C2003/5847, Transcript of Proceedings [2003] AIRCTrans 5061 (11 November 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 5175

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2003/5847

APPLICATION FOR AN ORDER TO STOP
OR PREVENT INDUSTRIAL ACTION

Application under section 127(2) of the Act
by Unidrive Pty Ltd for an order to stop or
prevent industrial action

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

MELBOURNE

THURSDAY, 30 OCTOBER 2003

Continued from 22.10.03

EXTRACT OF TRANSCRIPT OF PROCEEDINGS

[2.45pm]

PN1

THE COMMISSIONER: Look, I don't want to hear any more. I have come to a view. I just need one or two questions answered. The period that Mr D'Souza has been stood down, has that been paid or non-paid?

PN2

MR MARASCO: It has been paid, Commissioner.

PN3

THE COMMISSIONER: Right, it has been paid.

PN4

MR ADDISON: On your recommendation, Commissioner.

PN5

MR MARASCO: Yes.

PN6

THE COMMISSIONER: Right, okay. Well, as I understand it, Mr D'Souza was late - according to the company was late returning to work from annual leave. Is that right? As he done before. Is that right? In one instance it was because his passport was suspended and that was supported by documentation. Mr D'Souza, in this instance, was not late. He was not late, he was due to return to work on the 19th. Is that right?

PN7

MR MARASCO: That is correct, Commissioner.

PN8

THE COMMISSIONER: Right. He didn't want to. He rang up to say I am tired, can I have another day off? The answer to that was, no. He fronted for work but then he went home early because he was tired. He says he was tired. He was not late returning to work from his annual leave. He wasn't. Now, I would have to say I agree to some degree with Mr Addison that the company, in wanting to terminate and I think Mr D'Souza, you come up here and sit at the end of the table please because you need to hear this. Sit there. Mr D'Souza admits that he made a mistake in not contacting the company.

PN9

MR MARASCO: When?

PN10

THE COMMISSIONER: In the days that he was off sick and the Commission is critical of him for that.

PN11

MR MARASCO: Yes.

PN12

THE COMMISSIONER: And he may - and I am not quite sure and this is why I want Mr D'Souza to hear this, I am not quite sure whether it is a degree of arrogance or stupidity on the part of Mr D'Souza. Whatever it is he needs to get rid of it because if I was the employer I would be very frustrated at him as well because I think he has got a terrible attitude and he needs to change it but overall, in the whole matrix of things, it did not warrant termination, in my view.

PN13

But Mr D'Souza is not going to get off easy at all because he has contributed to this matrix where the company is totally frustrated with him and I understand that and I appreciate that. And the kids, the younger generation, have a saying now that if he was my employee I would bitch slap around the factory because I would be so frustrated with him but overall it did not warrant termination, in my view.

PN14

And what I would be prepared to do is find that the termination was harsh, unjust and unreasonable however Mr D'Souza is to be given a final warning from today. And that final warning goes to failing to advise the company on absences from work eg. sick leave, (2) his attitude towards complying with rosters and what his custom and practice and allowing machines to become idle and (3) and this is the important one because this is what led to all this, his failure to make adequate arrangements on at least two occasions, not four, two occasions to ensure he arrived in Australia in sufficient time to be rested and prepared to attend for work at his designated time following the taking of the annual leave.

PN15

You are on final notice, Mr D'Souza, none of this nonsense about I was sick or I missed the plane or it was late, you make adequate arrangements to get back in Australia on time so you are rested and you can attend for work at your proper starting time and on your proper day. Do you understand that. Thirdly, the period that he has been stood down is not to be counted for the purposes of accruing annual leave, sick leave or long service leave. He doesn't lose what he has got but he doesn't accrue any more until he resumes work.

PN16

MR ADDISON: Well, it picks up again as of tomorrow?

PN17

THE COMMISSIONER: Exactly. He shall not hold a position of shop steward for a period of at least 12 months. At the end of that 12 months he can make himself available provided of course there is a position which may be available for him to stand for and subject to the elections of the union and finally, Mr D'Souza is to be transferred from afternoon shift to day shift.

PN18

MR ADDISON: Can we make that 11 months, Commissioner? Our elections are in September.

PN19

THE COMMISSIONER: Are they synchronised, are they?

PN20

MR ADDISON: September. The rules say we should have an election in September.

PN21

THE COMMISSIONER: Okay. All right.

PN22

MR ADDISON: So if we can make it until the normal re-election period.

PN23

THE COMMISSIONER: All right, period 11 months then, that is fair enough. I didn't realise they were synchronised. That Mr D'Souza is to be transferred from afternoon shift to day shift for a period of one month as a financial punishment to him for his contribution to what has been I think an overall very poor position and at the end of that month he is to be return back to afternoon shift. And the Commission will order accordingly and will issue the order in due course.

PN24

I would have to say, in regards to Mr Roemer, there is no assertion from the Commission that Mr Roemer falsified any documentation. It is just that the Commission found it unique that in a workplace where there is cutting oil and things like that that such as book is so clean. I found it a bit difficult to come to grips with. As I have indicated, given my 30 years of experience, 20 of them working or trouncing through car plants and seeing cutting machines and everything, I have seen documentation before and it is never that clean.

PN25

Now, I would love to see Mr Roemer's house if his book is kept that clean, it would be absolutely spotless, I can tell you. All right. The Commission will stand adjourned. Thank you.

END OF EXTRACT