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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8211 9077 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER DANGERFIELD
C2003/1752
THE AUSTRALIAN WORKERS' UNION
and
ELECTROLUX HOME PRODUCTS PTY LIMITED
Application under section 170LW of the Act
for settlement of dispute re alleged
victimisation and discrimination of an
injured worker and failure of the company
to abide by dispute settlement
procedure C16
ADELAIDE
10.11 AM, MONDAY, 16 JUNE 2003
Continued from 12.6.03
PN327
THE COMMISSIONER: Right, yes, Mr Manuel?
PN328
MR MANUEL: Commissioner, perhaps if I could just deal with some general housekeeping before my learned friend proceeds with his case. You may recall the issue raised by my learned friend on the last occasion in respect of the various medical evidence and the complexities that that was going to add to this case. Upon a review and a discussion with my learned friend, Electrolux has formed the view that it is prepared to rely upon what it says is the poor conduct of Mr Delaine as opposed to trying to require the Commission to decide between competing medical opinions as to his impairment.
PN329
There is certainly dispute between the parties that he has an impairment. The dispute is not just perhaps the breadth of the impairment but also the consequences of that impairment on his ability to do the work. I think both my learned friend and I have agree that it would be a somewhat unfruitful exercise to try and wade through and ask the Commission to make a determination on his incapacity or his impairment and its consequences.
PN330
So what we have agreed upon, we will exclude all medical evidence other than the - and this is probably not strictly medical evidence, but other than the rehabilitation programs, the two that your Honour allowed in on the last occasion and also the prescribed medical certificates of Dr Grant which are also I think before you as a part of the respondent's first exhibit, which I think is E1.
PN331
So on that basis, we will not call any of the doctors for whom we put forward witness statements and we will not seek to tender those statements and I understand my learned friend will not seek to put forward any further medical evidence than what I have already outlined and that should, with any luck, simplify the matter somewhat.
PN332
THE COMMISSIONER: Yes, it is going to simplify proceedings considerably, yes, I think that is wise.
PN333
MR MANUEL: The other issues, my learned friend provided me with a statement from Mr Braithwaite on the previous occasion and I have had an opportunity to review that statement and I don't wish to cross-examine Mr Braithwaite upon it and so if my learned friend wishes to tender the document I will consent on that basis.
PN334
THE COMMISSIONER: Yes.
PN335
MR MANUEL: I think from that point of view on we might as well just proceed with the case as it falls.
PN336
THE COMMISSIONER: Yes. Thank you, Mr Manuel. Mr Grue?
PN337
MR GRUE: Commissioner, if I could just raise some issues also? We provided the Commission with a statement from Mr Karl Marple and a question was raised in relation to paragraph 10 of that statement and we can confirm that we agree that that is, in fact, hearsay, paragraph 10.
PN338
THE COMMISSIONER: So paragraph 10 comes out. Yes?
PN339
MR GRUE: We would also like to raise objections to two of the documents that the company has provided, that is document 17 and document 18. We say that both of those documents are hearsay and also irrelevant.
PN340
THE COMMISSIONER: Just before we do, should we deal with Mr Braithwaite's affidavit's, I've marked the affidavit to Mr Delaine as U6 and Mr Marple as U7. Is that where we are up to?
PN341
MR GRUE: Yes.
PN342
PN343
THE COMMISSIONER: Now, back to, what documents where those then, Mr Grue?
PN344
MR GRUE: Document 17 and 18, sir.
PN345
THE COMMISSIONER: 17 and 18 and you are saying in regard to those that - what?
PN346
MR GRUE: Those documents are both hearsay documents in that they should not be used for the truth of what is contained in them in terms of alleged offensive language.
PN347
MR MANUEL: Commissioner, I think I can resolve this.
PN348
THE COMMISSIONER: Yes.
PN349
MR MANUEL: We see some merit in my learned friend's objection, we don't press the inclusion of those two documents.
PN350
THE COMMISSIONER: So document 17 and 18 can be removed?
PN351
MR MANUEL: Yes, your Honour.
PN352
THE COMMISSIONER: Done. Anything further, Mr Grue?
PN353
MR GRUE: Yes, Commissioner, the Commissioner's directions was that we were to provide authorities that we would say are relevant to this matter. I have not advised my learned friend of this yet, but we would rely upon a Human Rights and Equal Opportunity Commission decision, it is Hill v Inghams Enterprises Pty Limited 1998, HREOC 30.
PN354
THE COMMISSIONER: And the applicant in that matter was Hill, was it?
PN355
MR GRUE: Yes.
PN356
THE COMMISSIONER: H-i-l-l v Inghams.
PN357
MR GRUE: Yes.
PN358
THE COMMISSIONER: 1998 HREOC 30.
PN359
MR GRUE: Yes.
PN360
THE COMMISSIONER: So you will be referring to that later?
PN361
MR GRUE: Yes, sir, in closing.
PN362
THE COMMISSIONER: Okay. There are two other issues if I could deal with before beginning my opening? The other day we indicated we would be tendering diary notes from Mr Marple and we have not at this stage provided copies to the Commission, but we seek to provide copies of those diary notes now.
PN363
MR MANUEL: What my learned friend seeks to provide, is he seeking to tender or - - -
PN364
MR GRUE: Seeking to tender, sir.
PN365
THE COMMISSIONER: Yes.
PN366
MR MANUEL: I don't object to - I'm not going to formally object to the document as a whole but I would note for the Commission's information that there are a number of matters in here which are hearsay and in fact two of them were deleted from Mr Marple's statement. Two of the specific issues about discussions he had with people on the line as to the supply of parts were specifically deleted. I would consent to the tender subject to the Commission being aware of those issues.
PN367
THE COMMISSIONER: Yes, I think that is fair enough. Right, on that basis then Mr Grue. So these are copies of - - -
PN368
MR GRUE: Copies of diary entries made by Mr Marple.
PN369
THE COMMISSIONER: They can go in as the one exhibit.
PN370
PN371
THE COMMISSIONER: This is admitted, subject to the qualification that Mr Manuel has put on it, U9. Yes?
PN372
MR GRUE: And lastly, Commissioner, arising from the statement provided to the Commission by the company of a Mr Quirk we would also seek to tender to the Commission notes of Mr Delaine that were provided to Mr Quirk.
PN373
THE COMMISSIONER: Now, when were these notes made and what is the context?
PN374
MR GRUE: They were made on 31 March and 1 April and they were provided to Mr Quirk prior to the giving of the second warning dated 1 April.
PN375
THE COMMISSIONER: Mr Manuel?
PN376
MR MANUEL: Before I could express a view, Commissioner, I need to call for the original.
PN377
THE COMMISSIONER: Do you have the original, Mr Grue?
PN378
MR GRUE: Yes, sir.
PN379
MR MANUEL: And I mean the original of the whole notes, sir, I have my doubts as to the authenticity of this document and I wish to review the whole document before I make a statement to the Commission.
PN380
THE COMMISSIONER: Now, these notes were simply notes that Mr Delaine made following the first warning and prior to the second warning and you are saying that he gave them to Mr Quirk at the time of the second warning?
PN381
MR GRUE: That is correct, sir.
PN382
THE COMMISSIONER: Yes and you have the original there?
PN383
MR GRUE: Yes.
PN384
MR MANUEL: Perhaps if I could start by looking at the originals of what my friend has and then I can make some comments? I would ask for permission for Mr Getgood to be excused for the moment, Commissioner, to make an inquiry of Mr Quirk as to these documents.
PN385
THE COMMISSIONER: Certainly.
PN386
MR MANUEL: Perhaps I could to save the Commission time, perhaps I could say I won't object to the tender of the documents on the basis that they are notes made by Mr Delaine, but describe them as nothing else. If that would be acceptable to my learned friend and the Commission.
PN387
MR GRUE: That is acceptable, Commissioner.
PN388
THE COMMISSIONER: So subject to confirmation from Mr Getgood we will receive them in as U10.
PN389
MR MANUEL: No, I'm happy to have them received in any event, Commissioner.
PN390
THE COMMISSIONER: Receive them as they are. All right, well, those notes then - now, you have got copies of those, have you, for the Commission?
PN391
MR MANUEL: I wonder if my learned friend could hand the originals to the Commission?
PN392
PN393
THE COMMISSIONER: Right, Mr Grue?
PN394
MR GRUE: Commissioner, on that basis, I would like to make an opening statement? Commissioner, AWU member, Mr Kevin Delaine suffered a work-related injury to his lower back in 1999 and a recurrence of this injury in October 2001. Mr Delaine was rehabilitated to the point where he was fit to work normal hours, normal 8 hours per day on continuing modified duties. In July 2002 Mr Delaine's doctor, Dr Grant, suggested to the company that as part of Mr Delaine's rehabilitation he should see a psychologist and the company arranged for him to have some sessions with a psychologist named Ms Astrid Usher.
PN395
Mr Delaine agreed to see Ms Usher and found his sessions with her useful for his anxiety. He was also at that time being prescribed medication to deal with his anxiety. In December 2002 the company arranged for Ms Usher to act as a mediator to address some concerns it had in relation to Mr Delaine. This medication involved Mr Delaine, the AWU shop steward, Mr Karl Marple, and the Australian Workers' Union organiser, Mr John Braithwaite and various company representatives.
PN396
The outcome of the mediation included, among other things, that the company drew up an individual work schedule for Mr Delaine. The work schedule included duties that he could perform within his certified restrictions. It incorporated regular rest breaks to allow him to deal with his back and anxiety problems. However, the work schedule also included production targets and it is essentially these production targets, the company's reaction to Mr Delaine's inability to meet these production targets as a consequence of his disabilities that is the subject of the dispute before you today.
PN397
Mr Delaine was monitored by a member of staff to see if he complied with the requirements of the work schedule. Mr Delaine at no stage met the production targets set by the work schedule. On Friday, 28 March the company issued Mr Delaine with a first warning for failing to meet the production requirements of the schedule. On that date he left work to see his treating doctor, Dr Grant, who gave him a prescribed medical certificate stating that he was unfit for work for the rest of that day and that he was then fit for the duties he was performing, however, he was only fit to perform them at his own pace.
PN398
He returned to work on Monday, 31 March 2003. He attended work as normal and the company sent him to see the company doctor, Dr Beaumont and based upon what Dr Beaumont told the company they determined to ignore the medical restrictions imposed on Mr Delaine by his treating doctor and instead required Mr Delaine to continue to comply with the productivity requirements of the work schedule. The following day, the Tuesday, 1 April, and being tempted, I won't make any comments about it being April Fool's Day that day, the company decided to give Mr Delaine a further warning for failing to keep to the production requirements of the work schedule.
PN399
Mr Delaine told the company that his doctor had said he was to work at his own pace and he also provided to the company at that time contemporaneous notes he had taken to explain any breaks he had had away from his particular work station. At this meeting the AWU shop steward, Mr Marple, requested that Mr Braithwaite be present as he was of the view that the issues required the involvement of the Australian Workers' Union organiser. This request was denied by the company. On 4 April, only a week after Mr Delaine being given his first warning the company gave a third and final warning in relation to his failure to meet the productivity requirements of the work schedule.
PN400
The outline that the union has filed and provided to the Commission sets out the union's position in terms of the issues that arise as a consequence of our notification of the dispute to the Commission. The union will call three witnesses, we will call Mr Kevin Delaine. Mr Delaine has worked for the company for about 7 years. He is a union member it is his treatment by the company that is the subject of the dispute. We will also call Mr Karl Marple, he is an experienced AWU shop steward who represented Mr Delaine with the three warnings were given and in relation to events leading up to those events also. We will also be tendering the statement of Mr John Braithwaite who is an experienced union organiser.
PN401
Commissioner, the company is a large company, it produces white goods and it is important to note that for the purposes of workers compensation it is a self-insured company. Other individuals who are relevant to this matter include the production supervisor, Mr Cimarosti, a Ms Phuong Trieu, I'm not sure if that is how you pronounce the name, but she is an industrial engineer who was involved in the drafting of the work schedule. Ms Tammy Tham, who is the occupational health and safety coordinator and the officer responsible for Mr Delaine's rehabilitation. Mr Jamie Getgood, human resources officer and most important of all the union would submit, the individual who made the decisions in relation to Mr Delaine's three warnings, Mr Quirk, the human resources manager.
PN402
The warnings themselves are written on a company pro forma and they set out - that pro forma sets out first of all the status of the warning, that is, whether it is a counselling, the first, second or third warning. The employee's details are set out. It provides space for information about previous warnings. It provides space to set out the nature of the problem that the warning is met to address. It provides a space to provide a summary of the actual warning itself and what the company requires the employee to do. It leaves a space for the employee to make comments and to make a commitment, if that is what occurs, and a space for the signatures of those present. That is essentially my opening, Commissioner, and we would seek at this stage to call Mr Delaine.
PN403
THE COMMISSION: State your full name please?---Kevin James Delaine.
PN404
Your address?---9 Albert Street, Croydon Park.
PN405
And your occupation?---Production worker.
PN406
MR GRUE: If I could ask the Commission to provide the witness with a copy of his witness statement? Mr Delaine, is that a copy of the statement you prepared for today's hearing?---Yes, yes.
PN407
Is it a true and accurate statement?---Yes, true.
PN408
Are there any changes that you would wish to make to that statement?---No.
PN409
Have you read the witness statement of Mr Jerry Quirk?---Yes, yes.
PN410
In Mr Quirk's statement he refers to two pages of notes that you gave him before you were issued the second warning. If the witness could be shown exhibit U10?---Yes, they're the ones.
PN411
So they are the pages you gave to him?---Yes.
PN412
Could you tell the Commissioner when you made those notes?---On the days that - yes, on - yes, Monday, 31st and Tuesday, 1 April.
PN413
At what time did you make those notes?---At the time that - that I'd, you know, it happened, that I was there, do you know what I mean, like - like on 1 April, 7 am, it was 7 am on the clock, so I wrote it, stuff like that, yes, do you know what I mean like.
**** KEVIN JAMES DELAINE XN MR GRUE
PN414
Thank you, Mr Delaine?---Yes.
PN415
PN416
MR MANUEL: It might be convenient to leave those with Mr Delaine at this stage. Mr Delaine, did you make any notes like this before this date?---Yes.
PN417
When did you start making these notes?---A fair while ago.
PN418
A week before, a month before?---A few weeks.
PN419
Were you making them because someone had told you it was a good idea?---No.
PN420
You just decided to make them yourself?---Yes.
PN421
Was there an event that occurred that caused you to start making these notes?---Yes. I was being like intimidated and that.
PN422
These are complete notes are they?---Yes. Like if I moved, I wrote it down.
PN423
Could you look at the first page which says:
PN424
7.08 went to see Karl.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN425
Do you see that?---Yes.
PN426
When did you come back?---7.13.
PN427
Did you have permission to go and see Karl?---Yes, I told my leading hand.
PN428
That leading hand gave you permission just to walk away from the job, did he?---Yes, because the situation is it is not going to stop the line, you know what I mean.
PN429
When did you go and see Dr Beaumont?---That was in between 7.13 and 8.45.
PN430
It is not noted there, is it?---Yes, it is.
PN431
Where?---Came back from Dr Beaumont.
PN432
Where does it say: went to see Dr Beaumont?---No, it's not noted there because I forgot but when I got back I put it down, 8.45 am.
PN433
These notes aren't complete, are they? I mean, that is one example where they are clearly not complete, isn't it?---Well, I forgot to put that in so I put it in when I got back.
PN434
You didn't put it in when you got back. You put in when you returned. You didn't put in when you went there, did you?---No.
PN435
The toilet at 8.46, when did you come back from that?---Probably a few minutes after but I haven't put it in.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN436
You went to see Karl - when you say "you went to see Karl", that is Mr Marple, is that correct?---Yes.
PN437
Who gave you permission to go and see Karl again?---The leading hand.
PN438
Who is the leading hand, at that time?---At that time, yes, because there has been three of them.
PN439
Well, who was the one at that time?---It was either TJ, Joey or - either TJ or Joey, I'm not sure which one.
PN440
Again when you went to see Karl you don't note when you came back, do you?---Yes, 7.13 am.
PN441
No, we have moved past there. At 1.30 it says:
PN442
Went to see Karl second time.
PN443
?---Hang on.
PN444
Then it does not say when you came back, does it?---Well, it has got here: 9.30 am went to see Karl.
PN445
When did you come back?---I never wrote it in.
PN446
You will not need to refer to those for the moment again, Mr Delaine. Now, am I to understand your position to be this. You are a good employee of Electrolux who is trying as hard as he can but that you are being picked on because of your medical condition, is that right?---Yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN447
You have a fairly lengthy history of getting warnings from your employer though, don't you?---I suppose so.
PN448
In fact many of those warnings are for exactly the same things that you are being warned about now, aren't they, such as absences from the line without permission?---Is that recently?
PN449
You just need to listen to the questions and answer what I am asking you. Perhaps if the witness could be shown exhibit E1.
PN450
THE COMMISSIONER: What would that be?
PN451
MR MANUEL: That is the first exhibit which is the book of documents, your Honour.
PN452
THE COMMISSIONER: It is actually C1.
PN453
MR MANUEL: My apologies.
PN454
THE COMMISSIONER: "C" for company.
PN455
MR MANUEL: I have a spare book but it has a rather disturbing notation that it is missing document 25 and 34. Perhaps if we work off the spare book and when I come to - - -
PN456
THE COMMISSIONER: I think if we could work off the spare book that would be useful. 25 and 34 you said - - -
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN457
MR MANUEL: Is missing apparently. Mr Delaine, you see that these documents are in plastic folders and you are welcome to take them out of the plastic folders as you need to. They are number with, I assume, a little yellow disk in the top right-hand corner?---Yes.
PN458
Could you go, in the first instance, to document 33. You have a couple of loose ones, a few rogue documents there, do you?---Pardon?
PN459
Do you have a few that are just wandering loose there?---Yes, this is 16, this is 40, going down to 59. What number are you up to?
PN460
33 which is a warning on Electrolux letterhead, Electrolux Washing Products counselling and formal warning sheet 27 March 2002 by the looks. Do you have that before you, Mr Delaine, the warning of 27 March 2002?---Yes, I have, yes.
PN461
It is a single page so you probably don't need to get it out of its folder but it specifically says:
PN462
Nature of problem. Abuse in defensive language towards others.
PN463
Do you recall this incident?---No.
PN464
You have not made any challenge to your recollection to any warnings other than the three which are currently before this Commission?---Yes, I have had warnings in the past, yes.
PN465
We are here today because your union, on your behalf, has challenged before the Commission three warnings given to you in March and early April this year, do you understand that?---Yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN466
Apart from those three warnings, you have not, whether yourself or via your union, filed any challenge against any warning that has been given to you, have you?---No.
PN467
Could you then look at - which is document 34 - that is another one dated 27 March 2002 and it says:
PN468
Kevin has been wandering around the factory away from the job frequent. Failed to communicate with team leader and then saying that you need to talk to your team leader when going to the toilet or first aid.
PN469
Do you recall receiving that warning?---Yes.
PN470
That was the second warning, wasn't it?---Yes.
PN471
You understand the process, except in unusual circumstances is, first, second - sorry, counselling, first warning, second warning, final warning then you face dismissal, don't you?---Yes.
PN472
Could you look at the next document, which is the one marked document 35 and dated 18 October 2002. Now, this is counselling and it relates to your leaving your medication - leaving your tablets - sorry, withdraw that. It relates to you not carrying your medication and having to go to the car-park during working hours to get your medication, does not it?---Yes.
PN473
Do you remember that warning?---Yes, because I - I kept forgetting that it was in the car. You know, I kept leaving it in the car.
PN474
This was not a once off incident then, this was not the first occasion on which you had left your medication in the car, was it?---I think it was twice.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN475
If you look at the next document, which is dated 22 November 2002 - sorry, do you have that?---No.
PN476
That is another counselling session and the counselling is about leaving your work station:
PN477
...on many occasions continues to be having a yarn and not doing his task. Does not advise his team leader.
PN478
Do you recall receiving that warning - sorry, that counselling?---Hang on I am still reading it, mate. Yes, I remember that.
PN479
You accept, don't you, the employer is entitled to expect you to be at your place of work during working hours, don't you?---Yes.
PN480
That was not what you were doing, was it? You were wandering off away from your work station without permission, weren't you?---Yes, to go to the toilet.
PN481
Well, no, you have not put anything down there about a defence as to going to the toilet. You were wandering away to talk to your friends elsewhere on the line, weren't you?---Well, people come, up, right and they - - -
PN482
I want you to answer the question. You were wandering away to talk to your friends on the line, weren't you?---To go to the toilet.
PN483
To talk to your friends or go to the toilet?---Go to the toilet.
PN484
All right, does that mean that your answer is now to my question?---About this?
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN485
Listen again. It is the case - - -?---Yes, no worries.
PN486
I want you - I don't wish to be unfair to you here, Mr Delaine, I want you to have an opportunity to answer this question, when you were wandering away from the line, one of the reasons you were doing that was to go and talk to your friends, wasn't it?---Yes, but most times it was to go to the toilet.
PN487
If you could go back - sorry, we are jumping around in time here, your Honour - if you could go back to document 24 and perhaps it may be quicker if I ask for all the documents up to 32 to be given to Mr Delaine.
PN488
THE COMMISSIONER: From 24 to 32?
PN489
MR MANUEL: Yes, Commissioner. Now, the first one you should have before you, Mr Delaine, is a counselling and formal warning sheet and the tick is in counselling and it is for 26 June 2000 and it relates to you being late for work on three occasions and says that the company requires you to attend work on time. Do you recall that warning?---Yes.
PN490
That is your signature down at the bottom left-hand corner?---Yes.
PN491
It makes a note that you acknowledge your poor performance and assured the person, I think that is Mr Cimarosti, that you would take corrective action, do you recall giving that undertaking to him?---Yes.
PN492
Then if you look at the next one, which is dated 11 September 2000 and it is a second warning and it says - - -?---Hang on, that is the one that is missing.
PN493
Look at the 24th, what is the date on the 24th - document 25, sorry. It should be dated 11 September 2000?---This is 13, this is 10.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN494
Okay. Do you have - just stop there, we know what is going on here. This is, as you quite rightly note, Commissioner, this is document 25 that is missing but I don't know whether the associate has given it to you, it should be 11 September 2000?---Yes, I should be looking at this one now.
PN495
Now, do you have that before you?---Okay, yes, no worries.
PN496
Now, this discusses - sorry, withdraw that. This is dated 11 September 2000 up the top?---Yes.
PN497
Then down the bottom left-hand corner is your signature?---Yes.
PN498
You signed that after the form had been filled in?---Yes, I did, yes.
PN499
It talks about you again - problems with you continuing to arrive late for work, is that right?---Yes.
PN500
You had been late for work on a number of occasions hadn't you, before that warning was issued?---Yes.
PN501
If you could move onto the next form which should be - this is the one that said 13 February 2001?---Yes.
PN502
This is a warning about smoking during working hours?---Yes.
PN503
Down the bottom left-hand corner is your signature?---Yes.
PN504
Basically this involved you leaving your position and going off and having a cigarette, didn't it?---Yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN505
That was during normal working hours, wasn't it?---Yes.
PN506
If you look at the next one, which should be 10 April 2001?---Yes, I have got it.
PN507
Now, this is just counselling. It says that there was a suspicion of smoking during working hours. Do you remember this being raised with you?---Yes, David Barnes, yes.
PN508
You had been smoking, hadn't you?---No.
PN509
All the other times you were caught you had been but on this occasion you weren't is that right?---No. He just thought I was.
PN510
Sorry, I missed that?---He thought I was smoking but I wasn't because of all the other times.
PN511
Because of all the other times. Smoking had occurred on a number of occasions, hadn't it?---Apparently just here - - -
PN512
No, you said, just a moment ago, in your own evidence, that the reason he thought you were smoking on that occasion was because of all the other times when you had been smoking?---This occasion here.
PN513
Mr Delaine, don't look at the document, answer my question. When you said, a few moments ago, it was because of all the other times, you were referring to the other times you had been smoking, weren't you?---Yes but probably one or two.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN514
Now, could you go over to document dated 15 July but has not got a year on it?---Yes, I have got it.
PN515
It talks about punctuality, that you were - as I understand this, and tell me if I have got this wrong, you were clocking on at 7 when you actually needed to be at your place of work at 7, is that right?---Yes. So were 20 other workers.
PN516
Perhaps but in terms of you, that was what the counselling was about, wasn't it?---Yes, because I just done what everyone else does.
PN517
Do you remember what year it was in?---I reckon this would be last year.
PN518
2002, you think?---Yes. I'm not sure.
PN519
I am not expecting you to have an exact recollection I just wondered if you knew. If you look at the next document which should be 6 August 2001 and it has got ticked counselling and first warning. Again it says:
PN520
Abuse of breaks particularly was smoking outside the break.
PN521
Now, you were given a warning once again for walking away from your work station during work hours to have a cigarette, weren't you?---Yes.
PN522
You signed that, did you, down the bottom left-hand corner?---Yes, I signed it.
PN523
Your explanation was you believed you were under stress due to financial problems, wasn't it?---Yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN524
Those financial problems were personal issues, weren't they?---Yes.
PN525
If you believe you were under stress as a consequence of work, you could have raised that at the time, couldn't you?---Yes. This is 2001.
PN526
Yes. I am just asking you?---Yes, no worries. You are going back a fair way.
PN527
Then could you look at the one 21 August 2001. Do you have that before you, Mr Delaine?---What date?
PN528
21 August 2001?---Yes, I have got it.
PN529
That is the second warning and this is again smoking - I will paraphrase - it is about smoking outside of your permitted breaks, isn't it?---Yes.
PN530
Once again you have left your work station in order to have a cigarette, haven't you?---Yes.
PN531
Now, you claim there, and I think it is just a spelling error, but down the bottom it says:
PN532
Kevin believes he was...
PN533
It says "misformed" I assume that means misinformed, that you had been mislead by someone, is that right?---Yes. There was something - you see, you are talking 2001, that's a fair way to go back, right. That is what I am trying to think about this one because - I really can't remember about this one. I remember - can't remember - - -
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN534
If you can't recall, that is what your answer should be?---Okay, can't recall.
PN535
Could you look at the next document which is around about the same time, 27 August 2001 and again this is another - in fact this is the final warning for smoking outside during working hours. Do you have a recollection of this warning?---Yes.
PN536
You knew that the next step, should you breach again, could well be dismissal, didn't you?---Yes.
PN537
Again the warning is for leaving your work station during work hours so that you could have a cigarette, wasn't it?---Can't remember.
PN538
Could you look at the next one, 19 November 2001. Should be a counselling form, then a tick to the far right, final warning?---Yes, I have got it.
PN539
It talks about you being spoken to on numerous occasions regarding attendance, punctuality and performance at work and being spoken to about being away from the line. Now, do you recall this warning?---No, I can't remember.
PN540
Now, as I understand it, you had an aggravation - you will not need to look at this - as I understand it you had an aggravation to a pre-existing injury some time in 2001, is that correct?---Yes.
PN541
You have been on various rehabilitation programs since then, is that right?---Yes.
PN542
There was organised a mediation session by Ms Usher who, as I understand, was a psychologist who was meeting with you, is that right?---Yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN543
Could you look at document 15, perhaps you might also give him 16 as well. Now, this was a meeting between yourself and Mr Cimarosti but there were other people present. There was Mr Marple, Mr Braithwaite and Ms Tham and I understand Ms Tham is an occ health and safety officer or employee of Electrolux, is that right?---Yes.
PN544
Now, Mr Marple and Mr Braithwaite were there supporting you, is that right?---Yes.
PN545
You will see that there are issued raised - in the second paragraph it says:
PN546
The issues raised were the amount of time Kevin spends away from his work site.
PN547
?---Yes.
PN548
Do you have the right document?---Yes, I have got it. This one was just underneath.
PN549
All right, I understand. You should have a thing called: Mediation Report?---Yes, I have got it.
PN550
The first line it says:
PN551
Tuesday, 3 December 2002...
PN552
In the first sentence?---Yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN553
The two issues that were raised were one, that you spend time away from your work site but from your perspective you felt you were under constant observation and therefore needed to take breaks because of your anxiety, is that right?---Yes.
PN554
As I understand it, this mediation was an opportunity for you to tell the company the problems you felt you - the pressures you felt you were being put under as a result of the rehabilitation program, is that right?---Yes, I'd been put under pressure for the last couple of years.
PN555
I am talking particularly about this mediation session. This was an opportunity for you to raise all those issues, wasn't it?---Yes.
PN556
Now, you came to an agreement, didn't you, as a result of that mediation session?---Yes.
PN557
It was agreed that you would take a break of 10 minutes every hour for stretching and the like?---Yes.
PN558
It was agreed that you, Mr Marple, Ms Tham and Phuong Trieu would look at a possible work situation for you away from supervision? You are welcome to look at the notes if it will assist you. On page 2 of those notes there is - if you look at the third paragraph it starts with:
PN559
It was agreed that Kevin and Karl Marple, his representative...
PN560
Etcetera?---Yes.
PN561
The second part of that is:
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN562
They would also identify what is an achievable rate for Kevin to produce in his normal work area.
PN563
You agree that that was what was agreed?---Yes.
PN564
Now, if you look further down that page it talks about:
PN565
5 December.
PN566
?---Yes.
PN567
And it reflects that an agreement had been reached with you about working in counter weights, where you would spend one hour each day?---Yes, yes.
PN568
There is also an agreement that Phuong would be responsible for monitoring your output?---Yes.
PN569
You knew that Phuong was going to be monitoring you, didn't you?---Yes, looking at me, not writing down things about me.
PN570
It also says here:
PN571
It was agreed that if Kevin fails to deliver the agreed quantity, which will be measured from time to time, the company would follow the normal counselling process.
PN572
You understood that?---Yes, yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN573
You knew that if you didn't meet the targets which you yourself had agreed that you faced counselling, didn't you?---Well, yes, it says it here.
PN574
Then, further on to that there is like a table on that report?---Yes, I - - -
PN575
And the table sets out, as I understand it, the times when you are meant to be working, what you are meant to be working on and when you are meant to be having a break, don't they?---Yes.
PN576
They were the times that were agreed, weren't they?---Yes, yes.
PN577
Now, if you could look at the next document, which is document 16. It is also headed: Mediation Report, but it is of 25 February 2003?---Yes.
PN578
That was a meeting, again, to review the goals that had been set on the previous mediation, wasn't it?---Yes.
PN579
Again, you were represented by Mr Marple?---Yes.
PN580
There were various company officers present?---Yes, yes.
PN581
Now, Mr Cimarosti brought forward what is described here as an, "observational sheet", prepared by Phuong, is that right?---Yes.
PN582
Did you get to see that document?---Yes, yes.
PN583
It basically was a list, wasn't it, of various times and what you were and weren't doing, wasn't it?---Yes, yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN584
Sorry, Mr Delaine - - - ?---What?
PN585
That was a list of what Phuong says you were doing during any particular day, wasn't it?---Yes.
PN586
Yes. You knew at that point of time that Phuong was keeping a written list of what you were doing, didn't you?---Yes, but it just made me so paranoid and stressed out that they were watching me, you know what I mean, like - like, I basically couldn't fart in the place.
PN587
But if you look on the second page, at the top of the second page - you might want to take it out of the jacket, I think Mr Delaine, it might be a bit easier for you - if you look at the top of the second page, it says - and I won't pronounce her name correctly, so I will just call her "Phuong"?---Yes.
PN588
Yes:
PN589
Phuong will continue to monitor Kevin's outputs.
PN590
Now, you knew that she was going to continue to do that, didn't you?---Yes.
PN591
In fact, you signed the document, didn't you?---Yes.
PN592
You knew at that time that the way she monitored you was to fill out a sheet, or to fill out a document tracking what you did, didn't she?---Yes, but it was getting me stressed out, you know what I mean?
PN593
Did you raise that in this interview? Sorry, did you raise that in this mediation to your recollection?---No, no.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN594
If you can go back to the first page, you say - well, what is put here is, you wanted to begin a work hardening program, is that right?---Yes.
PN595
What were you work hardening for, what, to go back on to the line or - - - ?---Well, my doctor suggested it, you know like, maybe two hours a day normal duties and you know like - you know - - -
PN596
Right, but when you say, "normal duties", do you mean part of the production line, or still off the line?---No, not on the line, no, off line.
PN597
Right?---Off line.
PN598
The normal work practice was defined at the meeting as being:
PN599
In attendance at the work station and achieving set targets for two hours without taking any breaks, or to perform stretching exercises.
PN600
?---Yes.
PN601
That was the deal, wasn't it?---Yes, that was the deal, yes.
PN602
That is what you agreed to with Electrolux?---Yes, yes.
PN603
You knew from the previous meeting that if you didn't meet your agreement - - - ?---Yes.
PN604
- - - you would face disciplinary action, didn't you?---I didn't really understand that because I didn't - like, really read it kind of thing, like - - -
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN605
Well, is that your signature?---Yes, I know. I know that's my signature but I didn't really - I didn't understand that I - like, I was going to end up, like, you know, warnings and that, you know.
PN606
You were represented at that meeting, weren't you?---Yes, yes, I was.
PN607
Did you ask Mr Marple to explain anything to you about it?---I can't remember.
PN608
But you knew from previous warnings that you weren't allowed just to walk off your work station, didn't you?---Well, I had good reason to walk off.
PN609
No, but you knew - - - ?---Yes, I knew, I knew but - - -
PN610
- - - from the company's point of view - - - ?---- - - but I couldn't help it.
PN611
When you say: you couldn't help it, you have never brought in a medical certificate saying that, have you?---No, but I've got anxiety and depression and I'm on - I'm on medication for it.
PN612
So how is Electrolux meant to know - - - ?---Yes.
PN613
- - - that you are walking off the line because of your anxiety? Is it just to take your word for it, is it?---No, I've told them. I've told them.
PN614
Yes, that is what I'm saying. It is just - when you say you are anxious and you walk off - - - ?---Of course, yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN615
That is why?---Yes. Because when you get anxiety and depression - I don't know if you've ever had it - but it's not very nice.
PN616
I can understand that, Mr Delaine. Now, let's see, after the February meeting, you continued to leave your work station, didn't you, during work hours?---I can't remember.
PN617
Well, as I understand it, you haven't denied that you have left your work station, but what you say is because: I was anxious and feeling stressed - - - ?---Yes.
PN618
- - - that is why I walked away, is that correct?---Yes, yes.
PN619
You continued to leave your work station, even though you knew you were being actively monitored by the employer, didn't you?---Yes, because I just couldn't help it.
PN620
Now, you were eventually - - - ?---Do you mind if we have a break? Is that all right?
PN621
Well, I am personally in your hands.
PN622
THE COMMISSIONER: Sorry?---Do you mind if we could just have a break?
PN623
Would you like a short break?---Yes, yes, is that okay?
PN624
MR MANUEL: I have no objections for this.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN625
THE COMMISSIONER: A 5-minute adjournment?---Yes, yes, no worries.
SHORT ADJOURNMENT [11.08am]
RESUMED [11.15am]
PN626
MR MANUEL: Thank you, Commissioner. I wonder if the witness could be shown document 37 please? Now, Mr Delaine, this is dated 28 March 2003 and it is the first warning which, in effect, is before this Commission. This is the warning you received - the first warning you received after the second mediation session. Do you remember this one?---Yes.
PN627
Was Mr Marple with you at this time?---Yes.
PN628
You agree, don't you, that immediately before this warning you had been leaving your work station?---Can you repeat that?
PN629
You had immediately before this warning - so let's say in the two weeks before this warning - - - ?---Yes.
PN630
- - - you had been leaving your work station, had not you?---Yes, for breaks, yes.
PN631
Well, you had also been leaving at times that you weren't authorised to leave, had not you?---I can't remember that.
PN632
You have no recollection of that?---I've got - I've got times of when I - I left the station two weeks ago.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN633
Well, I mean, for instance, you say that you had seen the notes of Phuong in this matter. I wonder whether the witness could be shown document 21. It should be 26 February. I'm very sorry about this, Commissioner. Do you recognise this document, Mr Delaine? Sorry, Mr Delaine, what is the book of documents you are looking at there?---They are a revised timetable, work hardening.
PN634
No, what is the documents in front of you where your left hand is. Are they your documents?---No, yes, they're affidavits.
PN635
All right, I would ask if you might hand them to the Commissioner's associate, you shouldn't be referring to those?---Yes.
PN636
No, I'm talking about the one in the blue folder there?---Yes. No, I just wanted to get out the - because I've got a copy of - like - - -
PN637
What, you have had a copies of these?---Well, I had something - something like this, a schedule.
PN638
Well, this is in the period of about a month before the first warning we are talking about and if I could take you for instance to Wednesday - no, as an example - Thursday 6 March, which is on the first page about half way down?---Yes, yes.
PN639
It notes for:
PN640
7.10 am and 7.20 am.
PN641
That you are not at your work station?---Yes, yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN642
Now, that wouldn't be a normal break period, would it?---No, it wouldn't.
PN643
Then:
PN644
At 9.35, not at work station. 9.50, 9.55, 11.13, not at work station.
PN645
Again, none of those are ordinary break times, are they?---No.
PN646
Then, if you just go back to 28 February 2003:
PN647
8.40. At work station but not working. Leaning on bench talking to another operator.
PN648
Again, what is being said there is if you are at your work station during work hours you should be doing your job, isn't it?---Yes.
PN649
Then if you look over the page at for instance Thursday 13 March:
PN650
10.50 am, not at work station.
PN651
Then the next day:
PN652
7.15 am, not at work station.
PN653
Then, further down:
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN654
At 9.10 am, not at work station.
PN655
Then:
PN656
At 9.35 am, Kevin at work station writing notes.
PN657
And:
PN658
12.32 pm, not at work station.
PN659
And:
PN660
12.43 not at work station.
PN661
But you say you have hurt your back. Now, none of those are in accordance with the scheduled breaks that you would agreed at mediation, are they?---No, no.
PN662
Now, there is also queries, isn't there, about production levels as well, isn't there, that you are not making enough of the parts?---Yes, yes.
PN663
Now, the levels for the building of parts were those agreed between you and the company, weren't they?---Yes.
PN664
At any time did you approach the company and ask them to have another mediation, for instance, to review the build rates?---Yes, well, we did have a second one - - -
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN665
Yes, but at the second one you had agreed on what was appropriate. After that did you approach the company and ask to change it?---Well, I do remember - I do remember telling them that because - I do remember telling them that I can't keep up to the schedule.
PN666
Was there any formal approach made by your union to change the schedule?---I can't remember.
PN667
Now, could the Mr Delaine please be shown document 40, which is a prescribed medical certificate of Dr M.K. Grant. Mr Delaine, this is a prescribed medical certificate, dated 18 March 2003. Do you remember receiving this from Dr Grant?---Yes.
PN668
I'm not quite sure of the second word, but it says about half way down:
PN669
In my opinion, the worker is fit to return to modified other duties.
PN670
And it says:
PN671
With the following restrictions.
PN672
?---I can't - I can't read anything on here.
PN673
I have probably had a little more practice than you?---Yes.
PN674
I'm not sure of the second word, but it appears to be:
PN675
Continued modified duties.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN676
?---Yes.
PN677
Do you recall if that is what Dr Grant told you?---Continue present modified duties, yes.
PN678
Is that what it says, you are probably right:
PN679
Continue present modified duties.
PN680
Now, those modified duties were the ones referred to at the last mediation, weren't they?---I don't know. I'm still trying to read it.
PN681
Yes, well, accept that it is:
PN682
Continue present modified duties.
PN683
?---Yes.
PN684
I think you are right. Those "modified duties" being referred to are the modified duties that you had agreed at the second mediation, aren't they?---Yes.
PN685
Now, if you could also go to document 41, which is another prescribed medical certificate?---Thanks.
PN686
Now, I think the doctor has stated impairment has changed, in the sense that he says:
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN687
Disc prolapse -
PN688
in other words, your back injury -
PN689
and depression/anxiety.
PN690
Is that right?---I can't - I can't read it.
PN691
Well, you can take my word for that?---Yes, okay, no worries.
PN692
Do you recall that that is what he said to you at this consultation that you had?---Yes, yes.
PN693
That consultation, was it the same day that you received the warning, or the day after?---Is the same - the same date the 28th?
PN694
You went to see him as a consequence of the warning being issued, did you?---Well, I went to see him because that day, that was on the Friday, wasn't it?
PN695
I'm not sure, Mr Delaine?---Yes, it would, it was on the 28th. I went to see him because the pressure was building up in my head. I had anxiety. I just started losing it so I just like had to get out of the - had to get out of the place. I was going to come back to work, but my doctor refused to let me come back to work. He said: you can't go back in that state.
PN696
But he has let you come back to work, has not he? This medical certificate certifies you fit to return for modified duties?---Yes, on the Monday, but on the Friday I was going to come back.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN697
I see what you are saying?---Yes, I was going to come - - -
PN698
So for the 28th of March - - - ?---Yes.
PN699
- - - for the rest of the day, however long that was?---Yes.
PN700
You were certified unfit?---Yes.
PN701
But you were fit to return on modified duties thereafter, is that right?---Yes, yes, because I - I wanted to come back, and he said: you're in no state to do that.
PN702
Now, this talks about: working at your own pace, is that right?---Yes.
PN703
Am I to understand your interpretation of that phrase to be: work when you want and how much you want?---No, it isn't. No, it isn't.
PN704
Then what do you think it means to you?---What my capacity is, what I can - you know, what my body can do.
PN705
What you can physically do, or are you talking about your mental situation as well?---Yes, well, physically do - yes, what I physically can do, you know I mean like a person can only do what they can do. It's like trying to get blood out of a stone, you know what I mean, you can only do what I can - you know what I mean, like, I tried, you know what I mean?
PN706
So what you are saying is that you would try as hard as you could - - - ?---Yes, yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN707
- - - within your limitations?---Yes, yes, like that.
PN708
That certificate does not authorise you to leave your work station on unauthorised breaks, does it?---No, but it goes back to what I just said - - -
PN709
No, I just want you to confine yourself to the question please. It also does not authorise you to use your mobile phone outside of authorised breaks, does it?---No.
PN710
That is what you did though, isn't it?---I can't remember.
PN711
Well, you do remember leaving your work station on unauthorised breaks, don't you?---Yes, that would probably be to go to the toilet.
PN712
Well, go to the toilet may not be unauthorised. I'm talking about walking away to go and talk to other people elsewhere on the line?---Yes.
PN713
You did that, didn't you?---I can't remember.
PN714
You are certainly not permitted to go and have a smoke break outside of ordinary breaks, are you?---No, no, it's not the company's policy.
PN715
My reading of those medical certificates is that nothing changed physically for you in terms of your back injury, but it was your anxiety that was the limiting factor, is that right?---It was both.
PN716
Well, had your back condition deteriorated?---Well, because of my back and my anxiety and my depression.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN717
Yes, what I'm trying to say to you is this, and I know sometimes these things can be difficult to split out?---Yes.
PN718
But in terms of your back, had there been any physical deterioration in your physical capacity to do work?---Yes, I was getting sore, like, certain movements that I was doing at the station, I was getting shooting pains and that.
PN719
And they were worse than previously?---It depends on the day, like, one day it could be all right, the next day, you know what I mean, like, it varied.
PN720
Now, if the witness could be shown documents 38 and 39, these Mr Delaine, are the second and third warnings that you received. Do you accept that in respect of your performance you had not met the targets of production that had been agreed at the mediation?---Well, I - sorry, could you say it again, I'm sorry?
PN721
Yes, do you accept - - - ?---Yes.
PN722
- - - at the time of the second and third warning that you had not met the production targets agreed by you at the mediation?---Yes, yes.
PN723
The reason, as I understand for that is the certificate of Dr Grant, it was your view that that somehow cancelled out the production targets, is that right?---Yes, because I couldn't keep up with the - I couldn't keep up with the - whatever you call them, targets, you know.
PN724
But in actual fact when you were discussing these matters with Electrolux officers your response was fairly bluntly: I don't have to meet your targets, I only have to work at my own pace, wasn't it?---No, I didn't say that.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN725
Your view expressed to them was that Dr Grant had authorised you to do what you wanted to do?---No, he didn't authorise me to do what I want to do. He - to work at own pace but to do your best.
PN726
And you claim that you have done your best, is that right?---Yes, yes, like there's people at work that do less than me.
PN727
Well, in the first warning for instance there was reference to you doing under 50 per cent of the agreed rates?---Yes.
PN728
Are you saying that your medical condition had deteriorated to such an extent that what you'd agreed in February was no longer possible for you in March?---I've never got to the target.
PN729
No. What I'm asking you is you agreed to a target in February didn't you?---Yes, yes, yes.
PN730
You knew that the expectation was you would meet the target you had agreed, didn't you?---Yes, because I thought I could do it and I was willing to give it a go but I couldn't reach it so - and then I couldn't reach it again.
PN731
Well, in actual fact what this notes, apart from the fact that you declined to sign the first warning, is that you wouldn't make any comment about the matters that were raised, is that right?---No.
PN732
This is the first warning of 28 March 2003?---Yes, yes.
PN733
You didn't tell Electrolux at that meeting anything did you?---I'd - no.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN734
Now, at the second warning which was on 1 April the company basically put to you that you were malingering didn't they?---When was that?
PN735
Do you know what "malingering" means?---No, not really.
PN736
Being intentionally lazy for want of a better description?---No, I'm not.
PN737
No, I'm not saying that you agree that you were. I'm saying that that was what was put to you by the company?---Okay.
PN738
Did you understand that is what they were telling you?---When did they tell me that?
PN739
This is on 1 April. If you look at the warning of 1 April?---Yes, yes.
PN740
And it talks about in the second block of writing it says:
PN741
Kevin must cease malingering and endeavour to perform his work effectively.
PN742
Do you recall that?---Yes.
PN743
Again you didn't say anything to Electrolux at that meeting did you? Mr Delaine?---Yes, yes, yes, I'm just thinking. I'm just thinking. No, I didn't.
PN744
And on the final warning which was 4 April, do you have - sorry, you have got that one before you, Mr Delaine, 4 April?---No, no.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN745
Sorry, it is document 39?---I've got the 4th of the 4th.
PN746
THE COMMISSIONER: That is the one, 4.4.03.
PN747
MR MANUEL: 4th of the 4th, yes, thank you, your Honour, and if you look at that it is the same type of warning for not meeting your performance and rates. In other words, you must follow the agreed work schedule which included when you were to have breaks and perform work at the agreed work rate which was how many units of a particular product you were to make. Now, you didn't say anything to Electrolux at that meeting either did you?---No.
PN748
And neither did your representative Mr Marple did he?---No.
PN749
And in fact when Mr Quirk approached you to attend a meeting, you refused to talk to him didn't you?---Yes, because I wanted to - I said go and see Karl.
PN750
You understand that Mr Quirk is the Human Resources Manager don't you?---Yes, I understand that, yes.
PN751
And you know that you have to comply with lawful directions don't you?---Yes, but I just - yes, I do, I understand that, yes, yes. Yes, I wasn't being disrespectful.
PN752
Well, he asked you a question and you refused to answer him didn't you?---No, because I wanted to - I wanted him to go to see Karl first.
PN753
Yes, but he asked you a question and you didn't answer him did you? You refused to talk to him?---Yes, yes, yes, yes.
**** KEVIN JAMES DELAINE XXN MR MANUEL
PN754
And that is insolent isn't it? It is rude?---I just didn't want to answer. I wasn't trying to be rude to him.
PN755
Excuse me for one moment please, Commissioner. May it please the Commission, I have no further questions.
PN756
PN757
MR GRUE: Mr Delaine, in terms of the work schedule and the development of that work schedule, who was involved in developing that schedule?---Me, Karl, Tammy I think and Phuong.
PN758
Were any medical practitioners involved?---No.
PN759
Thank you, Mr Delaine. No further questions, Commissioner.
PN760
PN761
MR GRUE: Based on what my friend has just told me, we would just seek to tender the statements of Mr Marple and Mr Braithwaite and that would conclude the evidence on behalf of the union, Commissioner.
PN762
THE COMMISSIONER: Yes. Now, we have Mr Marple's statement. That has been put in as exhibit U7 and we put in this morning didn't we Mr Braithwaite's statement as U8 is it? Mr Manuel, are you wanting to cross-examine Mr Marple?
PN763
MR MANUEL: No, thank you, Commissioner. I've changed my view after seeing the applicant's evidence.
PN764
THE COMMISSIONER: So cross-examination of Mr Marple or Mr Braithwaite?
PN765
MR MANUEL: No, that is correct, sir.
PN766
THE COMMISSIONER: So that concludes the union's case?
PN767
MR GRUE: Yes, sir.
PN768
THE COMMISSIONER: Right. Mr Manuel, over to you.
PN769
MR MANUEL: Commissioner, perhaps instead of opening in any detail I think the issues are fairly joined in our outlines. There will obviously need to be some care with all of the statements based upon our agreement this morning about the medical evidence. I think you will find for instance Mr Quirk refers to a range of doctors' statements. I don't see any difficulty with him referring to them in the sense that he had them but in the sense of putting them in as evidence as to what the truth of them, I think we need just be a little careful. What I would seek to do is based on my learned friend's intimations, I would seek to tender a range of statements perhaps and the first one would be the statement of Ms Phuong Trieu who is an industrial engineer at Electrolux.
PN770
THE COMMISSIONER: And that is at number 4?
PN771
PN772
MR MANUEL: Then the statement at tab 7 which is Suzie Antoniou who is also an industrial engineer at Electrolux.
PN773
THE COMMISSIONER: Suzie Antoniou?
PN774
MR MANUEL: Yes.
PN775
THE COMMISSIONER: The statement becomes exhibit U3. If there are any - - -
PN776
MR MANUEL: No, it is C3, sir.
PN777
THE COMMISSIONER: C3, I'm sorry. If there are any objections, Mr Grue, to any of this you will stand up?
PN778
PN779
PN780
MR GRUE: Commissioner, there will be an objection from the union on a number of parts of Mr Getgood's statement.
PN781
MR MANUEL: Perhaps we should, if it is - - -
PN782
THE COMMISSIONER: Deal with that now?
PN783
MR MANUEL: - - - possible, deal with it now, yes.
PN784
THE COMMISSIONER: Yes. Would it be appropriate for Mr Getgood to leave the - - -
PN785
MR GRUE: I don't think it is that important.
PN786
MR MANUEL: He is not required for cross-examination as I understand it from my learned friend so it shouldn't - - -
PN787
MR GRUE: No, that is correct.
PN788
THE COMMISSIONER: Okay, yes. Mr Grue?
PN789
MR GRUE: Paragraphs 26, 27, 28, 29 and 30 we object to because they are hearsay.
PN790
THE COMMISSIONER: 26 to 30 inclusive?
PN791
MR MANUEL: Yes, we agree with that.
PN792
THE COMMISSIONER: You agree?
PN793
MR MANUEL: Yes.
PN794
THE COMMISSIONER: So we delete 26 to 30 inclusive of the statement of Mr Getgood. On that basis it is received as exhibit C4.
PN795
MR MANUEL: In respect of the other witnesses I might tender their statements through them because as I understand the other three witnesses, Ms Tam, Mr Cimarosti and Mr Quirk are required for cross-examination. So on that basis I will tender the statements as we go if it were to please the Commission.
PN796
THE COMMISSIONER: Yes.
PN797
MR MANUEL: I would therefore seek to call Mr Quirk at this stage.
PN798
PN799
THE COMMISSION: Take a seat and state your full name please?---Gerald Francis Quirk.
PN800
And your address?---25 Caulfield Avenue, Cumberland Park.
PN801
And your occupation?---Human resources manager.
PN802
MR MANUEL: Could Mr Quirk be provided with a copy of his statement? It should be at number 3 I think?---Thank you.
PN803
Mr Quirk, you have prepared a statement for the purpose of these proceedings?---I have.
PN804
Could you satisfy yourself that the document you have before you is that statement?---It looks like the one.
PN805
And is that the evidence you would give in this matter?---Yes, that is. That's the document.
PN806
Yes, sorry, Mr Quirk. Yes, I would tender the document, Commissioner.
PN807
MR GRUE: Commissioner, there are a number of paragraphs that the union would object to.
PN808
MR MANUEL: Does Mr Quirk need to be out for this?
PN809
MR GRUE: I don't think it is necessary.
**** GERALD FRANCIS QUIRK XN MR MANUEL
PN810
MR MANUEL: Right.
PN811
MR GRUE: Paragraph 21.
PN812
MR MANUEL: Yes, I agree.
PN813
MR GRUE: Paragraph 84.
PN814
THE COMMISSIONER: 21 is out?
PN815
MR MANUEL: Yes.
PN816
THE COMMISSIONER: The next one is 84 did you say?
PN817
MR GRUE: Yes, sir.
PN818
MR MANUEL: Although I understand the basis of my learned friend's objection, I would suggest it needs to go in for the chronological order of what Mr Quirk has done. I would agree that it can't go in for the truth of what Mr Cimarosti has said but I would suggest it should remain on a non-hearsay basis.
PN819
THE COMMISSIONER: Is that agreed, Mr Grue?
PN820
MR GRUE: Commissioner, there is a particular part of 84 that we would say should be excluded and it is that part that goes from the word "work schedule" to the word "who."
**** GERALD FRANCIS QUIRK XN MR MANUEL
PN821
MR MANUEL: Could I make a suggestion that might meet my learned friend's needs? If it was to read, subject to Mr Quirk agreeing that this is correct:
PN822
On 1 April 2000 Cimarosti and I had a telephone discussion.
PN823
Because I think it is reasonable to assume it was about Mr Delaine. I don't think there's any debate as to the topic.
PN824
THE COMMISSIONER: And then delete the rest?
PN825
MR MANUEL: And delete the rest of the sentence.
PN826
THE COMMISSIONER: You'd be happy with that, Mr Grue?
PN827
MR GRUE: Yes, Commissioner.
PN828
THE COMMISSIONER: Right, we will do that then to 84.
PN829
MR GRUE: And paragraph 91.
PN830
THE COMMISSIONER: Yes.
**** GERALD FRANCIS QUIRK XN MR MANUEL
PN831
MR MANUEL: Yes, I don't - there's no - insofar as it stands for the truth that Mr Delaine was aggressive to Ms Trieu, then clearly it can't fall within Mr Quick's[sic] statement. My recollection is that there is direct evidence in other statements of that matter and as the human resources manager making an assessment, he is entitled to say without being able to vouch for the truth of the statement the matters which he had regard to which were of concern to him. On that basis again I'm happy to acknowledge to my learned friend and to the Commission that that statement in Mr Quick's[sic] statement can not go in for the truth of the allegation but it does go in for the matters which Mr Quick[sic] was concerned about or that he had regard to.
PN832
MR GRUE: I'm satisfied with that, Commissioner.
PN833
THE COMMISSIONER: Yes. On that basis that remains in. Anything further there, Mr Grue?
PN834
MR GRUE: No, thank you, Commissioner.
PN835
MR MANUEL: And I will try and stop calling Mr Quirk "Mr Quick" at some stage in the near future.
PN836
PN837
MR MANUEL: Commissioner, I have nothing further to put to Mr Quirk.
PN838
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN839
MR GRUE: Mr Quirk, you are aware of the certified agreement that governs the dish-washing plant?---I am.
PN840
Are you aware of clause 3 of that agreement?---Look I would be but without it in front of me I couldn't quote it but, yes, I'm aware of it.
PN841
You are aware that that clause states that no one is to discriminate?---Yes, I am.
PN842
You know that the company has a policy on discrimination?---Yes, it has.
PN843
Commissioner, I would apologise. I don't think we've actually sought to tender these documents or they may have been tendered last week when we were first before you. I think they might have been tendered as U4 and U5, policy documents.
PN844
THE COMMISSIONER: U4 is a counselling and formal warning sheet dated 28 March 2003. U5 is a letter from WorkCover. Are they the ones?
PN845
MR GRUE: No, sir. I had thought that the union had tendered two documents on Electrolux policy documents.
PN846
THE COMMISSIONER: I have documents here. Now, I don't have numbers on them. I don't have official - I don't know whether these were the subject of any - I can't remember whether they were the subject of any issues between the parties but I do have in front of me headed up: Electrolux Home Products Pty Ltd Policy Equal Employment Opportunities. I have that document. I also have another document headed up: policy harassment policy.
PN847
MR GRUE: I would apologise for not officially tendering them earlier, sir. If the union could tender them now?
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN848
PN849
MR GRUE: Thank you, Commissioner. If the witness could be shown a copy of exhibit U11?---Thank you.
PN850
Mr Quirk, is this the company's policy on discrimination?---Yes, that's the equal opportunity - equal employment opportunity policy of the company, yes. Yes, it is.
PN851
If I could ask you to look at the second page of that document, that policy includes a reference to indirect discrimination does it not?---It does but if you could point me to it, then - - -
PN852
It is on the second page under the heading: indirect discrimination?---I - is this double sided?
PN853
Yes?---Okay, okay. Yes.
PN854
And do you understand what indirect discrimination is?---I think I do.
PN855
It is true to say that in relation to the first warning you were the decision maker. You directed Mr Getgood and Mr Cimarosti to give that first warning didn't you?---I didn't direct them to give it but the - when we had discussed the issues surrounding what led to the warning it was my view that that's what should occur and I wouldn't say it was a direction given but certainly it was implied that that's what I thought ought to happen.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN856
And at paragraph 50 of your statement you used the words "Delaine was not keeping up to his agreed work schedule"?---That's right.
PN857
And in saying that you meant he was not producing the required number of items, isn't that correct?---That's right but it I think would go further. The schedule had issues of quantities and types of work to be done, yes, and times when they were to be done and none of that was being observed.
PN858
And at 51 you say that there was significant disparity between the set targets and the actual performance of Delaine?---That's correct.
PN859
And there again you admit that the issue for the company was his failure to meet the set targets of the work schedule, is that correct?---The issue for the company was that and the schedule itself, yes, that's right.
PN860
So you admit that one at least of the company's concerns was his failure to meet the set targets?---That's correct.
PN861
Now, after the issuing of the first warning you were advised that Mr Delaine had got another certificate from his treating doctor, Dr Grant. You were aware of that weren't you?---Yes, I am.
PN862
You did not seek any further information from Dr Grant did you?---No, I didn't, no.
PN863
But instead of seeking information from Dr Grant in relation to the medical certificate, you sent Delaine to go and see the company doctor, Dr Beaumont, didn't you?---I asked for Paul Cimarosti to ask Mr Delaine to go to the doctor, yes, I did that.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN864
Because you were unhappy with Dr Grant's medical restrictions weren't you?---No, I was neither happy nor sad about them.
PN865
But you were unwilling to comply with them weren't you?---No, I simply wanted to get the company's doctor's view as to Mr Delaine's condition and that is why - as is normal practice, asked that Mr Delaine be asked to go to the company doctor. That is why I did that.
PN866
So you say that it is normal practice for the company to require a worker to attend to see the company doctor every time they attend with a prescribed medical certificate, is that correct?---That is the general practice, yes, in the company, yes.
PN867
Now, you are aware that Mr Delaine's injury, the recurrence of the injury, goes back to October 2001, are you not?---That is correct.
PN868
And you are aware for the whole of that period of time he has been attending work with prescribed medical certificates?---With a prescribed medical certificate, yes, I think, I don't know if there were many, I think there was probably one that started it off, yes.
PN869
Well, there would have been one that started it off but - - -?---That is right, that is right, yes.
PN870
That would have covered Mr Delaine for a period of time?---That is right, yes.
PN871
Whereupon he would have then gone and got another prescribed medical certificate?---That is right.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN872
Did the company require Mr Delaine to see Dr Beaumont in relation to any other than this prescribed medical certificate and the first medical certificate?---So if I understand the question, did we require Mr Delaine to see the doctor at other times outside of the prescribed medical certificates, if I understand that is the question. There most probably were review dates for Mr Delaine to see the company doctor and the occupational health professionals just to see ascertain how he was going and so on. Yes, there would have been a number of occasions I would have thought, that Mr Delaine would have seen the occ health professionals and the doctor.
PN873
You don't know for a fact?---I don't know for a fact, no.
PN874
Would you be surprised if the only time other than this time, that you requested that he go and see Dr Beaumont, the only other time that he had seen Dr Beaumont was when he initially - - -
PN875
MR MANUEL: Well, objection, this isn't in evidence. There is no foundation for this question. If anyone is going to give evidence about this, is Mr Delaine, it is not there.
PN876
THE COMMISSIONER: I will allow - I understand, but I will allow the question.
PN877
MR GRUE: So the question is, are you surprised or would you be surprised if the only other time Mr Delaine had seen Dr Beaumont, was when the initial recurrence of his injury occurred in 2001?---I would have thought there were - there were probably other times when Mr Delaine saw the doctor, that is what I would have thought. I know Mr Delaine had regular contact with the occ health professionals and I would imagine that doctor - the company doctor was kept in the loop as to how Mr Delaine was going. But to answer your question, yes, I think it would be - I would have thought they would have met.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN878
So the fact of it is though, that the reason you sent or requested that he be sent to Dr Beaumont is because you were unhappy or you wanted a second opinion on Dr Grant's medical certificate?---No, that - that is not true. What I didn't understand was that what had changed in Mr Delaine's condition between the time of the first prescribed medical certificate came, or the one that we saw earlier in February I think it was, until about three weeks later when there was a different one. I didn't have any knowledge of anything that had occurred with Mr Delaine, Mr Delaine's injury to lead that second one. So I wanted to confirm in my mind that there was no significant change in Mr Delaine's status in that time. That is really the reason I sent him or asked that he go to see the company doctor. There was no other reason other than that.
PN879
But you were aware that the doctor's certificate stated that he was now suffering anxiety, you were aware of that?---I was aware of that, I was aware of that.
PN880
And you were aware of the medical restriction placed on him that he work at his own pace?---I was aware of that.
PN881
Dr Beaumont has a service contract with Electrolux, does he not?---He does, yes.
PN882
And does that contract periodically renewed or reviewed?---It is reviewed yearly, on a yearly basis, yes.
PN883
And the company pays him for performing that contract, don't they?---Yes, we do, yes.
PN884
Now, did you speak to Dr Beaumont prior to Mr Delaine seeing him?---I may have, I certainly spoke to him afterwards, but I may have spoken to him before that as I do routinely.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN885
And did you provide Dr Beaumont with a copy of the work schedule?---I'm not sure whether - I probably didn't but the occ health professionals would have, I don't think I did because generally I don't have - have them in my possession.
PN886
And did Dr Beaumont tell you that the duties in the schedule were appropriate for Mr Delaine?---He did.
PN887
Did you ask him any specific questions about the pace at which Mr Delaine could work?---I don't think I asked him any specific questions but it was probably covered in general conversation, yes.
PN888
So did he raise or did he say anything in relation to the pace at which Mr Delaine should work?---I can't recall that he did, no.
PN889
So you are saying that he did say that the duties were appropriate?---Yes.
PN890
But anything beyond saying that the duties were appropriate, he gave you no further information?---I think that is an accurate statement, yes.
PN891
And if I could return to Dr Grant's certificate. Surely you understood from Dr Grant's certificate that it was not the type of duties that Mr Delaine that was performing that was the concern, is that correct?---I understood that, yes, that is right. I don't think Dr Grant had any problem with the - with what Mr Delaine was doing, no.
PN892
But you certainly understood that he had a problem with the pace at which Mr Delaine was being asked to perform those duties?---Well, he made the statement that he was to perform those duties at his own pace, yes. So I guess he was concerned.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN893
Now, you say in your statement - I'm sorry, Commissioner.
PN894
THE COMMISSIONER: Mr Quirk, what did you understand was meant by that term; at his own pace?---Well, on face value, Commissioner, I thought that - my understanding was it just meant that he could produce parts at whatever pace he felt was comfortable for him to perform them at, that is what I thought. My concern was if we can go to that, was that that would leave us in a situation where Mr Delaine could basically either produce minimal work or something above without any opportunity to - to really have any ownership of that from the company's point of view, if there is a problem.
PN895
Yes, I understand.
PN896
MR GRUE: Commissioner. So Mr Quirk, what you essentially wanted from Dr Grant - or something that would have satisfied you from Dr Grant, is some sort of indication of how many springs or trims of whatever it was that Mr Delaine was producing, how many of those he could produce per hour, is that correct?---Well, I - Dr Grant wouldn't have known, because he has never seen the workplace, just what that might mean, but - and so I suppose I was after something more general from Dr Grant than that. Well, I wasn't after anything from him really, but it would have been helpful for the company if there was - if we understood more clearly what Dr Grant's thoughts were.
PN897
In terms of the work schedule and the targets in that schedule, are you aware that those targets are developed based upon on a standard worker can produce?---I understood they were.
PN898
And are you saying that the work schedule was a requirement that Mr Delaine produced what a standard worker could produce?---The work - the work schedule was not only about parts produced, it was about break times, it was about order of work, it was about some structure in that workplace and yes, it is true to say that the actual - in agreeing to the number of parts produced that was related to what a standard operator would - would be able to achieve. But the work schedule was more than that.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN899
So in terms of just that limited requirement, the limited requirement to produce so many whatevers in a particular time frame. Now, - and you have agreed that that is based upon what a standard worker would produce?---Mm.
PN900
Do you think it is appropriate for an injured worker to have to produce at the same rate as a standard worker?---Depending on what the work was, but generally if it is - if it is a job like Mr Delaine was doing, no. But some - but I will make a point, some injured workers can work at the same rate as some non-injured, it just depends on the injury and the work they are doing and other things like that. In Mr Delaine's case, no, it was obviously to be a reduced outcome.
PN901
But there was no requirement that he produce at a reduced outcome, there was a requirement that he produce at 100 per cent of what a standard worker could produce?---No there wasn't in my understanding, no. I think the rate set to Mr Delaine was something less than and I have the figure of something like 80 per cent of the normal work rate in my head. Now, he certainly wasn't required in my understanding, to produce work at the 100 per cent efficiency of a normal worker. I think - I think that is in my mind, it was clear.
PN902
So you required him to work at 80 per cent of what a normal worker could produce?---If that what the agreed outcome was. I'm - I have this figure in my mind, I - whether it was - I couldn't swear that it was actually 80 per cent, but it was something less than a normal healthy operator would perform in the same time.
PN903
Have you reviewed the work schedule?---Yes, I've seen it.
PN904
If I could ask you to look at document 15? If I could take you to the second page and in terms of the quantity produced on the second and third page, that column, it does not indicate that he is required to produce 80 per cent of that rate is he - does it, sorry?---Well, no, I don't think it does, no.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN905
Are you aware of any documents that indicate that Mr Delaine was being required to perform anything other than 100 per cent of the rate in the work schedule?---I'm not aware of any document that says that, there may well be, but I'm not aware of it.
PN906
If I can take you to the issue of the second warning. Now, you understand that the certified agreement contains a dispute settling procedure?---That is correct.
PN907
And you are aware that as part of that dispute settling procedure, that if a union organisers presence is requested to be involve in meetings about the issue in dispute that they are entitled to have that union organiser present?---The - I don't think that is specifically stated in the clause in question but obviously recourse to some - some support during a counselling or warning is appropriate, yes.
PN908
It is true that the actual clause itself refers to the Metal Industry Award does it not?---That is right.
PN909
And that, the Metal Industry Award, refers to the ability for a shop steward or a worker who is in dispute with the company to request the presence of a union organiser?---Well, I'm not sure whether it says union organiser, it may well do. But certainly the point of having - having some union support is understood, yes.
PN910
And prior to issuing the second warning, Mr Marple requested a union organisers involvement in the meeting, didn't he?---He did.
PN911
And you denied that, didn't you?---I did. I didn't deny it but I said we should proceed and I would - I would be prepared to talk as I'm sure I would with Mr Braithwaite later, but yes, your point is made.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN912
In relation to your statement concerning the second warning, you admit at paragraph 88, do you not, that your concern was Delaine's poor work performance and productivity?---That is right.
PN913
So again your concern in relation to the issue and of this warning was productivity?---Certainly, certainly that was the concern, yes.
PN914
Now, you conducted the disciplinary meeting that resulted in the second warning being issued, didn't you?---I did.
PN915
Did you yourself write out the warning sheet?---I think I did, if I can see one I will - - -
PN916
If you could turn to page 39 of the book of documents that would - - -?---I'm quite sure I did. Yes, that is my writing.
PN917
And on that warning, in terms of the nature of the problem, you have said; failure to follow the agreed work schedule and also failure to achieve the agreed work rate?---That is right, which is part of the schedule.
PN918
And in terms of the summary the warning you have said there; that Kevin must follow the agreed work schedule and perform work at the agreed rate?---That is correct.
PN919
So you admit that the focus of the warning was on the rate at which Kevin was producing the trims or whatever?---Yes, the rate that had been agreed. That was what I was focussing on.
PN920
And the agreement was that he would reach a 100 per cent of what a standard worker without an injury could produce?---No, that is not my understanding. My understanding was that in terms of quantity produced, it was something less than the standard 100 per cent work rate. That is my understanding.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN921
In that warning on 4 April - actually, sorry, if I could - if the witness could be shown document 38. You state, your handwriting again on the warning dated 1 April 2003?---That is right, we have actually just been - sorry, to but in, I think we were talking about the third warning in that last - - -
PN922
Yes, sorry about that, Mr Quirk?--- - - - session but I understand that, the questions and answers remain the same.
PN923
And again, the focus of this warning is on his productivity?---That is correct.
PN924
And it relates back to the agreement that was reached on 6th of the 3rd 2003?---That is correct.
PN925
And you are saying that a requirement that the company had was that he increase his output to the levels agreed by him on the 6th of the 3rd '03?---That is correct.
PN926
In relation to that warning there is no reference to Mr Delaine leaving his work station is there?---Not in the warning as it is written, no.
PN927
Would you agree that if that was the primary concern of the company it would have appeared somewhere on that warning?---If it was the primary concern, it may, I mean there is comment about malingering and so on which is there because of the other - other problems, yes. It is not only about productivity; Kevin must cease malingering and endeavour to perform his work effectively, would indicate that there is other problems as well.
PN928
But would you agree that the primary focus of not only this warning but the third warning also, is on productivity?---No, not - I wouldn't, I think it is about the agreed work rate and that is the focus.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN929
The agreed work rate?---Mm.
PN930
Being the productivity?---Sorry, the agreed - sorry, pardon me, the agreed work schedule which is the rate, which is the time of breaks and the series of work to be done etcetera, etcetera.
PN931
Before giving - issuing the second warning, Mr Delaine provided you with two pieces of paper, two A5 pieces of paper, is that correct?---That is correct.
PN932
And those two A5 pieces of paper indicated how many breaks he had taken and when he had taken them and why, didn't it?---From my memory I would - just to go back a bit, during the middle of that - around about the middle of the discussion we were having, Mr Delaine - which is the time of breaks and the series of work to be done etcetera, etcetera.
PN933
Before issuing the second warning, Mr Delaine provided to you two pieces of paper, to A5 pieces of paper, is that correct?---That's correct.
PN934
Those two A5 pieces of paper indicated how many breaks he had taken, when he had taken them and why, didn't it?---From my memory - just to go back a bit, during the middle, around about the middle of the discussion we were having, Mr Delaine asked if he could go and get some notes that he had been taking and so he went and bought them back. I had a quick look at them and they did contain what I thought were details of when he was having breaks and when people were talking to him, etcetera, from my recollection, yes.
PN935
Know, besides providing you with these notes of when he had been taking breaks and for what reason, he also quite clearly told you that he had a doctor's certificate that meant that he couldn't be - that he should only work at his own pace, is that correct?---He did mention that, yes.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN936
So you have these pieces of information, a medical certificate and notes about when he had taken his breaks. Did you chose to ignore that?---Well, I read them and I made a judgment as to how important they were to the discussion I was having with Mr Delaine and in my view they didn't add anything to that discussion - to prevent that discussion taking place.
PN937
Nothing in the medical certificate or the notes provided made you rethink your decision to issue a warning?---No.
PN938
Did Mr Delaine ask you to raise the issues that you were raising with you with his union?---He did.
PN939
Did he even suggest that you should speak to the union's workers compensation officer Mr Chris Brown?---He did mention that, yes.
PN940
You didn't chose to do those things, did you?---I didn't no. Normally discussions with Mr Brown take place between our workers comp claims manager and the union. No, I didn't speak to him, no.
PN941
You understood that Mr Delaine was of the view it was inappropriate for you to be giving him a warning in these circumstances?---He thought so, yes.
PN942
Now, you say in your statement that you had viewed - I apologise for the how I pronounce this person's name - you had view Trieu's notes - you had viewed them at the time of issuing the second warning, is that correct?---Yes. I had a copy of Phuong Trieu's notes.
PN943
Can the witness be shown document 22. Were those notes observations in relation to Monday 31 March 2003 - did they include Monday 31 March?---They do.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN944
Tuesday, 1 April?---Yes, they do.
PN945
Do they then jump to 23 April?---Yes, they do.
PN946
You were aware that Mr Delaine had been given a warning on 1 April, weren't you?---Yes, I was.
PN947
What use did you, these observations that you have mentioned in your statement, what use did you - sorry, how did you use them in determining whether or not to issue Mr Delaine with a warning on 4 April?---Well, they supported the view of the production supervisory staff that Mr Delaine wasn't working to his agreed work schedule and they supported or confirmed that view to my mind.
PN948
Surely they support that view in relation to those two dates, 28 March and 1 April?---Yes, they do.
PN949
He has already been given a warning on 1 April, hasn't he?---That's right.
PN950
So in determining he was failing to keep to the work schedule, you used documents that related to periods of time before he was issued with his first warning?---The first warning, I think, was issued on 28 March and conversations following that warning - I think that is right - indicated there was a continuing lack of following the agreed work schedule which lead to the further warnings. So the work schedule was also agreed sometime earlier than that as well.
PN951
So you were punishing him for his failure to comply with the work schedule prior to the first warning?---No.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN952
Surely, the warning you were issuing at that time, related to his performance from the time at which the first warning was issued up until the time the second warning was issued?---That's right. The first warning, we can establish that, I think it was 28 March, wasn't it?
PN953
I think you are correct?---I think the lack of Mr Delaine's following of the agreed work schedule since that time lead to the subsequent second warning and subsequent to that his continuing refusal to work to the agreed work schedule lead to the third warning, that is as I understand it.
PN954
Now, the first warning was on 28 March, wasn't it?---Yes, I think so.
PN955
That was a Friday, wasn't it?---That was.
PN956
The second warning was issued on 1 April, wasn't it?---Yes, that's right, as I understand.
PN957
Was that a Monday?---I think it was - may have been a Tuesday. I am not sure.
PN958
THE COMMISSIONER: Tuesday it would have been, I think.
PN959
MR GRUE: Tuesday. So he leaves work on Friday 28. He works Monday, 31 March and then you issue a warning the following day, is that correct?---That's correct.
PN960
So you gave him 24 hours to improve his performance, did you?---Whatever, yes. It was a short time.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN961
Are you aware that Mr Delaine has never performed the rate required of him by the work schedule?---My understanding was that at times he did and at times he didn't. That is what I was lead to believe.
PN962
At paragraph 129, you state that the work schedule was agreed to by Mr Delaine, his union representative, the company and his doctor. When you say "his doctor" which doctor are you referring to?---I'm not sure that that is correct. The agreed schedule, from memory, was agreed to by Mr Delaine, Mr Braithwaite, Mr Marple, Tammy Tham, occ health coordinator and Astrid Usher. I am not sure that Mr Delaine's doctor was involved in that. Certainly wasn't involved in the discussion but I wouldn't think that he would've seen the schedule unless someone had spoken to him.
PN963
Are you of the view that it is appropriate to have developed such a schedule without any input from the treating doctor?---I think - I don't see any reason why it wasn't appropriate, no.
PN964
You would agree that the purpose of the work schedule is to maximise the productivity of this worker?---No. That is one of the aspects but the work schedule was part of a rehabilitation process with the worker and really had a long-term aim of enabling this person to become a productive member of the work team. It wasn't only about his performance at the time. This was a long-term view aiming to assist Mr Delaine to get back into the more mainstream production side of the dishwasher plant.
PN965
So it is fair to say that the work schedule represented a goal to be achieved?---That's right.
PN966
You would agree that the goals are different from requirements, wouldn't you?---It was an agreed outcome and yes, I would say that that undertaking - I understood by that undertaking Mr Delaine would achieve what was set out in the schedule. It wasn't a situation where we would creep up to a target over time. This was an agreed target, if you like, from day one.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN967
Is it appropriate for a person to agree to targets which they cannot achieve?---Whether it is appropriate or not it would be foolish for one to agree to a target that they knew they couldn't achieve, I would have thought.
PN968
If once they had failed to achieve those targets, is it reasonable to insist that they still reach them?---In the absence of any other significant event, yes, they - it is appropriate for them to seek to achieve the targets, yes.
PN969
I am interested in this concept you have about changes over time. Now, can you tell me what changes occurred that prompted the company to decide to issue the first warning?---What happened, I am not sure that any change occurred but as best as I can I will explain. There is an agreed work schedule. Agreed to by all the people I have mentioned previously. It is done so that Mr Delaine can continue, if you like, to work to become a more productive member of the work team and there seems to be a refusal to accept that agreed schedule that lead to the first warning.
PN970
If I can move on. At paragraph 131 of your statement you say:
PN971
The union did not have any constructive comments about the work schedule.
PN972
Did you ever seek any instructive input from the union?---I wasn't - I didn't personally, no, but the union were involved in the discussion that set the schedule and so I would imagine in that context they had every opportunity to constructively criticise the schedule, add their input or whatever. This was not done excluding the union or the health professionals.
PN973
What sort of constructive input would you have expected from the union between the issuing of the first warning and the second warning?---I would have thought if the union wished to they would have discussed the warning that had taken place and taken it up with me and any comments, constructive or otherwise, that they would want to make would have been made then. That is the normal way these things are done.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN974
Mr Quirk, in the statement of Mr Marple, he says:
PN975
On the Tuesday 1 April 2003 at 3 pm I attended a meeting with Quirk, Cimarosti and Delaine. Quirk said that the meeting was about Delaine's performance and that he had been running out of springs and foam blocks. Quirk said that Delaine's performance was substandard and he attempted to give him a second warning. Delaine and I refused to sign the warning. The meeting finished at 3.25. Quirk and Cimarosti said to me, does Kevin know where this process will go. I said, "Yes, he does", meaning that Delaine knows that -
PN976
in his words -
PN977
they were going to sack him. Quirk then said, "Well, shall we get it over with now."
PN978
Have you got any response to that?---I can remember most of that except for - certainly I can recall saying "Does Kevin really and truly understand where this is leading". Your final comments, I can't recall those things being said.
PN979
Is it possible that you said them?---It is possible but I can't recall them.
PN980
If I could move on. After issuing the second warning, you received a letter from the union, from Mr Braithwaite, didn't you?---I did.
PN981
You understand in that letter Mr Braithwaite said the dispute would be referred to the Commission?---That's correct.
PN982
So you understand, at least from that stage, the union considered themselves in dispute with the company over the issuing of these warnings?---That's right.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN983
In fact you knew the union was in dispute with the company over the issuing of the second warning because of Mr Marple's conduct?---Not Mr Marple's conduct.
PN984
So Mr Marple had agreed with the process you were going through?---Mr Marple's objection at that second warning stage was he had asked for Mr Braithwaite to be present and I was of the view that any discussions that were needed between Mr Braithwaite and myself could take place afterwards, that this was important and we should proceed. Now, that was the point at issue, I guess, with Mr Marple at that stage.
PN985
So he didn't indicate to you that he thought it was inappropriate for you to be given these warnings in these circumstances?---I think he probably think it was inappropriate.
PN986
You certainly knew that, didn't you?---Yes.
PN987
So in fact you knew that the AWU shop steward was having a dispute with the company over the issuing of these warnings, is that correct?---That's right.
PN988
So you understood prior to the issuing of the second warning, that you were in dispute with the union?---Yes. I didn't - I mean that - - -
PN989
Thank you that is enough.
PN990
MR MANUEL: Well, I object to that. That is inappropriate interruption of the witness. I will only ask him in re-examination so we may as well deal with it now.
PN991
MR GRUE: My apologies.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN992
THE COMMISSIONER: Do you want to elaborate Mr Quirk, on that answer?---The point of whether the company was at dispute with the union was not uppermost in my mind when I was delivering this formal warning process. What was uppermost in my mind was Mr Delaine's willingness or not to work to an agreed work schedule. That was what was in my mind.
PN993
MR GRUE: My apologies for cutting you off earlier, Mr Quirk. In relation to the third warning, paragraph 155, you again admit that the reason the company was issuing Mr Delaine with warnings was his failure to meet the rates set in the work schedule, don't you.
PN994
MR MANUEL: I object to that. With the greatest of respect to my learned friend that is a misstatement of the evidence. The clause says, specifically:
PN995
Particularly in regard to his non attendance at his work area and his failure to achieve the agreed work rates.
PN996
That, with the greatest of respect, that is fundamentally misleading.
PN997
MR GRUE: My apologies. Would you agree at point 55 you admit that one of the reasons you were issuing Mr Delaine with a warning was his fairly to meet the required rate set out in the work schedule?---That's one of the reasons and if I can elaborate, the reason for him not meeting the work rate was his non attendance at the work area.
PN998
So if that is the case, that the issue for the company was his non attendance at the work station, why didn't you record that on the warning sheet? Why didn't you record, as a company requirement, that he stay at his work station?---I think I did. In the second warning, the summary of the warning, second sentence:
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN999
Kevin must cease malingering and endeavour to perform his work effectively.
PN1000
If you could look at document 39, the warning given on 4 April?---Right.
PN1001
Where in that document does it refer to his attendance at the work station?---It doesn't say the words there.
PN1002
So how is Mr Delaine to understand that this is what this warning is about?---Well, through the discussions that took place around the warning process. The warning form is not a detailed analysis in length as to - as to what the problem is. It's the formalisation, if you like, of the salient points.
PN1003
You certainly put down on your formal warning sheet the important point that he was failing to achieve the agreed quota, haven't you?---Yes, that's important.
PN1004
Surely, if anything else was equally as important as that, it would also appear on the warning sheet?---Well, it might do, yes.
PN1005
At paragraph 156 and 157, you refer to the observation sheets, and I apologise because I think when we were talking about the second warning, I mistakenly took you down this line of thinking, but I'm now talking in relation to the third warning. Now, you have looked at those observation sheets that have been provided to you. In what way did they influence your decision to give a warning on 4 April, wasn't it? Yes, sorry, 4 April, the third warning?---The observation sheets, the way I used them was to confirm what I had been told by the production people, that Mr Delaine's lack of adherence to the agreed schedule and, in fact, those associated issues of malingering and wandering around - the sheets confirmed the points that were being made to me in my mind.
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN1006
So in terms of the time between the issuing of the second warning on 1 April and the issuing of the warning on 4 April, in terms of that period of time, how did this - these observations assist you in deciding during that period of time he had taken those no steps to improve the situation?---Again, in my mind, they confirmed what I was being told verbally.
PN1007
Even though they relate to days that fell before the issuing of the second warning?---But they refer to days after the second warning as well. I'm sorry.
PN1008
The second warning was given on 1 April?---Okay. They were simply confirmations of the activity that I was being told by the production people that Mr Delaine - the things that he was doing. What he was achieving, what he wasn't achieving, and what were the problems.
PN1009
So it is not a case of you warning him twice for the same failure to comply over the same period of time?---Well, the whole thing was about his failure to comply.
PN1010
You say in your statement that Mr Delaine had 2½ months to comply with the schedule?---Mm.
PN1011
From the time that the company issued the first warning, how long did the company give him to, you know, chance his ways, so to speak?---Well, if - well, 2½ months. Within - in fact, in the first part of that period, Mr Delaine was achieving the schedule often enough, as I understand it.
PN1012
I have no further questions, Commissioner.
PN1013
THE COMMISSIONER: Are you going to be long, Mr Manuel?
**** GERALD FRANCIS QUIRK XXN MR GRUE
PN1014
MR MANUEL: About 2 minutes - - -
PN1015
THE COMMISSIONER: Fine.
PN1016
PN1017
MR MANUEL: Mr Quirk, in respect of the preparation of the work schedules, what was your involvement?---I had no involvement in that, other than the knowledge that it was happening.
PN1018
My learned friend asked you a question about the last warning, being document 39. I don't know if the witness could be shown that or you already have it before you?---I have that.
PN1019
My learned friend suggested to you that the only specific topic you noted was the failure to achieve the agreed work rate. What is meant by, "failure to follow the agreed work schedule", immediately above it?---My understanding was the work schedule compiled times when particular aspects of work would be done, times of breaks, and I think there were 10 minutes in every hour, and agreed outcomes in terms of quantities. My belief - and it had times written into it when, I think, it was expected, in my view, it was expected that Mr Delaine would be at the work station. So it was a, if you like, holistic view of what should happen in the work station in the course of a day.
PN1020
I have no further questions for Mr Quirk, thank you, Commissioner.
PN1021
PN1022
THE COMMISSIONER: Having regard to the time, I suggest we can adjourn and, perhaps, resume at 2.15 sharp.
LUNCHEON ADJOURNMENT [12.50pm]
RESUMED [2.19pm]
PN1023
THE COMMISSIONER: We begin with you, Mr Manuel?
PN1024
PN1025
MR MANUEL: Could Mr Cimarosti be supplied with a copy of his statement, please. Mr Cimarosti, you prepared a statement for the purpose of these proceedings?---That's correct.
PN1026
Could you satisfy yourself that that is a copy of that statement that you have before you?---That's correct.
PN1027
That is the evidence you would give in this matter?---That's correct.
PN1028
You don't need to lean forward. The microphone will pick you up. I tender the statement of Mr Cimarosti, Commissioner.
PN1029
THE COMMISSIONER: Yes. Mr Grue?
PN1030
MR GRUE: Commissioner, I would object to paragraphs 24 and 25 as hearsay?
PN1031
MR MANUEL: Yes, I accept that.
PN1032
THE COMMISSIONER: So 24 and 25 come out. Anything further?
PN1033
MR GRUE: Nothing further, Commissioner.
PN1034
**** PAUL JOHN CIMAROSTI XN MR MANUEL
PN1035
PN1036
MR GRUE: Mr Cimarosti, at paragraph 54 of your statement, you say that your observations about the frequency of Mr Delaine's breaks are consistent with the observational reports that were prepared by a Ms Trieu. Is that correct?---That's correct.
PN1037
Now, you yourself - it wasn't your specific function to observe Mr Delaine, was it?---When?
PN1038
During this time when he was performing to the work schedule, was it your specific job to observe him doing that?---Not specifically, no. We had another agreed process.
PN1039
So it was Ms Trieu's specific function to observe that?---That's correct.
PN1040
She actually wrote down her observations, didn't she?---Correct.
PN1041
She wrote down her observations about whether or not he was at his work station?---That's correct.
PN1042
You have said in your evidence that he was absent up to 30 times a day?---That's correct.
PN1043
So despite already having told the Commission that your observations are consistent with the written observations of Ms Trieu, which in no way indicate 30 absences a day, you are saying that it is 30 absences a day?---I think it's fair to say that I - that wasn't an observation of every day but there were instances, I think, if you can read my report. There was an occasion where I believed he was away 30 times, yes.
**** PAUL JOHN CIMAROSTI XXN MR GRUE
PN1044
In your statement, you actually say that on average, he was absent 12 times a day?---That would be correct.
PN1045
But, again, that is not consistent with what the written reports say, is it?---No.
PN1046
So you admit that your observations are not consistent with the written reports of somebody whose specific role it was to make those observations?---No, they are different. That's right.
PN1047
So would you admit that, perhaps, you could have been mistaken about how many times Mr Delaine was absent from the line?---No.
PN1048
So despite saying that your observations are consistent with the written reports, and the written reports not indicating that Mr Delaine was away from his work station on an average of 12 times a day, you still maintain that that is, in fact, what occurred?---That's correct.
PN1049
One thing that you do say in your statement is that you believe Mr Delaine's conduct or his performance sent the wrong message to other workers. Is that correct?---That's correct.
PN1050
Is it not your job to let other workers know in the factory that injured workers do not perform to the same standard as everybody else?---It's common knowledge that everyone understands that process because there's more than one injured worker.
PN1051
It is your job to make sure - - -?---Certainly, yes, but we would communicate that, certainly.
PN1052
At paragraph 53 of your statement, you say that no-one from the company can insist that a worker sees the company doctor. Is that the case?---That's correct.
**** PAUL JOHN CIMAROSTI XXN MR GRUE
PN1053
Did you tell Mr Delain that he had a choice not to go and see Dr Beaumont?---Can I just reference my statement, please? That's generally the comment I would make.
PN1054
So you, in fact, did tell him that he had the choice not to see Dr Beaumont?---The comment would be as I've stipulated there. That's what I've said to Mr Delain.
PN1055
So the answer to the question is you didn't tell him he had the right to refuse to see Dr Beaumont?---No, I didn't tell him the right.
PN1056
Now, at paragraph 54 of your statement - - -
PN1057
THE COMMISSIONER: Can I just make this clear? In paragraph 53, sorry, Mr Cimarosti, it simply says, "No-one from the company can insist that a worker see a doctor." You mean there it to be to see a "company" doctor?---That's correct, sir.
PN1058
Well, I suppose any doctor. The context there - - -?---Yes.
PN1059
- - - is the company doctor?---Yes, that's correct.
PN1060
Sorry, Mr Grue.
PN1061
MR GRUE: At paragraph 55 of your statement, you admit that three warnings were issued to Mr Delain for reasons including that he was not keeping to the agreed productivity level. Is that correct?---That's correct.
PN1062
Now, you also say that the warnings related to absences from his work area. If I could have the witness shown document 37, this is the first warning. Now, did you yourself fill out this warning?---No.
**** PAUL JOHN CIMAROSTI XXN MR GRUE
PN1063
But you would agree, wouldn't you, that this warning has not in any way referred to absences from his work station, wouldn't you?---Could you just repeat that question, please?
PN1064
This warning does not refer to absences from his work station, does it?---No.
PN1065
But it does specifically mention that, "Kevin is performing under 50 per cent of the required rates." Would you agree with that?---Correct.
PN1066
Would you agree with me then that the focus of the warning, the primary focus of this warning, is on the late requirement?---Yes.
PN1067
I have no further questions, Commissioner.
PN1068
PN1069
MR MANUEL: Mr Cimarosti, my learned friend was asking you some questions about the observations of Ms Trieu?---Mm.
PN1070
Were you with her when she made the observations?---Never.
PN1071
Were you able to observe how often during the day she made observations?---Never.
PN1072
I have no further questions of Mr Cimarosti.
**** PAUL JOHN CIMAROSTI RXN MR MANUEL
PN1073
PN1074
THE COMMISSION: State your full name please?---Tammy Tham, T-h-a-m, surname.
PN1075
Your address?---No 7, Elly Street, Magill, 5072.
PN1076
And your occupation?---I'm the senior coordinator, occupational health and safety.
PN1077
MR MANUEL: Could Ms Tham be shown her statement, which is document 6, I think?---Thank you.
PN1078
Ms Tham, you should have before you a statement for the purpose of these proceedings. Could you confirm that that is the statement you prepared?---Yes, I do.
PN1079
Is that your evidence in this matter?---Yes, thank you.
PN1080
I will tender the statement, subject to my learned friend's comments.
PN1081
MR GRUE: I would object only to paragraph 15, sir.
PN1082
MR MANUEL: Yes, I accept that.
PN1083
**** TAMMY THAM XN MR MANUEL
PN1084
THE COMMISSIONER: Mr Manuel.
PN1085
MR MANUEL: Thank you, I have no further questions for Ms Tham, Commissioner.
PN1086
PN1087
MR GRUE: Ms Tham, you say that prior to becoming an employee of Electrolux you worked as the manager of occupational health and safety at Modbury Hospital. Was Modbury Hospital a self-insured hospital for the purposes of workers compensation?---Yes, yes.
PN1088
You also say in your statement that part of your job is to make sure that the company maintains its self-insured status?---Yes.
PN1089
It is extremely important that Electrolux maintain its self-insured status, isn't it?---That's correct.
PN1090
Is it true to say that unlike a company that wasn't self-insured, when Electrolux provides duties to an injured worker that is not as productive as they were prior to their injury, in companies that aren't self-insured, sometimes WorkCover contributes an amount of money towards the wages of those employees?
PN1091
MR MANUEL: Well, I have got to object. I reckon that is about three questions. I would just ask my learned friend perhaps to break it up a little bit.
**** TAMMY THAM XXN MR GRUE
PN1092
MR GRUE: If I could rephrase the question then. If you have a company that is not self-insured and they have an injured worker and that injured worker is not performing at 100 per cent of his capacity after his injury, is it fair to say that WorkCover in those circumstances would sometimes contribute an amount of money to the company to compensate them for the wages of that employee?---I can't answer that because I have never worked in a non - self-insured companies in South Australia.
PN1093
Okay, thank you. If the witness could be shown document 13?---Thank you.
PN1094
Now, would you agree that Mr Delaine has never been fully rehabilitated from his injury?---I disagree.
PN1095
So you would suggest that he had the same capacity now as he had prior to his recurrence of his back injury?---That's not what I say. I - what I mean is, I believe Kevin has given the sufficient rehabilitation to rehabilitate to his capacity to do the suitable jobs that we have agreed to provide him.
PN1096
So what you are saying is that he has been rehabilitated to the point where he can do 8 hours per day on permanent modified duties?---On the suitable duties that we provide him, yes.
PN1097
But the company, despite the fact that he is now at that point, the company is still providing him with rehabilitation services, are they not?---We - when we talk about rehabilitation services, we actually at Electrolux divide into formal and informal. In the initial stage, Kevin was provided with formal rehabilitations to a point we even out-sourced to accident rehab providers, but to the stage that when the person achieve the rehabilitation goals, then we actually cease the formal rehabilitation and go into the normal selected work management, that is what happened to Kevin's case.
PN1098
So despite your assertion that formal rehabilitation had ended, you still provide some rehabilitation services, despite that formal process of ending?---Yes, that is right.
**** TAMMY THAM XXN MR GRUE
PN1099
Now, the sessions with the psychologist, Astrid Usher, I mean, that is an example of the kind of rehabilitation services that the company provide?---It's part of - part of the services that we provide, that's correct.
PN1100
Rehabilitation services?---That's correct.
PN1101
Yes. Now, would you agree - in reference to the rehabilitation policy before you - now, it is important to provide appropriate rehabilitation services, isn't it?---That's correct.
PN1102
Ordinarily, those services are organised in consultation with the treating doctor, aren't they?---That's correct, yes.
PN1103
You appreciate in your role, the importance of the treating doctors view on the services provided?---That's correct, in the early stage we had gone through the proper consultation with the treating doctors and with all parties involved when the formal rehabilitation was provided.
PN1104
But you draw a distinction between the time when formal rehabilitation was provided and informal rehabilitation?---That is a stage where we believe that we have achieved the formal rehabilitation goal, meaning the person has reached a level of returning to work at hours, doing the suitable jobs that we are able to provide to the person.
PN1105
But if the treating doctor were to request a particular type of rehabilitation service, that the company may provide it?---We will concede the request and if it is appropriate, we will.
PN1106
In Mr Delaine's circumstances, Dr Grant requested that the company provide him with a referral to a psychologist, didn't he?---That's right.
**** TAMMY THAM XXN MR GRUE
PN1107
You realising the importance of a treating doctor's view, recommended that that was an appropriate course of action?---That's correct, after consulting with Mr Gerry Quirk, the human resources manager and workers compensation managers and, of course, in consultation with Kevin himself.
PN1108
Is it true to say that these two meditations that took place, you organised them, did you?---That's true and that is after consultation with all the parties involved.
PN1109
Prior to that mediation process taking place, had Mr Delaine ever been asked to perform to performance targets?---I believe there is this normal expectation in the workplace that workers who have been identified able to do certain jobs, are expected to perform according to the achievable rate of the task in any workplace.
PN1110
Have you ever included performance targets in a formal rehabilitation plan?---Not in a - not in a formal rehabilitation plan, but it is not measured against a performance target as such, but it is always measured according to the jobs that the person is able to do and it is measured by the supervisors of the area.
PN1111
So a formal rehabilitation plan would have a list of perhaps duties that that person could perform, is that correct?---The suitable duties that the person could perform, that's correct.
PN1112
Within their medical restrictions?---That's correct, yes.
PN1113
But it would never include a rate at which those duties are to be performed?---I have not come across one, not in the formal rehabilitation plan.
**** TAMMY THAM XXN MR GRUE
PN1114
Is it true that you would never include production targets, or rates in a formal rehabilitation plan because you know that that is inappropriate?---I don't believe it is inappropriate, but I believe it is not included because the person in the early stage of the injury, the condition may change, so that is where the formal rehabilitation is there to actually provide the service to the person in the early stage of the injury and when the injury settle down, the condition settle down, then the person would be able to perform the required suitable duties and that - then it is expected the worker should perform according to the normal achievable rate of any expected employees.
PN1115
So when you say, "normal rate", as you have just said, you mean the rates that a fully able bodied person could achieve?---Yes, depending on the job itself.
PN1116
So as long as the duties were within the restrictions imposed by that person's treating doctor, or whoever, as long as they were within those restrictions, they would be expected to achieve it at the same speed as a full bodied person?---In a normal situation the expectation is that, but at the same time you also factors into the condition of the person and not as the physical conditions, other issues that the patient may well have and we factors into that consideration as well.
PN1117
Now, you are aware in your role that Mr Delaine has a problem with his lower back?---Yes, I do.
PN1118
You are also aware that he suffers from anxiety?---Yes, I do.
PN1119
You are aware that he is prescribed medication for that?---Yes, I do.
**** TAMMY THAM XXN MR GRUE
PN1120
At paragraph 47 - now, when you established this work schedule, or you and the industrial engineer, Ms Trieu, you deliberately incorporated breaks so that Mr Delaine could take time to alleviate any symptoms he might have from his lower back and his anxiety, is that correct?---It was not a personal decision as such, it was actually discussed at the mediation sessions to take into consideration of the reasonable breaks, the duration of the breaks and to look at the achievable rate of each task and that was actually discussed at the mediation session, that we should take all those into consideration and come up with some agreed agreement to those items that we discussed at the mediation session.
PN1121
Now, you thought it was appropriate, didn't you, to incorporate breaks so that he could deal with his anxiety and his back problems, that is correct, isn't it?---That's correct, yes.
PN1122
What is expected of a worker if he experiences symptoms outside of that period of time where he is allowed to have a break? Should he just simply work through, or is he allowed to have a break anyway?---Well, he is allowed to have a break, provided that it is a reasonable break and provided that he inform the team leaders in that area. I think it is important to actually have a distinction between having reasonable break and allowed break and taking break by informing the team leaders of the area.
PN1123
If we put aside the issue of informing anybody about whether or not you are going to take a break, you would agree though that if somebody is dealing with symptoms which require them to decide to take a break that it is appropriate for them to take that break?---Yes, I do.
PN1124
Your concern would be on whether or not they had advised anyone about that?---Well, in the workplace I believe whenever you need to take a break, you need to inform the team leaders of the area.
PN1125
Now, at paragraph 44, you state there that:
**** TAMMY THAM XXN MR GRUE
PN1126
If Mr Delaine failed to comply with the work scheduled, then he would be subject to the normal counselling process.
PN1127
?---It was the agreement during the mediation session that the normal counselling should be built into that report, so it is not actually my view alone, it was an agreement of all party at the mediation sessions.
PN1128
Your understanding of that outcome was that the word "counselling" means the same as "discipline"?---Yes, I do at the time.
PN1129
So that is what you understood to be the agreement that, if he failed to comply with an aspect of the work schedule, he could be disciplined for that?---Yes, that was the agreement at mediation session.
PN1130
So the agreement included that he could be disciplined for failing to meet the work rates detailed in the schedule?---Yes, that's what I understand at the mediations outcome.
PN1131
Do you believe it is appropriate to discipline an injured worker for not - - -
PN1132
MR MANUEL: I object to this. This witness is not giving expert evidence as to the role of disciplinary proceedings in the treatment of an injured worker. She is an occupational health and safety expert, she can certainly cover that, but this is an impermissible line of questioning.
PN1133
THE COMMISSIONER: Well, we haven't heard the question. What was the question going to be, Mr Grue?
PN1134
MR GRUE: Whether or not it was appropriate to discipline an injured worker in these circumstances.
**** TAMMY THAM XXN MR GRUE
PN1135
THE COMMISSIONER: I'm going to allow the question. I understand that she is not an expert, that she is an occupational health and safety person. I think she would have an opinion on that matter.
PN1136
MR MANUEL: Thank you, your Honour.
PN1137
MR GRUE: So the question is: do you believe it is appropriate to discipline an injured worker for failing to meet productivity targets?---I - I - I like to say that the word "appropriate" depends on the circumstances. In this - injured workers should be treated as any other workers in term of workplace behaviour and workplace performance. It is not - we should not have a distinctive different in term of how a workplace performance should be varied from the injured workers and the normal workers. In term of discipline in this case it is a completely a human resources issue, so I'm not able to actually comment whether is it appropriate or not appropriate in this particular case, but in general I believe there should be some sort of a similarity in term of the workplace treatment for injured person and for a normal person, especially in term of work performance, that is just my view.
PN1138
In terms of work performance, do you mean performing particular tasks?---Performing - in the case of injured workers, performing the suitable job that has been agreed upon through the medical evidence and through the workplace identification, in term of suitable jobs.
PN1139
Determining what is suitable you would rely upon what a treating doctor might say?---We would take into account all the medical opinions, yes.
PN1140
You say at paragraph 61 of your statement that: on or about 31 March you received a prescribed medical certificate from Dr Grant in which he recommended that Mr Delaine work at his own pace, that is correct, isn't it?---That's correct, yes.
**** TAMMY THAM XXN MR GRUE
PN1141
Isn't it true that on 28 March, Dr Grant actually telephoned you, didn't he?---Yes, he did.
PN1142
So he spoke to you about the medical certificate he was issuing, didn't he?---He spoke to me - yes, he spoke to me in regard to Kevin received a first warning from - the warning letters from the - from the company and in regard to the work pace.
PN1143
So he spoke to you specifically about the pace of the work?---He spoke to me saying that: Kevin should be allowed to work at his own pace.
PN1144
Did he tell you about the anxiety that Mr Delaine had been suffering?---Well, he has not say to me but I know that he had the previous conditions of anxiety.
PN1145
So after Dr Grant had spoken to you on the telephone and told you that it was appropriate for Mr Delaine to work at his own pace, who did you then communicate that information to?---Well, the normal procedure is, we speak to the - to the supervisors of the area and in our normal procedures we also will get our own company doctors to medically assess the person and that's what happened.
PN1146
So you did not give advice to any supervisor or level of management that Dr Grant's restrictions should be complied with?---Not immediately, because the company has got the policy to get our own company doctors to medically assess the person.
PN1147
And you prefer the company doctor to the treating doctor?---It's not a matter of preference, it's a matter of procedure. It's just that we require - the company has got the procedures that require our employees to be medically assessed by the company doctors if there is change of the medical views.
**** TAMMY THAM XXN MR GRUE
PN1148
No further questions, Commissioner.
PN1149
THE COMMISSIONER: Ms Tham, what did you understand that term, "at his own pace", to mean?---In this - in this - in this case, because we have received very frequent medical - prescribed medical certificates from Dr Grant, at that point I believe he will be allowed to work at his own pace. Whenever he is able to work he will work. Whenever he is not able to work, he wouldn't work, that is, "at his own pace".
PN1150
In other words, he would have complete autonomy over how much he can do and when?---Yes, that's right.
PN1151
Now, when a company doctor and a treating doctor have different views about things, how are those different views normally resolved? What does the company do about that when it has the treating doctor say one thing and the company doctor saying something else, what is the normal procedure?---If there is a very distinctive difference, we normally will get another medical opinion.
PN1152
PN1153
MR MANUEL: Did Dr Grant in his conversation with you on, I think my friend said the 28th of March, did he actually say in his own words what he meant by, "at his own pace"?---We had a bit of discussion in term of - in term of he - Kevin is an injured person, he shouldn't be expected to work at any achievable rate in term of the rate that we put forward in the work schedules, and I say that: the company has not making an impossible rate for Kevin to achieve. It was estimated at about 80 per cent. Then, he talk about the 60 per cent and - at that stage, and then I say to him: that we will consider that but - and that's the end of the conversation.
**** TAMMY THAM RXN MR MANUEL
PN1154
Was there any conversation with Dr Grant about Mr Delaine leaving his work station at his own choice?---No, not at all.
PN1155
I have no further questions, thank you, Commissioner.
PN1156
THE COMMISSIONER: Yes, just before we close, Ms Tham, you say that the rate expected of Mr Delaine was 80 per cent - 80 per cent of the average standard worker?---That's correct, sir.
PN1157
Was that documented anywhere?---It was not documented anywhere but it was actually in the observation report from Phuong, the industrial engineer. Initially, it was 200 parts per half an hour duration, or 25 minutes duration, then when Kevin indicated that he was not able to do that, then it was dropped to 180, that equal to approximately 80 per cent and there was further indication that it was further dropped when Kevin actually say that: he was not able to achieve that rate, and I believe that was further dropped to 75 per cent in terms of the parts per tub.
PN1158
Over what period are we talking about here, is this from January through to March, or when?---It was over the period when Phuong was doing the monitoring, that would be January to - to February I believe, not through to March.
PN1159
Right, so your understanding then is that at the time that Dr Grant said that Mr Delaine was - or should be working at his own pace, at that point, up to that point, the required rate was 80 per cent of the standard work?---That's right, it was adjusted to that.
PN1160
And was it ever adjusted, ever subsequently adjusted?---Subsequently it was even accepted when he was - when - when Kevin was able to deliver only even 75 per cent. So it was not like a - a fixed requirement for Kevin to deliver 100 per cent as such, it was adjusted when Phuong measured him, monitored him, and he came to say that he was able do just that amount.
**** TAMMY THAM RXN MR MANUEL
PN1161
Is there any questions arising?
PN1162
MR MANUEL: Not from me.
PN1163
THE COMMISSIONER: Mr Grue?
PN1164
MR GRUE: Well, I don't think so, Commissioner, thank you.
PN1165
MR MANUEL: I thank you, Commissioner, I have no further questions of Ms Tham.
PN1166
PN1167
MR MANUEL: Commissioner, that is the respondent's case in this matter.
PN1168
THE COMMISSIONER: Very well. Mr Manuel, are you in a position to go straight on?
PN1169
MR MANUEL: Yes, I'm happy to proceed, sir. This case has been run by Mr Delaine in a very similar matter than he runs his relationships with his employer. When you think you have got a fixed position, he looks for another excuse and if you think you have got another fixed position he looks for another excuse and that is the way that we have seen this develop today. It seems that we have a different view to my learned friend as to the questions that are posed for the Commission.
PN1170
I'm intent to rely upon our outline in the sense that although we have a differing view as to the questions that should be asked, at the end of the day we agree that at the very least the Commission has the ability or has the jurisdiction to review whether the three warnings were appropriate. Much beyond that, I'm not sure that we need to take the matter any further than that. The only exception in terms of the comment that I would make would be the attempt to seek an order that the Commission prohibit, in effect, Electrolux from dismissing Mr Delaine. We would say, with respect, that is clearly outside jurisdiction.
PN1171
It would seek not only to stop Electrolux dismissing Mr Delaine arising out of matters such as we have before you today, but also we would seek to stop Electrolux dismissing Mr Delaine from another set of circumstances completely separate to these matters and so we would say that the fundamental question for the Commission is: was the conduct of Mr Delaine deserving of censure and more particularly should the three warnings given by Electrolux remain?
PN1172
Now, the point I wish to highlight here is there has been something of a tendency to deal with the three warnings as if they arise as one. Now, there is no doubt that they arise from similar factual circumstances, but each one of them rises separately and we although we certainly don't press the Commission to do this, it would be quite possible for the Commission to say: well, I don't think the third warning is appropriate but the other two are. It does not have to be all three warnings stand or all three warnings fall over and I think particularly the distinction would be drawn, I think, between the first warning and I will come to those circumstances and the warnings that flow thereafter.
PN1173
There was a suggestion from my learned friend as to the status quo. In this case the status quo is not particularly well suited to the issuing of warnings because each warning, as I said, is a separate issue and so the status quo arguably in respect to warning number one is that warning number one sits there and likewise warning number two and warning number three. It probably does not take us anywhere but in case there is some suggestion that Electrolux has acted inappropriately because they didn't remove the warnings and return to what is seen as the status quo we would object to that quite strongly.
PN1174
I don't, Commissioner, unless you particularly wish me to, take you to the jurisdiction of the Commission any further than I have. Basically what we say that the case is this. Mr Delaine is a poor employee. He has been a poor employee for an extended period of time. Electrolux has been extremely lenient in its treatment of him and if you look at those warnings where he has repeated breach the same lawful direction he clearly could have been dismissed and I might say that that tends to push to one side the suggestion that Electrolux are out to get this man because if they were they have had numerous opportunities before now.
PN1175
We then have him suffering an injury and there is no doubt the injury is genuine. Its extent and the effect on his capacity is unknown to a large extent because of the agreement to exclude most of the medical evidence but he does have some sort of impairment. He then enters into a deal and make no mistake about this, this is the killer point, we say, particularly to the applicant's case because the only way that he can succeed is to actually say: yes, I made a deal and I gave my word and I signed the document but I don't have to comply with it. That is his problem and so that is why he has seen all these different excuses popping up left, right and centre as to it.
PN1176
He makes a deal, it is reviewed in February, he confirms the deal and then he does not keep it. He is given ample opportunity by Electrolux to improve. Remembering of course that warnings have a very important purpose, not only are they disciplinary in the sense that they move you along stages but what is often forgotten, is the fundamental purpose is to give you an opportunity to fairly know what concerns your employer has with you and then to try and meet them.
PN1177
I should say, just to put that in context, Commissioner, assuming this matter had never been commenced and Mr Delaine had been dismissed let us say a week later for again failing to meet what he had agreed to. The three warnings that he had been given would be relevant to issues of procedural fairness and the like but at the end of the day the termination itself would be decided based upon whether the standards were fair and whether they had been met or not and one would necessarily affect the other.
PN1178
So the three warnings are not punitive per se, they are fundamentally as part of our procedural fairness requirements in this country to give people a fair opportunity to know that their employer is not happy and to know what the consequences of not meeting the standards are and that is the purpose of these warnings. I don't propose to go to the overview of the matter, I think I have given you that in - or the orders that are sought.
PN1179
THE COMMISSIONER: And presumably, Mr Manuel, to give the worker an adequate opportunity to improve and meet the required standards.
PN1180
MR MANUEL: Correct, your Honour, yes.
PN1181
THE COMMISSIONER: I mean, they are there for a variety of reasons but one of the things is you give a warning and then there is a period of time to say: well, look, can you pick up your game.
PN1182
MR MANUEL: Yes, and it may be in the circumstances of this case, for instance, if Mr Delaine had been dismissed again a week later that it might have been insufficient between the third warning and the decision to dismiss. An insufficient opportunity for him to improve. That is certainly the case in terms of what I might call "narrowly" performance, that is, how many widgets do you make in a given period of time, but in this case, of course, one of the fundamentals which pervades the whole matter is Mr Delaine's inability to stay at work.
PN1183
I mean, I know my learned friend has made a great effort to try and say that these warnings are about how many widgets you make, but as will show with the documents and the evidence, that is not the case. The warnings, and I think my learned friend Mr Getgood was making the fairly obviously point, if you are not at your workplace you don't tend to be making too much. So there is a direct correlation between how much you produce in a given period of time and your attendance at the workplace.
PN1184
If you are wandering off to talk to your mates, if you are having a chat on your mobile phone, if you are swinging the lead by speaking to one of your friends over on the other machine you are not doing your job. Now, it is all well and good to say: well, he was anxious and his back was hurting but he never made any reports to his team leader as to when he was heading off for these unauthorised breaks, of course, he wouldn't, of course he wouldn't. Mr Delaine has a long history with this company, he knows what the standards are because he regularly breaches them and is pulled up on them.
PN1185
He knows when he is doing the wrong thing, yet despite the warnings he just continues to do it. I mean, really, it is difficult to see how a person such as this can be rehabilitated in a workplace sense if he can't even do the simple things like staying at his workplace, like talking to his team leader, none of those things. He is not capable of it. In terms of the approach for the arbitration. It is pretty much at large, with respect, Commissioner, as to what you think is a relevant consideration.
PN1186
We would suggest that the following categories would be relevant. The history of Mr Delaine as an employee, the attempts by Electrolux to rehabilitate him. The agreement, and we say it is a critical issue, the agreement that arose from the mediation on 3rd and 5 December and then again I think on 25 February. The behaviour of Mr Delaine during the interviews arising from his warnings and his attempts and level of success at meeting the standards to which he had agreed.
PN1187
There is one point, however, when we say this matter is at large in terms of the matters that the Commission can consider. There is the matter of managerial prerogative and I don't propose to take the Commission to the authorities that I have cited, I'm sure they are well known, but even in a private arbitration, industrial standards of the Commission should still be applied, in our respectful submission.
PN1188
It is not a matter for the Commission to merely stand in the shoes of the employer and make its own decision and the reason for that is clear and it has been made clear time and time again. It is not for the Commission to run the business of the employer. It is for the Commission to review its conduct and see whether it falls within the range of reasonable behaviours. So what we see Mr Delaine seeks is for you to stand in the shoes of Electrolux and what we say it is not enough merely for Mr Delaine to say: well, there was an alternative, or there was another option.
PN1189
What he has to show is that somehow Electrolux in issuing each of these warnings acted unreasonably or unfairly. Now, if he can meet that test then there may well be a basis for intervention but if all he says is: I don't agree, or there was a better option because I say it is a better option. That, with respect, is not enough. Now, I don't wish to take you back over the behavioural problems that Mr Delaine has had with his employer.
PN1190
You will note from the cross-examination this morning and the documentation are extensive, he had got to two final warnings. He had challenged none of these. So whatever it might be said about these is the history of Mr Delaine is that he has no brownie points, if you like, with his employer. He is poorly behaved and what it also shows is that many of the behaviours exhibited back at this time which were not subject of any disagreement by Mr Delaine, are the same sorts of behaviours that he now exhibiting and trying to pass off as anxiety.
PN1191
You see, all we have - we have no medical evidence as to anxiety as to what it causes him to do. We have nothing at all. All we have is Mr Delaine saying: I wander off because I was anxious. Well, if that is the case why was he wandering off beforehand. Well, one, was to have a smoke. One, was because he was anxious about his own personal circumstances, others for no apparent reason. So what we ask you is to say: well, how realistic is the claim of Mr Delaine that he wanders off, because he is suffering anxiety compared to his behaviour before where he wandered off but couldn't claim that as his reason for doing so. We say that this is just who the man is.
PN1192
This is how he behaves, he can't help himself. You can see it, he gets a warning, two weeks later he gets another warning for doing exactly the same thing. As we said earlier, this demonstrates that Electrolux was not out to get this man. If it had, it had two final warnings it could have easily activated. This is a company that has basically come to the end of its tether. IT is trying to do the right thing by this man but he just won't assist himself.
PN1193
Now, we agree and I might add and I still maintain that this is the correct decision that we wouldn't lead medical evidence. It does leave you in a bit of a vacuum, with respect, Commissioner and my apologies for that. Probably the only expert evidence you really have is the evidence of Ms Tham and her evidence was that in her view Mr Delaine was more than capable of doing the work which had been agreed in the work schedule and that was in fact led in cross-examination, it wasn't led in evidence-in-chief.
PN1194
You have cryptic medical certificates from Dr Grant, no explanation as to what they mean. You heard what Ms Tham said they meant, but that was her opinion. Dr Grant never explained to her what he said they meant but also what we say is very important is nowhere in the evidence and nowhere in the medical certificates is there any recognition of the right of Mr Delaine to walk away from his job. There is nothing in there about using his mobile phone. There is nothing in there about sitting at his workplace making notes. There is nothing in there about talking to his mates when he should be working.
PN1195
Now, what you put, Commissioner, and if I may, you said to Ms Tham: well, does this mean you understood that he was to work when he thought he was able and to the level that he was able. Assuming that that is, in fact, the situation, that does not deal with his behaviour. Not for one moment does that deal with his behaviour, in fact, it maybe easier in the first instance for the Commission, with respect, to say: well, let us forget about how many widgets we have got to make and let us forget about whether we have to make 50 widgets or 100 widgets or whatever, just forget about that and just look at his behaviours while he is allegedly meant to be cooperating with the rehabilitation and this brings us to the mediation and I could take you, Commissioner - - -
PN1196
THE COMMISSIONER: It is a bit like, if I could use an analogy, it is a bit like saying to a Commission who is incapacitated: well, you can write one decision a day instead of two, but you only do one a day don't go and talk to someone else in the meantime and interrupt their work and stop them from doing the two a day or two a week. Is that the sort of thing you are talking about?
PN1197
MR MANUEL: Well, perhaps I wouldn't have used the analogy of the Commission, but yes, that is right. If you can't do your own, one, don't absent yourself so no one knows where you are, or at least no one in supervision knows where you are, which is clearly a safety issue if it is nothing else. Two, tell them why you are not working and three, don't get in everyone else's way. Don't go up the line and talk to your mates. It is just not proper. What we say is that this person has continued to behave like this and he is using everything else as an excuse so that he can end up doing this style, we will call it, work, for his own benefit.
PN1198
In other words, he will produce nothing of any consequence of any benefit to Electrolux but he will be able to wander around the line talking to his buddies, doing whatever work he wants, when he wants, taking breaks, walking off the line, walking out to his car, go and have a smoke and that is his history. If I could take you to two documents, Commissioner, document 15 and then immediately document 16 which are the mediation reports. Now, sometime has been spent by my learned friend on these because they are a real problem, we say, with respect for the applicant.
PN1199
The problem is this. This bloke did a deal, Commissioner. He agreed to certain standards. He reinforced his agreement on 25 February. Not only did he agree, he didn't have his arm twisted, he had Mr Braithwaite with him to help him, he had Mr Marple there to help him. Now, the best that the applicant can do is say: well, he should have had a doctor there, but who raised that. Ms Tham was there, she is an occ health and safety expert. The two union officials said nothing about it but all of a sudden when we need an excuse as to why we don't keep our word we bring this out and it is instructed to look at these.
PN1200
There is no doubt from these notes that Mr Delaine was able to raise his fundamental issue which was his feeling that he was under constant observation and it was no doubt that he was told, or there was a discussion about his need to reduce his breaks. Then on the second page at the second paragraph it says:
PN1201
Frequencies of breaks was discussed with agreement of Kevin taking a 10 minute break within every hour to stretch and relax if it was found necessary of his injuries.
PN1202
He agreed that that was what he would do and he didn't, never has since that time. Then it was agreed that Kevin, Mr Marple, Ms Tham and Ms Trieu would identify a work situation and also, and this is important because remember that there is a real push here to avoid any need to actually achieve any levels of production. They would also identify what is an achievable rate for Kevin to produce in his normal area of work and within the new identified area taking account of his injuries and that was agreed.
PN1203
Then on 5 December it was agreed as to a work schedule and it was agreed that:
PN1204
If Kevin fails to deliver the agreed quantity, which will be measured from time to time, the company would follow the normal counselling procedures.
PN1205
Now, there is no debate about that. Then if you look at the schedule. It is a detailed schedule, he puts time in for what he is doing, when he is going to do it, how many he is going to do. He has stretching, he has a break, he has lunch, he moves around. These are clearly the agreed position of Mr Delaine making an informed decision and the company. All the company was asking as a result of that, Commissioner, was that he meets his own agreement, that he keep his word.
PN1206
Now, despite that I might add that the evidence is that they didn't force him or take a particularly hard line. If you look at the, I think that document is, 20, 21 and 22 which are the observation sheets of Ms Trieu. If you look particularly at the one which starts 26 February 2003 apart from noting her observations when he is not at his workplace, if you look over the page at about fourth page in on Tuesday, 18 March 2003 at 3.30 Ms Trieu notes - sorry, sir, do you have that?
PN1207
THE COMMISSIONER: It is all right, I'm just getting there, 18 March, yes.
PN1208
MR MANUEL:
PN1209
Kevin has 600 springs in stock. This is 75 per cent of the standard rate, well done Kevin.
PN1210
So rather than making 75 per cent of being subject of censure, in actual fact he is being congratulated by Ms Trieu on making an effort. Then again on the next page on 19 March:
PN1211
Again later in the day at 3.30 pm, I assume that is five tubs of springs in stock, good work, Kev.
PN1212
So again this is not the situation where Electrolux has said: well, if you don't make 100 per cent we are going to issue you with disciplinary proceedings. Far from it. What they expect is a reasonable effort and that is not unreasonable, but the fundamental of a reasonable effort is that he be at work. Now, this was reviewed on 25 February, again a mediation. There was some changes as to who was there. Mr Delaine, Mr Cimarosti, Mr Marple, Ms Tham and Ms Grimmin hasn't really arisen in any sense since.
PN1213
At point 2 you will see that what Mr Delaine is saying is he wants a work-hardening program and then if you see the next, normal work practice was defined at the meeting as being in attendance at the work station and achieving set targets for 2 hours without taking any breaks or to perform his stretching exercises other than the normal breaks as required taken by the fellow workers. The definition of normal hours was explained to Kevin and he agreed he understood what was required of him.
PN1214
He also then agreed, further down the page, that he would reduce the discrepancies reported by Trieu in his attendance at his work station and only take the scheduled breaks agreed upon at the last meeting. So he is reinforcing the agreement he made. He is not coming to this meeting and saying: it is all too hard, I can't do this. He is asking for a work-hardening program, he is asking to do normal duties in that which implies, I would suggest normal standards. He is agreeing to correct the problems identified by Trieu and he acknowledges that Trieu is going to continue to monitor him.
PN1215
So again, you know, when he says: I was really stressed, etcetera, by Trieu monitoring me. Well, he has agreed to it and he signed for it. The company does not have a crystal ball on these things.
PN1216
THE COMMISSIONER: Your view on the 80 per cent, I mean in the other point 1 there, this mediation on 25 February, it says his output during that time, and I presume that simply means from the first mediation report in December through to this one, his output during that time was productive and measured at approximately 80 per cent.
PN1217
MR MANUEL: Yes.
PN1218
THE COMMISSIONER: I presume 80 per cent of the standard rate. Now, might I take this as meaning that back in December there was a view that look, it should have been a standard output, 100 per cent of a standard output, whatever that was, but between December and February, well, his output had been measured at about 80 per cent and it seems from this report, this mediation report, that 80 per cent is now acceptable. There's no warning issued.
PN1219
MR MANUEL: No, no.
PN1220
THE COMMISSIONER: He is basically saying between December and February he performed at about 80 per cent of the standard rate and implied, impliedly, that is about okay.
PN1221
MR MANUEL: You will see that in those comments I referred you to of Ms Trieu which are after this report that 75 was fine, in fact better than fine, it was well done, deserving of something of a pat on the back.
PN1222
THE COMMISSIONER: This business of, you know, whether it was 100 per cent of the standard rate or 95 or - it is a bit all over the shop, isn't it?
PN1223
MR MANUEL: Yes, it is.
PN1224
THE COMMISSIONER: I mean, I take it as meaning that initially it was 100 per cent of the standard rate in December and then, well, certainly by the time of this mediation meeting on 25 February 80 per cent seemed to be a fair thing and following that, as you have just pointed out, there was 70, 75 per cent seemed to be about the mark. So it is very hard to try to get to grips as to exactly what these target rates were. They seem to be all over the shop. I take it as at the point that the warnings were issued the last documented target was about 80 per cent. Am I right in that?
PN1225
MR MANUEL: Sorry, yes - no.
PN1226
THE COMMISSIONER: No. Mr Grue will address that later but this is what I'm trying to get to grips with here.
PN1227
MR MANUEL: I think you need to look at the mediation for what it is. It is not making any attempt to set Mr Delaine up to fail. The idea of it is: are these fair targets? He agrees that they are. In the following month or so he can't meet them, despite on a range of occasions obviously making a decent attempt at it, and gets around 75 or 80. Electrolux is not using this document as a tool dismiss him because if it was it would have immediately fired the shot. Instead of saying: all right, that looks around about the mark, if you could get 80 per cent or thereabouts on a regular basis you will have met your obligations but not in a really concrete sense that if you get 79 per cent you've got a problem on your hands, or if you get 72 per cent you've got a problem. At some point the differential becomes fairly obvious and you will see in some of Ms Trieu's documents that she refers to things like - this is on the front page - on document 31, 6 March 2003:
PN1228
Kevin has only completed 33 per cent of the strengths required.
PN1229
Now, that is just way off the mark, whether you are talking 80 per cent or 70 per cent or 100 per cent, 33 is clearly not a bona fide effort, we would say. I should also deal - it is fairly clear that the work schedule is not solely about how many widgets you produce, it is about are you at the work place, are you doing the right thing, are you having breaks when you are meant to have breaks. This is where on an objective assessment and on the evidence before you there is no way that Mr Delaine can make any claim to having met those requirements because he clearly has not. He has regularly walked away from his work place. He has absented himself, that is what he does.
PN1230
So we need to be clear and careful that we are not diverted from his clear failures by perhaps debate about whether he could or couldn't make the necessary number of widgets. The reason for that is we don't have the medical evidence for you to make a determination as to whether he had the physical capacity. All that you have, if you want to rely on anything, is the evidence of Ms Tan. You have Dr Grant's medical certificates but they are a little problematic, if I may suggest, and I will come to that shortly.
PN1231
There was also some attempt by my friend to make an issue about the differential between the views of Mr Cimarosti and Ms Trieu. I would note firstly that Ms Trieu has not been cross-examined. Her evidence should be accepted at face value and you would note that there are detailed records that she has taken as well. However, what we don't have is how long Ms Trieu has been watching Mr Delaine. It is quite conceivable that Mr Cimarosti and Ms Trieu saw him at different times or had different opportunities to see him. There's no evidence upon which you can base a submission that Ms Trieu was watching him for a whole shift and therefore was noting everything.
PN1232
If you look at the assessments or the summaries of Ms Trieu you will note that there are some fairly significant gaps. You must remember she is also an industrial engineer, she is not there purely for the purpose of supervising Mr Delaine. I would also say that on that basis the assertions in respect of the warnings must also fall. The first warning which is document 37 is 28 March 2003. Now, two things I would note about this. Firstly, if you look at the second body of text under the heading: Summary of Warning and Company Requirements. It says:
PN1233
Kevin needs to make an effort to keep up with the agreed work schedule and quantities.
PN1234
In other words, there is a distinction within this warning itself between work schedule and the quantities and therefore it can't be said that this only relates to quantities.
TAPE MALFUNCTION
PN1235
MR MANUEL: Therefore even if there was weight to be given to what Dr Grant puts, you can't expect the employer to have a crystal ball. The medical certificate didn't come into existence until after this warning had been issued and I might add it is also instructive to note that Mr Delaine indicated he didn't wish to make any comment. So he also denied Electrolux any knowledge of the personal issues that he intended to take to his doctor within a few hours. So what we say is that it is difficult to see what the complaint is about that particular warning.
PN1236
The second warning which was on 1 April - I will note that that is at 3.10 pm which is roughly towards the end of the shift, so it is more like 2 days, I think, than the one my friend suggested. Again I note that this talks about:
PN1237
...must cease malingering and endeavour to perform his work effectively.
PN1238
So this is again clearly not just about how much he produces. Now, the argument against this warning, as I understand it, is that, well, you had a prescribed medical certificate from Dr Grant but with respect to that medical certificate you don't have an awful lot of evidence before you to start with. It does not impact in any way upon the behaviours of Mr Delaine. Certainly there's no evidence to it impacting upon his behaviours. At best it may impact upon how many units of a particular product he is prepared to or is able to produce. Even if you accept that, the fact is you still are left with the situation with him leaving his work place without permission on a regular basis and that has nothing, with respect, nothing to do with the issue that Dr Grant has.
PN1239
The difficulty with Dr Grant's medical certificate is what is meant by "at his own pace". Mr Delaine, I think, probably put it at its highest that he would produce - and I'm obviously paraphrasing here, Commissioner - he would produce as much as he could in the time available to him having regard to his limitations. That is a laudable motion but it is not actually what Ms Tan said "at your own pace" meant. I mean, hers was a more laissez faire view of the world, that basically it meant she would do what she could when she could. What neither of them suggested was that it somehow allowed Mr Delaine just to walk away or go off and do his own thing.
PN1240
I note that he has put his own notes together. I would suggest to you that it be viewed with a certain amount of caution. They were put forward as being a complete record. In fact I think he said everything that he did he noted down the instant he did it. Now, that was clearly not true. He was also a very poor historian generally. His notes, in our view, are inaccurate, his evidence needs to be viewed with some care and most of his evidence, we say with respect, is perception. It is his view of how people have treated him. It may be honestly held, but that is all it is, perception.
PN1241
Mr Braithwaite and Mr Marple were not subject to cross-examination and so we accept their evidence on face value but they don't really add much to the actual central - what we say are the central issues, with one exception and that is a matter which there is uncontroverted evidence that Mr Braithwaite is not allowed to - well, when I say not allowed, there was an opportunity but it was not properly afforded to Mr Braithwaite to attend the second and third warning and I will come to that in a moment.
PN1242
Now, Mr Delaine fundamentally says he has been discriminated against. It is very difficult to see even on his own case how he has been discriminated against but he also claims he has been harassed. Now, the true situation is, if you will pardon the pun, that Ms Trieu was going to monitor him and he knew she was going to monitor him. The history of this matter would seem to indicate that whenever there's a backing-off of supervision Mr Delaine goes even more about doing his own business without regard for his obligations to his employer.
PN1243
The supervision was fair and reasonable. It was necessary in these circumstances. It was done in accordance with the agreement that was reached between Mr Delaine and the union. I've got to say bluntly, the only reason the problem has arisen is that Mr Delaine hasn't kept to the agreement he made back in December and re-affirmed in February. Again, the issue of reasonable direction - well, there are two levels of reasonable direction. One is how many things he should produce and that is a matter which clearly is in the grey area because it depends on what really was meant by Dr Grant. You don't have the medical evidence so it may be easier, for the moment at least, just to put that to one side.
PN1244
What is not grey though is his obligation to comply with lawful directions to stay at his work place and all the other things that we have set out. They are lawful and reasonable directions. He does not comply with them. That has nothing to do with Dr Grant and there's no evidence to indicate has anything to do with his anxiety. You will recall in his cross-examination he agreed that he wasn't - there was nothing that authorised him to leave the work place, there was nothing that allowed him to do that, he just did it, that was his choice. Good choice, bad choice, we say it is a very bad choice having regard to his history, but it is his choice, not ours.
PN1245
So I should come back a step. In terms of the third warning, I think it has got to be recognised that it is only 3 days later and if that was a warning purely tied to how much work he was doing, that might not have allowed enough time for him to improve but on that warning as you will see, the first two sentences of the summary of warning are:
PN1246
Kevin must follow the agreed work schedule and perform work at the agreed work rate.
PN1247
And so what we have is 3 days later the evidence is that he was continuing to do the wrong thing in terms of leaving his work area and that is why he got a final warning. It is no different to any other wilful breach of a lawful direction. If an employee is given a lawful direction today, Commissioner, breaches it, is given a warning, they don't get a period of grace where they can continue to breach that lawful direction over the next 3 or 4 days. The next time it comes to the employer's attention the employer is entitled to bring that up to the employee and say: this is wilful, you must not do this.
PN1248
What we say is that is what has happened here. I just wish to dispose of two other matters in summary. There's a suggestion, and I think it came up in an application for an adjournment, that the workers' compensation jurisdiction is the appropriate place for this. Could I say that the workers' compensation, Workers' Rehabilitation and Compensation Act 1986 operates in tandem not to the exclusion of industrial law.
PN1249
There is certainly no authority of which I am aware which would indicate that because a worker goes on to workers' compensation that they are somehow immune from the common law and contractual obligations that typically follow an employee, or for that matter their award obligations to comply with lawful directions and I think you will find if not in the relevant certified agreement then certainly in the underpinning award the standard provision about an employer must comply with the reasonable directions of the employer.
PN1250
Even if that is not there, the fact is that is a matter of common law and a matter of contract and it is not awarded by the Workers' Compensation Act. I don't think we can avoid the issue that under the award which has been brought into the dispute resolution procedure there is a right for someone to say: I want the union organiser present. And in this case the union organiser was not present, despite such a request. Mr Marple was present and he, on what I understand my learned friend to have said, is an experienced industrial or an experienced union delegate.
PN1251
What we say is that it is not a matter of if you are in breach, that is the end of the issue. It is still is a matter of looking at the merits of the warning and whether there was any damage or loss to the employee. Certainly I think Electrolux can be fairly criticised for not allowing that final step of the union organiser being present but he was represented. He didn't want to say anything anyway and Mr Quirk's response was: well I always talk to Mr Braithwaite on a regular basis, I would have chatted to him about it afterwards.
PN1252
Now, that may be inappropriate in these circumstances but what we say is that it didn't actually cause any harm or damage to the interests of Mr Delaine in this particular matter. Insofar that the complaint is alleging some breach, that is not actually obviously the role of the Commission. What we say is that breaches such as that or allegations of breaches such as that are matters strictly for the Federal Court. Although the issue is relevant for the Commission here, it is only relevant as one of a number of factors.
PN1253
It is something which the Commission is in our respectful submission entitled to have regard to but it does not carry the day one way or the other. Commissioner, those are our submissions, unless there's anything further.
PN1254
THE COMMISSIONER: No. Mr Grue, are you ready to go?
PN1255
MR GRUE: Well, I would always prefer to see the transcript before making a closing.
PN1256
THE COMMISSIONER: There's no hope one on this one I'm afraid.
PN1257
MR GRUE: But probably in the interests of getting the thing over with, I'm prepared to make a short closing now.
PN1258
THE COMMISSIONER: Yes. Well, look I'm happy to allow a short adjournment of 5 minutes or so if you want.
PN1259
MR GRUE: I don't think that is necessary, sir.
PN1260
THE COMMISSIONER: All right.
PN1261
MR GRUE: Sir, if I could deal with the last issue first. That is the failure of the company to comply with the disputes resolution process which has basically been conceded before you today. One of the arguments is that you have an experienced shop steward representing the worker and the point should be made that that experienced shop steward was the person that requested the union official actually be present. Again another point raised by my friend is that Mr Delaine didn't have much to say at these meetings.
PN1262
Well, of course he didn't. He was not represented by the organiser that he sought to be there. In fact the evidence before you was that the shop steward only remained under protest and you can see by the conduct of the shop steward and Mr Delaine at these meetings in refusing to voluntarily comply with what was being asked of them or to voluntarily actively involve themselves in this process that they were actually disputing or complaining about the process itself and that is one aspect that makes the two final warnings unreasonable.
PN1263
In terms of what we are asking from the Commission is what we are asking the Commission to do is to look at all of these warnings and to decide whether they are reasonable or unreasonable and we say that there is no doubt that all three warnings are entirely unreasonable. Now, the last two warnings are unreasonable because they failed to allow the appropriate person to be involved in the disputes resolution process and I mean if the company is suggesting that the outcome of the process could not have been influenced by a capable person representing the worker, then I think that is a failure of the company to fully take on the steps of the disputes resolution process.
PN1264
Each step of the process gives the parties the opportunity to sit down, discuss and to see if they can resolve issues. Now, it may have been that if after the first warning when the employer knew that the union was not happy with the process, and Mr Quirk indicated to the Commission that he was fully aware that the union was in dispute with the company prior to the issuing of the second warning, if the company had taken its time, sat down with the union, there may have been some prospects.
PN1265
It may be that there were no prospects but better to ask a company to review the way it is approaching something than ask them to reverse it because that is a far more difficult situation and it is a situation that only the Commission - in ordinary circumstances it is the Commission that forces a company to reverse unreasonable decisions. Commissioner, this case is about protecting a disabled worker. It is about protecting him from a company that has placed productivity above the welfare of that worker and it is about protecting that worker from unreasonable threats to discipline and ultimately threats to dismiss him on the basis that he is unable to be as productive as a person without a disability.
PN1266
Now, my learned friend has made a great deal of the issue of whether or not Mr Delaine spent time away from his work station, his work area. Well, quite frankly, Commissioner, that is not what the warnings say. The warnings time and time again refer to the rate at which he is required to produce, the productivity. How many widgets? My learned friend has said it is not about the widgets that he has produced. Well, the three warnings all indicate that it is entirely about the number of widgets that Mr Delaine produces.
PN1267
If I could deal with the issue of jurisdiction, we would say that that is quite clear and we would concede what Mr Manuel has said in relation to ordering that the company not dismiss Mr Delaine. We would be satisfied if the Commissioner merely orders the removal of the three warnings. Commissioner, I've referred you to the decision of Hills v Inghams Enterprises Pty Ltd. That is the Human Rights and Equal Opportunity case decision and the reason I've done that is simply to compare that Commission's approach in dealing with discrimination based on a disability under the Disability Act of 1992.
PN1268
That is a Commonwealth Act. That decision is useful to compare to this situation. It shows that the focus has to be on the reasonableness of the employer's actions. We would say that the terms of the certified agreement obliges the company not to discriminate against an employee and relevantly not to discriminate on the basis of the mental or physical disability. Our member has a mental disability, he has a physical disability. The company has developed policies in relation to discrimination.
PN1269
Mr Quirk indicated that he was aware of that policy and that that policy included a reference to indirect discrimination and that he understood what indirect discrimination was. Now, this is a case of indirect discrimination. The work schedule itself is the requirements are worked to that work schedule. That requirement itself is an act of indirect discrimination. It puts a requirement or a condition connected with a job when that requirement or condition is not reasonable, given the circumstances.
PN1270
Now, that is similar wording to what the company policy says. Now, section 6 of the Disability and Discrimination Act states that:
PN1271
Indirect discrimination is requiring a person to comply with a requirement or a condition with which a substantially higher proportion of persons without a disability comply or are able to comply ...(reads)... person does not or is not able comply.
PN1272
The requirement that was placed upon Mr Delaine was that he achieve 100 per cent of the figures in that work schedule. He was never told 80 per cent. He was congratulated for 75 per cent but that is not the same as being told that there was a target something less than 100 per cent and even if it were the case that he were told that he could reach a rate that was measurable against the rate at which a standard person could produce these widgets, that would not stop it from being any less discriminatory than it is in requiring him to reach a hundred per cent.
PN1273
The work schedule, the actual production targets were developed by an industrial engineer and the statements of that industrial engineer says that they are based upon a standard employee. She says it wasn't the fastest employee but just an ordinary employee. Now, to have a disabled worker told that they must comply with a rate that is appropriate for a standard worker is simply an act of discrimination of the form of indirect discrimination. There is no doubt about that.
PN1274
To then go and warn an individual in those circumstances is just entirely unreasonable. The establishment - I mean it is okay to say that at the time the work schedule was developed it was developed with the stop steward involved, the union organiser was involved, Mr Delaine was involved. Even if you accept that he agreed to the work schedule, you cannot agree to be discriminated against and it would not be appropriate to discipline a person in those circumstances. It is entirely unreasonable and that is the thrust of our case and it is a very simple thrust.
PN1275
The whole situation was unreasonable. The whole situation was discriminatory and the company is obliged not to discriminate. The production targets as I've said were developed by the industrial engineer and they were not developed in consultation with any medical person. Essentially if the work schedule was a goal for which an injured worker could aspire to achieve, that may be in certain circumstances reasonable I would imagine but there can be no doubt that the requirement that they must reach those targets is discriminatory.
PN1276
So that is why we would say that all three warnings were unreasonable but in terms of the second and third warnings, I mean on top of the aggravation of not allowing the union organiser to be properly present as requested, they've also been provided with a medical certificate that indicates that medically those requirements are not appropriate and that Mr Delaine is to work at his own speed. So despite having this medical information before them, they determined to give a second warning within a matter of days and then in a further number of days another warning.
PN1277
None of the warnings indicate that it is a requirement that Mr Delaine stay at his work station. They don't spell that out. If that was the focus, if that was the primary concern of the company, surely they would have mentioned it in the warnings. Surely they would have told Mr Delaine that that is what he had to do to ensure that he would not be disciplined again but he was not told about that. He was told that he was not achieving the rate required.
PN1278
So we would say the second and third warnings are even more unreasonable than the first warning, given that they ignore the treating doctor's medical certificate and the fact that there was no real opportunity for Mr Delaine to improve his performance or to go and get the - well he did have the time to go and get the medical certificate that backed up his position that he was unable to perform to the schedule. Excuse me, Commissioner. Thanks, Commissioner.
PN1279
THE COMMISSIONER: Nothing further?
PN1280
MR GRUE: Nothing further.
PN1281
MR MANUEL: Nothing in reply thank you, Commissioner.
PN1282
THE COMMISSIONER: Well, I thank the parties for their submissions and I think focusing on the key issues that need to be determined I'm aware that this is an issue involving the parties with a current working relationship. I don't intend to be too long in considering the decision. I will endeavour to give it some sort of priority but will obviously reserve my decision.
ADJOURNED INDEFINITELY [3.52pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #U8 AFFIDAVIT OF MR BRAITHWAITE PN343
EXHIBIT #U9 COPIES OF DIARY ENTRIES BY MR MARPLE PN371
EXHIBIT #U10 NOTES OF MR DELAINE PROVIDED TO MR QUIRK PRIOR TO SECOND WARNING PN393
KEVIN JAMES DELAINE, SWORN PN403
EXAMINATION-IN-CHIEF BY MR GRUE PN403
CROSS-EXAMINATION BY MR MANUEL PN416
RE-EXAMINATION BY MR GRUE PN757
WITNESS WITHDREW PN761
EXHIBIT #C2 STATEMENT OF MS PHUONG TRIEU PN772
EXHIBIT #C3 STATEMENT OF SUZIE ANTONIOU PN779
EXHIBIT #C4 STATEMENT OF JAMIE GETGOOD PN780
GERALD FRANCIS QUIRK, SWORN PN799
EXAMINATION-IN-CHIEF BY MR MANUEL PN799
EXHIBIT #C5 STATEMENT OF GERALD QUIRK PN837
CROSS-EXAMINATION BY MR GRUE PN839
EXHIBIT #U11 EQUAL EMPLOYMENT OPPORTUNITIES POLICY PN849
EXHIBIT #U12 HARASSMENT POLICY PN849
RE-EXAMINATION BY MR MANUEL PN1017
WITNESS WITHDREW PN1022
PAUL JOHN CIMAROSTI, SWORN PN1025
EXAMINATION-IN-CHIEF BY MR MANUEL PN1025
EXHIBIT #C6 STATEMENT OF PAUL CIMAROSTI PN1035
CROSS-EXAMINATION BY MR GRUE PN1036
RE-EXAMINATION BY MR MANUEL PN1069
WITNESS WITHDREW PN1074
TAMMY THAM, SWORN PN1074
EXAMINATION-IN-CHIEF BY MR MANUEL PN1074
EXHIBIT #C7 STATEMENT OF TAMMY THAM PN1084
CROSS-EXAMINATION BY MR GRUE PN1087
RE-EXAMINATION BY MR MANUEL PN1153
WITNESS WITHDREW PN1167
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