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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VTO2358
A: 21.2.02
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER SIMMONDS
C2001/6085
G. & K. O'CONNOR PTY LTD
and
AUSTRALASIAN MEAT INDUSTRY EMPLOYEES
UNION
Application under section 170LW of the Act
for settlement of dispute re alleged unfair
dismissal of a member
MELBOURNE
10.20 AM, MONDAY, 4 FEBRUARY 2002
Continued from 17.12.01
PN228
THE COMMISSIONER: Yes, and changes to appearances please?
PN229
MR WHITE: No change to the appearances.
PN230
MR E. JOHNSON: Before that, Commissioner, I appear for the company pursuant to section 42(7)(b) of the Act, and I ask, having regard to the circumstances of the matter, to oppose the appearance of counsel for the union pursuant to section 42(3)(b) and (c).
PN231
THE COMMISSIONER: The matter - leave has already been granted, Mr Johnson.
PN232
MR JOHNSON: Well, I thought the previous matter was an application under section 170LW of the Act, that is what the transcript says.
PN233
THE COMMISSIONER: Yes, as this is I think.
PN234
MR JOHNSON: Sorry?
PN235
THE COMMISSIONER: As this is, as I understand it.
PN236
MR JOHNSON: Well, I thought there was a jurisdictional point raised before and now this is the arbitration proper and I ask to oppose the appearance of counsel in the matter. I should say in relation to that matter that we did write to the AMIEU and we sent a copy of that particular correspondence to the Commission as presently constituted dated 11 January and a copy to yourself of the same date asking for notification as to whether counsel would be appearing for the applicant in the matter.
PN237
We had neither a reply from the union in the matter whatsoever, and I am not being critical of this next point, and we didn't have a reply from the Commission but we simply did point out that we didn't want 4 February to deal with the matter if it could be dealt with prior to that. The second matter which really doesn't go to appearance but goes to directions, and I notice none have been made - - -
PN238
THE COMMISSIONER: Yes, I was going to deal with that matter.
PN239
MR JOHNSON: I simply raise - I am asked to simply raise the matter and put it forward that we oppose, having regard to the appearance of counsel, having regard to the circumstances in those two subsections.
PN240
THE COMMISSIONER: Yes, thank you. Mr White?
PN241
MR WHITE: Commissioner, on the last occasion you will recall there was some debate about confusion concerning the notification of that which was listed but you will also recall at the end of the last occasion there had been or was, at that time, an application made by the company for an adjournment and we oppose that, and one of the reasons we oppose was that - sorry, one of the reasons that Mr Amindola, then appearing for the company, applied for the adjournment was that he wasn't at that stage instructed or in a position to run the case and my submission at the time was well, it was listed and it was listed for both jurisdictional matters, if parties wished to raise those, and the substantive issues and it was in respect of both of those issues that leave was previously granted.
PN242
Now, I can make submissions, should the Commission require it, as to why it is that leave should be continued or granted afresh, if the Commission would be assisted by those.
PN243
THE COMMISSIONER: I would have - I mean, I note from - I have the correspondence of 11 January and as I read that it required no action from me until - well, Mr Silberer was going to advise me on it. There was a request for an advance hearing on the issue of utilisation of counsel but what happened there - I think - - -
PN244
MR WHITE: Could I just explain our - - -
PN245
THE COMMISSIONER: - - - in a very technical sense appearances have been taken and that is why I called for the changes to appearances. It is a 170LW matter and, Mr Johnson, I think - I can only deal with it technically and in that sense, unless there is some agreement between you to the contrary, just rule that there is no basis for the objection and then I can turn to the issue of directions. It is a matter of some regret from my point of view that directions weren't issued. The file, for some time, wasn't in my hands, it was in the hands of Mr Pimm for reasons that you would be aware and - well, I can only say it it is a matter of some regret for me that they weren't issued.
PN246
MR JOHNSON: Perhaps I could be heard on that.
PN247
THE COMMISSIONER: And I will try and deal with any prejudice that might arise. Yes, Mr Johnson?
PN248
MR JOHNSON: The next point I would wish to make is that because of the correspondence of 11 January to union and there being no reply, I am asked to make an application for an adjournment in consultation with the fact that there are no directions. Now, I am conscious of the fact that it was December that this matter was set down for three days and what I am proposing is this, we are sort of here at this end of the bar table, standing here and sitting here not knowing what case to move.
PN249
Now, we know it is a case dealing with, as was said last time by my learned friend, the harshness or the allegation of harshness or unjustness of the termination but really, other than that we don't know anything. Now, if we had statements and if we had an outline we may be in a position to put forward fuller statements. We prepared some very, very brief ones and it may well be at the end of the day that once I hear the case there will have to be an application for adjournment anyway.
PN250
What I am proposing is this that the company wants to brief counsel, have regard to that, that technically it simply is a continuation having regard to the second matter that the union didn't have the - I use the words probably for lack of any better words - have the courtesy to reply to us and thirdly, the fact that matters like this normally should proceed in a formal manner, that there should be an outline, there should be statements and at least we should have them otherwise we are going to sit here during the course of the day, so I am in the hands of how long the adjournment application is for.
PN251
I would be happy, subject to what the company says, to adjourn the matter to 3 o'clock this afternoon so that it will give the company an understanding or a chance to do what it wants to do. It may well be that the company take the view that I should still be involved in the case with counsel because of the circumstances of what I just put to you, Commissioner, so I am conscious of the fact that if that is done that there is a fair chance that the matter will be completed in the days available and I am not - obviously I am not making an application for an adjournment on wednesday morning or anything like that.
PN252
THE COMMISSIONER: No, no, I understand. Mr White?
PN253
MR WHITE: Commissioner, I don't quite know where to start. Can I start with the letter that O'Connors forwarded to the union on 11 January. I note there has just been debate now concerning directions and the like. I have just been handed a copy of the letter sent to the union on 11 January and I note that a courtesy comment was forwarded both to the registrar of the Commission and to yourself. Two things - or a number of things need to be said about that letter.
PN254
The first is there is nothing in the letter which I have which raises the question of whether directions should be made or any argument or proposed argument in relation to directions; secondly, it confirms that the company knew and has known certainly since the last occasion, and certainly on 11 January this year, that the union was to brief counsel. If they choose to have other representation so be it but, Commissioner, given the fact that leave was granted on the last occasion, but given this fact also, even if it had not been and leave had to have been applied for afresh, it may well have been that you would have granted leave afresh and this matter has been listed for hearing.
PN255
I also made the observation that of course while Mr Johnson is an officer of the National Meat Association he is also a lawyer by trade and, Commissioner, it cannot be said in those circumstances that there is any basis for an application for an adjournment at all. This is the second time it has been listed for hearing. The first occasion the company raised the jurisdictional point on which I have made submissions and made comment on the like and I won't go into that, but on the last occasion they also came to the Commission and said well, "We're not ready. If you decide against us we're not ready," even though it was listed for hearing.
PN256
Today, they once again, knowing that the union was to be represented by counsel, come along and say, "Well, we're going to oppose it even though leave has already been given and if you are against us on that well, we're not ready again."
PN257
Just as an aside, and the question of whether or not - or what response was made to the letter - just as a matter of information Mr Davey, the Assistant Secretary who returned from leave Thursday last week, became aware of this letter on Friday of last week and that is just as a matter of information in fact and perhaps as a bit of further information in any event, was unable to confer with me because I was interstate last week, but the fact of the matter is, this is the second time this matter has been listed for hearing.
PN258
We are ready to run out case, for the second time. Mr Johnson can point to no prejudice; the company has had a month and a half, it is the end of January now, so two months really, knowing that this dispute was in the Commission. I note that the dispute notification was filed in the Commission on the same day as Mr Symons' dismissal - I believe, better check that, but in any event this matter has been around for quite some time.
PN259
THE COMMISSIONER: Yes. The only thing you don't address on that is what clearly indicated on record that I would be issuing directions and that may in fact provide some basis for - and I don't put it any higher than that, may provide some basis for what Mr Johnson has put forward, which of course is not in any ay reflecting on your position.
PN260
MR WHITE: Yes.
PN261
THE COMMISSIONER: A matter of some embarrassment for the Commission. Yes, I hear what you say. Mr Johnson, have you - - -
PN262
MR JOHNSON: Well, the two minor points first. The company cannot send letters to the union when it knows whether people are on leave or not. We sent the letter a fair time ago. The second matter is it has been suggested with an allegation, that I am a lawyer by trade. I have a limited practising certificate, I am not a day-to-day lawyer like counsel. I am an employee of an organisation who does a multitude of things, some of which are administration, some of which are other things.
PN263
The third matter is it is all very well to say that the company has known this matter has been on for a month and a half, we don't know anything about the matter as to what is going to be put and I am told, if we are in the business of stating matters from the bar table, that statements were ready from the union and its witnesses last time and we could have been provided with those statements and we have not been. If we had have been supplied with those statements as and when they were taken at the hearing or soon thereafter we may have been in a position to know what we have to meet.
PN264
What we are putting is can we have a look at those statements now during an application for an adjournment until 3 o'clock this afternoon so that we may be in a position to at least, on a short-term basis, know what we have to meet and know what counsel has to be briefed about.
PN265
THE COMMISSIONER: Yes. What I propose to do is to hear your opening, Mr White, and your first witness, and I will then consider whether we shouldn't adjourn at that point in time for some period to allow the company to seek instructions.
PN266
MR WHITE: Yes. We do have statements and - - -
PN267
THE COMMISSIONER: Well, perhaps they could be - is there any barrier to providing those at this point?
PN268
MR WHITE: No, we can provide those and - we can provide those and if the matter was stood down for a couple of hours we would not oppose that either.
PN269
THE COMMISSIONER: You don't see any advantage in actually using what time we've got to do your opening and get your first witness - I mean, I am suggesting we stop at the point of cross-examination in other words.
PN270
MR WHITE: Well, probably no value in going through having a witness in the box. The statements are relatively comprehensive/
PN271
THE COMMISSIONER: I see, so - - -
PN272
MR WHITE: But I can make an open and broadly outline the way it is that we say.
PN273
THE COMMISSIONER: Well, I can see some value in you having that opening, Mr Johnson.
PN274
MR JOHNSON: I have no problem with that. The problem I have is if you stop something in cross-examination I have got to go back and tell - - -
PN275
THE COMMISSIONER: Oh no, I wouldn't be going - I would be stopping at the point - I mean my original proposal was to stop at the point of evidence-in-chief.
PN276
MR JOHNSON: I understand that but then the evidence-in-chief I have to go back and perhaps tell counsel which - - -
PN277
THE COMMISSIONER: Yes. But anyhow, it is probably no different from having the statements and so if you have got the statements let us have the opening, have the statements, and I'll stand the matter down but I don't propose to stand the matter down beyond the normal lunch break. We will resume at 2.15.
PN278
MR WHITE: Yes, and might I also say as Mr Johnson will be assisted by ours we would be assisted by the company's statements. I know Mr Johnson has said that he has those statements prepared.
PN279
THE COMMISSIONER: Yes, but without prejudice to them expanding on them.
PN280
MR WHITE: Oh, he can expand on them as much as he would like but we would be assisted if those - - -
PN281
THE COMMISSIONER: Mr Johnson, does that cause you any difficulty?
PN282
MR JOHNSON: Subject to what is said in the opening I don't have a problem.
PN283
MR WHITE: I am not quite sure what that means, subject to what is said in the opening but - - -
PN284
THE COMMISSIONER: Well, don't let it constrain you. We will deal with that issue at the - - -
PN285
MR WHITE: The opening will be very short and concise because - - -
PN286
THE COMMISSIONER: I am pleased to hear it, Mr White.
PN287
MR WHITE: Commissioner, one of the things we need to be aware of is various members of the Commission over the period of time we have had to do with events of G. and K. O'Connor over the last few years - and you are one of those members, and so the events of the last few years, Commissioner, whilst we understand you have a general knowledge of, I will give a little background - and that is that there was a nine month lock out which followed the rejection by the union of the proposed enterprise agreement, which enterprise agreement sought to substantially reduce the pay, terms and conditions of employment.
PN288
At some stage during the lock out the company changed its mind and decided that it would be best suited by having Australian workplace agreements and there was a lock out immediately contiguous with the enterprise agreement or certified agreement lock out. One of the matters which have been before the Commission at the early stages was an application by the company to have revoke the then governing certified agreement - for ease of reference I will call that the 1995 agreement.
PN289
Ultimately in those proceedings Senior Deputy president Boulton determined that the '95 agreement had been incorrectly certified, that is it did not meet the jurisdictional requirements, and accordingly the leaned Senior deputy President set aside or revoked the decision to certify. Thereafter followed a process of litigation in the Federal Court to determine what the terms and conditions of employment were governing the employment at O'Connors. It was the union's contention and subsequently found to be so by the Federal Court on two occasions, that the terms of the 1992 agreement, the immediate predecessor to the '95 agreement, applied.
PN290
After the lock out finished the relevance of these other proceedings in large part - sorry, without fail the members of the union who had not signed AWAs and had been locked out, returned to work albeit on the terms and conditions of the industry award. Thereafter there followed a number of other Federal Court actions in respect of that. The terms of the industry award resulted in a number of things, one of which was that pay in some instances was reduced by 60 per cent from the previous entitlements.
PN291
But during the currency of the other Federal Court proceedings concerning that issue G. and K. O'Connor established the converted an offal chiller to a small boning room and other than the members of the union who were slaughtermen or labourers on the slaughter floor, the members of the union who hadn't signed AWAs essentially had to work in the converted offal chiller. Of course, during this whole dispute, and you will be hearing evidence of this, a great deal of animosity was generated on the part of the company towards the union members. Such animosity revealed itself in abuse which was not an isolated circumstance and you will be hearing the evidence of that.
PN292
On 26 November, the day of the 26th, Mr Symons was working in the small boning room as the converted offal chiller is called, and had a discussion with a foreman, Mr Neil Sands. The detail of that discussion will be the subject of some evidence, but after that discussion Mr Sands asserted that Mr Symons had swore at him. On Tuesday, 27 November, a meeting was held with Mr Allen who holds a senior position within the company, and Mr Silberer, who similarly holds a similar position within the company, Mr Symons and Collin Ross, the work's delegate.
PN293
At that meeting a number of assertions were made by the company; a harassment policy was said to have been a matter of grave concern to the company at that time and can I just hand this to you now, it might be of assistance. just by way of background, Commissioner. I think at that meeting it is probably - - -
PN294
THE COMMISSIONER: I will mark this as a - if you like, a tentative exhibit subject to objection later.
PN295
MR WHITE: Yes. Well, I am happy with that. I can't see any objection, I think it is - - -
PN296
THE COMMISSIONER: But given that we have foreshadowed an adjournment for the purpose of seeking advice I will mark it as W1 but subject to objection.
MFI #W1 DOCUMENT
PN297
MR WHITE: I think it is fair to say that at the meeting it was asserted by the company that the swearing at a foreman constituted harassment within the meaning of that policy and that matters were to be investigated. A number of other workers were interviewed on that day and at that meeting at least some of the workers who were interviewed, at least some of them, were told that they matter was confidential and not to be discussed.
PN298
Mr Symons, who is the person in respect of whom this investigation was being carried out, in an endeavour to get as much information as he could from fellow work mates, spoke to other work mates in the small boning room and that raised the ire of the company such that on Wednesday, 28 November, there was a further meeting, this time attended by Mr Asa, who was the associate delegate, Mr Ross being on leave that day, at which assertions were made that Mr Symons had breached the confidentiality requirements of the investigation.
PN299
On Thursday, 29 November at a meeting early that morning Mr Symons was dismissed. In relation to the swearing at the foreman allegation he was given a first and final warning for swearing and thereafter was dismissed ostensibly for having broken the confidentiality provisions of the harassment policy of the company. Now, issues which fall to be determined, Commissioner, are similar issues which arise in any dismissal proceeding. Secondly, the question is whether or not the conduct about which a complaint was made - I am sorry, I will go back a step.
PN300
When I say similar issues, there is a dispute as to the facts as to whether Mr Symons swore, those sort of factual issues are for determination. Thereafter the question for determination is whether or not, even if Mr Symons had swore, that fell within the purview of the harassment policy. Thirdly, whether or not a direction not to talk to anybody in relation to this allegation was a lawful and reasonable direction, and even if you find against us on all of those matters the residual matter, which is quite often a matter for debate in dismissal cases, is whether or not the dismissal of Mr Symons was reasonable; whether it was proportional to the alleged offence and in relation to the proportionality of the dismissal the evidence will be led that the industrial relations background at this plant and behaviour by their company, including behaviour by the managing director/owner of the company, is such that on any view the dismissal could not be said to be proportional to the alleged offence. So that is the outline, Commissioner. I can go into more detail if you wish but - - -
PN301
THE COMMISSIONER: No, I think that is - - -
PN302
MR WHITE: - - - essentially that is how we put the case and I think those are the issues.
PN303
THE COMMISSIONER: Yes.
PN304
MR WHITE: Now, once again I indicate we would be grateful for the statements prepared in this matter by O'Connors and if Mr Johnson is in a position we would also be grateful if he was to write a short opening as to the company's position. Obviously the company's position about its conduct can be explained independently of the way we put our case and so we would assume that the company would have that position to be put and we would be assisted by that.
PN305
THE COMMISSIONER: Mr Johnson?
PN306
MR JOHNSON: No, I am not in a position, that could be available later.
PN307
THE COMMISSIONER: Okay. Are you in a position to provide the statements?
PN308
MR JOHNSON: Subject to the reservation of the matters described before but they are - they have been done in a vacuum so that if you can appreciate - - -
PN309
THE COMMISSIONER: I understand that and there will be no question that you would be limited to those statements.
PN310
MR JOHNSON: Physically now? But I would - the same for my learned friend, I take it?
PN311
THE COMMISSIONER: We will adjourn until 2.15. Is there any point in the statements being provided to the Commission in advance?
PN312
MR WHITE: We have certainly got copies we can provide to the Commission and - - -
PN313
THE COMMISSIONER: I would rather not, I think, given that the - I would rather see them as they come and we can deal with them.
PN314
MR WHITE: I was going to make the submission that it would be helpful if you had. Can I say this - - -
PN315
THE COMMISSIONER: Well, I will see if Mr Johnson has any objection to that.
PN316
MR WHITE: Because I do object.
PN317
THE COMMISSIONER: Well, then, I had better hear you on it.
PN318
MR WHITE: Well, the position was this that the witnesses will be asked about ..... the box and the doctor's statement. We would then seek to tender the statement. Just as Mr Johnson would have some benefit of pre-reading ours so will the Commission. If there are matters in the statement which are objectionable and are rule inadmissible by the Commission then this Commission, as is any other judicial and quasi judicial body, capable of closing its mind against that which has been excluded and we think that it would save time and we also think that if the Commission had the O'Connor statements prior it would save time.
PN319
THE COMMISSIONER: Yes. Mr Johnson?
PN320
MR JOHNSON: From my brief knowledge of the case the matters outlined by my friend in his opening are not correct from this end of the bar table. It is not surprising I say that but we would object to that course being adopted because obviously there are going to be matters which, if the Commission reads those statements now that even though the Commission is purportedly impartial we think it is better that we be in a position to read them first and that then the matter can be debated later. We are simply trying to protect our position, that is all.
PN321
MR WHITE: Well, had the Commission made directions that statements be filed I have no doubt that that would have been filed and available to the Commission.
PN322
THE COMMISSIONER: But probably not read I would have to say, Mr White, that is the reality.
PN323
MR WHITE: I always assume, Commissioner, that when statements are filed it is always a very dangerous question to say, "Have you read the statements, Commissioner" - - -
PN324
THE COMMISSIONER: Yes.
PN325
MR WHITE: We assume that is so, it is a time-saving thing. If there are objections they can be taken.
PN326
THE COMMISSIONER: The only time where you can be sure that the matters are read is when the Commission at least as presently constituted, is on an appeal bench. The opportunity to read statements prior is non existent most of the time. Look, without even going to the force of the objection out of an abundance of caution I won't press for the matters to be filed with the Commission and I will keep an absolutely open mind on that basis so until 2.15. The proceedings will be adjourned until 2.15.
SHORT ADJOURNMENT [10.51am]
RESUMED [2.15pm]
PN327
THE COMMISSIONER: Any change to appearances?
PN328
MR PARRY: If the Commission please, I seek leave to appear for O'Connors. I should indicate that Mr Johnson appeared this morning. The matter is listed this afternoon to continue on. We don't want to delay the matter and what Mr Johnson and I have discussed is that we will divide up the case as best we can to facilitate the progression of it so that is slightly unusual but I am sure the Commission will facilitate that.
PN329
THE COMMISSIONER: Well, no objection Mr Parry.
PN330
MR PARRY: If the Commission pleases.
PN331
THE COMMISSIONER: I take it there is no objection?
PN332
MR WHITE: You can't have an objection to - - -
PN333
THE COMMISSIONER: Well, you can't really. He was counsel on the previous occasion. Yes, Mr White?
PN334
MR WHITE: Commissioner, after the adjournment this morning we made a decision that we wish to have a summons issued directed to Darren Wise and I understand that that is for application now. I will go to that matter first, if the Commission pleases.
PN335
THE COMMISSIONER: Yes.
PN336
MR WHITE: Part of the case that we will be putting to the Commission is that O'Connors, over a period of time, have embarked upon a process of harassment of union members and attempts to rid itself of union members. Part of that evidence which we now decided to call is the evidence of Mr Wise. You might have some memory of that evidence in that he gave part of what we will be calling in proceedings involving the dismissal of Mr Murphy, a matter which didn't go to judgment because it was resolved and accordingly would seek to have that summons issued returnable tomorrow morning.
PN337
THE COMMISSIONER: Any view, Mr Parry?
PN338
MR PARRY: Well, firstly it is the first we have heard of this in the last two or three minutes. We had, before the adjournment, been provided a number of statements and we assumed that they set out the substance of the case put against us. We find it difficult to comprehend how all of a sudden there can be some change following an adjournment this morning. Firstly, Commissioner, as I understand this is meant to be some sort of private arbitration arising under the terms of the agreement. Now, if it is such a private arbitration I am not sure where the powers are seen to arise for the Commission to issue a subpoena.
PN339
The applicant has gone deliberately and followed this course and hasn't pursued a course of making an unfair dismissal application which would have availed him of the rights within the Act so without having researched the issue in a private arbitration such as this without the consent of the parties we don't see how the procedure of the Commission can be invoked for some parts and not for others so firstly we say that there isn't any power. Secondly, again going back in memory, as I recall we started off last year, Commissioner, with a case involving a dismissal of Mr Murphy. The allegations concerned events that took place between March and April in the year 2000.
PN340
Mr Wise was an employee of the company but as I recall left employment in April 2000. How the evidence of a person who has not been employed by the company, or wasn't employed for over 18 months prior to the dismissal of Mr Symons, can in any way be relevant stretches the imagination totally. This is manifestly an attempt to throw mud, to dredge up things from the past and to embark on an irrelevant exercise. In my submission, the case has opened, apparently is relatively straight forward. It concerns an allegation of abuse towards a supervisor, an investigation that follows that, a breach of confidence which we will say was admitted by the employee, and the company deciding to deal with that misconduct by dismissing the employee.
PN341
The evidence of Mr Wise cannot bear, in any sense, on that decision made in November 2001 so I oppose the issue of a subpoena and I say the Commission has no power to do it in any event. If the Commission please.
PN342
MR WHITE: A number of points. Mr Parry first said it was difficult to comprehend that there was a change following the adjournment but can I assume the Commission that there was a change. Whether Mr Parry has difficulty comprehending that or not, that is the fact of it. As to the power, there is a power in section 111(1)(s) to issue a summons and you will note that pursuant to section 111(ii) industrial dispute as used in section 111(1) is widely defined to mean or includes a reference to any other proceeding before the Commission. Any other proceeding before the Commission must comprehend what is now before this Commission but pursuant to the terms of the certified agreement of the Commission and also section 170L(w).
PN343
As to the relevance of an expressed company attitude some months prior to the dismissal, evidence will be led that this has been a constant attitude of the company and that during the period or the debate or interviews concerning Mr Symons' fate, Kevin O'Connor himself said words to the effect, "I can't wait to see the end of these cunts." Now, whether or not that is throwing mud or not, Commissioner, is beside the point. The fact of the matter is that there is and it will be put to you supported by evidence and the attitude in this company towards members of the union and to that extent the evidence we anticipate Mr Wise will give is of direct relevance, direct relevance.
PN344
Mr Wise will give evidence that was the attitude of the company then and not only that but to his knowledge at least one scheme was put into effect to get rid of members of the union. Normally, the issue of a summons is a matter of ex parte application and whilst we are comfortable in explaining to the Commission and to O'Connors the way in which we intend to use this evidence, the objections Mr Parry raises are more appropriately objections to the evidence and if they are upheld on whatever grounds or direction may be made at the time.
PN345
THE COMMISSIONER: Yes, certainly the practice of the Commission as constituted is to issue the summons ex parte to allow objection on its return. It is obviously convenient for the objection to be made at this stage because you have raised it in the proceedings but I would have thought that the sorts of objections that Mr Parry has raised today would have been available to him tomorrow so I don't see that that is leading aside the issue of the relevance of the evidence.
PN346
MR WHITE: No, the point I was trying to make really is that his objection is going to go to the issuing of the summons to compel
PN347
THE COMMISSIONER: Well, the - - -
PN348
MR WHITE: - - - the person to attend - - -
PN349
THE COMMISSIONER: - - - jurisdiction one does but - - -
PN350
MR WHITE: - - - but rather the - in essence his objections are the objections to the evidence which this person might give. That is a separate thing, a separate question, but in any event, in any event, there is going to be a certain amount of evidence which will be led and the other side have been provided statements from four witnesses, five witnesses, some of which contain evidence of the type which I have described.
PN351
THE COMMISSIONER: But it is true, isn't it, that Mr Wise has had no contact with the company since April 2000, as an employee anyhow?
PN352
MR WHITE: We understand that that is the case and in fact interestingly in statements provided to us he is reported as having been sacked for misconduct but - that is so but it is a course of conduct, Commissioner, which is open for you to find.
PN353
THE COMMISSIONER: But you say there is other evidence of that?
PN354
MR WHITE: I can take you to what evidence there is now. I have read one part of that evidence. There will be further evidence to the effect there has been costs introduced of union delegates, there will be evidence about the working conditions of the union members, there will be evidence of the 30 or so members who returned to work after the lock out. As far as we are aware this is now a sixth. It seems to be a steady progression. The allegations in respect of specific conduct by officers of the company involve conduct by Kevin O'Connor, including that which I earlier alluded to.
PN355
THE COMMISSIONER: So those are all much more recent course of conduct I think that you are referring to, isn't it?
PN356
MR WHITE: The one I read to you is obviously much more recent, less contemporaneous with Mr Symons' dismissal or - a day or so before. Other allegations which will be brought concerning Mr Kevin O'Connor go back some time. So they are not all contemporaneous but there is a history and Mr Wise's evidence is part of that history.
PN357
THE COMMISSIONER: Yes, thank you. Mr Parry, the - you did preface your remark regarding the jurisdiction about ..... research and I understand that position. In prima facie it would seem that 111(ii) does extend the capacity of the Commission, but - - -
PN358
MR PARRY: Well, not if they are relying under their dispute settling procedure and I think they were the ones that on the last occasion raised the issue of the CFMEU v Gordonstoun and its references to private arbitration. Indeed, if this is private arbitration, the Commission doesn't have any power to start issuing subpoenas.
PN359
THE COMMISSIONER: That is right. It is a matter - - -
PN360
MR PARRY: That is their case so we are here responding to a private arbitration. We are not - we didn't come here today prepared to start running a whole lot of technical arguments in respect of that. We rather thought we would get to the merit of what actually occurred in respect of this employee.
PN361
THE COMMISSIONER: Arguably the Commission - if that is so, the Commission doesn't have the power to issue directions either and there has been some reliance on the failure of the Commission in issuing directions to produce the adjournment that occurred earlier today.
PN362
MR PARRY: I think everyone wanted directions though. It is a matter of consent, you see. Once you are into private arbitration then you are dealing with the consent of the parties. If one - if the Commission has been requested to go down a path now apparently compelling a friendly witness apparently to attend that is obviously being relied on for some particular purpose. So firstly we say there isn't any power but really there is even - assuming there is power this is a discretionary matter, the issue of subpoenas.
PN363
THE COMMISSIONER: Yes. No, no, I understand that and I was just going to deal with the second matter in a different way. It seems to me the challenge on the second ground is really a challenge of relevance going to the relevance of the evidence. The subpoena could issue but whether the person to whom it is directed actually gives evidence will be a matter for - could still be a matter for argument but - - -
PN364
MR PARRY: Oh, yes, that is certainly so but in exercising your discretion we simply say this exercise of calling Mr Wise, and apparently there has been some instructions taken from him already, really isn't going to go to any of the issues in this case and we say in that circumstance the Commission shouldn't be exercising its discretion, if it has one, to issue subpoenas.
PN365
THE COMMISSIONER: Yes, thank you.
PN366
MR PARRY: If the Commission pleases.
PN367
THE COMMISSIONER: Mr White, anything further?
PN368
MR WHITE: I have got nothing further to add.
PN369
THE COMMISSIONER: Someone one day will settle the argument as to whether we do have the power. It seems to me that it may be as simple as Mr Parry puts it. It may be as simple as you put it, Mr White, but assuming that I have the discretion I don't propose to exercise the discretion and issue a summons in this matter.
PN370
MR WHITE: Yes, can you bear with me for a moment, Mr Commissioner, please?
PN371
THE COMMISSIONER: Yes, certainly. Can I just say in doing that I understand the submission but it seems to me that we are talking about events at best that go back to April 2000 and I don't see how the evidence of Mr Wise would be so probative to assist Mr Symons and there is other evidence that you have already pointed to that goes to a course of conduct which they will be able to challenge and that really is the reasoning behind my not following an exercise of discretion or refusing to exercise the discretion.
PN372
MR WHITE: Yes, yes. I previously asked just for a moment because I was going to try and see if Mr Wise could be persuaded to come without - - -
PN373
THE COMMISSIONER: Yes, well that is - - -
PN374
MR WHITE: - - - a summons, but I am not quite sure whether that is now - - -
PN375
THE COMMISSIONER: Well, the challenge will then be open - I have not made a decision on that but it just seems to me on balance in terms of the exercise of my discretion the evidence would not to be so compelling. It may still be relevant from that point. I am not making a ruling on the relevance aspect of it.
PN376
MR WHITE: Oh, well, in that event could I just have a minute, please?
PN377
THE COMMISSIONER: Yes.
PN378
MR WHITE: Well, we will see if we can do it without a summons. Now, Commissioner - - -
PN379
MR PARRY: If that was to be the case we would want a statement.
PN380
MR WHITE: What, pursuant to a direction?
PN381
MR PARRY: Well, it is a matter for my learned friend whether they are going to provide a statement or not. If not, I will just rely on what has been said already. But have no doubt, there will be an objection. If the Commission pleases.
PN382
THE COMMISSIONER: I would be surprised if there wasn't on what has been said already.
PN383
MR WHITE: Well, Mr Parry - I suspect all barristers in Victoria will probably understand fairly clearly what Mr Wise has to say, Mr Parry having spent some time cross-examining him in the proceedings involving Mr Murphy. That transcript is available, certainly on the internet, Mr Parry's client would have copies of it. Whether he insists on availing of it he can do it but quite frankly it is a bit of a - - -
PN384
THE COMMISSIONER: I don't propose to issue any direction with regard to the matter.
PN385
MR WHITE: We are hoping by Mr Parry's eagerness to get on to the facts of this case it now being the afternoon of the second day of this matter having been listed for hearing that - and Commissioner, because it is so late in the day I propose to adopt a course which I would not usually do so subject, of course, to any direction by the Commission. We have given the other side a number of statements. That of Mr Symons in respect of applications made. We have given a statement of Mr Collin Ross who is, as I have previously indicated to the Commission, the works delegate at O'Connors. We have given a statement of Mr David Zibolic who is a co-worker in the small boning room, Mr Phillip Dempster, also a co-worker in the small boning room, and a Mr Fili Asa, F-i-l-i and then A-s-a, who is also not only a co-worker but the vice delegate at O'Connors as well.
PN386
Now, this is the second day that these men have had off work. I think Collin Ross perhaps was on leave on the last occasion but subject to any direction of the Commission I propose to call what I might call the three lesser players first to see if they can get back to work tomorrow rather than bring them all back here. So I will be proposing to call David Zibolic first to give evidence, followed by Mr Dempster, followed by Mr Asa. I know, Commissioner, that it is generally more convenient to have the main story first but unfortunately we are now in that position, Commissioner.
PN387
THE COMMISSIONER: Witnesses in or witnesses out?
PN388
MR WHITE: We prefer that witnesses be out, Commissioner.
PN389
MR PARRY: Including the applicant?
PN390
MR WHITE: Of course not.
PN391
MR PARRY: Well, that is why the normal and accepted course in cases such as this is that the person dismissed the applicant goes first. Witnesses are out of Court, the applicant goes first and then the applicant can stay in and listen but when one goes out of order you then have the applicant sitting in Court hearing witnesses called, cross-examined in other - in his own case, as it were. In my submission, that is an unusual course not generally adopted and obviously leads to unfairness. It leads to a position where one witness gets the benefit of hearing other witnesses in his own cause. So I oppose that course and in my submission the normal practice, that is the applicant first, should be followed. If the Commission pleases.
PN392
MR WHITE: We wouldn't have been put in this position had O'Connors come here last December as they were expected to do ready to run a case but they come here this morning being ready to run their case. In my submission, they are playing ducks and drakes and we are now put in an unfortunate position. O'Connors knew that I had previously been given leave to appear today and they obviously had made contingency plans in the event that I was able to continue to appear. It is not as if they have come to this unprepared but be that as it may, Commissioner, we don't want to compromise our witnesses and I think the simplest course given the number of objections is to have Mr Symons wait outside as well.
PN393
THE COMMISSIONER: Yes, okay, we will proceed on that basis.
PN394
MR WHITE: And of course all the company witnesses also will be excluded - - -
PN395
THE COMMISSIONER: Yes, it was - yes, well, could I ask that those who are proposing to give evidence in these proceedings vacate the Courtroom and sit beyond earshot, please.
PN396
MR PARRY: Commissioner, I have said to the company witnesses that they can go. I am assuming that we won't get to them today, that is all.
PN397
THE COMMISSIONER: That seems to me like a reasonable assumption.
PN398
MR PARRY: Yes.
PN399
THE COMMISSIONER: Mr White?
PN400
MR WHITE: Well, it depends entirely on my learned friend because quite frankly our evidence will be short. I have indicated before that, to a large extent, I will be putting my clients into the box and asking them to adopt the statements which will then be their evidence. There are some further questions. Mr Parry, no doubt, has a greater idea of what he might want to cross-examine them about than I so if Mr Parry wants to send his clients away that is his decision.
PN401
THE COMMISSIONER: Well, I rely on your judgment, Mr Parry, in that matter.
PN402
MR PARRY: Well, I have told the Commission I have done it and - - -
PN403
THE COMMISSIONER: Well, you will appreciate the position I am in. I do not have any of the statements. I am not aware of the extent of the controversy here. I have got some feel for it but I am not aware of the extent of the controversy in respect of the evidence and it is not for the Commission to say whether or not the witnesses are going to be required today.
PN404
MR PARRY: I will take that point, Commissioner.
PN405
THE COMMISSIONER: I think it was on that basis that I was relying on your judgment.
PN406
MR PARRY: Yes.
PN407
MR WHITE: What I don't have to hand up to you today is a copy of the '92 agreement which I will organise to have for tomorrow.
PN408
MR ..........: Excuse me, sir. Can I ask what time we will be proceeding in the morning?
PN409
THE COMMISSIONER: Subject to what the parties might say I would expect 10 am.
PN410
MR ..........: 10 am? If the Commission pleases.
PN411
MR WHITE: Yes, I was just saying about the '92 agreement - well, I prefer a copy we can - - -
PN412
THE COMMISSIONER: We have a copy. I think it was actually handed up on the last occasion.
PN413
MR WHITE: Yes, I think there was because there was the debate about the - - -
PN414
THE COMMISSIONER: It might have been handed up by the other side but there is a copy.
PN415
MR WHITE: Yes, in the context of the debate about the Commission in terms of the agreement, the power of the Commission, in terms of that agreement having the matter - to that extent, Commissioner, can I call David Zibolic.
PN416
PN417
MR WHITE: Mr Zibolic, can you state your full name and address to the Commission, please?---David Zibolic, 45 King Road, Harkaway.
PN418
And Zibolic is spelt Z-i-b-o-l-i-c?---That's correct.
PN419
And in this matter have you made a statement?---I have.
PN420
Do you have a copy of that statement with you?---I have.
PN421
Have you read that statement recently?---I have.
PN422
Are the contents of that statement true and correct?---They are.
PN423
Would you have a look at this document, please? Is that a copy of the statement on which you have just given evidence?---It is.
PN424
I seek to tender that, Mr Commissioner.
PN425
PN426
MR PARRY: I do have an objection to paragraph 5.
PN427
MR WHITE: Well, I am waiting to hear what it is.
**** DAVID ZIBOLIC XN MR WHITE
PN428
THE COMMISSIONER: Yes, so am I.
PN429
MR PARRY: Sorry, if the Commission pleases. The Commission has already heard some sort of suggestion from the bar table as to what is to be made of those three lines. Now, in my submission, firstly that is irrelevant. It is an irrelevancy. Any conversation that Mr O'Connor was having with a staff member nicknamed Fonzie is not on any of the statements we have received relevant to the dismissal of Mr Symons. Secondly, obviously there is to be submissions made as to the meaning of the words. Now, those words might have any number of meanings. In my submission, when material like that goes in it is material of limited probative value but if one view is taken of it, it is highly prejudicial. In my submission, the Commission should attach no weight to it and it shouldn't be relied on. That is the objection.
PN430
MR WHITE: Well, Commissioner, we say it is relevant in two ways.
PN431
MR PARRY: Well, perhaps the witness should be out whilst this is being argued if obviously there is words going to be put about what it all means and in my submission, Mr Zibolic should be out of Court while the interpretation is put on it.
PN432
PN433
MR WHITE: Relevant in two ways, Mr Commissioner, in my submission. First of all in the general way in which I have addressed the Commission already, Mr Zibolic gives evidence that Mr Kevin O'Connor looked at him and then in a loud voice said the words there set out, and in my submission it is capable of being understood in the context of the times which was disciplinary hearings concerning a union member, that it means he wants to get rid of those union people. Those union troublesome people in the small boning room, who won't sign his AWA's that put him to so much grief. That is the general way we put it.
PN434
The second way we put is this: There seems to have been great exception in his case to Mr Symons allegedly using the words, "Fucking arse," or, "Fuck," and yet from the mouth of the managing director of the company comes this word. There seems to be a slight double standard. To the extent Mr Parry says, "Well, you never know what it means and there is different interpretations that can be put on the words," well, if they had a different interpretation, I think, the author of the words could be called to give evidence of the particular interpretation that they might have put on it. I have nothing further, Commissioner.
PN435
THE COMMISSIONER: Yes, I propose to reject the objection. It seems to me that, at least in respect of the second matter to which Mr White has referred, the words have a potential probative value. In regard to the more general part of it, that is clearly a matter of weight and there will be opportunity to make submissions in regard to that. And, indeed, to cross-examine in regard to the circumstances in which it occurred.
PN436
MR PARRY: Indeed, thank you, Mr Commissioner.
PN437
PN438
MR WHITE: Mr Zibolic, do you have a copy of your statement with you?---I have, yes.
PN439
THE COMMISSIONER: Well, when you say you have, you don't immediately have it?---Not on me, no.
PN440
It is in the Courtroom?---In the Courtroom.
PN441
MR WHITE: Can you just bear with us, Mr Commissioner. Mr Zibolic, can you look at paragraph 5 on the second page. When you first saw Kevin O'Connor talking to the staff member nicknamed, Fonzie, who was Kevin O'Connor looking at?---He was looking my way as I was entering Peter Allen's office.
PN442
And did he continue to look at you?---Yes.
PN443
When he said the words set out in the last sentence, the last line of that paragraph, what tone of voice did he use?---Sarcastic and like it was put towards me and the union fellows that were there.
PN444
What is - sorry, and you say sarcastic, was that the first part of your answer? Was that one thing that thought it was put toward you and the other union members?---It was.
PN445
Was there anything else in the way that it was said to cause you to reach that view?---No, just in what was said in that last paragraph, is what really got me.
PN446
**** MR D. ZIBOLIC XXN MR PARRY
PN447
MR PARRY: The Commission pleases. Mr Zibolic, you were in the small boning room on 26 November and you were aware of a discussion between Mr Symons and Mr Sands, correct?---That's correct.
PN448
Mr Sands is the supervisor?---He is.
PN449
And he wanders around and speaks to employees regularly doesn't he?---Yes.
PN450
He speaks to them about the work they are doing?---That's correct.
PN451
And if he feels that something needs to be improved on he tells them that, doesn't he?---That's right.
PN452
And on this particular day when you saw the discussion between Mr Symons and Mr Sands, you said in your statement you heard them bickering, see that?---Yes.
PN453
Well, I take it from that that you heard them having a disagreement?---Yes.
PN454
And you go on and say that, "Neil was behaving, the way he was behaving seemed unusual." I take it from that that Mr Sands seemed upset?---May have.
PN455
Well, I suggest that that is what you mean by behaving unusual, that he seemed upset didn't he?---Yes.
PN456
But I think as you told the later investigations, you didn't hear Mr Symons - the earlier part of Mr Symons and Mr Sands conversation did you?---No, I didn't.
PN457
No. Now, you attended a meeting, I think, the next day was it?---Mm hm.
**** MR D. ZIBOLIC XXN MR PARRY
PN458
Did Mr Sands come down and ask you to come up to this meeting?---He did.
PN459
And you attended that meeting and you were asked about the conversation that you had heard the day before?---Yes.
PN460
And you knew which conversation they were talking about when it was raised didn't you?---Not about what had been said, no.
PN461
Not about what was said, but you knew the general theme was the discussion that you had heard part of yesterday?---Yes, that's correct.
PN462
And I think as you said to people - I am sorry, as you said to that investigation the next day, Mr Allen and Mr Silberer, I think Mr Ross was there?---He was, yes.
PN463
And you said you didn't hear the detail of the comment. Mr Ross was keeping notes over this period was he?---Yes, he was.
PN464
Now, after that meeting - I am sorry, after that you - it was before morning tea break on that day, was it?---It was.
PN465
And you went back to - did you go to the lunch room or did you go back to the boning room where you were working?---Back to the boning room.
PN466
And you continued work?---I did.
PN467
And you were - that day were you aware of there being any particular level of tension in the small boning room?---No.
**** MR D. ZIBOLIC XXN MR PARRY
PN468
You weren't aware of that?---No.
PN469
I just - we have been given a statement by Mr Ross and he has expressed some views about the atmosphere in the small boning room after morning tea and after the investigation, and he says, I think it is paragraph 14 of this statement, this is in respect of Debbie, and I will read what he says:
PN470
As Debbie didn't look comfortable being in the room, I went and asked Neil Sands if Debbie could leave the room. My concern was that Debbie had been at the meeting and that had said what she had said, and if she was feeling uncomfortable, and there was a bit of tension in the room, I didn't want anything to inflame the situation further.
PN471
Now, were you conscious of there being a bit of tension in the room after the investigation that morning?---There may have. It was definitely a bit quieter in there.
PN472
There may have been a bit of tension might there?---In the room.
PN473
And there might have been a situation that was partially inflamed?---No, I wouldn't say inflamed, no.
PN474
You wouldn't say inflamed, but there was a level of tension, and the tension was about what was going on with regard to Mr Symons wasn't it?---Yes.
PN475
It was known that Mr Symons was the subject of an investigation?---That's correct.
PN476
And it was known that morning wasn't it?---Not that morning, no.
**** MR D. ZIBOLIC XXN MR PARRY
PN477
No. I suggest to you that the tension arose from the knowledge that Mr Symons was under investigation?---Mm hm.
PN478
You agree with that don't you?---Yes.
PN479
So you did know that morning, after you come back - obviously you knew because you had been at the investigation, hadn't you?---That's right.
PN480
And now when you - I think you agreed with me that there was a bit of tension in the room, how did you get that feeling? Was it people talking to each other?---No, it was just quiet. It was not the normal atmosphere like it normally is.
PN481
And that was across all the employees was it?---Most of them, yes.
PN482
I suggest to you that was across all employees because most of them knew that there had been an investigation into Mr Symons.
PN483
MR WHITE: I object to that question. This witness can't answer on behalf of others.
PN484
MR PARRY: It is an atmosphere question. He has given evidence about it being quiet. In my submission it is admissible.
PN485
MR WHITE: He might have observed it being quiet, as to why it was that other people felt in a particular way is not something within this witness' camp.
PN486
MR PARRY: Mr - well, I will wait for a ruling from the Commission.
**** MR D. ZIBOLIC XXN MR PARRY
PN487
THE COMMISSIONER: I was just wondering if you had any further comments.
PN488
MR PARRY: No, no.
PN489
THE COMMISSIONER: That seems to me to be correct, it wouldn't be open to him to know why other people were quiet.
PN490
MR PARRY: But you accept the room was quite and unusually quiet?---That's correct.
PN491
And you would, yourself, recognise that as a degree of tension in the room?---I wouldn't say tension but like I said, quiet, yes.
PN492
And you spoke to Mr Symons when he returned from the investigation?---No, I didn't.
PN493
Right. Not at all?---No.
PN494
Not a word to this man that had been in the investigation?---No.
PN495
Not that day?---Not that day, no.
PN496
He was in the small boning room on the same table as you?---He was in the middle going up and down, yes.
PN497
You never spoke to him at all?---I spoke to him about other things but nothing of what had been said in the - - -
**** MR D. ZIBOLIC XXN MR PARRY
PN498
Mr Zibolic, I suggest to you that you did have a conversation with Mr Symons when he returned from the investigation and he told you what had gone on? Is it possible he did and you don't recall?---No, I would have recalled it if he had spoken to me, if he had come out of that - after that meeting.
PN499
Did you observe Mr Symons speaking to anyone after that meeting?---No, I didn't.
PN500
Did you observe him at all?---Yes, I did.
PN501
In the small boning room?---Mm hm.
PN502
Now, you have given a - you said Mr O'Connor spoke to you when you were attending the office, that was when?---That was on the 27th, I think it was, when I worked with him. The second day.
PN503
Do you know, do you recall?---Yes.
PN504
The second day - when you say the second day?---Monday, it would have been, yes, I would say it was the Tuesday when we were called in.
PN505
Right, Mr O'Connor was in his office?---No, he was standing in the corner before you enter Peter Allen's office on the left.
PN506
He was talking to this staff member, nicknamed Fonzie?---That's correct.
PN507
And Fonzie is a livestock handler?---That's correct.
**** MR D. ZIBOLIC XXN MR PARRY
PN508
He has got nothing to do with the small boning room?---No.
PN509
And you obviously observed them talking to each other, because you said they were talking to each other?---I was walking into the room, to turn in and they were just standing in front of me there.
PN510
But you don't know what they were talking about?---I just heard those words said as I was walking in, it was fairly close.
PN511
Right, but you didn't hear the other things that they were talking about?---No.
PN512
Did they continue their conversation after you walked past?---Yes, they did a bit of a chuckle, laughed and I just walked into the room.
PN513
They had a chuckle and laughed?---Yes.
PN514
Right, you don't know what they were chuckling and laughing about do you?---No.
PN515
Yes, I have nothing further if the Commission pleases.
PN516
MR WHITE: No re-examination.
PN517
PN518
PN519
MR WHITE: Can you turn and face the Commission and state your full name and address, Mr Dempster?---Phillip Dempster, 99 Eagle Drive, Pakenham.
PN520
Mr Dempster, have you prepared a statement in this matter?---Yes.
PN521
Do you have a copy of that statement with you?---Yes, somewhere.
PN522
Have you read that statement recently, Mr Dempster?---Yes.
PN523
Are the contents of that statement true and correct?---Yes.
PN524
Can you have a look at this document, please. Is that a copy of the statement in which you have just given evidence?---Yes.
PN525
I seek to tender that if the Commission please.
PN526
PN527
MR WHITE: Mr Dempster, have you read this morning a statement of Ms Debbie Halverson?---Yes.
PN528
Do you recall in that statement that she says the following:
PN529
After I resumed work I saw Chris Symons walk to where Phil Dempster was working and started talking to him.
**** PHILLIP DEMPSTER XN MR WHITE
PN530
I will just leave out the next part because it shows it from that.
PN531
Phil stops slicing and I heard Chris tell Phil nearly word for word what was said during the time I was being questioned at the earlier meeting and what I had said about what happened. Phil was smiling and laughing during the conversation with Chris.
PN532
Do you recall reading that?---No. I read this, but I didn't - - -
PN533
Well, first of all what do you say about Chris Symons walking to where you were working and talking with you, after there had been a meeting in the office?---I can't recall having a conversation with Chris.
PN534
Did Chris ever tell you nearly word for word what was said during the time that Debbie Halverson was being questioned at a meeting?---No.
PN535
Can you recall smiling and laughing during a conversation with Chris Symons during which what was said at the meeting was discussed?---I can't remember discussing everything, I could have smiled and laughed as I was talking about something else to him anytime during the day, but not - I can't remember having a conversation with him about anything.
PN536
Yes, I have no further questions, if the Commission pleases.
PN537
THE COMMISSIONER: Yes, Mr Parry.
PN538
MR PARRY: I will leave this to Mr Johnson, if the Commission pleases.
PN539
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN540
MR JOHNSON: Mr Dempster, I have just got a few questions if that is all right. On the day of 26 November, I think you told that at the meeting the next day which Mr Allen, Mr Silberer and others were there, that you didn't hear anything?---No.
PN541
Then you went down to the meeting on the 27th, and who told you to go down, on Tuesday, the 27th?---That is the first meeting?
PN542
Yes?---I don't know whether it was - I think it might have been Greg, I think, I'm not too sure who it was.
PN543
Greg who?---Wareham.
PN544
You are not sure?---I am not sure who it was, just come and - - -
PN545
Then you went to the meeting and answered questions?---Yes, that's right.
PN546
And who asked you questions at that meeting?---Peter Allen, I think Steve Silberer might have said a couple of words. It was mainly Peter Allen.
PN547
When you first went in to the meeting, the nature of the complaint was explained to you against Mr Symons?---Yes, I think so.
PN548
And Mr Allen did that?---Yes, I think so.
PN549
And you explained at the meeting that on that day, the 27th that you wore earplugs for the reasons you didn't want to listen to anything?---No, we wear earplugs because of the noise in there. With the earplugs you can't hear virtually nothing anyway, with the noise plus the earplugs.
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN550
But when people are talking to you with earplugs you can, you can hear can't you?---You can hear if you concentrate and look at them - - -
PN551
Yes?--- - - - but if you are working here and someone's there, you cannot understand what is being said.
PN552
And do you recall using the words at that meeting, I am not being critical, just the words and I quote, "That you wear earplugs for the reason that you didn't want to listen to that shit"?---That is what I said, I - not precisely that I didn't want to hear that shit, but I am not interested in those carryings on anyway because I don't carry on like that, argue and - - -
PN553
You are not denying that you said it but you can't recall, is that right?---That I said that?
PN554
Yes?---No, I'd say I'd say that.
PN555
Sorry?---I'd say I said that, what he's got there.
PN556
Do you say you could have said it, or you didn't say it, or you don't remember?---What? The bit about the shit?
PN557
Yes?---Yes, I could have said - yes, I would say I would have said that.
PN558
Do you recall saying to the meeting that you saw Mr Sands say something to Mr Symons, and that you saw Mr Symons say something to Mr Sands, but you couldn't hear what was said, it was only a mumble to you?---Yes, that's right. Bob was standing across the table about from here to Eugene away, that's where I worked and I can't - I was working away and I knew something was going on there, but I didn't have a clue what was being said and I wasn't interested.
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN559
I understand that is your evidence, but the words I just read out to you, that was what you said to the meeting?---Yes, yes.
PN560
Did you say, also, at the meeting, "This always happens and all the time and you don't take any notice of it"?---From time to time it happens.
PN561
Do you recall saying that to the meeting?---Yes.
PN562
Then at about that time you left the meeting, you answered the questions?---Yes.
PN563
In effect you said to the meeting you didn't know anything, didn't hear anything and you left?---Yes.
PN564
At about the time you left was that when smoko was taking place or was it just before?---No, it might - no, I think I went back to work.
PN565
You went back to the small boning room?---I think so.
PN566
Some time after that you took a smoko break with the others?---Yes.
PN567
And did you go to the lunch room where - other people?---Yes.
PN568
Did you see Mr Symons at the lunch room?---No, I know where he sits, I seen him there, but I wasn't anywhere near him, I don't sit with him.
PN569
But on that day after you gave evidence to the meeting or made a statement, when there was a smoko break and you went to the lunch room, do you recall anything about where Mr Symons was there, or wasn't there of - - -?---No, I don't recall.
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN570
You didn't see him speak to anyone at the lunch room?---No, I wouldn't, no.
PN571
Then after the smoko break, you came back to work?---Yes, that's right.
PN572
If I could just go back to when you were giving your evidence and making your statement to the meeting, you said - you have got in paragraph 2 of your statement:
PN573
I was never told that the interview was confidential in any sense.
PN574
?---That's right.
PN575
But you told the meeting you didn't know anything, didn't you?---Yes, that is right, yes.
PN576
Therefore there was nothing you could say to any other person after the meeting?---No, no.
PN577
Now, then you went back to the small boning room to work after the smoko break and which table did you go to, where did you go to work? Are you able to describe it?---Yes, it's on that drawing where Debbie's got the drawing, I think.
PN578
You have seen that drawing have you?---Yes.
PN579
And it has got the words PD there on this right hand, is that where you work?---Yes.
PN580
It's got CS next to it, the initials to Chris Symons and that is where Debbie says that she saw you speaking, or Mr Symons speaking to you?---Yes, that is what Debbie says.
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN581
And you deny that?---I deny it, I can't remember talking to him.
PN582
You definitely deny that Mr Symons said anything to you or you just can't recall?---I can't recall, that is the same as denying isn't it.
PN583
Now, you will see on the same diagram the letters DH, do you recall Debbie working there after the smoko break?---No, I can't remember seeing Debbie there at all.
PN584
Well, there is another notation there DZ for Mr Zibolic, right over on the far table, do you recall seeing him there after the smoko break?---No.
PN585
So you don't recall anything after the smoko break?---Just that I was working there. I don't look around to see where people are working because I'd changed positions, I was over the other side - no, that was the day before, sorry.
PN586
Then next day after Tuesday, the 27th you were called back to the meeting room - - -?---That's right.
PN587
- - - in the afternoon, true?---Yes, I think so.
PN588
I withdraw that question, well, perhaps I misunderstood something. On the morning of 28 November you were called back to the meeting room in which there were present, Mr Allen, Mr Silberer, Mr Symons and Mr Asa?---Yes, that's right.
PN589
Do you recall that?---Yes.
PN590
You were asked further questions. Who asked you questions at that second meeting?---Peter Allen again.
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN591
And you said that you denied that Mr Symons had spoken to you after the meeting?---Yes.
PN592
And you said that you didn't know anything more about the matter until you saw - - -?---I knew - - -
PN593
Sorry, what were you going to say?---Just what you were going to say, about who I spoke to, Col Ross.
PN594
You say you spoke to him about it?---As I walked out the gate at night time - at night, that was the first I knew - I didn't know what had happened he just said something else had come up.
PN595
Is it possible that Mr Symons said something to you, but you may not have heard it and that Debbie heard it?---Could have, I don't know, I didn't hear it so I couldn't say.
PN596
And what did Mr Ross say to you when he was going home and you were going home?---He said something else had come up.
PN597
And what else was that, did he say?---No, he didn't say.
PN598
You then, after you gave that evidence to the meeting, you left?---Yes, that's right.
PN599
And you saw Debbie Halverson go back into the meeting. Do you recall that?---No, I didn't see Debbie go back into any meeting.
PN600
Okay. Because after that you were re-interviewed for a second time that morning?---That's right.
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN601
And Mr Allen asked you whether you were certain that Mr Symons had not spoken to you after the smoko break?---That's right.
PN602
And you said that you may have had a conversation with Mr Symons, but you couldn't remember. You couldn't remember, but it couldn't have been much of a conversation because you were slicing at the time in the table near the KF entrance. Do you recall that?---What I said to Peter Allen is, "I could have had a conversation with Chris Symons any time during the day, but I couldn't tell you when it was." Because people can talk to you and you don't even recollect the times when it is. I couldn't say when he spoke to me.
PN603
Do you recall using the words at the time, at the table near the KF entrance and Mr Symons was packing on the hindquarter and doing the bins and floors?---Beg your pardon?
PN604
Do you recall saying to Mr Allen that at the time you were slicing on the table near the KF entrance and Mr Symons was packing on the hindquarter and doing the bins and floors?---Yes, he was doing the floors around that area, I think, what I can recall.
PN605
And do you recall Mr Allen asking you whether you saw Debbie in the smoko room at all after the smoko break?---I can't remember everything he said. He probably did. I can't remember seeing her there.
PN606
Okay. Do you recall saying to Mr Allen that you didn't see Debbie in the small boning room after the smoko break?---No.
PN607
MR WHITE: I just want to interrupt my learned friend for a short time. I am deliberately trying not to look at what he is reading from, but just from listening to him it appears that he is reading from a statement and it had been agreed prior to the adjournment that statements would be exchanged. I don't have a statement from Mr Allen, but if he is not reading from a statement, so be it, but if he is I would be grateful for a copy.
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN608
MR JOHNSON: And you said to the meeting that Mr Symons could have said something, but you couldn't remember at all what was said?---Yes, that would be right, probably right. I wouldn't even know - I can't remember what he would have spoke about.
PN609
And then you went on and said that you couldn't remember what anybody said to you, even that morning?---If you work in a place like that with the noise that's going on, you've got ear muffs on, and someone says something to you, sometimes you only half pick up what they say, and sometimes you say yes or no because it's irrelevant to what's going on - just something, idle talk you're talking about something and so I couldn't remember what someone told me before anyway. I don't think anybody could.
PN610
And do you recall saying to them in turn - giving evidence at the meeting that you couldn't remember what anybody said to you, even that morning?---Yes. Okay. Right.
PN611
Do you recall saying that?---If you say that's what I said I suppose that's what I said.
PN612
I am not saying you - I am asking you whether you might have said it?---I could have said it.
PN613
THE COMMISSIONER: Well, you are being asked if you recall saying that. It might be better to concentrate on answering the question. Do you recall saying that?---No.
PN614
If you don't recall saying it, say so?---No.
PN615
I mean, we are not interested in whether you might have said it or not, it is whether you recall it.
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN616
MR JOHNSON: And do you recall saying to the meeting that Mr Symons may have said something to you, but you didn't recollect and you didn't hear because you had the ear muffs on? You repeated that at the meeting?---Say that again?
PN617
Do you recall repeating on a number of occasions that you didn't recollect after the smoko break what Mr Symons may have said to you because you had ear muffs on at the time?---Yes, that would be right.
PN618
And after a number of questions you left the meeting?---Right.
PN619
And in paragraph 3 of your statement, that is when you say, on what I have just questioned you, you went back on the 28th twice to answer questions?---Yes.
PN620
And then you, at the end of paragraph 3 - I will withdraw that. In paragraph 4 you say, at one of the meetings on the 28th you complained concerning the confidentiality?---Yes, that's right.
PN621
Who did you complain to?---Peter Allen.
PN622
Why did you complain? Complain about what?---Because he had said about the confidentiality, about what Chris Symons was supposed to have said and he wasn't supposed to say anything, and I said to him, "Well, why wasn't I told about confidentiality too?"
PN623
But you gave evidence on a number of occasions at the meeting you knew nothing?---Yes, that's right.
PN624
And you gave evidence to the meetings on a number of occasions that you didn't see anything?---That's right.
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN625
And you gave evidence to the meetings that you didn't hear anything?---That's right.
PN626
And you didn't stay at the meeting to hear the evidence of anyone else?---No, that's right.
PN627
When you went back to the smoko room after the first meeting, did you speak - or after any of your meetings - did you speak to anyone about the evidence you gave?---No.
PN628
When you went back to the smoko room after the first time you gave evidence, was there tension in the room? Did you feel it?---No.
PN629
Couldn't feel that the room was inflamed with a feeling that people might have given evidence?---No.
PN630
You didn't speak to anyone at the smoko break about it?---No.
PN631
There is not one person during the smoko break that asked whether you gave evidence and what did you say at the meeting?---No. The people I sit with at the meeting is labourers. I don't sit with any of the slicers or the boners. I sit with the labourers, and they had nothing to do with it, nothing been discussed at all.
PN632
Do the labourers work in the small boning room?---Yes, that's right.
PN633
But they are sort of separate from the other boners, as a group?---Yes, well, they sit separate.
PN634
They usually don't mix together?---No, not in the lunch room. We've all got our tables and I've sat at the same table for, oh, 15 years, and so I always sit there with the same people. We go fishing together.
**** PHILLIP DEMPSTER XXN MR JOHNSON
PN635
So do I take it that none of the other people that are at the hearing today that you know of sit at that table?---No.
PN636
After the smoko break, does the noise in the small boning room start straightaway, or does it take time to build up?---No, straightaway, with the fans.
PN637
Are the fans going all the time, or are they turned on when people come back from the smoko area?---No, they're going all the time.
PN638
And on that day you came back after giving - making a statement on the 27th, after the smoko break, were you first back or last back or - to the boning room, or - - -?---I don't know. I couldn't tell you. We all walked in about the same time.
PN639
Yes, thank you.
PN640
MR WHITE: No re-examination, Mr Commissioner.
PN641
PN642
MR WHITE: The next person, still out order, Commissioner, is Mr Fili Asa. He is a boner in the small boning room as well as the cargo area. While Mr Asa is coming into Court, can I say that I have no objection if the Commission has access to all of the statements from each side if the Commission thought it would be easier or of any assistance.
PN643
MR PARRY: Can I just - firstly, I am not sure we have any questions of Mr Asa. We might just take a minute, but we might just save ourselves a short time on that. With regard to the statements, we have some statements to hand up. I have an objection to a couple of paragraphs in Mr Ross's statement, but I don't object to that being before the Commission in a statement form. We would not hand up our statements - it is a matter for the Commission. We have got a set of statements as well. We are happy to hand those up as well to the Commission.
PN644
MR WHITE: I mean, I only raised it at this time because I was effectively out of order and I am conscious for the Commission to have at least the broad scheme of it.
PN645
THE COMMISSIONER: I often don't get the broad scheme until the very end, but that might be my problem. Look, I don't think I will be assisted by it one way or the other.
PN646
MR WHITE: That is fine.
PN647
MR PARRY: Well, perhaps if my learned friend could have a minute or so to check to see whether Mr Asa is to be asked any questions and if not I would just seek to tender this without the need to call - - -
PN648
THE COMMISSIONER: Well, I think we will still need him sworn in to tender the statement, so perhaps we can do that while they - - -
PN649
MR PARRY: Yes, all right. Very well.
PN650
PN651
MR WHITE: Mr Asa, could you look at the Commission and repeat your full name and address, please?---Fili Asa, 13 Santalina Court, Wonthaggi.
PN652
And that is Fili, F-i-l-i, and Asa, A-s-a?---That's correct.
PN653
In this matter you made a statement?---Yes, I have.
PN654
Yes. And have you read that statement recently?---Yes, I just did, yes.
PN655
Are the contents of that statement true and correct?---That is correct.
PN656
Could you have a look at this, Mr Asa? Is that a copy of the statement you have made?---Yes, it is.
PN657
I seek to tender that, if the Commission please.
PN658
PN659
MR PARRY: Mr Asa, this statement of yours, did you write this?---Yes, I did.
PN660
Where did you write it?---I just - most of them were my notes at - - -
PN661
Notes?---Yes.
**** FILI ASA XXN MR PARRY
PN662
You kept notes of some of these meetings, did you?---I do my own, yes.
PN663
All right. Do you do that in your capacity as the vice delegate?---That's correct.
PN664
Because you don't attach any of your notes to this. You still have those notes presumably?---No.
PN665
You didn't bring them with you?---No.
PN666
In your - you give - you refer to a meeting that took place on Wednesday, 28 November 2001 and that was the day that Collin Ross was away and you were acting delegate for that particular day, right?---That's correct.
PN667
Now, when did you first find out about the investigation involving Mr Symons? Was it - - -?---When I was asked to - - -
PN668
I am Sorry?---When I was asked to go to the office on that day, the 28th.
PN669
You didn't know anything about the investigation before that?---I knew nothing about that, no.
PN670
Right. You went to the office where Mr Allen and Mr Silberer were and Mr Allen asked some questions, is that true?---Yes, there was something before he asked questions - - -
PN671
Mr Silberer - Mr Silberer said some things as well?---That's correct.
PN672
And Mr Silberer said that it was I think you have got in your notes that it was company policy that they should investigate any complaints lodged. As a union official that was of no concern to you, was it, that complaints be investigated?---It was taking place for Collin Ross while he was away.
**** FILI ASA XXN MR PARRY
PN673
Yes, it was the proper course to follow for the company to investigate complaints, wasn't it?---I don't understand.
PN674
It was the proper course for the company to follow to investigate a complaint?---Oh, yes.
PN675
You had no concerns - I withdraw that. You sat in that meeting that day that you have set up in your statement and you had no concerns that the investigation was conducted properly, did you?---No.
PN676
Now, your - in the first meeting on the Wednesday, the day that you went up to the office, do you recall Mr Symons saying that he had told Collin Ross that he had told Kelvin and Adam about the investigation?---Yes.
PN677
You do remember that?---I remember, yes.
PN678
That is not in your statement, is it?---No.
PN679
Is there any reason why you left it out?---No.
PN680
Do you recall what Mr Symons said about what he had told Mr Ross?---Mr Ross?
PN681
Yes, what Mr Symons told Mr Ross. You remember that now?---Yes, I remember.
PN682
Now, Mr Dempster attended that interview?---That's correct.
PN683
And Mr Symons left while Mr Dempster was spoken to?---That's correct.
**** FILI ASA XXN MR PARRY
PN684
And do you recall what Mr Dempster said about whether Mr Symons had spoken to him after the meeting?---Yes.
PN685
What did he say?---He said he didn't speak to him, just - at all.
PN686
He said he couldn't remember or did he say he did not?---He said that.
PN687
He said - - -?---He said - - -
PN688
- - - either one of those?---Both.
PN689
He said - - -?---He answered no, he - you know, he didn't talk to him and then the other said if he talked to him or him - you know, to Chris Symon, he can't remember what he - was said. Couldn't remember what was said.
PN690
Right, and you were - were you present when Ms Halverson came up?---Mr - sorry?
PN691
Ms Halverson, Debbie?---No.
PN692
You weren't present?---I was not present.
PN693
Now, you had a conversation - Mr Symons was outside the meeting and you went out and spoke to him about the time that he spoke to Mr Peterson and Mr Brockman?---I was asked but only if I could ask him that question, yes, what time.
PN694
And you went out and did that?---I did this.
**** FILI ASA XXN MR PARRY
PN695
He said he couldn't remember but it was either morning tea break or lunch break?---That's correct.
PN696
And you went back and reported to Mr Allen that he didn't know when he told the two employers?---That's correct.
PN697
Now, Mr Peterson and Mr Brockman are employees. Are they boners and slicers?---One is a boner and one is a slicer.
PN698
Right, and they - where do they work? In the boning room?---In the little boning room.
PN699
In the small boning room?---Yes.
PN700
They are at one of the three tables, aren't they?---That's correct, yes.
PN701
Yes, I have - if the Commission would briefly excuse me.
PN702
THE COMMISSIONER: Yes.
PN703
MR PARRY: And you were present at the meeting on 29 November when Mr Symons was told his employment was going to be terminated?---That's correct.
PN704
And can I take it that you said little in that meeting? Did you say anything at all?---No, I didn't.
PN705
But presumably, as a union official, if you had felt there was something wrong you would have spoken up?---Well, I did have Collin Ross there with me so he was our captain at the time, so - - -
**** FILI ASA XXN MR PARRY
PN706
What, so - - -?---What he says is ours - - -
PN707
What did he say? Do you recall him saying anything?---No. He was only accepted the company's recommendations in regard of that and then that was it.
PN708
Yes, I have nothing further, if the Commission pleases.
PN709
MR WHITE: Just one very general question, Mr Asa. Is English your first language?---No.
PN710
I have got no further questions, Mr Asa, thank you.
PN711
THE COMMISSIONER: Yes, thank you, Mr Asa. You are free to go?---Thank you very much.
PN712
PN713
MR PARRY: Well, if there is to be a submission made and Mr Asa didn't understand it, I am not sure what the last question - re-examination. If that is to be a submission I will certainly have something to say about that.
PN714
THE COMMISSIONER: Well, you will have your time if it is a submission.
PN715
MR PARRY: Well - - -
PN716
THE COMMISSIONER: Well, do you want the witness back, or - - -
PN717
MR PARRY: Well, I am just asking. I don't understand the last question. I thought I had put it very carefully and put - but I just - it wasn't - it wasn't a question arising out of anything I put. It can only be put if it is going to be argued that somehow some evidence of Mr Asa should be ignored because he didn't understand what I - what I was asking. Now, that is - if that is to be put well, I would want Mr Asa back to ask him does he understand every question I put, has he got any other thing to say.
PN718
THE COMMISSIONER: - - - fairly lucky this is not a formal hearing and just a consent arbitration .....
PN719
MR WHITE: Look, I asked that question for two reasons. First of all, the first question that Mr Parry asked was whether he had written the statement. Surely, if something is going to be made of that then the Commission should be aware that English isn't Mr Asa's first language but it is up to my learned friend if he wants to make anything of that. If he has asked the question I assume he will. And the second reason I put it is that sometimes Mr Asa was hard to understand in the witness box and it shouldn't be thought that how he spoke or enunciated words is anything other than a man speaking a second language. But if it is troublesome to my friend then we won't be making any submissions that Mr Asa didn't understand things because he didn't understand the words in which they were put or anything of that nature. They are the two reasons I put them.
PN720
THE COMMISSIONER: Mr Parry, you want to take it any further, or - - -
PN721
MR PARRY: If I went further that submission might be made.
PN722
PN723
MR WHITE: Mr Symons, could you look at the Commissioner please and repeat your - and state your full name and address?---It is Christopher Symons, of 2 Moheen Crescent, Carrum Downs.
PN724
And up until 29 November last year, Mr Symons, you were employed at G and K O'Connor?---That's correct.
PN725
And you had been employed by G and K O'Connor - the O'Connor's meat operation, since 1983?---That's correct.
PN726
In this matter, Mr Symons, have you made a statement?---I have.
PN727
Do you have a copy of that with you?---Yes.
PN728
Have you read it recently?---Yes.
PN729
Are the contents of that statement true and correct?---Yes.
PN730
I will show you this document, please. Is that the statement that you have made?---Yes.
PN731
I seek to tender that, Commissioner, please.
PN732
**** CHRISTOPHER SYMONS XN MR WHITE
PN733
MR WHITE: Yes, I have no further questions, if the Commission pleases.
PN734
MR PARRY: If the Commission pleases. Mr Symons, you were in the Commission this morning, I think, when your barrister handed up a document being a sexual harassment policy that I am holding up in my hand?---Yes.
PN735
You are aware of that policy?---Yes.
PN736
Can I take it that it is a policy that you were aware of before November 2001?---Yes.
PN737
And indeed it was a policy that was - employees were taken through the year before after the return to work after the lock up?---Yes.
PN738
And you are also aware that that policy allows for the investigation of reports of harassment?---Yes.
PN739
And you are also aware that those investigations - that policy provides that those investigations are to be confidential?---Yes.
PN740
MR WHITE: It might be a convenient time for that document which was marked W1 now be made formally an exhibit, Commissioner.
PN741
THE COMMISSIONER: Yes, well, it was marked as an exhibit but subject to objection - I take it there is no objection about it now?
PN742
MR PARRY: No objection, no.
**** CHRISTOPHER SYMONS XN MR WHITE
PN743
PN744
MR PARRY: Now, leaving aside that policy, as of November last year you were aware that you as an employee of O'Connors should not abuse supervisors?---Yes.
PN745
And you were also aware that as an employee of O'Connors you shouldn't abuse other employees?---Yes.
PN746
And if an allegation was made that any employee had either abused a supervisor or another employee you would expect that to be dealt with?---Yes.
PN747
And you would expect it to be dealt with in accordance with the harassment policy?---Well, not really, but I suppose so, yes.
PN748
It wouldn't have come as a surprise to you if an allegation had been investigated under that policy, would it?---Under that policy, no.
PN749
No. Now, many of these events concern the small boning room, as I will describe it. You have said that it is a noisy room. I take it it is noisy from air conditioners?---Yes.
PN750
It is not equipment really operating in the room. It is the noise really comes from the air conditioning units, doesn't it?---Not necessarily, no. I mean, there's a lot of noise in there with bones being thrown in the tub as well, like, tubs as well.
**** CHRISTOPHER SYMONS XN MR WHITE
PN751
All right. So the noise comes from the air conditioning and from bones going into tubs?---Yes.
PN752
You are not required to wear ear protection in there, are you?---No.
PN753
It is a matter for each individual employee to make a decision on?---Yes.
PN754
Now, you and a conversation with Mr Sands on the afternoon of Monday, 26 November 2001?---Yes.
PN755
Mr Sands was your supervisor?---Yes.
PN756
I suggest it is not uncommon for a supervisor to speak to a slicer about the performance of a job?---That's correct.
PN757
It happens quite regularly?---Yes.
PN758
A supervisor might be concerned about the performance of a slicing job on a particular piece of work, mightn't he?---Yes.
PN759
Then the supervisor, as you understand it, was quite within his or her duties to speak to the employee about the standard of the work?---Yes.
PN760
And on this particular day Mr Sands spoke to you about the quality of a particular piece of work you were doing on some knuckles, didn't he?---Yes, on one that I recall.
PN761
He spoke to you. He wasn't happy with the work you were doing on it?---No.
**** CHRISTOPHER SYMONS XN MR WHITE
PN762
No. Now, in your statement, you refer to not recalling saying anything when he spoke to you. I take it he has made a complaint, you don't recall what you said in response to it?---That's correct.
PN763
But you do say in your statement you might have sworn under your breath?---That's correct.
PN764
You accept then that you might have sworn?---I may have but I don't remember.
PN765
You say in this statement you were frustrated?---Yes, because the beef was dry and hard to slice.
PN766
Do I take it that your frustration meant you were angry with the situation?---Not really, no.
PN767
Could it - well, do you remember being angry or not?---Well, I wasn't angry, no, I was just trying to explain to Neil that the beef, the time we normally keep the lean ones until last and they were a bit hard to take the skin away from the meat as we normally do.
PN768
But you didn't say that to Neil, did you?---Yes, I did.
PN769
I suggest to you that what happened is he spoke to you and complained about the work you were doing on the knuckles and then you either swore under your breath or you don't recall what you said?---That's not correct.
PN770
Well, you have just given evidence that - a few minutes ago I asked you what you said after the complaint. I thought we agreed then that you either don't recall or you might have sworn under your breath?---I recall saying to Neil that the beef was dry.
**** CHRISTOPHER SYMONS XN MR WHITE
PN771
Right, so I am sorry, this comment about the beef being dry it doesn't appear in this statement.
PN772
MR WHITE: If I could direct my learned friend's attention to paragraph 5.
PN773
MR PARRY: Well, my learned friend can sit down.
PN774
MR WHITE: Well, if - look, Mr Parry is putting to this witness things which are incorrect then that is not on and it is impermissible to do so.
PN775
THE COMMISSIONER: Mr Parry?
PN776
MR PARRY: We are going through a sequence of events.
PN777
MR WHITE: But you said that it wasn't in the statement.
PN778
MR PARRY: I - it is earlier referred to in respect of an earlier interchange. I am now dealing with the interchange where the allegation came about swearing and we have had a version - we have had two versions of these events. Perhaps I will just continue on.
PN779
MR WHITE: Well, perhaps you might just - - -
PN780
MR PARRY: Well, perhaps you might stand up if you have got something to say. Nothing to say? Good. Now, Mr Symons, I take it from your statement that you might have sworn but you don't remember?---That's correct.
PN781
And you were frustrated at the time?---Frustrated because of the dryness of the beef, yes.
**** CHRISTOPHER SYMONS XN MR WHITE
PN782
Yes. You might have been angry?---Not really.
PN783
Well, is it possible - - -?---No.
PN784
- - - you were angry? Not possible you were angry?---No.
PN785
I see, and Mr Sands heard some comment and he asked you what did you say?---That's correct.
PN786
You said, "Nothing"?---That's right.
PN787
Whereas you might have said something or you might not have said something at that stage?---I - Neil was standing here. I turned away and I said something. I'm not sure what I said and nothing was directed at Neil at the time and he - the allegation came from that.
PN788
Yes, I suggest to you that what you said to him was something along the lines of, "Fucking arse"?---That's not correct.
PN789
Well, you don't recall what you said, do you?---No.
PN790
So it is possible you might have said, "Fucking arse"?---Could be.
PN791
Yes, thank you, and in saying, "Fucking arse," I suggest that you intended it to be directed at Mr Sands?---No, that's not correct.
PN792
You were in conversation with him at this stage, weren't you?---Yes.
**** CHRISTOPHER SYMONS XN MR WHITE
PN793
Right. In a conversation if you say, "Fucking arse," after he has rebuked you about something I suggest to you that it is fairly obvious that you are directing that at Mr Sands?---No, it's not.
PN794
Right. So it is possible you said, "Fucking arse." When asked afterwards what you said, you said, "Nothing," and I suggest you said, "Nothing," then because you were well aware at that stage that you had just abused the supervisor?---That's not true.
PN795
You see, you don't recall saying anything but when asked you instantly said, "I said nothing"?---Mm.
PN796
Do you see that? Whereas, if you had an innocent explanation, you could have immediately said that to Mr Sands, couldn't you?---Yes.
PN797
Right, so possibly you said, "Fucking arse." When challenged, your response was, "I said nothing," which you knew wasn't true?---Well, as I said to you before, I may have reached across the bench and gone, "Oh, fuck," but - it was, "Nothing," was directed at Mr Sands.
PN798
So is that an explanation you would have had difficulty telling Mr Sands?---Probably not.
PN799
Because bad language isn't that uncommon, is it?---No.
PN800
The word "fuck" isn't something that is that much of surprise around the small boning room, is it?---No.
PN801
So your explanation that you just said the word "fuck" is a pretty innocent one, isn't it, really?---Yes.
**** CHRISTOPHER SYMONS XN MR WHITE
PN802
And Mr Sands being the supervisor just wouldn't have had any concern about somebody just saying "fuck" would he?---No.
PN803
No. He would have only had a concern if you abused him, wouldn't he?
PN804
MR WHITE: I object to that question. Whether Mr Sands has a concern he hasn't - his reasons, it is not up to Mr Symons to hazard a guess as to why Mr Sands might or might not have had concerns.
PN805
MR PARRY: Mr Symons, I suggest to you that you said, "I said nothing", because you were well conscious at that stage that you had just abuse Mr Sands?---That's not correct.
PN806
Now, this version you have given today to the Court that you might have said "fuck" and it is possible you said "fucking arse", this is the very first time that you have given this version through all the investigations, isn't it?---Yes.
PN807
Right. It doesn't appear in your statement, does it?---No.
PN808
It doesn't - wasn't a version you told in the first investigation when mr Ross and Mr Allen and Mr Silberer were present?---No.
PN809
And it wasn't given in the second investigation in respect of the breach of confidentiality, was it?---No.
PN810
No. Now Mr Sands was upset about what you had said to him, wasn't he?---No.
PN811
He repeatedly asked you, "What have you said"?---He repeatedly asked me, "I think you said something, Chris", or he didn't actually say that, he said, "What did you say, Chris"? He said that on a number of occasions.
**** CHRISTOPHER SYMONS XN MR WHITE
PN812
He said - yes, he - - -?---And I said, "Nothing, you want to get your hearing checked," but when he moved over to the next bench and followed me, he said, "I think you said something, Chris".
PN813
You remember these words particularly, do you?---Yes.
PN814
But you don't remember what came before them?---No.
PN815
I suggest you well do remember what came before them?---That's not true.
PN816
Mr Sands followed you and asked you what, on three or four occasions that you had said something, what was it?---He - think he said to me , "I think you said something, Chris," and I said, "No."
PN817
You have had an opportunity there to apologise, didn't you?---For what?
PN818
For the language you had used earlier?---The language wasn't - nothing was directed at Mr Sands or Neil, that I call him, in the boning room.
PN819
You never advanced that explanation on the day to Mr Sands, did you?---No.
PN820
Right?---'Cause I didn't need to.
PN821
Yes, but obviously Mr Sands was upset and concerned, wasn't he?---He was more concerned about the - 'cause I was taking too much meat away from the knuckle.
PN822
But he continued to want to know what you had said, didn't he?---That's right.
**** CHRISTOPHER SYMONS XN MR WHITE
PN823
Yes, and I suggest to you that you had the opportunity there to say, "Nothing I said was directed at you, Neil," you didn't, agree?---I agree.
PN824
Yes. And you didn't advance any explanation as to the version you have got where you've leant over there, "Oh fuck," or something like that. You didn't advance that explanation either, did you?---No.
PN825
No?---Just can't remember.
PN826
I am sorry, you can't remember. You can't remember whether you advanced that explanation?---I may have said something, I'm not sure, as I said earlier.
PN827
Right. But your version was, "He should get his hearing checked," because you had said absolutely nothing?---I said that I said nothing.
PN828
Yes. You simply denied it, didn't you?---I'm not sure.
PN829
I am sorry, you are not sure you denied - - -?---No, I'm not sure that I said anything at all really, but I may have said something.
PN830
Right. Now, do you recall Mr Sands saying something to you at that stage about going to the office?---No.
PN831
Is it possible he did and you don't remember?---No.
PN832
It is not possible?---No, I didn't hear him make that statement to me.
PN833
Is it possible he may have and you don't remember?---I don't think I - - -
**** CHRISTOPHER SYMONS XN MR WHITE
PN834
I am sorry?---I would've remembered.
PN835
You would have remembered that?---Yes.
PN836
You don't remember him saying anything about coming back the next day?---No.
PN837
Right. So I suggest to you that Mr Ross - I am sorry, Mr Sands did say to you something along the lines of, "Well, you know, this might end up in the office," or something like that?---No.
PN838
You don't remember that?---No.
PN839
Now, the next day you attended - you were asked to go to the office with Mr Sands again?---That's correct, and with Collin.
PN840
With Collin. Who spoke to you first and told you about this?---I think it was Greg Wareham.
PN841
Right?---Or it may have been Collin.
PN842
Now, just - I am sorry, I am getting a bit ahead. Do you recall Mr Sands saying to you - this is on the night on the floor when he was following you around and I suggest to you that he said, "You'll need to come to the office," you said, "Well, what did I say," and Mr Sands said, "You called me a fucking arse," and you said, "You want to get your ears tested"?---That's not true.
PN843
You don't agree with that?---No.
**** CHRISTOPHER SYMONS XN MR WHITE
PN844
Is it possible any of that occurred and you don't remember?---No.
PN845
You are very sure of that?---I am.
PN846
Now, the next day you are in the office, Mr Allen and Mr Silberer were there along with Collin Ross and Mr Sands?---Yes.
PN847
And the meeting commenced with Mr Allen going through the policy that I've taken you to earlier, the harassment policy?---Yes.
PN848
And he read that out?---Yes.
PN849
Or the first parts of it and he read out that bit which referred to investigations being confidential?---Yes.
PN850
And so I suggest to you you were in no doubt at the commencement of that investigation that the investigation was to be confidential?---Yes.
PN851
Now, then Mr Sands gave his version of what happened the previous day?---Yes.
PN852
That version was along the lines that you said to him after he challenged you, "Fucking arse", or "You're a fucking arse", and about the denials, that is the sort of version that Mr Sands gave?---Yes.
PN853
And Mr Ross was present?---Yes.
PN854
He took notes?---Yes.
**** CHRISTOPHER SYMONS XN MR WHITE
PN855
Then you were asked to give your version, right?---Yes.
PN856
And you said, "I said if I'd said anything it may have been oh, shit". That is what you told Mr Allen and Mr Silberer?---Yes.
PN857
That is different to what you told the Court today, isn't it?---Yes.
PN858
So that version of events that you gave to Mr Allen and Mr Silberer was incorrect?---I'm not sure.
PN859
You are not sure whether it is incorrect?---Well, - well, yes, no doubt it is.
PN860
No doubt it is because now you know you didn't say that?---Well, as I said, if I'd said anything - I don't quite remember what I said - but as I said, it wasn't directed at Neil. Whether I'd said it was, "Oh sit," or, "F" or whatever, nothing was directed at Neil.
PN861
Right. But I think one of the things you have accepted you may have said was, "Fucking arse"?---No.
PN862
Now you say you don't accept you may have said that?---No.
PN863
Do you recall saying earlier that you accept that it's possible you might have said that?---Oh, it's just the way you answered - asked that question as I didn't mean it that way. I may have said, "Fuck", as I said, but - or the, "Oh shit," that I first said, but I can't quite remember what I did say and it wasn't directed at Neil Sands.
PN864
Right, so Mr Symons, when I asked you earlier whether it was possible you said, "Fucking arse", and you said, "Yes", you are now saying that you didn't understand that question I asked you?---Yes.
**** CHRISTOPHER SYMONS XN MR WHITE
PN865
So you are now changing that answer that you gave earlier?---Yes.
PN866
I see. Now, so it could have been, "Oh shit," it could have been "Oh fuck," but it definitely wasn't "fucking arse"?---Yes.
PN867
Now, it was fairly clear there was a disagreement between you and Mr Sands, wasn't there?---Just a slight thing, yes.
PN868
No, I just - I am sorry, I accept that. It was clear there was a difference about whose version of events was correct?---No.
PN869
Mr Sands had said that you had said "fucking arse", you said, "Oh shit," so your versions were different, weren't they?---Yes.
PN870
Right. And there was then a discussion about witnesses, wasn't there?---Yes.
PN871
And you said, "Phil Dempster and Dave Zibolic were there"?---That's correct.
PN872
They are friends of yours?---Work mates.
PN873
Well, you have worked with them for a long time, haven't you?---Yes.
PN874
You know them both pretty well?---Yes.
PN875
And you speak to them each day, don't yo?---Oh, not all the time, but yes, I'd say so, yes.
**** CHRISTOPHER SYMONS XN MR WHITE
PN876
Well, you work in a close proximity to each other?---Yes.
PN877
And when Mr Sands had said - I am sorry, I withdraw that. Mr Zibolic was called up, wasn't he?---Yes.
PN878
I think your statement says Mr Dempster was called first. Mr Silberer will say that Mr Zibolic was called first. Do you recall?---I think it was Phil.
PN879
And he said he hadn't heard anything because he wears ear muffs and so forth?---Yes.
PN880
Right. Do you recall - and Mr Zibolic attended and he basically said he didn't hear much either?---That's correct.
PN881
And you suggested that Debbie Halverson was nearby?---Yes.
PN882
And so it was your suggestion that she got called up, wasn't it?---Yes.
PN883
She certainly hasn't been a volunteer in any of this, has she?---No.
PN884
And she gave, in front of you - - -?---Yes.
PN885
- - - her version of events, didn't she?---Yes.
PN886
And she said you had said the work "fuck"?---Yes.
PN887
And that was said fairly loudly?---Yes.
**** CHRISTOPHER SYMONS XN MR WHITE
PN888
Now, I take it from what you have told the Commission here today that that version of events may well have been correct?---Yes.
PN889
Now, you put to her that - I suggest you put to her that she didn't hear what you said at all?---No, I asked her - we were allowed to ask questions around the table and I said to Debbie that, "You heard me say fuck<" she said, "Yes." I said, "Did you hear any of the prior conversation that we had just moments prior, seconds prior," and she said, "No."
PN890
Did you say anything about your back being to her so she wouldn't have heard?---No.
PN891
And her version of events was inconsistent with yours, wasn't it?---Yes.
PN892
And you were a bit unhappy about that?---Well, I suppose so, yes.
PN893
In a way her version hadn't backed you up, had it?---Well, no.
PN894
No. Now, at the end of the meeting Mr Silberer said again about confidentiality, didn't he?---Yes, I think so.
PN895
And that comment wasn't just directed at Debbie Halverson, was it?---Oh, he - Mr Silberer more so looked at her while he was giving that policy out.
PN896
You never took it that the comment he made about confidentiality at the end of that meeting was in any sense limited to Debbie Halverson, did you?---No.
PN897
No. You well knew at that time that you were still bound by the confidentiality stricture that had been - well, instruction that had been given at the beginning of the meeting?---Yes.
**** CHRISTOPHER SYMONS XN MR WHITE
PN898
Right. And do you recall being asked if you understood about the confidentiality aspect?---Yes.
PN899
You said yes, didn't you?---Yes.
PN900
Now - - -?---But with some - like in the '92 agreement that we were back under I don't think it has a clause for confidentiality.
PN901
I am sorry, did you raise that at the time?---I think I did but I mean, I didn't seem to put it in my statement though.
PN902
That is not in your statement, Mr Symons. Perhaps you will tell the
PN903
Commission what you said about the 1992 agreement and confidentiality?---I just thought that it wasn't in the '92 agreement and that's what I naturally thought we were under.
PN904
All right, so you say now that you said to Mr Silberer, "We're under the 1992 agreement, there's no confidentiality"?---Well, in not so many words, yes.
PN905
What words did you use, do you say?---I just said that I didn't think there was that breach in the award, from memory at the time.
PN906
I see. Mr Symons, I suggest to you that you have just made that up?---No.
PN907
You have taken a fair bit of care in putting this statement together, haven't you?---Yes. It's just something that's just come back to me, you know. You just don't remember everything at the time and so - - -
**** CHRISTOPHER SYMONS XN MR WHITE
PN908
All right. So your version is that you raised the 1992 agreement, there is not confidentiality in that, what did Mr Silberer say in response to that?---I think Peter Allen answered the question, he said that there was some clause somewhere.
PN909
Some clause somewhere, did you ask him where that clause was?---No.
PN910
Have you looked at the 1992 agreement since this affair?---Yes.
PN911
Have you found anything that supports the argument you were raising?---No, I haven't found anything.
PN912
Mr Symons, I suggest to you at the end of that meeting as we agreed earlier, Mr Silberer made clear to you that it was confidential, he asked if you understood and you agreed with him?---Yes.
PN913
Right. So notwithstanding your debate and your view about the 1992 agreement you accepted in that meeting - - -?---Yes.
PN914
- - - that you were bound by confidentiality, didn't you?---Yes.
PN915
And you understood?---Yes.
PN916
Now - Commissioner, I note the time, I am of course in the Commission's hands. I am not going to finish quickly, but it is a matter for the Commission. I am not sure what sitting hours were fixed.
PN917
THE COMMISSIONER: Nor am I, quite honestly. If this is a convenient time we can adjourn on that note.
**** CHRISTOPHER SYMONS XN MR WHITE
PN918
MR PARRY: Yes, it will be a convenient time.
PN919
THE COMMISSIONER: Yes, okay. We will adjourn until 10 am tomorrow.
PN920
Mr Symons, I have to direct you not to discuss the evidence you have given or are going to give in these proceedings, with any other person during the break. The proceedings will adjourn until 10 am.
ADJOURNED UNTIL TUESDAY, 5 FEBRUARY 2002 [4.15pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
MFI #W1 DOCUMENT PN297
DAVID ZIBOLIC, SWORN PN417
EXAMINATION-IN-CHIEF BY MR WHITE PN417
EXHIBIT #W2 STATEMENT OF MR D ZIBOLIC PN426
WITNESS WITHDREW PN433
MR D. ZIBOLIC, ON FORMER OATH PN438
EXAMINATION-IN-CHIEF BY MR WHITE PN438
CROSS-EXAMINATION BY MR PARRY PN447
WITNESS WITHDREW PN518
PHILLIP DEMPSTER, AFFIRMED PN519
EXAMINATION-IN-CHIEF BY MR WHITE PN519
EXHIBIT #W3 COPY OF STATEMENT, MR P. DEMPSTER PN527
CROSS-EXAMINATION BY MR JOHNSON PN540
WITNESS WITHDREW PN642
FILI ASA, AFFIRMED PN651
EXAMINATION BY MR WHITE PN651
EXHIBIT #W4 STATEMENT OF FILI ASA TC
CROSS-EXAMINATION BY MR PARRY PN659
WITNESS WITHDREW PN713
CHRISTOPHER SYMONS, SWORN PN723
EXAMINATION-IN-CHIEF BY MR WHITE PN723
EXHIBIT #W5 STATEMENT OF C. SYMONS PN733
EXHIBIT #W1 PREVIOUSLY MARKED AS MFI W1 PN744
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