C2003/2769, Transcript of Proceedings [2003] AIRCTrans 4160 (19 September 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 1, 17-21 University Ave., CANBERRA ACT 2601
GPO Box 476 Canberra 2601
Tel: [phone] Fax: [phone]

TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2003/2769

TRANSPORT WORKERS' UNION OF AUSTRALIA

and

TNT AUSTRALIA PTY LTD T/AS TNT EXPRESS

Notification pursuant to Section 99 of the Act
of a dispute re alleged denial of due process
and discrimination in handling disciplinary matters

CANBERRA

4.07 PM, THURSDAY, 4 SEPTEMBER 2003

PN1

THE COMMISSIONER: Good afternoon. I will take the appearances, please.

PN2

MS J. TISDALE: I appear for the Transport Workers' Union, and appearing with me is MR P. SEAL appearing for the TWU.

PN3

MR R. MACKENZIE: I appear for TNT and appearing with me is MR P. VANE-TEMPEST and MR S. HAWKSWORTH.

PN4

MR N. WAKELING: I appear for Adecco and appearing with me is MS M. THOMPSON.

PN5

THE COMMISSIONER: Ms Tisdale?

PN6

MS TISDALE: Thank you, Commissioner. Commissioner, this is a very difficult and quite complex dispute that has arisen over the last week or so. There are a number of elements to it and they are interlinked on a number of levels. We are here principally to deal with the matter that we notified, which is relating to issues surrounding an alleged breach of email policy that resulted in disciplinary action against six employees, four of whom were warned, two of whom were sacked.

PN7

Events have moved on quite substantially, or perhaps subsequent events have overtaken those events somewhat in that a significant section of the depot concerned - the TNT depot, the Express part of the work, was contracted out on Monday this week, resulting in the redundancy of twelve full-time employees and a number of labour hire employees. So, those subsequent events are going to colour some of what we will be talking about today, although we are not seeking to resolve the issues arising from that redundancy, the sacking of those employees through this mechanism here today. Although I would say to the company that we are always open to any opportunity to discuss those issues.

PN8

The breach of the email policy is a matter that has led to an extraordinary - the alleged breach - the consequences of that have led to an extraordinary amount of personal upset and distress. Partly, in our view, because the matter has been very, very poorly handled by TNT and in the light of subsequent events it almost seems no coincidence, that poor handling. The reason for the distress is that the supposed breach relates to emails that were received in some cases and forwarded, in other cases, that the company, it seems, are saying - I have not seen the formal letters - were of a pornographic nature.

PN9

It is our submission that they were of a smutty nature, you might say, the kind of thing you might see on, I don't know - Australia's Sauciest Home Videos or something. And we have copies of the emails here today that have been presented to us by TNT senior management as the cause of this. The company has not been saying that they are inappropriate or smutty emails, though. There have been representations made by the most senior levels of the company all the way down to local managers around the country that these email images concern child pornography, animal pornography, and frankly, the stories are getting more extreme by the day, and words like "paedophilia" are now being freely bandied about at TNT yards around the country.

PN10

You can imagine, Commissioner, the extraordinary distress this is causing this workforce. All of these people very strongly deny that there was any such content involved. But they are put in a position where they are needing to, or feel the need to defend and explain themselves to their friends and loved ones and coworkers against an accusation of an extremely vile nature. And it seems to us that this matter has been very poorly handled and we can say that it is - it seems that it is not in TNTs - that it is in TNTs interests that this matter is very poorly handled.

PN11

Because we have a group now of workers who have been sacked with no notice and who are looking to the public for support, who are looking to their workmates around the country for support, and the messages they are getting back is, well, why would we support a bunch of people who are engaged in vile child pornography, in bestiality and all kinds of such things.

PN12

So it seems - it has been our experience that TNT has no interest in putting a lid on this, in putting a process in place that will deal with this situation, in a way that is fair.

PN13

And in the face of the extraordinary personal distress that has been caused to at least some of the employees concerned, that is in our view, extraordinarily reprehensible behaviour. When we initially notified this matter, Commissioner, it was the day that the sackings and warnings occurred, on Wednesday, 26 August. On that day, two employees, Kym Coburn and Matt Joyce, were dismissed. They were relatively long term employees at TNT, formerly employed through Adecco. They - and the four others were given formal letters of warning. They all worked in the office at the TNT depot in Canberra.

PN14

THE COMMISSIONER: When these terminations took place, was there any reason for the termination recorded in writing?

PN15

MS TISDALE: It is my understanding, Commissioner, that the letters of warning that were given to a number of the employees stated that there had been a breach of TNTs email policy. But the reason why we do not know much about what occurred it that it seems there was just a belief by the managers involved that they did not need to form - to follow any formal process of investigating the allegations, of interviewing the relevant people, of making it known that the employees had the right to representation.

PN16

When the union took this up with TNT management and Mr Andrew Whale, the branch secretary of the Canberra sub-branch spoke to Curtis Berry, who is at TNT head office, particularly in relation to the termination of Kym Coburn, and asked why was she terminated, Mr Whale has said to me that Mr Berry said to him that it was "because she is labour hire. We can do what we want. She is not covered by disputes procedure." It is our understanding that there were some discussions that happened between TNT and Adecco but there was nothing of any significance in terms of a process between TNT and Kym.

PN17

There were - a number of people who were involved in these events have made written statements of their recollection and I do not intend at this point to hand those up. Some of those people are here and some of them are not. But some of those who were engaged in the - or, some of those who were warned were subsequently called into a manager's office and told that they should be careful about talking to the public about what had happened, and essentially it seemed to be a, you know, we need to all move on kind of talk. And one of those who was brought in then said, you know, "Do we need representation for this meeting?" And the manager said, "Well, you are not members of a union".

PN18

And it seems that there is a belief among that level of management at TNT that those who they presumed were not members of the union - the office staff, did not have access to any resolution dispute procedure, did not have access to any due process in terms of their - these disciplinary matters. Just going back a bit to the chronology, Commissioner, of events, the expressed attitude of Mr Berry of TNT that labour hire people did not come under any kind of dispute resolution procedure and could be kind of terminated at TNTs pleasure, caused a significant amount of concern among the other employees.

PN19

There are, on my understanding, kind of three groups of employees. There are the express - TNT Express workers who deliver bulk and freight in boxes, and TNT Priority, who deliver satchels. And then there are the people who work in the office, in the operational and administrative roles. There was a meeting of the employees as a group the day after the sackings occurred and those employees voted to take industrial action. And they were - they took that industrial action for two days, on Wednesday and Thursday last week.

PN20

Meanwhile, the union had notified the section 99 and we had also made several attempts to discuss the matter with the company at various levels of seniority and made several attempts to negotiate a return to work in return for discussions about the issue. And they were pretty much rebuffed. And as Mr Whale, the secretary of the sub-branch of the union said to me, he had to pull all kinds of strings in the end, in his view, to get a meeting with the company where they would sit down and discuss this matter.

PN21

And it seems to us, although this is a matter for another forum, that there was full knowledge at that time that the employees were going to be sacked. And there was very little interest in resolving the dispute and a significant interest in the dispute escalating, and that the rumours continue to circulate. So, Commissioner, in our view, this is an absolutely appalling situation and there has been an - extremely poor employment practices going on here.

PN22

In this forum, we want to find a way to stop these rumours - that it is our clear view, with evidence we have to back it up, if required - that managers at TNT have been passing on stories that what happened at Canberra was about child pornography, animal pornography, and so on. We want some process which holds TNT accountable for what they are saying to their employees in other places. What they are saying publicly. We want some process that will allow some independent looking at how this was able to get so out of hand. We are quite prepared to put an unfair dismissal claim in for Kym Coburn, if that is what the company wants.

PN23

And I think that in terms of the level of this personal distress that she has suffered, and the extraordinary damage to her reputation, and the impact that that has on her future employment prospects, I would urge the company to find an opportunity here to allow us to work through some of those issues and resolve them to everyone's satisfaction. But if that cannot happen - if they are not prepared to do that - then we will pursue that very strenuously through another application.

PN24

So, we want some kind of process to restore - well, we are sure that if there is a proper investigation of these matters, that that will result in - it will make it untenable that these claims that TNT management have been making as to the nature of the emails - we are certain that our view on that will be vindicated by any proper oversight of the events and that that will allow the possibility of a clearing of the public record and an apology to be made to the people who have been hurt.

PN25

We also think that there are issues, in terms of TNT's policies in relation to their email policy. They seem to have a policy, although I have not seen it and the employees tell me they have not seen it, but it is obviously grossly ineffectual it seems, and we have evidence in relation to this that anyone can log on to anyone else's system. Everyone knows everyone's passwords. They are publicly available. Anyone can send anything.

PN26

And then the fact that a computer record shows that something was sent from one person's computer to another is used as evidence, on our understanding, to sack people is just quite extraordinary. We also say that there needs to be some kind of an acknowledgment at TNT that they have responsibilities towards their labour hire employees. That those employees have rights, in terms of representation and natural justice and due process when they are being accused of things.

PN27

And through talking to the employees around these issues, it seems that there is a significant problem over a long time with a low level, but a constant level of inappropriate material around this depot. The employees all have evidence, including written evidence, of managers involved in this, in the sending and receiving of material that is on the same level as what these people have been sacked and disciplined for.

PN28

It seems that there is a culture of pictures of naked and half-naked women that have been up around the depot. And it seems that, based on the discussions with the employees today, that this could be characterised - at least at a low level - as a sexually hostile workplace in terms of the constant level of smutty and low level pornographic images that really TNT management have a significant responsibility at a moral, as well as a legal level to deal with.

PN29

So, we have come here, essentially, wanting to see what TNT are prepared to do, in terms of resolving these issues. We have provided a reasonably low-key and non-aggressive forum to do that and, essentially, we will see whether they are prepared to take that offer at face value, or whether we are going to pursue each of these claims in another way. If the Commission pleases.

PN30

THE COMMISSIONER: Just before I hear from the company, I made a list of the concerns that you have that you would like to see addressed. I think that requires just a little bit structure from the point of view of your preference as to how things should go forward, otherwise, it is going to be, pretty much, a discussion without necessarily some sort of specified relief, if you like, which would satisfy your notification?

PN31

MS TISDALE: Yes. Our first priority is in relation to Kym Coburn. Kym was originally seeking to be reinstated to her job, but through the active intervention of the other employees and the union, she is now working for another transport company, and frankly, as she told me just before, just could not face the idea of going back to TNT after they had done this to her. And she means the things they have said about her rather than the fact that she has been sacked from them, but also that.

PN32

THE COMMISSIONER: You say, "Things that they have said about her", obviously, from what you have said earlier, you have suggested that there is more than one party involved in making statements about your member?

PN33

MS TISDALE: Yes.

PN34

THE COMMISSIONER: And, clearly, you consider that TNT is legally responsible for any of those statements.

PN35

MS TISDALE: We do.

PN36

THE COMMISSIONER: And if they are defamatory or slanderous that they may be responsibilities that could be dealt with at law.

PN37

MS TISDALE: That is very much our view.

PN38

THE COMMISSIONER: But you prefer there be some conciliated settlement of the dispute and some statement forthcoming from TNT, based on proper investigation. And the statement would present the facts as they are properly found and to the extent that any statements have been made by TNT to the contrary, that they are disavowed and, to the extent, that any statements that have been made to the contrary and which are without the need of a legal finding. Broadly, this is described as slanderous or defamatory that an apology, in relation to those matters is offered.

PN39

MS TISDALE: Yes.

PN40

THE COMMISSIONER: And is it the case that if that course of action, which you contemplate, were to be followed and was, at the end of the day, established that there were some statements made which were slanderous or defamatory, and that they were unfounded, and that the apology was forthcoming in relation to those matters, that your member would then release TNT from any liability for any of those slanderous or defamatory statements?

PN41

MS TISDALE: I have not got specific instructions, but that certainly -That certainly is my preference as the way to go. There is still a bunch of people back there who are very angry and we will need to go through those.

PN42

THE COMMISSIONER: So, what I glean from that is that your member would prefer to settle this matter on the basis of a proper investigation arriving at a mutual understanding of that which is soundly based and dealing with any statements that could be identified which are not soundly based on the facts?

PN43

MS TISDALE: That is correct. And then the issue at a policy level addressed so that these things cannot occur so easily again in terms of the rights for the labour hire of employees. Obviously, there seems - - -

PN44

THE COMMISSIONER: Well, just the labour hiring?

PN45

MS TISDALE: No, there seems to be - to us - to be a need - - -

PN46

THE COMMISSIONER: For all the persons performing work there?

PN47

MS TISDALE: Yes, that is correct. And there seems to be a need - - -

PN48

THE COMMISSIONER: And how would that proceed?

PN49

MS TISDALE: Well, I think, largely, that depends on the company's attitude, whether they can see that there might be a problem here that they need to address, or whether it is just something that - - -

PN50

THE COMMISSIONER: How would you identify the problem that should be addressed?

PN51

MS TISDALE: I think it would be a way - well, a potential way of addressing the problem - would be for a generic dispute resolution procedure to be drafted which does not confine itself to employees under a particular award or employees only directly employed by TNT and probably also those who do not have an employment status but perhaps are considered contractors.

PN52

THE COMMISSIONER: Do you mean agency employees?

PN53

MS TISDALE: Yes, at a level of corporate policy of TNT. And if they have that, it is - there needs to be a significant amount of education among their managers about what it means. The other thing we think is necessary is - that there seems to be no understanding, or no shared understanding, about what is appropriate and what is inappropriate in terms of content in relation to email or pictures up on the wall or all those kinds of matters. I imagine a company the size of TNT has people who are employed specifically in this area, but it is not filtering down to this depot.

PN54

THE COMMISSIONER: Is there a sexual harassment policy at all?

PN55

MS TISDALE: Not that I have seen, although they have got a handbook and I imagine there is one in there. And there needs to be greater protection around accessing to computers and the ability to send and receive things. It does not seem that there is a screening software, although I am told it is place, but I am told that it has not captured any of these emails, the subject of the dispute, and that they were picked up through some completely different process. They are the things that we would like to see addressed.

PN56

And there is an urgency, particularly, to the issue of getting to the bottom of what happened and a clear statement from TNT about what happened and what did not happen and apologies consequent on that because of the whole other issue of, you know, there is a group of employees who are now looking for jobs. And Canberra is a small town and half the town already knows about this and is whispering about paedophilia and you know, bestiality, and these people are approaching employers looking for new jobs, so - - -

PN57

THE COMMISSIONER: Well, it is a fairly serious thing to say that management personnel either in this workplace or elsewhere within the larger realm of the organisation of TNT have been making reckless statements that are slanderous and defamatory in nature, particularly of the kind that you have referred to. They are matters of acute public sensitivity at the present time.

PN58

MS TISDALE: Yes.

PN59

THE COMMISSIONER: I guess the logical question that arises from that is that to what extent can proof be brought to bear on those assertions?

PN60

MS TISDALE: That comments have been made?

PN61

THE COMMISSIONER: Mm.

PN62

MS TISDALE: We are certainly in a position to provide evidence of things being said by TNT managers to other people, either from statements from people to whom those things were said or people who were in the vicinity and who - - -

PN63

THE COMMISSIONER: Who can give direct evidence of the statements.

PN64

MS TISDALE: Sorry?

PN65

THE COMMISSIONER: Who can give direct evidence of the statements.

PN66

MS TISDALE: Who can, yes. And things have been said to the union in the course of meetings with TNT management - - -

PN67

THE COMMISSIONER: Right. Well, I do not think it is desirable given the nature of these proceedings to embark immediately on the process of inquiry into the facts of such statements being made or not being made, and in particular, the contents of those statements. I will simply proceed on the basis that you say that direct evidence can be brought to bear to substantiate your submissions and assertion that slanderous and defamatory comments were made by officers and managers of the company to other persons, about the content of the - of this information. I will come back to that if necessary in due course. Okay. Thanks. Mr Mackenzie, do you wish to say something?

PN68

MR MACKENZIE: Thank you, Commissioner. Commissioner, firstly, can I go back and give a little bit of history as to why we are here today? We had four permanent employees employed by TNT, Darren Scrivener, Craig Piggot, Philippa Hewson and Jenny Irvine, and we had two other agency employees employed by Adecco that provided services to TNT, Ms Kym Coburn and a Mr Matthew Joyce. Commissioner, those six people came to light in terms of breaching TNTs email and internet usage policy, which I have with me today if it would help the Commission.

PN69

THE COMMISSIONER: Yes, I think you should probably hand that up now, yes. We will call this TNT1.

EXHIBIT #TNT1 EMAIL AND INTERNET USAGE POLICY

PN70

MR MACKENZIE: It came to light, Commissioner, that those six people were in fact in breach of that internet usage policy. If I can deal with the four employees first, those four employees had signed a form that is attached to the back of that policy, indicating that they had received and read and understood that policy, and in fact, Kym Coburn who has been mentioned a number of times in the Commission had also, or was also required to sign that policy. And if I could just hand up Kym's - - -

PN71

THE COMMISSIONER: TNT2

EXHIBIT #TNT2 POLICY STATEMENT FOR EMAIL AND INTERNET SYSTEMS SIGNED BY KYM COBURN

PN72

MR MACKENZIE: You will note, Commissioner, that Ms Coburn had signed TNTs policy so clearly Ms Coburn understood the policy. In addition to that, Commissioner, I have been advised by Adecco, who employs Kym, that she also signed a candidate's declaration. Part of that candidate's declaration is that Kym understood and, as I understand it, read the Adecco candidates's declaration, and I would like to tender a copy of that as well, Commissioner.

PN73

THE COMMISSIONER: TNT3.

EXHIBIT #TNT3 CANDIDATE DECLARATION

PN74

THE COMMISSIONER: There seem to be quite a few of these. Is there any - - -

PN75

MR MACKENZIE: On page 2 of that declaration, Commissioner, there is a Email, the Internet and Electronic Mail Systems Policy of Adecco.

PN76

THE COMMISSIONER: So, the employee's name is not written on either of these. Could you - - -

PN77

MR MACKENZIE: This is the signature on the bottom, Commissioner.

PN78

THE COMMISSIONER: Yes, it is the same as the signature on the exhibit TNT2.

PN79

MR MACKENZIE: So, Commissioner, in terms of statements that TNT do not have a policy, we certainly do have a policy. Anyone that has signed up - sorry, anyone that receives an email pass has to sign that policy to actually get on the - to get on TNTs system etcetera, so our employees are aware of the policy and in fact, Adecco employees are also aware of the policy. Commissioner, the problem we had with the six employees were that two weeks ago, our IT services group notices a significant degradation in the service feed into Canberra and when they investigated that, they noticed that there was an extraordinary amount of email and internet usage.

PN80

And when they investigated that further, they realised that there were again, an extraordinary amount of attachments - pictures, coming through on email to those six employees. Commissioner, it is not for today, but that is a copy of the extent of the email traffic through the server. Now, there are pictures - - -

PN81

THE COMMISSIONER: Over what period?

PN82

MR MACKENZIE: Over - that is over - probably, over a week, Commissioner, but predominantly, over two days. Commissioner, again it is probably not for today, but - - -

PN83

THE COMMISSIONER: Just out of interest, why do you say that one is not for today?

PN84

MR MACKENZIE: Sorry?

PN85

THE COMMISSIONER: I am not necessarily suggesting it is, but I would be interested for you just to explain why it is that you do not think it is appropriate to table the material.

PN86

MR MACKENZIE: Only because I - because of the shortage of time, Commissioner, that I have had to prepare today. We got a notification at 11.30 so I have not - these are the only copies that I have, Commissioner.

PN87

THE COMMISSIONER: I understand, but I - there is no reason why I should not see them, is there? Or is there?

PN88

MR MACKENZIE: No, no, none at all.

PN89

THE COMMISSIONER: All right. Well, perhaps you might just hand it up. But don't stop. Continue.

PN90

MR MACKENZIE: And I don't say, Commissioner, that that is all of the emails, either. Commissioner, depending on your taste and your values, and I am not a classifier of perv pictures, etcetera, but I think if you go through those attachments, you will find that at best they are offensive. They are certainly inappropriate, they are certainly extensive, and as I said, depending on your values, whether you just find them downright offensive. In terms of the six employees, Commissioner, it appears it has been - sorry, six people, it appears as if one person was the main recipient of that information.

PN91

They have subsequently passed it on, forwarded it, to the five other people and there is examples in that pile where those people have on-forwarded those emails to other people. Clearly, Commissioner, that is a breach of TNTs internet email usage policy. It is clearly also to Adecco employees, a breach of Adecco's policies, and on that basis, Commissioner, I personally visited TNTs Canberra depot on 26 August and did two things.

PN92

Commissioner, I interviewed in a group the four TNT employees. I explained to those four employees the problems we were having with the internet server and the reason we were having those problems. I had those examples with me at the time. I indicated to those four employees that they were the people that were receiving and in some cases, on-forwarding that information. I indicated to those people that clearly that was a breach of the internet and email policy which they were well aware of, having signed the policy.

PN93

And on that basis, Commissioner, I - sorry, prior to giving them a warning, I asked those four employees whether in fact they wanted me to go through, individually, the email breaches and show them the pictures that were in that file, and each of the four employees said, no, we did not. On that basis, Commissioner, they indicated that they accepted that they were the people abusing the email system and on that basis, they received a final warning letter. In addition to that, they received another copy of the internet policy and were asked to again sign that policy. Commissioner, those people - those four people, are not represented as I understand it, in the Commission, today.

PN94

MS TISDALE: They are, Commissioner - they are represented, they are not here personally.

PN95

MR MACKENZIE: Well, Commissioner, could I ask the TWU to clarify whether in fact they are representing those four people or not?

PN96

THE COMMISSIONER: I think the answer - they are. That is what they told me earlier.

PN97

MS TISDALE: Commissioner, can I say that Mr Seal was called to meet with some of those people today who were in some fear of their job security. Events have obviously escalated over the last few days.

PN98

THE COMMISSIONER: Are they members of the union? Who are you representing?

PN99

MS TISDALE: They are members of the union and I have a statement signed by them here.

PN100

THE COMMISSIONER: I think it is sufficient that they are members of the union.

PN101

MR MACKENZIE: I just wanted to clarify that, Commissioner. Commissioner, those people, as I said, were given a final warning letter. In terms of the Adecco employees, Commissioner, bearing in mind that I went to Canberra on 26 August, one of those Adecco employees had not attended for work at TNT since the prior Friday and that Adecco employee had not contacted TNT to indicate whether in fact he had - what he had done with his services, so I have no understanding.

PN102

THE COMMISSIONER: Who are we talking about here?

PN103

MR MACKENZIE: We are talking about Mr Matthew Joyce. In terms of Kym Coburn, Commissioner, I interviewed Kym and went through exactly the same spiel as I went through with the four other permanent employees and indicated to Ms Coburn that TNT were not interested in engaging her on the basis of her wasting her time, breaching the TNT email policy, and on that basis, I would arrange to have her - to be paid up until the Tuesday, I think it was, and then returned to Adecco.

PN104

Clearly it is the - TNTs position, Commissioner, that Kym Coburn is an employee of Adecco, and whatever arrangements that Adecco have made subsequent to that interview, are Adecco's concerns. Commissioner, in terms of the statements that have been made in relation to senior management in TNT making certain claims, statements, etcetera, I am not aware of those statements. I have no knowledge - first hand knowledge, of any of those statements.

PN105

All I can say is that I have no evidence that that is what TNT senior management were actually saying about the quality of the attachments to those emails. And in terms of the general public in Canberra knowing what is going on at TNTs depot, TNT has made no statement - no statement to the press or the TV, in relation to those activities. And the only statements that have been made in public have been made by the TWU. If the Commission pleases.

PN106

THE COMMISSIONER: Is it the case that any consideration has been given to the representations of the union that the investigations were insufficient?

PN107

MR MACKENZIE: Commissioner, the evidence that we have that is contained in - - -

PN108

THE COMMISSIONER: Has this been provided to the union prior to today?

PN109

MR MACKENZIE: No, it has not, Commissioner.

PN110

THE COMMISSIONER: All right. So perhaps the - perhaps they need to actually look at this before we go forward. That might be a desirable situation. One of the things that you said, Mr Mackenzie, was that it seemed that the critical path of the email exchanges, if you like, was that there seemed to be largely an author of the original messages, and then there was a distribution by using the forward mechanism in the email software.

PN111

MR MACKENZIE: Yes, that is - - -

PN112

THE COMMISSIONER: Is that right?

PN113

MR MACKENZIE: Yes, that is correct.

PN114

THE COMMISSIONER: And is it - would you say that Mr Joyce was the - - -

PN115

MR MACKENZIE: Yes, I think the primary - - -

PN116

THE COMMISSIONER: At the time, the author?

PN117

MR MACKENZIE: Yes, that appears to be the case in - - -

PN118

THE COMMISSIONER: From the material that has been tabled.

PN119

MR MACKENZIE: In the log that I had.

PN120

THE COMMISSIONER: And that in some cases, other parties had forwarded that on? Right?

PN121

MR MACKENZIE: Yes, yes Commissioner. So, just so it is clear, Commissioner, the concern that TNT has is firstly, the inappropriate use of the internet system, secondly the quantum has actually degraded our server to the extent that it impacts on the rest of the legitimate business of the organisation. Thirdly, Commissioner, the people that have received inappropriate material, opened it, done nothing about putting their hand up and saying, "Listen, this is inappropriate", going back to the individual that is sending it and saying, "Stop this", or go to a supervisor and say, "We've got a problem". And lastly, Commissioner, on forwarding - on forwarding that information to other people not only inside TNT but externally, Commissioner.

PN122

THE COMMISSIONER: Yes. I have not had a chance to look at that. I was about to ask you that. So, the distribution was not confined inside TNT?

PN123

MR MACKENZIE: No.

PN124

THE COMMISSIONER: You say some of the persons within the six actually directed the messages - - -

PN125

MR MACKENZIE: Some of it, Commissioner.

PN126

THE COMMISSIONER: - - - to other email addresses?

PN127

MR MACKENZIE: Yes, some of it, Commissioner, but not to the extent that it all - I am not suggesting it has all been on-forwarded.

PN128

THE COMMISSIONER: Right. Does Adecco wish to make some submissions?

PN129

MR WAKELING: Yes, Commissioner. At this stage, as you will appreciate, we are a little prejudiced by the case in the sense that we only received notification of the matter this morning and I had to make my way through the statement.

PN130

THE COMMISSIONER: I do not know if you are actually a party that has caused any grievance to the TWU.

PN131

MR WAKELING: Well, Commissioner, I have a copy here from the company, of the original dispute.

PN132

THE COMMISSIONER: The 99 - section 99, actual paper?

PN133

MR WAKELING: Is this the 99? Yes, it is the 99 dispute, it has got the number 99 on the front. Commissioner, at this point in time I just wanted to just indicate that we had not received any documentation. So, I am prejudiced in a sense that we - - -

PN134

THE COMMISSIONER: But you are named as a party to a dispute.

PN135

MR WAKELING: Yes.

PN136

THE COMMISSIONER: Well, I was really saying that whilst your named as a party to the dispute, from what I have heard from the TWU, they have no grievance in relation to your involvement.

PN137

MR WAKELING: Commissioner, at this point I was just flagging that in the sense that I have not been in a position to prepare, as you can appreciate, any great evidence. I am not indicating that is an indication of the TWUs direction in terms of Adecco in this matter. But I just wanted to flag that at the outset. I suppose the major point I would like to make at this point in time if I may, Commissioner, is that we had engaged both engaged both Ms Coburn and Mr Joyce and they were on-hired. Both of them had executed candidate declaration forms, of which you have one in front of you. I do have one for Mr Joyce if you require that as well. I suppose the - - -

PN138

THE COMMISSIONER: Do they remain employed by Adecco?

PN139

MR WAKELING: So, do they remain?

PN140

THE COMMISSIONER: Do they remain employed by Adecco?

PN141

MR WAKELING: For the whole period?

PN142

THE COMMISSIONER: No, do they, now?

PN143

MR WAKELING: Well, they are still currently in - - -

PN144

THE COMMISSIONER: They are still Adecco employees.

PN145

MR WAKELING: Yes. They are still currently Adecco employees.

PN146

THE COMMISSIONER: Right.

PN147

MR WAKELING: In respect to Ms Coburn, she in fact sought that her employment with another transport company who is in fact a client of ours and it is my understanding we are actually continuing her employment.

PN148

THE COMMISSIONER: She has been placed with that client?

PN149

MR WAKELING: Yes, with that client. In respect to Mr Joyce, in this point in time, I do not believe that there has been any further discussions with him in finding another assignment but as an employer, we can certainly facilitate that if that is the case - if he would like to do that. That is obviously not a guarantee but we can certainly do that. I suppose the only thing that I would flag from the candidate declaration is that we on-hire employees to clients for when our client - for as long as a client requires that person.

PN150

We were advised by the client on 26 August that both of those employees would not be required back at the site and on that basis, we were then - had indicated to Ms Coburn that she was no longer required. My understanding is that she was already aware of that and that on that basis, we then advised her that we were willing to try and find her another assignment. The initial assignment that was offered to her the next day she declined, but subsequent to that, she has done another assignment. If the Commission pleases.

PN151

THE COMMISSIONER: Yes, thank you, Mr Wakeling. Ms Tisdale?

PN152

MS TISDALE: Commissioner, Ms Coburn, Kym, is here today and she has also spoken to me and prepared a statement about her version of the meeting Mr Mackenzie referred to. It is Kym's very strong position that she never forwarded any emails that she received from Matt or any other of these what we might class as inappropriate emails. She said that she was shown something - I presume from the collection of documents, which showed some computer record of her forwarding something.

PN153

She at this point in time believes that she was not at work at that time and this raised the whole issue about how everyone can get into everyone else's system and passwords are up on the wall and you just ring and get the password, and so on. So, she put - - -

PN154

THE COMMISSIONER: Is her attendance at work recorded?

PN155

MS TISDALE: I presume it is. That is something I have not had a chance to verify.

PN156

MR MACKENZIE: Yes, Commissioner.

PN157

MS TISDALE: Kym said to me that she put that to Mr Mackenzie that she had not forwarded any of these emails. In fact, her version is that when she first started she received this - she received an email. She looked at it. It was of a speed camera hidden in a garbage bin - I am sure everyone has received that, everyone on email. And she went, "Waste of time" and she - and has never opened the email again. She never opened the attachment but deletes them as she receives them. That is her version. And there is a whole lot of other things - - -

PN158

THE COMMISSIONER: There should be an electronic record of that, should there not?

PN159

MS TISDALE: Well, there should be. But the point is that in any proper - - -

PN160

THE COMMISSIONER: The log on the hard drive should - - -

PN161

MS TISDALE: Yes, and in any - - -

PN162

THE COMMISSIONER: - - - be able to verify that?

PN163

MS TISDALE: Sorry. In any proper investigation of this, Ms Coburn should have been given a proper opportunity to state this, which - I understand she did with difficulty try and get a word in, and it was ignored. That there was no - it was, "Here's the piece of paper" - - -

PN164

THE COMMISSIONER: Well, who interviewed Ms Coburn?

PN165

MS TISDALE: Mr Mackenzie, and I understand that Mr - that Scott Hawksworth was present as well.

PN166

THE COMMISSIONER: All right.

PN167

MS TISDALE: They were not interested in her side of the story. They were not interested in looking any further. They told her at that meeting, "We don't need you any more".

PN168

THE COMMISSIONER: I wonder if - it is imperfect, but I cannot really change what has happened. I do not really mind exercising whatever powers are available under the Workplace Relations Act. I can only ever really affect what will happen, rather than what has happened. And bearing that in mind, I wonder if what might be suitable to Ms Coburn is if I were to chair a conciliation conference in the form of a mediation, in order to try and simply go through these issues, perhaps not conclusively today, but at least allow their - allow a forum and a venue in which this dissatisfaction can be vented.

PN169

MS TISDALE: That is something that we think would be very productive, Commissioner, if the companies are prepared to participate, seriously.

PN170

THE COMMISSIONER: Well, I would do it on a "without prejudice" basis, without any preconceptions about what the conclusion might be.

PN171

MR MACKENZIE: Commissioner, we would be prepared to participate in that but I - can I put on record that we do not accept that there is an industrial dispute here, that the Commissioner can properly make an Order on. However, as I said - - -

PN172

THE COMMISSIONER: Yes. I may not be able to arbitrate the subject matter of the dispute, but I can still exercise conciliation powers.

PN173

MR MACKENZIE: I understand that, Commissioner. We are happy to proceed with that.

PN174

THE COMMISSIONER: And they might be a little bit larger than popular conception might provide.

PN175

MR MACKENZIE: Yes. We are happy to proceed into that - - -

PN176

THE COMMISSIONER: But I do not propose at the present time to do anything of a nature that would impose any legal obligations on the parties, either by the exercise of conciliation or arbitration powers. What I am proposing is a voluntarist approach whereby I would simply act as a facilitator for a discussion about the whole issue so that - at least, that one aspect of this matter, concerning Ms Coburn's dissatisfaction with her ability to explain herself against the allegations that were levelled against her, might be revisited.

PN177

That is just an offer of that particular facility and both - since both parties are happy with that, I propose to embark upon that fairly soon after I allow Ms Tisdale to have a look at the material. What I am saying is that we need to be basically on the same - I know, I have not had a chance to go through all the literature, obviously, because I have been listening to Mr Mackenzie and taking notes. But I would like to have another look at it in more detail, without having to hear what is being said in submissions at the same time.

PN178

But I think before I do that, I will permit you, Ms Tisdale, to take some time. I suggest perhaps you might do this with Ms Coburn privately, and when you have had that opportunity, then I would like to have a look at it to better prepare myself for the discussion, and then I will arrange for, I think, probably just - I do not think there is any need for Adecco to be present in this, is there?

PN179

MR WAKELING: I cannot - I am quite happy.

PN180

THE COMMISSIONER: Right, and I think just the two representatives of TNT, two people from the union and Miss Coburn and myself and my associate would be the group that would actually undertake that process. All right?

PN181

MS TISDALE: Yes.

PN182

MR MACKENZIE: Yes, Commissioner.

PN183

THE COMMISSIONER: Okay. So, I will leave these on the bench and my associate will provide them to you, and then I will have a look at them when you have finished with them, and then we will convene the mediation, and we will return to the other matters in due course. Thank you.

SHORT ADJOURNMENT [5.03pm]

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TNT1 EMAIL AND INTERNET USAGE POLICY PN70
EXHIBIT #TNT2 POLICY STATEMENT FOR EMAIL AND INTERNET SYSTEMS SIGNED BY KYM COBURN PN72
EXHIBIT #TNT3 CANDIDATE DECLARATION PN74