C2004/1845, Transcript of Proceedings [2004] AIRCTrans 1306 (5 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6545
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2004/1845

WAYNE MORROW

and

GV CENTRE DISABILITY SERVICES

Notification pursuant to section 99 of the Act
of an industrial dispute re final warning,
unjust, unfair and discriminatory

MELBOURNE

10.15 AM, WEDNESDAY, 24 MARCH 2004

PN1

MR G. PARGETER: I am from the Health Services Union.

PN2

MR M.V. DISERIO: I seek leave to appear for the employer in this matter. I should indicate, I was actually downstairs getting some copies of documents done in anticipation that they might be needed so I didn't have an opportunity to discuss my appearance with the union. I don't know what they are in - do you object?

PN3

THE SENIOR DEPUTY PRESIDENT: Well, we will find out.

PN4

MR DISERIO: I should indicate, the reason I am here today is that the organisation's industrial relations practitioner is otherwise engaged today and I was asked to take his place.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, what is your attitude to - - -

PN6

MR PARGETER: Yes, that is fine.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted.

PN8

MR DISERIO: If the Commission pleases.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Pargeter.

PN10

MR PARGETER: Thank you. This application, of course, is made pursuant to section 99 of the Workplace Relations Act. The union claims that our member, Mr Wayne Morrow, who is a permanent part time employee of Goulburn Valley Disability Services with a service record of four years has been treated harshly, unjustly and unfairly by his employer. The union contends that a culture of intimidation exists in this workplace and, if need be, your Honour, we have other employees who can attest to the bullying tactics of Mr Wardale that a lot of this case centres around. He is the program co-ordinator at Goulburn Valley Disability Services.

PN11

Your Honour, I want to take you back to - this goes, spreads over a period of time and, although this latest incident, you know, which has sparked this hearing has occurred just recently - - -

PN12

THE SENIOR DEPUTY PRESIDENT: You realise I don't know anything about this; he notification doesn't tell me anything.

PN13

MR PARGETER: Okay. That is why I - - -

PN14

THE SENIOR DEPUTY PRESIDENT: I don't know what incidents you are talking about. I have no idea what is going on.

PN15

MR PARGETER: Okay. That is why I have a chronology of events that I can furnish you with.

PN16

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN17

MR PARGETER: Do you need some time to peruse that or shall I proceed?

PN18

THE SENIOR DEPUTY PRESIDENT: You can proceed. What I am interested to know is what steps have been taken under the disputes settlement procedure which, no doubt, appears in the award.

PN19

MR PARGETER: Yes, in the EB.

PN20

THE SENIOR DEPUTY PRESIDENT: Is there a certified agreement that applies as well?

PN21

MR PARGETER: Yes. Well, if we - I think the chronology of events takes you through those and highlights that Mr Morrow has taken up issues in the first instance with his direct line manager, Mr Wardale. And then as these attempts have been unsuccessful, then Mr Steve Mitchell who is our area organiser from the Health Services Union has also become involved. And as late as a couple of weeks ago there was a meeting with Kathy Arentz whose title is Manager of Adolescent Disability Services. So there has been an escalation of the - up the chain, so to speak, of consultation, trying to resolve issues that they - we have been unsuccessful and so we seek your deliberations on these matters to try and address the issues that we will highlight.

PN22

I will go back to 26 March 2003. There was an alleged incident that occurred. It involved a patient and their use of a power cord. They were flinging it around in a dangerous fashion. This required - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Mr Morrow or the client?

PN24

MR PARGETER: No, the client. The client was flinging around a power cord. Mr Morrow was nearby and had to step in to restrain the patient and - - -

PN25

THE SENIOR DEPUTY PRESIDENT: And what is Mr Morrow's classification; what is he employed as?

PN26

MR PARGETER: Mr Morrow is a welfare worker, qualified social worker and welfare worker in the facility.

PN27

THE SENIOR DEPUTY PRESIDENT: And what is the nature of the facility?

PN28

MR PARGETER: It is a disability centre, it is a - - -

PN29

THE SENIOR DEPUTY PRESIDENT: How big is it?

PN30

MR PARGETER: It is a house and it has about five clients.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN32

MR PARGETER: Mr Morrow had to intervene to restrain the client, the patient. And as a result, he was disciplined following this alleged incident so he was applying appropriate force and he was trying to stop an incident from escalating, but it was viewed by the employer as not following the MOVAIT training doctrine and this was raised as an incident that required disciplinary action. During this period Mr Morrow was denied natural justice as he was not provided with copies of any statements, incident reports or allegations which allowed him to reply in an informed manner. Mr Morrow requested such information to be made available to him.

PN33

As a result of the alleged incident, Mr Morrow was directed by Mr Bruce Giovanetti, who is the Chief Executive Director of Goulburn Valley Disability Services, to be placed under the direct supervision of Mr Wardale to ensure that he was educated further and adhere to MOVAIT protocol.

PN34

THE SENIOR DEPUTY PRESIDENT: You realise I haven't the faintest idea what MOVAIT protocol is. Do I need to know it? Do you know?

PN35

MR S. MITCHELL: Managing aggressive and violent clients, and national training.

PN36

MR PARGETER: Managing - yes.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes. Well, that doesn't tell me much either. Do I need to know what it is about or what it tells me or - - -

PN38

MR PARGETER: Well, it is just - it is a protocol that is adopted in these institutions for managing aggressive patients, and it is - - -

PN39

THE SENIOR DEPUTY PRESIDENT: Okay.

PN40

MR PARGETER: There was a warning issued on 16 April 2003 and there was a series of sort of steps put in place, including the supervision of Mr Morrow.

PN41

THE SENIOR DEPUTY PRESIDENT: What was the warning on 16 April about?

PN42

MR PARGETER: It was that he had breached this MOVAIT protocol in - - -

PN43

THE SENIOR DEPUTY PRESIDENT: On the - - -

PN44

MR PARGETER: Back in - - -

PN45

THE SENIOR DEPUTY PRESIDENT: On 26 March.

PN46

MR PARGETER: - - - 26 March in restraining this patient who was threatening, you know, himself and others. Part of that was that he was to be supervised; Mr Morrow was to be supervised. However, on 12 May Mr Morrow was rostered to work by Mr Wardale unsupervised, despite the direction given on 16 April by Mr Wardale and Mr Bruce Giovanetti. During the shift of 12 May 2003 a client assaulted Mr Morrow along with a district nurse employed by Goulburn Valley Health during a procedure to insert suppositories.

PN47

Your Honour, given that Mr Wardale was aware that the client would require suppositories and that he was likely to become agitated, we would say that there was a breach of the duty of care and also a breach of this procedure that had been put in place that Mr Morrow was to be supervised for a time. So it put him in a precarious position with a client, a patient who was likely to become agitated with this procedure and was rostered there on his own.

PN48

THE SENIOR DEPUTY PRESIDENT: Did Mr Morrow ask to help before he tried to insert the suppository or - - -

PN49

MR PARGETER: He was there with the district nurse who was administering it, and Mr Morrow was there to try and, you know, restrain and allay the patient - - -

PN50

THE SENIOR DEPUTY PRESIDENT: Did Mr Morrow feel the need to have somebody else there before the suppository was inserted?

PN51

MR PARGETER: He was concerned that he was rostered to work on his own, you know, particularly since he had been - he was under this sort of process where he was supposed to be supervised.

PN52

THE SENIOR DEPUTY PRESIDENT: Did he do anything about it?

PN53

MR PARGETER: I beg your pardon?

PN54

THE SENIOR DEPUTY PRESIDENT: Did he do anything about it? Did he ring somebody and say: I should be rostered with somebody to supervise me?

PN55

MR PARGETER: I will just take instructions. The process where Mr Morrow was going to be rostered on was mentioned at a team meeting so it was brought up, it was - - -

PN56

THE SENIOR DEPUTY PRESIDENT: Prior to the roster, prior to that - - -

PN57

MR PARGETER: Prior to the roster, that is right. So he had indicated that there was a foreseeable risk involved in that. What ensued was that the nurse and Mr Morrow were assaulted by this patient, and the nurse just - I think she just left the scene and left Mr Morrow to - well, you know, she had tried to do her job, and Mr Morrow was then left to deal with the patient. Mr Morrow advised his CEO, Mr Bruce Giovanetti, verbally of the incident and the fact that he was being rostered to work alone on 14 May. So, you know, again another possible risk was potential. Mr Giovanetti stated to Mr Morrow he would deal with it. Mr Morrow advised Mr Giovanetti he would be filing out an incident form in relation to the episode.

PN58

Following on from this incident, Mr Morrow filled out an incident form on 15 May 2003, his next rostered shift. Upon supplying a copy of the incident, Mr Morrow stated that he was made to feel threatened and bullied by Mr Wardale, and that Mr Wardale responded in an aggressive manner towards Mr Morrow, both verbally and physically, by his mannerisms and demanded to know why it had taken more than 48 hours to provide a copy of the incident form.

PN59

What we are seeing here I think, your Honour, is that Mr Wardale has been, at best, spasmodic in his maintaining his duty of care to a particular staff member and it could, in fact, be the case that Mr Wardale has been negligent in his role as house supervisor towards staff under his direction, particularly given that there has been a past history concerning members of the Health Services Union at this facility of people being assaulted.

PN60

Mr Morrow was left in the situation that he felt that he couldn't raise the issue and receive a fair and unbiased hearing of his grievances at the local level as a result of this and subsequently approached the Health Services Union for support, Mr Steve Mitchell. And what we say there was that Mr Wardale acted in a biased and discriminatory manner towards Mr Morrow and had been negligent in regards to his supervision of staff under his duty of care.

PN61

I will then move to - I will fast forward things a little bit. Suffice to say that what is also concerned in this grievance is that Mr Morrow's roster - he is a permanent part time employee. Previous to March 2003 he had been working 60 to 70 hours per fortnight so almost full time hours with somewhere in the range of 60 to 70 hours per fortnight. Following this incident he was cut back to 18 hours per fortnight and he has been on those hours ever since over the last 12 months and this has inflicted financial loss and hardship upon him and his wife. And there was apparently a memo that has since gone missing that indicated that Mr Morrow was to be offered shifts but this has never occurred. So he was cut back to 18 hours and has stayed on that 18 hour figure ever since.

PN62

I will just fast forward then to an incident that occurred on or about December 14 which again the Goulburn Valley Disability Services have sought to use as a vehicle to offer a first and final warning, they say. There is a practice, and it is an accepted practice, that patients are allowed to stay up until 11 o'clock; 11 o'clock is considered the bed time. There was one patient in particular who had a habit of, if he went to bed early, he would rise early and then cause significant disruption to the rest of the household.

PN63

Mr Morrow employed a - well, the custom and practice at the place was, and he had no reason to doubt it beforehand, that, you know, he would encourage this particular patient to sit up with him and watch a bit of TV and, if he fell asleep in a chair, then well and good. And at about 11 o'clock or so he would wake him up and put him to bed. But trying to keep this patient - well, getting his sleeping hours in tune with those, with the other members of the household so as not to cause disruption. And, in fact, the case notes indicate - and they don't allude to the person concerned, but they do indicate that there has been a pattern with this particular patient of - since then of going to bed during this sort of period of 10 o'clock to 11 o'clock. You can see the one blip in the scale was the time when he went to bed early and then rose early and created some disruption in the place. This was then used as an opportunity to - Mr Morrow was then informed that this wasn't the practice, that he wasn't to do this.

PN64

THE SENIOR DEPUTY PRESIDENT: By whom?

PN65

MR PARGETER: I beg your pardon?

PN66

THE SENIOR DEPUTY PRESIDENT: By whom?

PN67

MR PARGETER: By Mr Wardale. This wasn't to occur and - - -

PN68

THE SENIOR DEPUTY PRESIDENT: What wasn't to occur?

PN69

MR PARGETER: Well, this practice of encouraging him to just sit around and watch a bit of TV so that they would go to bed a little bit later. And Mr Morrow, when it was pointed out to him, he said: look, okay, that is fine, I was under the impression that it was the custom and practice but if you say that it isn't, then that is fine. And so he accepted the direction of Mr Wardale. However, it was used as an opportunity to then issue what was claimed to be a first and final warning which - and, you know, sought to use it then for disciplinary purposes.

PN70

Mr Wardale asked to have a chat with him; asked to have a chat with Mr Morrow regarding these proceedings and accused him of keeping the clients out of their rooms. There was even a suggestion of a locked door. Now, Mr Morrow contends strongly that this wasn't the case. Mr Wardale was told that:

PN71

I maintained consistency with other workers and encouraged clients to sit and watch TV with me until bed time ...(reads)... and the practice stopped that evening.

PN72

However, Mr Wardale couldn't let these allegations go. He put Mr Morrow on a disciplinary action once again and, again, we would say that there was no natural justice as a result of that. And as I said, we have got other employees of Goulburn Valley Disability who are here today, who can attest to the management practices of Mr Wardale, and how they often intimidatory and of a bullying nature.

PN73

So we are left now with Mr Morrow, who is - to all intents and purposes, it looks as if there is a constructive dismissal, trying to be fabricated out of this, and out of these incidents. And we would also contend that there has been negligence on the part of Mr Wardale regarding the rostering. He has breached his duty of care towards Mr Morrow, and hasn't even adhered to the sort of disciplinary processes that he was to have put in place. And in that process then, subjected Mr Morrow to risk, and in fact actual assault, as a result.

PN74

I have also got a letter, and this was - yes, there has been attempts to try and conciliate this matter. And I will just draw your attention to a letter to try and conciliate it, but at this stage it is to no avail. Thank you.

PN75

THE SENIOR DEPUTY PRESIDENT: What do you want me to do about it?

PN76

MR PARGETER: Beg your pardon?

PN77

THE SENIOR DEPUTY PRESIDENT: What do you want me to do about it? What are you looking for?

PN78

MR PARGETER: Well, we seek conciliation. Mr - sorry, I thought I had indicated that Mr Morrow has had his hours cut severely - - -

PN79

THE SENIOR DEPUTY PRESIDENT: Yes.

PN80

MR PARGETER: - - - posing financial hardship, so we would look at trying to restore those. So it has been a 12 month period that this has occurred over. And there is also the - - -

PN81

THE SENIOR DEPUTY PRESIDENT: What are you seeking from the Commission? What od you want as an outcome of these proceedings?

PN82

MR PARGETER: Well, we seek conciliation, and we would like Mr Morrow to be offered the shifts that he had prior to all of these incidents having occurred.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes.

PN84

MR PARGETER: And because it is imposing financial hardship and loss on his family, on him and his wife.

PN85

THE SENIOR DEPUTY PRESIDENT: So that is what you want as an outcome of these proceedings?

PN86

MR PARGETER: Yes, and I think that because of the situation Mr Morrow has been placed in, we would be looking for an apology, for the way that the management has treated him over the last 12 months, putting him in situations of risk, and not showing the proper duty of care that should be displayed towards employees.

PN87

THE SENIOR DEPUTY PRESIDENT: So you want a restoration of the shifts and an apology? That is what Mr Morrow wants?

PN88

MR PARGETER: Yes.

PN89

THE SENIOR DEPUTY PRESIDENT: Okay.

PN90

MR PARGETER: And also to have these incidents to be wiped from his personnel record, because they impinge upon his good character and reputation.

PN91

THE SENIOR DEPUTY PRESIDENT: Have you told the employer before now, that that is what you are seeking?

PN92

MR PARGETER: We have had the area organiser, Steve Mitchell - has had a meeting, and that was in December last year, that sought to try and resolve this matter.

PN93

THE SENIOR DEPUTY PRESIDENT: But at that meeting was it put to the employer, we want him back on his earlier roster, we want an apology, and we want these things wiped from the record?

PN94

MR MITCHELL: Not initially at that particular point. It has been raised prior. The last meeting we had was concerning the - - -

PN95

THE SENIOR DEPUTY PRESIDENT: You are Mr Mitchell?

PN96

MR MITCHELL: Steve Mitchell, sorry. Just concerning the - the last one was concerning the issue of maintaining the resident up, by means of encouragement.

PN97

THE SENIOR DEPUTY PRESIDENT: No, that is not my question. My question is does - - -

PN98

MR MITCHELL: No, I realise that.

PN99

THE SENIOR DEPUTY PRESIDENT: Well, answer my question first.

PN100

MR MITCHELL: Yes, okay. Yes. It was originally discussed back when the issue first came about in relation to the incident in March/April, where he was placed under supervision, where he lost his sleep-overs, he lost hours then. That was raised back then.

PN101

THE SENIOR DEPUTY PRESIDENT: The fact that he wanted those back?

PN102

MR MITCHELL: Yes.

PN103

THE SENIOR DEPUTY PRESIDENT: Thank you. Okay, thank you. Yes, Mr Diserio, what have you got to say about all this?

PN104

MR DISERIO: Well, I think it would be a huge understatement on my part to say that this is a simple issue, on one level. That is this appears to be a journey - a point on a journey and a very long journey that has occurred over 18 months. In terms of where we are and what we understand has brought this matter to the Commission by notification, is the issuing to Mr Morrow by his employer, which is GV Centre Disability Services, a final written warning dated 5 February 2004.

PN105

Now, perhaps it is, I think, useful that I give you some background information, although having heard - we are only seeking - we are in conciliation or about to, I would imagine - - -

PN106

THE SENIOR DEPUTY PRESIDENT: We are not in conciliation yet.

PN107

MR DISERIO: No.

PN108

THE SENIOR DEPUTY PRESIDENT: At the moment I am just - - -

PN109

MR DISERIO: As I have heard it, there has been a suggestion made as to what has been seeking - - -

PN110

THE SENIOR DEPUTY PRESIDENT: Yes, what is your attitude to - - -

PN111

MR DISERIO: That is the first occasion that I believe that those requests have been articulated, certainly in a way that can be understood by the employer.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, I did somewhat get the impression, Mr Pargeter, that you were getting your instructions on the run, so that submission doesn't surprise me. Go on, Mr Diserio.

PN113

MR DISERIO: Well, we find no criticism about that but - - -

PN114

THE SENIOR DEPUTY PRESIDENT: No, no.

PN115

MR DISERIO: But the fact is - - -

PN116

THE SENIOR DEPUTY PRESIDENT: I wasn't being critical, I was making an observation.

PN117

MR DISERIO: Certainly the situation, as we see it is, there have been a number of incidents whilst Mr Morrow has been employed at the Centre, which have been of concern to the employer and have resulted in disciplinary action being taken against Mr Morrow by the employer. It has resulted in quite a deal of training, provided to Mr Morrow. Now, the result of all of that is that another incident occurred which, in the view of the employer, warranted disciplinary action being taken. That action was taken, a process was entered into, and that resulted in the issuing of a final written warning dated 5 February. It appears to be - - -

PN118

THE SENIOR DEPUTY PRESIDENT: Is that the incident about keeping a client awake?

PN119

MR DISERIO: Yes.

PN120

THE SENIOR DEPUTY PRESIDENT: Yes.

PN121

MR DISERIO: And in the terms of that, in order to understand that final written warning, I guess one has to go back through the chronology and the history of what has actually occurred over those 18 months.

PN122

THE SENIOR DEPUTY PRESIDENT: Yes, well, that is what Mr Pargeter has done with his chronology.

PN123

MR DISERIO: Well, I would say, attempted to do.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes.

PN125

MR DISERIO: And certainly a lot of allegations have been levelled at the GV Centre, and particularly, Mr Wardale. And I have heard allegations of alleged breaches of duty of care etcetera.k

PN126

THE SENIOR DEPUTY PRESIDENT: Yes. Needless to say, the employer denies those allegations. I think that goes without saying.

PN127

MR DISERIO: Well, in most forums it doe,s your Honour. I believe in this one it - - -

PN128

THE SENIOR DEPUTY PRESIDENT: I can indicate to both parties that I am not impressed by rhetoric of that sort without facts to substantiate it. It is a jury submission and I am not a jury. So there are allegations made. No doubt they are resited by the employer. At the moment I am just trying to get an understanding of what this is all about.

PN129

MR DISERIO: But I think we should probably start with the final written warning and we can work backwards and we can work forwards. However, in terms of how we progress it is quite evident to your Honour and to the parties that there are a number of events that have occurred, some significant, some insignificant. The - I can take you through those in detail, I think, suffice to say at this stage, that in the interests of time and subject to instructions, I am happy to propose that we go into conciliation mode as to see whether or not it is possible to reach some form of agreement.

PN130

However, I probably should indicate, in terms of the allegations that have made, the restoration of shifts, one issue, an apology, one issue, wiping the personnel record, an issue and then an allegation of constructive dismissal.

PN131

THE SENIOR DEPUTY PRESIDENT: Well, that hasn't yet been alleged to have occurred.

[10.45am]

PN132

MR DISERIO: Well, I - - -

PN133

THE SENIOR DEPUTY PRESIDENT: They fear that that is what you are up to.

PN134

MR DISERIO: Well, I daresay that Mr Morrow and the union have all their rights reserved in the event that that was to occur. I understand the current situation is that Mr Morrow is on leave from the Centre.

PN135

THE SENIOR DEPUTY PRESIDENT: What sort of leave?

PN136

MR DISERIO: Mr Morrow, I believe, indicated - sorry - Mr Morrow first took annual leave. I don't know whether that annual leave has - it hasn't expired yet.

PN137

THE SENIOR DEPUTY PRESIDENT: When is he due to return to work?

PN138

MR DISERIO: He hasn't given an indication to his employer as to when he expects to resume. It was sort of an open-ended - he has got quite an accrual - under my instructions, of annual leave.

PN139

THE SENIOR DEPUTY PRESIDENT: Yes.

PN140

MR DISERIO: He indicated he would like to access that in order to remove himself from the employment situation.

PN141

THE SENIOR DEPUTY PRESIDENT: How much - - -

PN142

MR DISERIO: That was agreed to by the employer.

PN143

THE SENIOR DEPUTY PRESIDENT: Ye.s How much annual leave does he still have available?

PN144

MR DISERIO: It was in excess of 100 hours of annual leave, and that was back in - that was in February. So I am not quite sure what that equates to in terms of the - his contract of employment. But I understand that Mr Morrow's contracted hours with the Centre are 74.5 every four hours. And my instructions, your Honour, were that at the time of the material events, Mr Morrow was actually working his contracted hours. So this allegation that we have cut his hours back is some sort of vindictive response, is certainly a new allegation, or at least to me. And it certainly doesn't accord with what I understood to have been his contracted hours at the Centre. In terms of wiping the personnel records, these are matters that obviously we can discuss in some detail.

PN145

THE SENIOR DEPUTY PRESIDENT: Yes.

PN146

MR DISERIO: But there is a detailed disciplinary policy in operation at the Centre. My recollection of that policy is that if the - if we were to assume that in the normal course of events there is no challenge to a warning, in the normal course of events, if the employee has conformed his or her performance and conduct to the warning, the warning is removed.

PN147

THE SENIOR DEPUTY PRESIDENT: After what period of time?

PN148

MR DISERIO: Six months. Now, the issue here is, of course, that the - Mr Morrow's conduct has been such that that is not a relevant consideration, at least to date. But in the ordinary course of events, if an employee does respond to the disciplinary action, and the training, and they keep a clean slate, as it were, it comes off in six months. Now, in terms of the industrial instruments that apply to the Centre, I understand it is only the award. There was an industrial enterprise agreement that applied, a certified agreement that applied. I understand that that was cancelled by the Commission some time earlier this month. So we are only dealing, in terms of the industrial instruments, the SACS Award.

PN149

THE SENIOR DEPUTY PRESIDENT: And has the dispute settling procedure in that award been followed, under your instructions?

PN150

MR DISERIO: I don't - I didn't understand my instructions, your Honour, to have any instructions about whether it had been or hadn't. I actually hadn't had any instructions on that. I didn't understand us to be objecting to the fact that the matter had been brought - - -

PN151

THE SENIOR DEPUTY PRESIDENT: No, but I might object if it hasn't been gone through, Mr Diserio.

PN152

MR DISERIO: Your Honour may well have fair grounds to do that. I am only indicating to your Honour that in terms of the process, certainly the way that I have seen this is that the employee is obviously not happy with the final written warning, and he and his union are seeking to overturn it, as it were, through this process. Now, whether that is fair, reasonable and so forth, I guess the point is, it could either be done here or if the matter was to stand and the employer down the track was to act on the final written warning, no doubt we would be in this same place at another time before another member, no doubt having the same arguments. As your Honour is well aware, no doubt arguing the toss with every warning that has been given, as well as the decision and the employer's discretion.

PN153

I am not sure - you know - I am hopeful, as indeed my client is - I should indeed indicate to my clients - I have neglected to say that whilst Mr Morrow is employed by the GV Centre Disability Services, supervision of the Centre is actually carried out by another organisation, the Australian Community Support Organisation. And Mr Wardale is actually employed by ACSO. It is a joint venture that actually operates the Centre, so there - - -

PN154

THE SENIOR DEPUTY PRESIDENT: So you - yes.

PN155

MR DISERIO: I am not sure whether that is commonplace in the industry. But certainly, just so you understand the overlays that are involved - - -

PN156

THE SENIOR DEPUTY PRESIDENT: And you are saying your clients want what?

PN157

MR DISERIO: Briefly, that the warning stands essentially. They believe that the warning was put in place properly. That is justified. That is a fair response to Mr Morrow, it is a fair response to his employment history with the Centre. It is a fair response to the training that - the extensive training that Mr Morrow has had. The allegations - we can deal with those in due course. I don't believe that the matters that have been raised will stand up scrutiny. That there is no vendetta being carried out by Mr Wardale against Mr Morrow. there is no pay back involved in the employer's response, because Mr Morrow has got the Union engaged.

PN158

There is absolutely no victimisation, we say, sustainable on the evidence. The term, duty of care, is bandied about quite frequently, as your Honour is aware in this industry. And might I say, quite rightly and fairly, for all concerned. And the employers are regulated quite strictly by protocols and legislation and regulation, as indeed are people who work in the industry. The duty of care cuts both way. And in fact it is acting in accordance with the duty of care.

PN159

THE SENIOR DEPUTY PRESIDENT: I don't think you need go into that, Mr Diserio.

PN160

MR DISERIO: Yes.

PN161

THE SENIOR DEPUTY PRESIDENT: If we get into arbitration, no doubt we will have to ascertain precisely the nature of the duty of care, and to whom it is owed, and by whom it is owed.

PN162

MR DISERIO: Yes.

PN163

THE SENIOR DEPUTY PRESIDENT: We are not at that stage yet.

PN164

MR DISERIO: No, well, I am only indicating that certainly the type of response that one might expect from both employees, unions and employers in this industry is perhaps a little more sensitive and may be a little more acute than might be, you know, normally in other industries. That is the point that I was intending to make. We are happy to, if the Union's application is to go into a conciliation, we don't oppose that.

PN165

THE SENIOR DEPUTY PRESIDENT: Yes, well that seems to me to be desirable. Both parties have now placed on the record their respective positions and time to see if we can resolve it in conference, I think.

PN166

MR DISERIO: If we are not - I am known as being the glass being half full - sorry, half empty, I should say.

PN167

THE SENIOR DEPUTY PRESIDENT: I am the other way, Mr Diserio. It is always half full for me.

PN168

MR DISERIO: And that is perhaps why I am making this submission. Merely that we are keen to see if we can get a resolution, but if we were not able to, clearly from the amount of documentary material, comments from the union's advocate about the number of witnesses involved, this would be a very lengthy - - -

PN169

THE SENIOR DEPUTY PRESIDENT: Well, we schedule a hearing, yes.

PN170

MR DISERIO: Yes. And certainly like all of us, we reserve all of our rights in respect of that. I have tried to, in the interests of economy, not say a lot of things. Your Honour has been very tight in terms of cutting me off when I have got into the jury area.

PN171

THE SENIOR DEPUTY PRESIDENT: Well, I think I am known for that, Mr Diserio, unfortunately.

PN172

MR DISERIO: Yes. And we are certainly happy to go into conference.

PN173

THE SENIOR DEPUTY PRESIDENT: Yes. Are you happy for that, Mr Pargeter?

PN174

MR PARGETER: Yes, yes.

PN175

THE SENIOR DEPUTY PRESIDENT: Well, we will go into conference then.

NO FURTHER PROCEEDINGS RECORDED