mr Corboy, three things before we start. Firstly, Happy New Year to you all. Secondly, obviously the Commission caught the employer by surprise in coming in early. And thirdly, Mr Atkinson, the Commission has been told that this is your first day as an advocate, so therefore it must be gentle with you.

PN4

MR ATKINSON: Thank you, Commissioner.

PN5

THE COMMISSIONER: But it would warn you, at the end of the submissions, it will hold up a report card indicating whether you failed or whether you succeeded.

PN6

MR ATKINSON: Thank you, Commissioner.

PN7

THE COMMISSIONER: Right, the application is by the HSUA. Mr Atkinson.

PN8

MR ATKINSON: If the Commissioner pleases. The union lodged this dispute notification because Barwon Health has turned a blind eye to it's obligations as an employer, to act on a serious threat made against one of their employees. There was an official Barwon Health Christmas party that took place on 14 December, organised by Barwon Health and the costs borne by Barwon Health. Staff had to apply for tickets to attend the function and tickets were sent out to each person's work location or work area. Each ticket prominently contained a code of conduct on it. The code required staff to respect their fellow workers and refrain from inappropriate behaviour.

PN9

The function was held at Deakin Woolstores Cafeteria from about 6.30 pm and all staff not on shift were invited to attend. Approximately 800 staff members across Barwon Health attended this function. Most members from hotel services at Grace McKellar attended the party and generally arrived separately, so there was no buses or transport supplied to then. One of these members was Marlene Maher, who is in this room with us, Commissioner, as we speak. And she is a member of the hotel services at Grace McKellar and is HSUA shop steward.

PN10

An incident occurred between Ms Maher and Mr Knocker, who is also in this room. Mr Knocker is the head chef at Geelong Hospital and was the head chef at Grace McKellar. Ms Maher and Mr Knocker don't work together now and they are about five kilometres apart at different locations. The failure of internal procedures to deal with this incident has resulted in the union lodging this dispute notification. What happened, Commissioner, if I can read Ms Maher's stat dec.

PN11

THE COMMISSIONER: Thank you.

PN12

MR ATKINSON:

PN13

On the night of Friday - - -

PN14

Sorry.

PN15

On Friday night, 14 December, I attended the Barwon Health Christmas function. I was going to get a drink at 8.30 pm and as I walked past Ken Knocker, he said, "Here is the queen bitch". I said to him, "What did you say?" He replied, "You are the queen of the bitches, aren't you?" I said to him, "Go away", using a more colourful expression, and walked away. I went outside to have a cigarette and he came out and said he was told to come out and apologise.

PN16

With that he said, "I have got a mother that could put you in the bay out there with weights on and that you will never be found". With that people came and dragged him away. I felt threatened, have not been able to sleep very well. This was a social event and should not have happened.

PN17

That is Ms Maher's stat dec, Commissioner. I also have a stat dec from Ms Margaret Wagner, who is also in the room, Commissioner, who was at the function as well.

PN18

THE COMMISSIONER: Right. Do you have copies of those stat decs?

PN19

MR ATKINSON: Yes, I do, Commissioner.

PN20

THE COMMISSIONER: Okay. Have they been provided to Mr Corboy?

PN21

MR ATKINSON: Ms Maher's copy of the stat dec was provided to Barwon Health.

PN22

THE COMMISSIONER: Right.

PN23

MR ATKINSON: Ms Wagner's stat dec, I don't believe has been supplied, but I will tender both stat decs now.

PN24

THE COMMISSIONER: Okay, if you would, thank you.

EXHIBIT #HSUA1 STATUTORY DECLARATION OF MARLENE MAHER

EXHIBIT #HSUA2 STATUTORY DECLARATION OF MARGARET WAGNER

PN25

THE COMMISSIONER: Thank you.

PN26

MR ATKINSON: I will now read Ms Wagner's stat dec, Commissioner.

PN27

On the night of Friday the 14th at approximately 8.45 pm, Barwon break-up, Marlene went to get herself a drink, but returned visibly upset and shaken. I asked what happened and she said that "Ken Knocker just called me the queen bitch". On seeing how upset she was, I sent her outside to cool down. I then went to Ken and told him he had better go and apologise to Marl. He laughed and said, "What for?" He then said, "My mother could put her in the bay with one hand behind her back". He then went outside.

PN28

After that night Mrs Maher looked into getting a restraining order against Mr Knocker, and told myself about the threat. I raised the incident with Mr Colin Benson, HR Manager at Grace McKellar. Mr Benson asked if Mrs Maher could hold off further involving the police pending a meeting between Mrs Maher, Mr Knocker, Mr Derek Cook, himself, and myself. Mrs Maher agreed to this and the meeting took place on Thursday 20 December. The meeting heard Mrs Maher's and Mr Knocker's version of events.

PN29

After the meeting I asked Barwon Health to give Mr Knocker a first and final warning. Management said that they would investigate the complaint. The next day Mr Benson contacted Mrs Maher and advised her that Barwon Health was going to propose some sort of mediation process. She didn't understand Barwon Health to be saying the matter was now closed. Mrs Maher's husband...

PN30

Who is also in this room, Commissioner:

PN31

...contacted Mr Cook on Thursday 10 January to see what was happening about the investigation and mediation. Mr Cook advised Mr Maher that as far as he thought there would be no further action by Barwon. He said that he would get back to Mr Maher, but didn't do so. So, Mr Maher then rang him about 6 pm. In that conversation he confirmed that nothing more was going to be done. Hearing this I contacted Mr Cook to see what was happening about the case. He confirmed the case was closed as far as Barwon was concerned. And I confirmed that I had lodged this case in the Commission.

PN32

Yesterday afternoon I received a letter, which I now table, from Mr Cook.

EXHIBIT #HSUA3 LETTER TO MR ATKINSON FROM MR DEREK COOK OF BARWON HEALTH DATED 14 JANUARY 2002

PN33

MR ATKINSON: It is on a Barwon Health letter head dated 14 January addressed to me and is from Mr Cook. I will read the letter, Commissioner.

PN34

Lee Atkinson, HSUA Number 1, re alleged incident between M. Maher and K. Knocker. Dear Lee, in a conversation with you last Thursday, you indicated to me that the union were awaiting advice on Barwon Health's position in relation to the incident between Marlene Maher and Ken Knocker. Colin Benson advised Marlene, on the morning of 21 December 2001, that after careful investigation of the available facts, Barwon Health is not in a position to take the matter any further. The accounts given by the two parties involved varies significantly.

PN35

And having regard to the circumstances in which the incident took place, it seems to us to be understandable. Ken Knocker is adamant that he did not in any way intentionally harass or intimidate Marlene. In fact he considers Marlene's behaviour towards him was inappropriate in the circumstances. However, he has also said that in the interests of settling this matter, if Marlene took offence to something he said or she believes that he said, he is prepared to apologise, as he did not intend any distress to Marlene.

PN36

Barwon Health hoped that Marlene might have likewise apologised for any unintended offence taken and the matter resolved between the parties. In these circumstances, Barwon Health does not believe there is any further action required.

PN37

Commissioner, we seek the Commissioner's assistance - sorry, I beg your pardon - we consider this response to be quite inadequate and a cop out by Barwon Health. And we seek the Commissioner's assistance in facilitating an appropriate process to investigate into the key issues raised by this incident. If the Commissioner pleases.

PN38

THE COMMISSIONER: Thank you. Yes, Mr Corboy.

PN39

MR CORBOY: Thank you, Commissioner. There is a different version of the events that transpired on the night of the 14th. I have had the opportunity of discussing this yesterday with Mr Atkinson, when we were in a Victorian country town together, and we agreed that this is possibly best settled through a private conference or conciliation rather than go to a hearing stage. We would look forward to that. We believe that it was a situation where perhaps the events may have been misunderstood or got out of hand and it can be resolved at the local stage.

PN40

From an industry point of view, VHIA, I suppose, are disappointed that in a grievance process we weren't involved till actually the Commission process. We would have appreciated the opportunity of going down to Geelong and assisting to resolve it on site as part of the grievance process, but, however, we are here now, and we are hoping we can have a round table to see if we can progress and discuss it further. If the Commission pleases.

PN41

THE COMMISSIONER: Thank you. Do you have any objections to going into conference, Mr Atkinson?

PN42

MR ATKINSON: No, Commissioner.

PN43

THE COMMISSIONER: All right, thank you. The Commission will go into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #HSUA1 STATUTORY DECLARATION OF MARLENE MAHER PN25
EXHIBIT #HSUA2 STATUTORY DECLARATION OF MARGARET WAGNER PN25
EXHIBIT #HSUA3 LETTER TO MR ATKINSON FROM MR DEREK COOK OF BARWON HEALTH DATED 14 JANUARY 2002 PN33