C2004/2763, Transcript of Proceedings [2004] AIRCTrans 1448 (15 April 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 10413
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2004/2763

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

MISSION AUSTRALIA

Notification pursuant to Section 99 of the Act
of a dispute re alleged threatened dismissal of
union delegate

SYDNEY

10.47 AM, FRIDAY, 2 APRIL 2004

PN1

THE COMMISSIONER: I'll take the appearances please.

PN2

MS K. LEE: If it pleases the Commission, I am an officer of the Australian Services Union, and with me, MS D. BARNETSON, an officer of the ASU, and MR J. VANDERSTEEGEN, an ASU delegate.

PN3

MR S. FOWLER: I am the Employment Services Manager for New South Wales and ACT representing Mission Australia, and with me, MS A. WARDROPPER, a representative of the Mission Australia HR Department.

PN4

THE COMMISSIONER: Thank you. Ms Lee?

PN5

MS LEE: Commissioner, I'd like to comment on what's happened since the events of 31 March when we had a disciplinary meeting with Mission Australia involving Mr Vandersteegen, but if I could just briefly firstly just outline a couple of key issues around the context of this dispute. As I've outlined in the ASU submission Mr Vandersteegen is an active union delegate at Mission Australia. He's also an employee representative on Mission Australia's employee consultative committee. He's also the union representative acting for a group of employees who have lodged a formal complaint against the Employment Services Manager, Mr Fowler. Also, this month in March five senior managers of Mission Australia were terminated immediately following meetings they'd been requested to attend to discuss their performance and we've got significant grounds to believe that Mr Vandersteegen is under threat of dismissal.

PN6

THE COMMISSIONER: I might just ask you to pause there, I should have said it to you earlier. I do have before, me just so you're fully informed, a copy of a letter dated 1 April 2004 from Mr Tapfield to yourself and a copy of an email dated 30 March to Mr Vandersteegen from Mr Fowler. Those documents were forwarded to me by facsimile yesterday.

PN7

MS LEE: Thank you, Commissioner. If I could just briefly outline now the events since I made the submission to you. The meeting was held, the disciplinary meeting was held on 31 March. Mr Vandersteegen produced statutory declarations for the management of Mission Australia confirming that he has not provided any copy of the document which I should just indicate to you is this document called "Tender Results Human Resources Transition Process". It's an internal document of Mission Australia", but he had not provided a copy of that document or discussed it with the Department of Family and Community Services or any other external third party.

PN8

Despite those declarations and confirmation in that meeting Mission Australia produced six emails, emails which had been solicited by Steve Fowler from representatives who had attended a meeting, an employee consultative committee meeting which Mission Australia argued had confirmed evidence that Mr Vandersteegen had forwarded the document. Now, since that meeting you have received the letter that Mission Australia has forwarded to me which says that they do intend to pursue a formal warning against Mr Vandersteegen and that a formal warning will be placed on his record. It's on this basis that we still remain concerned that Mr Vandersteegen is under threat of dismissal and further that we believe that the grounds for the warning - - -

PN9

THE COMMISSIONER: Is that what the letter says?

PN10

MS LEE: Yes, it does say that.

PN11

THE COMMISSIONER: Where does it say that?

PN12

MS LEE: I think on the last page it says that.

PN13

THE COMMISSIONER: I'm looking at the paragraph beginning "It is now proposed", the second top paragraph.

PN14

MS LEE: Point 12 - I'm sorry, Commissioner, what did you just say?

PN15

THE COMMISSIONER: No, you take me to what you want to take me to first.

PN16

MS LEE: Point 12 on page 2 says that:

PN17

Mission Australia will issue a first formal warning in respect of the matter above with respect to the integrity of these actions outlined at clause 3 above.

PN18

So they're still pursuing a formal warning in relation to that matter.

PN19

THE COMMISSIONER: How does that sit with the second paragraph on the next page?

PN20

MS LEE: That's the one starting "It is now proposed"?

PN21

THE COMMISSIONER: It is, from the second sentence down beginning "Your member will be asked".

PN22

MS LEE: We are here today to seek two things; that we have an undertaking from Mission Australia that they do not intend to terminate Mr Vandersteegen and secondly, that they strike any formal warning from his record. We believe that there are strong grounds to indicate that this warning is not justified and we'd like to focus on those two matters today. We're happy to consider any other matter that Mission Australia might want to put forward in terms of any undertakings in relation to confidential information but today we're seeking those two things. If I might just be permitted to continue a bit further.

PN23

THE COMMISSIONER: By all means.

PN24

MS LEE: Mission Australia has indicated in their letter which I received this morning, the fax which you've also received, that if you look at the last paragraph of point 3, the last sentence:

PN25

In addition your member advised he had not provided the staff information booklet to any other parties.

PN26

Point 4:

PN27

Mission Australia has located an email from your member to the ASU providing the ASU with the staff information handbook.

PN28

If I could just clarify two matters on that point. The employee goes on further to say that:

PN29

Mr Vandersteegen has breached the code of conduct.

PN30

THE COMMISSIONER: The staff information booklet and the tender document are different things?

PN31

MS LEE: No, it's a single document. It's thing document. It's an internal document which outlines the process for managing transition to possible redundancies. There are two matters which we wish to raise on this issue. Firstly, the ASU had already received this very document from the state manager of Mission Australia on Thursday the 18th by email at 3.55 pm. That was in preparation for a meeting which the state manager had requested be held with us on Friday the 19th at 9.30 which we held. We held that meeting with Nick Hordle, the state manager with two ASU delegates present. James Vandersteegen was one of those.

PN32

We all sat around and read the document and discussed the document. We believe he didn't breach confidentiality by sending me this document which he did, later on that day he forwarded me the email version, because I had already received it from Mission Australia. In fact we had participated in a discussion about its contents. Secondly, we believe he hasn't breached confidentiality by sending me that document because the union is his adviser. The document relates to his potential redundancy. For Mission to argue that he should not be allowed to send his own union a document which deals directly with his issues in his workplace is clearly ridiculous.

PN33

This document was actually forwarded to all coordinators under this program on Friday the 19th. Any one of them would be clearly within their rights to send me that document for advice. On a range of other matters here, as I said today we believe that there has been a formal warning issued to James Vandersteegen in relation to point 3 of the document. They are also considering - I presume that the second last paragraph which says that they are proposing to write to him advising him of the decision - whether or not there are any other formal warnings that are planned to be issued in relation to this matter I'd like to clarify that.

PN34

THE COMMISSIONER: That's why I was looking at the second half of the second paragraph on page - - -

PN35

MS LEE: I see.

PN36

THE COMMISSIONER: - - - which I adverted to before but somehow we haven't quite come to it.

PN37

MS LEE: I'm sorry about that, Commissioner.

PN38

THE COMMISSIONER: I'll read it into the transcript Your member will be asked to sign that undertaking which refer to being bound by the code of conduct. That's my interpolation. Then going to the quote:

PN39

If your member fails to sign the undertaking, Mission Australia will consider its position and will reserve its right to take whatever steps it believes appropriate which may include a counselling or warning.

PN40

So, it needs to be clarified whether that is a separate, discrete warning which is being threatened in addition to the other one, doesn't it?

PN41

MS LEE: Absolutely, absolutely; and we've only been notified of this, this morning.

PN42

THE COMMISSIONER: I'm sure Mr Fowler has taken note of my question.

PN43

MS LEE: Sorry, Commissioner?

PN44

THE COMMISSIONER: I said, I'm certain Mr Fowler has taken note of my question.

PN45

MS LEE: Yes, it is a distinct and discrete warning and we've just been notified of that this morning. I received this fax this morning. I might just stop there for the moment Commissioner but, as I said, we are seeking a commitment that Mr Vandersteegen won't be terminated and secondly we are asking for formal warnings to be struck from his record; he is still under threat of dismissal in relation to this matter.

PN46

THE COMMISSIONER: Mr Fowler, perhaps we can cut right to the chase about perhaps the simplest matter for you to answer on. Is there an intention to dismiss Mr Vandersteegen?

PN47

MR FOWLER: No, sir.

PN48

THE COMMISSIONER: You will excuse me cross-examining you at the start of this. With your system of warnings, how does it work in terms of leading up to a possible dismissal?

PN49

MR FOWLER: Our procedure is very clearly outlined in our policy which Mr Vandersteegen has quoted to us many times - - -

PN50

THE COMMISSIONER: Which I don't have so I'll need you to tell me.

PN51

MR FOWLER: I have a copy of it here, and I'm happy to give it to you, but let me just walk you through it. If we become aware of an issue that we would want to raise in a performance discussion with one of our employees we would write to that employee or contact them, by email or letter, asking them to come to a meeting; giving them 24-hours notice of that meeting, advising them that they are able to bring a support person to that meeting and advising them that it is a formal meeting and the reasons why the meeting is there.

PN52

The meeting is then conducted at which notice and actions are taken. Everything that is actually presented at that meeting is then considered upon by the person who is actually convening the meeting. Following that a decision is actually made as to what course of action we would take.

PN53

In this instance - we only had the meeting just the other day and, as we advised, throughout the meeting we had a discussion with James. There was one matter that was - as a result of his answers to one of the questions I put to him I asked him a follow-up question which I hadn't given him pre-warning that we were going to discuss. So, when he answered that question to me I asked him to consider that response and I gave him 24-hours to respond further again, which he did; and that is where we are today.

PN54

THE COMMISSIONER: That is the nitty gritty of what has happened to Mr Vandersteegen but perhaps - I will put it this way: some employers, and I am not urging any course upon you, have - for example, I did a recent case over "three strikes and you are out" policy. You have two disciplinary warnings, the second one is the final warning, third time you do something unless there are extenuating circumstances you are out the door.

PN55

MR FOWLER: Yes.

PN56

THE COMMISSIONER: How, does your system work? What is the force of a disciplinary warning?

PN57

MS WARDROPPER: I can answer that, if you like, Commissioner? Can I address?

PN58

THE COMMISSIONER: You may address me, yes, Ms Wardropper.

PN59

MS WARDROPPER: Commissioner, I am from the HR Department. We take each separate case on its own merit. We don't have a "three strikes and you are out" policy. It depends on the seriousness of the case and the misconduct, and evidence or balance of probabilities involved in the particular case. We do have an informal disciplinary procedure which usually results in a verbal warning and we have a formal disciplinary procedure where there is potentially a "verbal" to start with but certainly first warning written, then first and final and then termination if it is relating to the same matter. So it very much is dependent upon the particular scenario of the instant and it would differ in every case. But, no, we don't have a "three strikes and you are out" policy.

PN60

THE COMMISSIONER: That was just as an example, it wasn't anything more than that. Good, thank you. Mr Fowler?

PN61

MR FOWLER: Mission Australia's position is that we will issue a first warning letter to Mr Vandersteegen over - and I draw your attention to what we actually said in point 5 of our letter to Kate Lee and, indeed, a copy to yourself:

PN62

What is of concern to Mission Australia is that the member made a statement to the ECC committee which was subsequently withdrawn and had the effect of misleading Mission Australia and other members of the committee.

PN63

Point 6:

PN64

Mission Australia is also concerned that Mr Vandersteegen made a false statement during the discipline meeting.

PN65

Point 10:

PN66

We are of the view that he has breached the code of conduct. This is a very serious matter.

PN67

THE COMMISSIONER: How did he breach the code of conduct?

PN68

MR FOWLER: The code of conduct talks about integrity. The code of conduct also talks about the fact that we are a responsible organisation and we would require our employees to - when we ask them, particularly in a formal setting - tell us the truth. During the disciplinary meeting I particularly and expressly asked Mr Vandersteegen did he forward a copy of the document to any other party to which he, in the meeting, said "No". And, further, he gave me a statutory declaration saying he has not done that when indeed we have proof that he did. The issue that we are discussing here is the integrity of this staff member who misled us.

PN69

THE COMMISSIONER: So -trying to paraphrase what you are saying - you say that as a result of his actions he is not under threat of dismissal.

PN70

MR FOWLER: For this instance he is not under the threat of dismissal.

PN71

THE COMMISSIONER: At this stage now, today, he is not under threat.

PN72

MR FOWLER: That is correct.

PN73

THE COMMISSIONER: How many warnings have been issued to him? I find it difficult to read in your letter, it seems to indicate there might be two.

PN74

MR FOWLER: There have been no warnings issued to Mr Vandersteegen.

PN75

THE COMMISSIONER: But you intend to issue a warning to him?

PN76

MR FOWLER: We do, sir.

PN77

THE COMMISSIONER: And that warning will be specifically in relation to what?

PN78

MR FOWLER: That warning will be - - -

PN79

THE COMMISSIONER: To those matters you have raised in globo or to some particular matter?

PN80

MR FOWLER: The warning will be that we believe that he has breached the code of conduct in the fact that he has misled us. That he gave a misleading statement in a disciplinary meeting and, also, he made a false statement at a disciplinary meeting.

PN81

THE COMMISSIONER: Then, going to this now famous second paragraph, page 3. I take it that is a separate matter if he refuses to sign the document.

PN82

MR FOWLER: That is a separate matter that we will deal with at a separate time. Indeed, we would need to give him time to consider.

PN83

THE COMMISSIONER: Okay, thank you. By all means proceed with anything else you want to put to me.

PN84

MR FOWLER: Our view, sir, is that there is no industrial dispute here whatsoever and that this matter be resolved by the ASU withdrawing their action. Thank you.

PN85

THE COMMISSIONER: Ms Lee?

PN86

MS LEE: Commissioner, if I could just respond to a couple of matters that Mr Fowler has raised? Firstly, in relation to the policy what it clearly states is:

PN87

A written warning can be followed by final written warning.

PN88

So, in effect - I understand what Ms Wardropper has said - but the policy does indicate that Mission Australia has the capacity to have a "two strikes and you are out" effectively. That is effectively their written policy: a written warning followed by a final written warning which is inclusive of a termination.

PN89

THE COMMISSIONER: A "three strikes and you are out" policy.

PN90

MS LEE: In relation to the comments that Mr Fowler has just made, can I make it very clear that we have had a discussion about what transpired in the ECC meeting. Mr Fowler has produced six emails which he sought from other members of the committee which he says demonstrate that Mr Vandersteegen said he had provided the information to the Department of Family and Community Services. James has said clearly the words he used were that, the ASU could forward that document to the Department of Community Services. He has made it absolutely clear that he has not forwarded the document to the department, that he has not discussed the content of the document with any member of the department.

PN91

Mission Australia is now saying that because I have a copy of the document that somehow that means that because - it is correct, in the meeting he did say he had not forwarded it to any third party. That was because the focus of the meeting was whether or not this was issued in the public domain to any funding department, or any other competitor in the industry, or anyone else that might jeopardised Mission Australia's position. He did not do that; he forwarded it to me.

PN92

THE COMMISSIONER: Except it appears to have been accompanied by an implied threat that forwarding it to you might result in it being forwarded to the department.

PN93

MS LEE: Well, I guess that's one way of reading it. I could clearly state that at times when the ASU has been unable to resolve issues with the employer we do and we reserve the right to approach funding bodies about matters. The issue is that in saying that he had not provided it to any - - -

PN94

THE COMMISSIONER: If you were not to be considered a third party which is your submission - - -

PN95

MS LEE: Yes, that's right.

PN96

THE COMMISSIONER: - - - any confidentiality would therefore be imposed on you. So a threat to forward the document further than you or use you as a conduit for the further dissemination of the document would be a breach of trust, wouldn't it?

PN97

MS LEE: Commissioner, I had already received the document from the state manager himself prior to these events.

PN98

THE COMMISSIONER: I'm talking about Mr Vandersteegen's "threat" as to where the document could then flow to. I'm putting you on notice to what I see to be four issues.

PN99

MS LEE: Yes, I understand. Mr Vandersteegen forwarded to me a response which he had provided to - and I've got a copy of the email - the document happened to be attached to it. He made it clear in the meeting and he was not intending to mislead Mission Australia in that meeting when he said that he had not forwarded it to any external party. He knew that I already had a copy of it. He had known that he had forwarded me a document that did have it attached but it was after I'd already received it. To say that he was trying to mislead the organisation is false, clearly false.

PN100

THE COMMISSIONER: I understand that.

PN101

MS LEE: The intention of that meeting, it was clear, was whether or not James had attempted to forward a confidential document to somebody outside the organisation that might use it or misuse it. I'm not in a position to do that.

PN102

THE COMMISSIONER: Or threaten to do so.

PN103

MS LEE: Or threaten to do so. It was not his intention to mislead the organisation and he submits that strongly to the organisation and to the issue with a warning of this matter in the context of his activities within the organisation and that he could be issued with a final warning leading immediately to his termination. In fact a question could be raised that if the second last paragraph is followed by a formal warning that that might lead to his instant dismissal.

PN104

THE COMMISSIONER: Prima facie any employee will be hard put not to sign that document and maintain their employment.

PN105

MS LEE: I guess the questions that the union would be wanting to ask are questions like does that restrict an employee's right to discuss matters with their legal representative or with their union representative.

PN106

THE COMMISSIONER: In my book it doesn't and those magic words "and their representatives" certainly apply to the ASU.

PN107

MS LEE: Quite possibly we'd - - -

PN108

THE COMMISSIONER: In fact I'll read the entire sentence.

PN109

It is now proposed that all members of all employee consultative committees will acknowledge in writing that they will be bound by the terms of the code of conduct and that they will not disclose confidential information other than to the appropriate employees within Mission Australia and their representatives.

PN110

You could probably have a few QCs at 20 paces as to what "and their representatives" necessarily means, but that can be clarified.

PN111

MS LEE: Earlier in the year some of our members were asked to sign such a confidentiality agreement in relation to other matters which didn't have those words in there and we remained gravely, you know, we were concerned about obviously anyone signing a document that didn't clearly state their right to discuss it with their union representatives. That's why I raise those concerns.

PN112

THE COMMISSIONER: Would there not also be some matters which an employee couldn't even talk to their union about?

PN113

I can think of a couple.

PN114

MS LEE: Yes, sure. No, I agree that there would be some matters. If it concerned a policy which affected, for example, their, as this one does, the potential for them to be made redundant in the workplace then, you know, or clearly think that that is something that they could discuss with their union representative.

PN115

THE COMMISSIONER: Do you accept Mr Fowler's undertaking that there's no intention to dismiss Mr Vandersteegen?

PN116

MS LEE: Given that Mr Fowler has given that undertaking today we're happy with that. We still would like this issue of the formal warning removed from Mr Vandersteegen's record.

PN117

THE COMMISSIONER: Right, well, we're down to fairly simple ground now that you want the ASU to withdraw their application. I take it they're not going to be in favour of your view. Where do the parties see it going now in terms of my role about the issuing of the warning or would the parties like time to confer amongst themselves for a while?

PN118

MS LEE: That might be - - -

PN119

THE COMMISSIONER: I think you'd be very wise. We will adjourn for 15 minutes.

SHORT ADJOURNMENT [11.15am]

RESUMED [11.45am]

PN120

THE COMMISSIONER: Ms Lee?

PN121

MS LEE: Commissioner, we have had some discussions and we have also approached Mission Australia to try and resolve the matter in the break that we have had. The ASU have had discussions and we realise that as the representative for Mr Vandersteegen that we are bound by the same confidentiality provisions as he is. The ASU is prepared, and we have made this offer to Mission Australia, to give an undertaking that we won't breach that confidentiality by providing that document to the Department of Community Services or any other organisation. We also made an offer that we would make that undertaking and requested of Mission Australia that in light of that and in light of the comments that you have made about the issues of confidentiality and that the threat that was made could be fulfilled, that in fact that threat becomes empty if we give that undertaking.

PN122

Further, we are prepared to negotiate over the wording of the confidentiality agreement. Our main concerns there are the protection of the rights obviously of employees to seek advice from their representative, and for people who are acting as representatives for other staff, you know, are able to do so appropriately.

PN123

However, this offer has been rejected by Mission Australia. They are putting forward that they are still saying that they have been misled by Mr Vandersteegen when he said that he had not provided that document to an external third party, and he has written that in his stat dec. We maintain that we are his representative, we are not an external third party.

PN124

THE COMMISSIONER: There is no doubt that you are an external third party. What needs to be determined is whether you are an external third party with certain rights, or Mr Vandersteegen has certain rights in relation to you as a particular external third party. There is no way that you cannot be a third party.

PN125

MS LEE: Sure. Well, Commissioner, I guess we maintain that in that meeting Mr Vandersteegen and I were focussed on the issue that the company had, in its written warning, said that the main issue that they wanted to discuss with him at that meeting was the fact that he head despatched that document to the department; we focussed on those issues.

PN126

If Mr Fowler had asked us in the meeting, look have you sent this to the union, that might have triggered both of us to say, oh, well, yes I did receive it. He actually didn't ask that question of us. It is false to say that Mr Vandersteegen misled the organisation. He was making a genuine attempt to resolve the issues. We still maintain that on that basis a warning is not warranted because Mr Vandersteegen was certainly not aiming to mislead the organisation. And if we had had a frank discussion about whether or not it was sent to the union or not we might have clarified this issue and we might not even be here. Thank you, Commissioner.

PN127

THE COMMISSIONER: If I can just clarify one point. Has the warning actually been issued, or has it been said that it will be issued?

PN128

MS LEE: Well, according to this letter point 12 says it will be issued. Mr Fowler has confirmed - when I asked him if he would reconsider the matter - he confirmed that they would be issuing that warning.

PN129

THE COMMISSIONER: Perhaps you can answer that question, Mr Fowler, I probably should have directed it to you. Has the warning been issued?

PN130

MR FOWLER: No, sir, the warning has not been issues, however, it is our intention to issue a warning as per our policy and procedure.

PN131

THE COMMISSIONER: What do you say now, in front of me, about the offer from the ASU?

PN132

MR FOWLER: Commissioner, the issue we are discussing here is the integrity of this staff member. What concerns Mission Australia is that this staff member made a statement to the ECC which was subsequently withdrawn and had the effect of misleading Mission Australia and other members of that committee of which Mr Vandersteegen is a member. Mission Australia is also concerned that Mr Vandersteegen made a false statement during a discipline meeting. We will not be withdrawing the warning. We have formed the view that he has breached our code of conduct. For us this is a very serious matter. Particularly as James holds a unique position of responsibility as a member of the ECC. For us it is a serious matter and we believe that his integrity is at the source of it. He has mislead us, therefore, under our code of conduct we wish to proceed and issue the first warning letter.

PN133

MS LEE: Commissioner, if I could just make a statement in relation to Mr Fowler's statement that Mr Vandersteegen's statement made at the ECC meeting was subsequently withdrawn; that is incorrect. The issue about the statement he did make is contentious. The parties disagree in terms of what statement was made; so it was never withdrawn.

PN134

THE COMMISSIONER: I understand that you are making that point.

PN135

MR FOWLER: Commissioner, I am very happy to - - -

PN136

THE COMMISSIONER: It is like ping pong, isn't it?

PN137

MR FOWLER: Commissioner, one piece of information that has not perhaps been drawn to your attention here is that, sir, I was at the ECC meeting and heard Mr Vandersteegen at that exact time. That was the reason why I wrote to him to ask him to come to a disciplinary meeting specifically because it hadn't come to me through a third party. I was personally at the meeting, and shocked at the time, and that is the reason why I asked him to clarify in a formal meeting.

PN138

THE COMMISSIONER: Okay. Well now it unfortunately falls to me to try and work out what we now do. I see there are probably three option but we will go to two of them initially. If you are not going to withdraw the warning, I would see that the warning would proceed to be issued, you would dispute the issuing of the warning. Or - this one probably should have come first - you would want proceedings to tell the respondent they can't issue the warning in the first place.

PN139

MS LEE: That is correct.

PN140

THE COMMISSIONER: Now, there might be threshold issues there which the respondent may wish to raise. How do you see it proceeding, Mr Fowler.

PN141

MR FOWLER: Mission Australia is of the view that under our policy and procedure we have the right to issue this warning letter for serious breaches. This is a very serious matter. We would expect that our employees tell us the truth, particularly when we discuss it with them in a formal setting, and particularly when they provide us with a statutory declaration indicating what they have or haven't done. So, therefore, we would proceed and issue the warning letter.

PN142

MS LEE: Commissioner, we are asking for a direction on this matter that no warning be issued.

PN143

THE COMMISSIONER: Well in the absence even of some of the documentary material, and certainly of any sworn evidence, as to what was said or not said at meetings, I am in no position to issue the direction that you seek. I certainly will leave the file open. If an when the warning is issued leave reserved for you to come back to me and we can argue the matter.

PN144

Now, do you see any problem, Mr Fowler, with my determining the matter if the union disputes the issuing of the warning?

PN145

MR FOWLER: Sir, we are happy to talk with you about that in any forum.

PN146

THE COMMISSIONER: What does that mean?

PN147

MR FOWLER: If you wanted to view some of the material that we have here in front of us right now I am happy to do that with you and discuss it with you.

PN148

THE COMMISSIONER: No, I am not talking about that. I am talking about the situation where you and the union have reached a complete impasse. Do you see the Commission has a role in helping to break that impasse or not?

PN149

MR FOWLER: I believe, sir, we have the right to follow our policy and procedure where we have clear evidence that there has been a breached and we are within our rights to issue the warning letter. We would, with all due respect to you, sir, say that we have that right to issue and we will do so.

PN150

THE COMMISSIONER: Okay. Well, I think that is where it is Ms Lee, that I won't be closing this file. Leave is reserved to you to seek a re-hearing of the matter or further hearing of the matter as circumstances arise. I just want to be very, very clear on this before I leave this room. We are talking about the issuing of a warning letter to Mr Vandersteegen not a warning which will result in his termination over this issue.

PN151

MR FOWLER: Sir, it has never been our intention, clear or muted - it has never been our intention to dismiss Mr Vandersteegen over this matter.

PN152

THE COMMISSIONER: You understand that issue might be of some concern to Mr Vandersteegen in these proceedings?

PN153

This matter is adjourned. The union will advise me or my associate if they require it to be re-opened.

ADJOURNED ACCORDINGLY [11.57am]