C2003/4965, Transcript of Proceedings [2003] AIRCTrans 3895 (4 September 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2003/4965

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

WOOLWORTHS LIMITED

Application under section 170LW of the Act
for settlement of dispute re alleged first
and final warning given to an employee

SYDNEY

10.17 AM, WEDNESDAY, 20 AUGUST 2003

PN1

THE COMMISSIONER: Appearances, please.

PN2

MR R. TONKLI: If it please the Commission, I appear for the Shop, Distributive and Allied Employees Association. To my right is MS S. WILLIAMS, not WILLIAMSON, as contained in the dispute notification, Stephanie Williams, and also the organiser, MR JOSEPH BOURKE.

PN3

MR D. GILLAN: If the Commission pleases, I am from the Australian Retailers Association, New South Wales Division, appearing for the respondent, and with me is MR S. SMITH, HR specialist, for the respondent.

PN4

THE COMMISSIONER: Thank you, Mr Gillan. The matter before the Commission is an application filed pursuant to section 170LW of the Workplace Relations Act, 1996. It's an application by the SDA seeking the assistance of the Commission in the settlement of the dispute related to the Woolworths Supermarkets (New South Wales) ACT Agreement 2001, and the employer's action in issuing a warning to an employee. It's your application, Mr Tonkli, what do you have to say about it?

PN5

MR TONKLI: Thank you, Commissioner, a bit of background information for your assistance. Ms Williams has been an employee of the company for nine years, almost the last two of those years she has been at the Plumpton Supermarket as the Office Manager. She transferred there on the basis of an offer from the company based on her good work performance. Now, prior to this incident, she's never received counselling or a warning, as I understand, it of any description and certainly until this incident she has been very happy working with the company and has sought to continue working with the company for the rest of her career.

PN6

Now, the incident giving rise to the counselling that we're disputing, in terms of the background, we go back to Monday, 26 May and on that day, there was some instructions given by the Store Manager, Mr Harvey, in relation to the payment of wages. Now, I won't bore you with the detail except to say that the next day, Tuesday, 27 May, Mr Harvey, the Store Manager, confronted Ms Williams saying that she had not fulfilled his instructions.

PN7

Now, Ms Williams denies this. Certainly when the instructions were given on the Monday, there was a witness to this. Anyway, the long and short of it is that there was argument. Now, the following day, Wednesday, 28 May, Ms Williams was called to the store manager's office at which she was told she would be counselled. Now, the basis of the counselling as written out on the day and certainly before Ms Williams attended the office, she informs me, that the counselling was basically filled and that there were a number of things on it. The things that were on it were primarily abusive - - -

PN8

THE COMMISSIONER: I'm sorry, what are you talking about now?

PN9

MR TONKLI: The counselling which is in relation to the incident of 27 May in which a heated discussion took place.

PN10

THE COMMISSIONER: So there was a formal counselling on the 28th or was there a notification of an intended counselling.

PN11

MR TONKLI: On the 28th, it was a formal counselling described as her first and final warning and that any further such action would give rise to her termination, hence it's a very serious matter, particularly in light of the fact that she's an employee with nine years service having had no previous counselling. In a nutshell, Commissioner, the substance of the counselling is absolutely denied by the member.

PN12

THE COMMISSIONER: Are there any witnesses to anything that went on that is being denied?

PN13

MR TONKLI: Can I explain what the counselling is and then come back to the actual incident? I just want to summarise the basis of the counselling so you're aware of what I'm talking about.

PN14

THE COMMISSIONER: Yes.

PN15

MR TONKLI: The basis of the counselling as put to Ms Williams was abusive, foul and demeaning language directed to the store manager. There was also on the day of the counselling some further particulars detailed in the counselling which related to the failure of Ms Williams to comply with directions of the store manager. However, whilst they were filled out in front of her, the copy that she received thereafter had those particulars crossed out. So the counselling that was given to her on the day was actually altered by the company after the counselling and I think that goes to questions of the way in which the counselling was conducted.

PN16

THE COMMISSIONER: Whereas the failure to comply with the store manager's direction component, was it altered or was it deleted?

PN17

MR TONKLI: It was deleted after the counselling was given. Certainly, Ms Williams, denies that she failed to comply with the directions and it was the issue of complying with directions that gave rise to the argument. Now, as I understand it, Commissioner, there were no witnesses to this incident. Ms Williams agrees that she was angry because she denied not having complied with the store manager's directions. She absolutely denies that she was in any way deeming, abusive or conducted herself using foul language, so there are no witnesses.

PN18

So what we really have is one person's word against another and I notice that the company have failed to present the manager here today to respond to these allegations. Importantly, Commissioner, what has been raised to the union since this matter occurred was that the manager himself has been known by store employees to conduct himself in a way as described in the counselling - and we can present a witness to that effect and we can present more witnesses in the future if you require - that the manager himself has been seen and been heard to use abusive, foul and demeaning language to staff members.

PN19

If that is accepted by the Commission, we submit that even if the event occurred and we don't agree that it did, that is even if Ms Williams did use the type of language as described in the counselling and we don't accept that she did, well, clearly the company, at least in this store have a double standard, in effect, policy that's to be applied to employees at this store isn't applied to the manager. Indeed, there's an issue of condemnation, if the manager can speak in such a way, well, then in our view, he has no right to counsel an employee and to that extent, I would like to present a witness who was - - -

PN20

THE COMMISSIONER: You haven't presented me with any facts yet. All you're doing is giving me a submission. If you are going to get around to doing so and if you are going to start presenting some evidence, I hope you are not going to present evidence from anybody who is currently sitting in the hearing room because if you are, I am not going to listen to it. You know full well that if you are going to give evidence in a matter before me, no one who is going to give evidence should have been present to have heard the primary submissions or the early submissions.

PN21

MR TONKLI: Commissioner, I'd have to disagree with you on the basis that what has happened has been known to - - -

PN22

THE COMMISSIONER: Mr Tonkli, it is a matter of procedure. If you are now telling me that you intend to bring evidence, I am not going to have potential witnesses sitting and listening to preliminary arguments. Their evidence will be infected by their own interpretation of the submissions that they hear from you or any other submissions that are heard from the other side.

PN23

MR TONKLI: Commissioner, on that basis I would say that the evidence we would present would be in the form of a statement written by the person prior to my submissions this morning and the person could speak to that statement.

PN24

THE COMMISSIONER: Is in the form of an affidavit?

PN25

MR TONKLI: It is in the form of a handwritten statement.

PN26

THE COMMISSIONER: A handwritten statement?

PN27

MR TONKLI: That's correct.

PN28

THE COMMISSIONER: It's not an affidavit.

PN29

MR TONKLI: It is not an affidavit. For the purposes of this proceeding this morning, the person could swear to it because it is his own statement. In the basis that the statement certainly could not have been infected.

PN30

THE COMMISSIONER: What does that evidence go to, Mr Tonkli?

PN31

MR TONKLI: It simply goes to the - - -

PN32

THE COMMISSIONER: Is this the contention that you're making about the store manager's conduct?

PN33

MR TONKLI: Correct.

PN34

THE COMMISSIONER: And you know full well the store manager is not here to defend himself.

PN35

MR TONKLI: Well, that's up to the company.

PN36

THE COMMISSIONER: Of course it is, Mr Tonkli. You don't have to state the bleeding obvious.

PN37

MR TONKLI: Can I present that?

PN38

THE COMMISSIONER: No, I don't want to hear that evidence. I want to hear what the other side has got to say before I decide whether in fact there's any merit in this issue or, in fact, whether there is any reason for the Commission to be involving itself. What's the nature of the assistance that you're seeking and under what heading

PN39

MR TONKLI: We are seeking to have the warning rescinded on the basis that the conduct described in the warning did not occur. On the basis that as a result of that warning, Ms Williams stands in jeopardy of her employment. It's a serious matter, Commissioner, and that's why we are here.

PN40

THE COMMISSIONER: Right, and under what heading of the agreement, the section of the agreement, is that referred to the Commission?

PN41

MR TONKLI: 39, disputes procedure.

PN42

THE COMMISSIONER: Which section of 39 disputes procedure?

PN43

MR TONKLI: 39.1.7.

PN44

THE COMMISSIONER: 39.1.7 I bring the notice to the attention of the parties now. It says, and I quote:

PN45

If the matter -

PN46

which presumably is a dispute or grievance -

PN47

still cannot be resolved, the matter may be referred to the Australian Industrial Relations Commission.

PN48

It does not say the manner or intention of the parties in referring a matter to the dispute and before - Mr Tonkli hear me out, please, before you jump in - before I deal with this matter in any way shape or form, I want the parties to state clearly on the record what it is they mean by their words contained in clause 39.1.7.

PN49

MR TONKLI: If I may assist, Commissioner. I was the industrial officer responsible for the union at the certification of this agreement. At the certification of this agreement, also present was Mr Carr of the company. The Commissioner, whose name I can't recall, but I can assist you, I could get transcript - - -

PN50

THE COMMISSIONER: Was Commissioner Eames.

PN51

MR TONKLI: Commissioner Eames in Melbourne, asked us what was the intention of the parties in relation to this clause. Did that mean conciliation and/or arbitration. Both myself and Mr Carr said, yes.

PN52

THE COMMISSIONER: You said yes to what?

PN53

MR TONKLI: That the intent of that was that the Commission could conciliate and/or arbitrate a matter brought to its attention under this clause. It was stated by myself and accepted by the company before Commissioner Eames.

PN54

THE COMMISSIONER: That's fine, you've clarified that point for me, Mr Tonkli. There is nobody else in this room who can substantiate that or deny it. I accept that you are giving it to me from the bar table as an experienced advocate and practitioner in this jurisdiction.

PN55

MR TONKLI: Yes. So on that basis, we say the Commission has power to deal with the matter and if necessary to arbitrate the matter. That is it in a nutshell. If I can assist in any other way, otherwise I will sit down and hear from the company. Thank you.

PN56

THE COMMISSIONER: All right, Mr Gillan, what's the other side of the story?

PN57

MR GILLAN: Commissioner, Mr Tonkli has correctly pointed out that the circumstances which gave rise to the verbal altercation between Mr Steve Harvey, Store Manager, and Ms Stephanie Williams involved the transfer of moneys into a company account. I can recount for the Commission the actual exchange, the dialogue. It began with Ms Williams stating:

PN58

Don't start with me.

PN59

to which Mr Harvey said:

PN60

Don't point your finger at me.

PN61

Ms Williams:

PN62

I've had enough of you, I've got witnesses, that is not what you said, you arsehole.

PN63

Mr Harvey:

PN64

Watch your language.

PN65

Ms Williams:

PN66

You're a fucking arsehole, I hate you.

PN67

Mr Harvey:

PN68

If you're going to treat me like that, get out.

PN69

Ms Williams:

PN70

I'll take you straight to the top. I will fix you.

PN71

Commissioner, that exchange - - -

PN72

THE COMMISSIONER: Mr Gillan, in what form do you have those words? Do you have them in the form of a sworn affidavit? If not, where is the person who is alleged to have made that statement. Why isn't that person here?

PN73

MR GILLAN: It was a decision taken by the company not to have Mr Harvey here today.

PN74

THE COMMISSIONER: Well, you will unfortunately wear the outcome of that strategic decision, whatever the outcome might be. If that's the consequences of a strategic decision that the company's made, so be it. You expect me, as Mr Tonkli expects me, to accept what you say on its face value as evidence. Well, in response to that, I accept neither of the stories until such time, if this issue is to be argued on the facts, I will want to see witnesses, sitting in the witness-box, giving sworn evidence and being cross-examined and any other evidence that supports it one way or the other.

PN75

In the end, I have to make decisions on what are reasonable facts in the circumstances before I can apply any of the Commission's powers towards resolving the dispute that exists.

PN76

MR GILLAN: Commissioner, with respect, the company was of the view that today's proceedings would not involve the taking of evidence. The key reason being - - -

PN77

THE COMMISSIONER: Well, the company took a risk on that, didn't they?

PN78

MR GILLAN: If I could add, the key reason being that the section pursuant to which this application has been made arguably, and in our respectful view, does not empower the Commission with the right or the power to arbitrate this matter.

PN79

THE COMMISSIONER: Well, Mr Gillan, let's deal with that matter. Are you now maintaining some form of jurisdictional objection to the Commission being asked to exercise powers available and spelt out in clause 39 of the agreement? Are we now going to have a debate on jurisdiction and if so, are you prepared for that debate?

PN80

MR GILLAN: I'm not prepared to make that argument today. Nevertheless, we do reserve our rights in that regard. Notwithstanding what Mr Tonkli has said about the intention of the drafters of the agreement with respect to the relevant clause in the agreement, in grossly simple terms, we would be moving on the lines that the legislative impediment to the Commission's power to arbitrate in that it would expressly affect what is in that agreement or what was the intention of the parties at the time.

PN81

THE COMMISSIONER: Well, there is some pretty established case law now and that's something that I'd hear submissions on from the parties as to what, if any, powers I do have to provide the relief that is currently being sought by the SDA. It might well be that as things unfold, the SDA seeks a different attitude, a different form of relief. So you're telling me there was another side of the argument, that it was Ms Williams who was abusive, that it wasn't Mr Harvey and you have some quoted material from Mr Harvey.

PN82

MR GILLAN: That is correct. Can I also add that the union's intention to lead evidence today, we see that as broadening the ambit of this dispute. The ambit of this dispute lies in an exploration of the circumstances which gave rise to the first and final warning, this incident. Now, any broader - - -

PN83

THE COMMISSIONER: Well, with very great respect to you in response to that, Mr Gillan, where is the other principal protagonist? You've elected not to have him here. Quite frankly, I should just get up from this bench and leave you to it, and you can go and have that discussion somewhere else when the right people are present. It would probably end up being another slanging match by the sound of it, but that's not pre-empting it. There might be some neutral referees in hearing what those people have to say to each other. In the absence of any independent witness evidence to what was said or done I don't see the position for the Commission is any way assisted by the parties bringing this matter here in the first place.

PN84

MR GILLAN: I hear what you are saying, Commissioner, and on that basis I propose just standing down this matter for a moment so that Mr Tonkli and I can discuss your opinion, the Commission's opinion on what useful input it can have and then we may reapproach.

PN85

THE COMMISSIONER: Mr Tonkli, what do you have to say in response to that?

PN86

MR TONKLI: I just want to make one comment and raise a concern, Commissioner, about your comment that on the basis of there being no independent witnesses to the event that you can't or you may choose not to deal with it.

PN87

THE COMMISSIONER: Look, the parties may ask me to accept one or other of two possibly unbelievable stories, which is the more believable of two unbelievable stories, and the resolution of the matter might be better spent with the two protagonists and an independent third party.

PN88

MR TONKLI: The difficulty I see, Commissioner, is that on the basis that if we can't resolve the issue directly with the company we are still left with a situation where we have a first and final warning has been given to an employee who denies outright the basis of that warning. If there are no witnesses then the only way, in my view, is testing the evidence against the two people who were there.

PN89

THE COMMISSIONER: Exactly.

PN90

MR TONKLI: It also goes to the issue of condemnation and double standard, the conduct of the manager.

PN91

THE COMMISSIONER: That's an assertion on your part, Mr Tonkli.

PN92

MR TONKLI: It is.

PN93

THE COMMISSIONER: That of course would have to be supported for it to be a fact.

PN94

MR TONKLI: Which is why I mentioned the other witness here today, and I don't think it would be difficult getting other witnesses, but that's for the future. I'm happy to speak to the company directly, but without the manager who gave the warning who was involved in the incident, present here today.

PN95

THE COMMISSIONER: You've had plenty of opportunity to confer about this matter before today and I am particularly aware that the company has avoided like the plague dealing directly with the SDA in this matter up to this point in time, and that the listing of this matter has done nothing more than bring the parties together in the one room at the one time and now is the time the parties ought to seriously confer about how they want to deal with this matter. If your allegations concerning the store manager have any fact or any history, and it's a very serious matter that the company needs to take into consideration, in responding to those allegations.

PN96

MR TONKLI: I would raise this point, though, the company well knew of this matter today.

PN97

THE COMMISSIONER: Of course they did, they have been in touch with my office. In fact, on a number of occasions we've been told that the company won't speak to the union.

PN98

MR TONKLI: In fact I was speaking to the company's representative yesterday on the telephone. Now, I had expected the company to present Mr Harvey today, the fact that they haven't really gives rise to - I think it is a described as a Browne v Dunn point, that is:

PN99

The failure of a party to bring a witness can lead the Commission to assume that the evidence of that witness - - -

PN100

THE COMMISSIONER: Mr Tonkli, I'm not going to get involved in a technical exchange of what the Commission can and cannot do when in fact the evidence that might be given is already infected from any person who is presently in this room by what they have heard already this morning, and I've already made my point clear on that.

PN101

MR TONKLI: As I said, we're relying on statements made prior to the evidence being presented this morning and the persons can be tested on the basis of those statements.

PN102

THE COMMISSIONER: Yes, but you know better, that if you're going to present evidence to this Commission do it properly by way of proper witness statements or affidavits and have the person available for cross-examination, and the same goes for the company.

PN103

MR TONKLI: Yes, in which case we could withdraw from today and seek to have the matter heard by yourself formally at some future date which may be the only way we can proceed if we can't resolve the matter directly with the company.

PN104

THE COMMISSIONER: It may be, and I'll put it to you that I'm prepared to meet with yourself and Mr Gillan privately during the adjournment that's been requested and discuss the matter further with you. I put you on notice that as a result of that, or anything that has been done or said today, if either you or the company have a problem with my further dealing with the matter that won't concern me if either one or both of the parties want to file an objection to my dealing with the matter beyond the conciliation phase. I don't take exception to anybody who raises section 105 against me.

PN105

MR TONKLI: Thank you, Commissioner.

PN106

THE COMMISSIONER: But I'm happy to confer with the parties privately if that's an opportunity that you want to take up, having been proposed by Mr Gillan.

PN107

MR GILLAN: I have no objection to that, Commissioner.

PN108

THE COMMISSIONER: All right, well, we'll adjourn for nominally 15 minutes and I'll confer with Mr Tonkli and Mr Gillan in my office.

SHORT ADJOURNMENT [10.41 am]

RESUMES [12.10pm]

PN109

THE COMMISSIONER: When I adjourned these proceedings into private conference just over an hour ago I conferred with the parties' representatives briefly and in the meantime they have been conferring separately and, I assume, together. Mr Tonkli, it is your application, can you tell me at this stage where things are up to?

PN110

MR TONKLI: Thank you, Commissioner. I am happy to report that the parties have had constructive discussions with a view to resolving the matter. The matter is not yet formally resolved but we are hopeful of a resolution in the near future. On that basis the parties would be seeking to have the matter stood over with leave to relist by application to the Commission if necessary and certainly if the matter is resolved the union will notify the Commission of that outcome. I would expect that we would know either way whether the matter needs to be relisted or to be continued within seven working days.

PN111

THE COMMISSIONER: Mr Gillan.

PN112

MR GILLAN: Commissioner, we concur with Mr Tonkli's submissions.

PN113

THE COMMISSIONER: All right, thank you for that report back, it seems as though things are on course towards a resolution. My only comment would be to consider your respective positions wisely and dispassionately, deal with whatever issues arise as a result of that appropriately and consider the likely consequences both for the applicant and the respondent organisation should the matter proceed to any more public a hearing than we have had already today.

PN114

Having regard to Mr Tonkli's submission and the employer's consent to that, I will stand this matter over generally for seven working days with leave to have the matter relisted should that occur, but in that period of time, Mr Tonkli, will you advise me as to what the parties' position is?

PN115

MR TONKLI: Yes, Commissioner.

PN116

THE COMMISSIONER: I will adjourn the proceedings generally.

ADJOURNED ACCORDINGLY [12.15pm]