C2002/4464, Transcript of Proceedings [2002] AIRCTrans 3950 (3 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2002/4464

HEALTH SERVICES UNION OF AUSTRALIA -
VICTORIAN NO 1 BRANCH

and

AUSTIN AND REPATRIATION MEDICAL
CENTRE

Notification pursuant to section 99 of the Act
of a dispute re alleged failure to investigate
complaint by Ms Pam Templeton

MELBOURNE

8.36 AM, THURSDAY, 19 SEPTEMBER 2002

PN1

MR C. HEUSTON: I appear on behalf of the Health Services Union of Australia.

PN2

MR J. RICHARDSON: I appear on behalf of the Austin and Repatriation Medical Centre.

PN3

THE COMMISSIONER: Thank you, Mr Richardson. Right, Mr Heuston.

PN4

MR HEUSTON: Thank you. This is a notification of industrial dispute. It is lodged by the HSUA due to the failure of the Austin and Repatriation Medical Centre to investigate a complaint of workplace bullying which lead then to a grievance occurring between Ms Templeton, a member of the HSUA, and the Austin Repatriation Medical Centre, which we have been unable to resolve through all levels of management. We now bring this matter to the Commission for determination in accordance with clause 9 of the Health and Allied Services - Public Sector - Consolidated Award 1998.

PN5

What we are seeking from the Commission today is not that the Commission make any determination on the validity of the complaint. We are only seeking that the matter be re-investigated by the Austin and Repatriation Medical Centre as per the Austin and Repatriation Medical Centre's complaint resolution procedure. I would like to table a copy of that, if I may.

PN6

THE COMMISSIONER: Thank you.

PN7

MR HEUSTON: Commissioner, the complaint resolution procedure clearly states at the third stage of the procedure that the interviews should be conducted with the complainant, the respondent, as well as witnesses and that the relevant documentation should be submitted. We submit that this has not occurred during the investigation, and there are still a number of witnesses which have not been contacted which are crucial to the complaint itself. It is true that the complaint of workplace bullying by Ms Templeton is against a staff member who Ms Templeton no longer works with, but she is still - she has moved to a different department of Austin and Repat. However, Ms Templeton still wishes to have her complaint heard. She believes she has an obligation to her coworkers who is still work in that environment to pursue the complaint, as she has concerns about their well-being as they may experience similar, if not the same, behaviour towards them.

PN8

I would like to draw particular attention of the Commission to the significant timeline that this dispute has been occurring. There is no doubt from the HSUA that the timeline that is involved makes it more difficult to conduct an investigation into these allegations. And we do not deny that many of these events have occurred - in fact the original complaint occurred well over 12 months ago. However, we submit that it is not due to the stalling on Ms Templeton's part, and we have concerns that the employer may suggest that an employee's grievance may no longer be valid simply because the employee themselves has not performed their duties and responsibilities relating to that grievance in a reasonable timeframe.

PN9

Finally, I would like to submit a copy of relevant documents which outline the events which have occurred regarding this complaint, simply to demonstrate that this is not an issue which has been let rest by Ms Templeton. As far as we are concerned this is still an active issue and an ongoing issue. And if I can just take you through the documentation. The first e-mail on that bundle of documents is the e-mail from Ms Templeton to Ms Kiara Soccio making that original complaint about workplace bullying.

PN10

The next event was that on 14 May, so four days later, Ms Soccio - I think you will find that is on, actually on the third page on the bottom, which I am sure you can see when e-mails are replied to and forwarded on they do become a little bit difficult to follow at times. At the bottom of page 3, Ms Soccio suggests that Ms Templeton deal with the complaint in a separate forum. I am not sure if the Commission recalls, that there are a number of events which were occurring at that time regarding Ms Templeton, being also a WorkCover issue which became quite involved, as well as some issues of disciplinary reaction regarding a telephone call, and attempted disciplinary action over use of e-mail and a number of other events, which Ms Soccio had been involved in.

PN11

So there was some confusion over what was the correct forum, as it became clear that the events did at some stage become bundled together. On 4 June Ms Templeton again e-mailed Ms Soccio wanting an update on her complaint. Following that there are numerous e-mails back and forth between Ms Templeton and Ms Soccio, and there appeared to be some confusion over who was expected to contact her and who would be phoning who. Of course, we will say that obligation rests with the employer who had received the complaint. However, I will expect the employer will suggest that there was also some obligation on the employee's part. But either way there appeared to be some confusion over who was meant to be making a phone call to discuss the complaint.

PN12

That exchange ended with Ms Soccio again e-mailing Ms Templeton giving her the extension number to how to contact Ms Soccio. That same day Ms Templeton then e-mailed Mr Richardson, who is here today, requesting a more independent investigator into the matter as Ms Soccio had been involved with some disciplinary action and a number of other issues, and there was a concern on Ms Templeton's part that she may not be the most independent investigator in the matter. Unfortunately Mr Richardson was on leave at that time and the e-mail was actually forwarded back to Ms Soccio. Which is unfortunate as it was an e-mail requesting - well, outlining some concerns about Ms Soccio's independence, and it does seem peculiar that then be forwarded back on to the person she was complaining about in the first place. But nevertheless that was occurred.

PN13

On 12 July Ms Soccio wrote to - and that is page 6 of that bundle of documents - Ms Soccio wrote to Ms Templeton concluding that:

PN14

Investigations indicate that there was no evidence of harassment on the basis of your injury, and I consider the matter requires no further investigation.

PN15

We submit today that at this point no investigation as per the complaint resolution procedure had occurred as the investigator had not interviewed the complainant or the witnesses, which is that third box in the complaint resolution procedure. Ms Templeton then requested a copy of Ms Soccio's investigation report in a letter of 15 October, and she again requested that same information on 19 October. One month later, on 19 November, Mr Rod McCubbin, who is the assistant secretary of the HSUA, contacted Ms Soccio requesting information in line with what had been put in the e-mail, ie, copies of the report from that investigation. And that same day Ms Soccio wrote to Ms Templeton requesting further information about what were the issues which Ms Templeton believed were still outstanding.

PN16

A number of days later the issue was again raised at the Sub Peak Consultative Committee, which is a committee set up between the Austin and Repatriation Medical Centre and the HSUA No 1 Branch, stating that Ms Soccio made it clear in that meeting that she will be dealing with the issue by way of Mr McCubbin. A week later on 29 November a meeting was held with Ms Templeton and Mr David Haynes, who was formally an industrial officer of the HSUA, and Ms Soccio about this matter. A number of issues were discussed and raised about concerns of the process that had been followed and the areas which still required further attention.

PN17

And that request was then put in that meeting and in writing to Ms Soccio. On 19 December Ms Soccio again wrote to Mr David Haynes responding to the issues which were discussed in that meeting, where she claimed amongst other things that Ms Templeton had refused to participate in the investigation process. She states in her letter that she believed that there had been five occasions where Ms Templeton had refused to be interviewed regarding her complaint. And she cites the correspondence on 14 May, and my reading of that e-mail there did not appear to be a clear offer of wanting to further discuss the complaint.

PN18

She also refers to the two e-mails from 4 June where she believes there was a request to discuss the issues with Ms Templeton. There was certainly discussion over who would be obliged to contact who, but I do not think it is clearly between those different exchanges of e-mails, it is difficult to say who was really obliged to contact who. There also appeared to be a fifth request made in this very Commission from Ms Soccio to Ms Templeton wanting further information about the complaint. However, at that time Ms Templeton had already put in a complaint about Ms Soccio's independence in the investigation as to questions over whether or not she was a correct person to be performing the investigation because of her involvement in other industrial matters.

PN19

On 20 February of this year, Commissioner, Ms Templeton wrote to Ms Williams, Ms Jennifer Williams, who is the CEO of the Austin and Repat Medical Centre, regarding a number of concerns involving her harassment, her complaint, the handling of the matter, and a number of other issues. She requested in that letter an appointment and an independent investigator be performed to look into her complaint. She also requested an investigation of Ms Soccio's handling of the matter as well as an investigation of the current equal opportunity and harassment qualities which she found needed some further clarity, and were difficult to understand.

PN20

She also requested an investigation into the misuse of disciplinary powers. On 13 March the issue was again raised by the HSUA in a Sub Peak Consultative Committee. And again on 8 April. On 7 May Mr Richardson wrote to Ms Templeton regarding the complaint as he had been delegated the task of looking into the letter which was submitted by Ms Templeton to Ms Williams. And amongst other points Mr Richardson pointed out that:

PN21

In my view at this point it is most unlikely that the A and RMC will be able to establish the legitimacy of your complaints.

PN22

He also suggested that a meeting be held if Ms Templeton wished to further her complaint. Following that invitation the following week it was again raised at a Sub Peak Consultative Committee, and a meeting was held between myself and Mr Richardson and Ms Templeton on, I believe, 11 June, where we discussed a possible process to resolve the grievance. During that meeting we discussed that there was still further witnesses which would be able to provide relevant information about the complaint which would be valuable as part of the investigation being Annette Harris as a witness, Evette Murray who was a witness, Meredith Bickley who was a witness, and Mr Arthur Dimble who was also a witness to numerous events which we believe would be of significance.

PN23

We believe we had a commitment these further witnesses would be involved, and that a process would be followed to conclude the investigation within a two week period. Since then neither Ms Templeton or the HSUA has received any further information about the outcome of this matter, and it is our position that failing to include these witnesses results in the A and RMC not complying with its own complaint resolution procedure in that it has not interviewed all the relevant witnesses.

PN24

So we are not asking that the Commission make any judgment relating to the complaint itself. We are not even asking that the Austin and Repat Medical Centre make any judgment about the complaint. And we are not asking that any commitment be given about what action should be taken if the complaint is substantiated. However, we are asking that the Commission recommend that the Austin and Repatriation Medical Centre abide by its own complaint resolution procedure and follow through a thorough investigation of the complaints which have been made, which should include all the relevant witnesses. I have nothing further to add, thank you, Commissioner.

PN25

THE COMMISSIONER: Thank you, Mr Heuston. Yes, Mr Richardson.

PN26

MR RICHARDSON: If the Commission pleases, I think the documentation that Mr Heuston has put forward is thorough. I do not want to go over, I suppose, the merits of the issues one way or the other. I just want to make a couple of comments and I will try and be as quick as I can. If I can cut to the meeting on 11 June, which I held with Mr Heuston and Ms Templeton, what became reasonably clear to me at that meeting was that the additional witnesses that they nominated, including Meredith Bickley and Arthur Bindle, the things that they were particularly wanting me to explore involved more comments that were very situational rather than particular issues of substance.

PN27

Now, I did go and speak to Ms Bickley and Mr Dimble, and I got the same response basically that I got when I looked at - prior to that, which is summarised in my letter to Ms Templeton dated 7 May, and that is, it was going to come down to a case of their word against hers, and so on. And at the end of the day, even if there was some corroboration, the issues were not going to be such as to manifest themselves in anything other than some advice or counselling to those involved. It certainly was not going to materialise as something more akin to a disciplinary process.

PN28

Now, that advice, or counselling if you like, has already been rendered to the personnel involved. So at some point we have to make a decision about in whose interests keeping this thing rolling is going to be served. In the case of Ms Templeton, partly due of course to her WorkCover situation, we have successfully transferred her into biomedical engineering. And as I am advised that is working to everyone's mutual advantage. And that occurred, I think, something in the order of four or five months ago.

PN29

Things seem to have, how would you put it, settled down in cardiology, which was Ms Templeton's former department. And I guess I would say, as director of human resources, at some point I have got to make a judgment about where these things are laid to rest, and what the benefit to the individuals are, as well as the organisation, of keeping these things alive and well. And it is certainly my opinion, and that opinion I did express to both Ms Templeton and Mr Heuston on 11 June, that it does look as though this issue has just about run its race. And while I was happy to look and speak to some of the other witnesses that they had nominated, which I spoke to two of, not all of them, but it did become clear in speaking to them that continuing this thing along was not going to serve any practical purpose beyond what had already been achieved or otherwise.

PN30

The two other witnesses that were suggested, being former colleagues of Ms Templeton, in my view to speak to them would do nothing other than to rekindle the matter in the department in which it originated. And again for reasons I have already stated, I just struggle to see the manifest benefit of that, given where we are at the moment, and the evidence before us. If the Commission pleases.

PN31

THE COMMISSIONER: Thank you. Mr Heuston, did the Commission hear you say that basically you have supported part of the submission by Mr Richardson where he says that Ms Templeton has been moved out of the area, and if I heard you correctly, and I am sure you will correct me if I am wrong, that basically the only reason that the matter is being pursued by Ms Templeton is on behalf of the interests of other staff.

PN32

MR HEUSTON: That is one reason, Commissioner. But there is also concerns on Ms Templeton's part that a correct process has not been followed, and that her complaint from day one has been simply attempted to be brushed under the carpet. That is probably the substantial reason why Ms Templeton is wanting to continue the complaint. But there are also other concerns about the way that other staff may be treated.

PN33

THE COMMISSIONER: Right. Well, I note the correspondence of 19 December to Mr Haynes. Now - who, by the way, I heard on the radio the other day giving wonderful advice on superannuation. Now, that letter says that on several occasions further information was sought from Mr Templeton and she has failed to follow up. She has failed to follow up on at least five occasions, if I read the correspondence correctly, the provision of further information. And that is signed by Ms Soccio.

PN34

MR HEUSTON: Yes. We do not believe that is true.

PN35

THE COMMISSIONER: Right.

PN36

MR HEUSTON: The five occasions she is referring to are firstly the e-mail correspondence from 14 May, where we do not believe there was any request for further information. I think it is quite ambiguous of what she was really wanting from her e-mail. She states:

PN37

Thank you for your e-mail below which due to previous commitments I was unable to reply. I am conscious that whilst there is one matter being dealt with through the appropriate channels the issues raised as below is a separate matter and would need to be dealt with accordingly. I am happy to consider the matter below within a separate forum. I await your response. Regards, Kiara Soccio.

PN38

That was the e-mail which I believe she was referring to from 14 May which she believes is one request for further information.

PN39

THE COMMISSIONER: Well, she actually refers in the letter to proceedings actually in the Commission.

PN40

MR HEUSTON: Those are proceedings that I am not aware of entirely. I believe that was following an application by the HSUA to overturn a disciplinary warning, which was issued to Ms Templeton by Kiara Soccio. In that environment I do believe it does make it difficult to take those requests. It would probably be better offered in a different environment. However, at that point in time Ms Templeton had already issued a request by Mr Richardson that another investigator be appointed as she believed that Ms Kiara Soccio, because of her involvement with other issues, was probably not the most independent person.

PN41

THE COMMISSIONER: Right. I will tell you what we might do. I might just go off transcript for a minute and have a chat to Mr Richardson and Mr Heuston out the back, I think. Thanks.

SHORT ADJOURNMENT [9.00am]

RESUMED [9.07am]

PN42

THE COMMISSIONER: All right, thanks for that. Look, the Commission has taken the opportunity to have a discussion with Mr Heuston and Mr Richardson. The Commission would have to say that it is always concerned and always conscious of the need for hospitals to follow their particular - employers in general - to follow grievances that have been raised in a proper and constructive manner to ensure that there is a robust workplace and people are able to work within that robust workplace, understanding that if they do have issues that relate to allegations of maybe harassment or bullying, then the employers follow through with those in a proper and constructive manner.

PN43

The opportunity to have a discussion with Mr Heuston and Mr Richardson has identified that following the initial issues raised by Ms Templeton, and she may not be aware of this, that there has been steps taken to ensure that management are aware of their obligations to ensure that there is a harmonious and a robust workplace. Having now that information before it, the Commission is mindful that Ms Templeton has moved on to another area, to the biomedical engineering area, as I understand the area in which she is now working, it is mindful that the submission of Mr Heuston on behalf of Ms Templeton is that she wanted to ensure on behalf of other employees, other staff members, that they were appropriately looked after in terms of any issues that may relate to bullying or harassment.

PN44

The Commission would have to say that that is quite commendable, but that is not the role of Ms Templeton. Having now moved on, and having now understood that the hospital has made its position clear in terms of its levels of management about their obligations and responsibilities, the Commission is of the view that Ms Templeton should now put this matter behind her, get on with life. The Commission would ensure that Mr Richardson emphasises to his management the need to continue with ensuring the processes are adequately followed, and that people are treated accordingly within the workplace, and the Commission would then not require to proceed with this matter any further. The Commission will stand adjourned.

ADJOURNED INDEFINITELY [9.11am]