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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
(Administrator Appointed)
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 7968
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER GAY
C2004/1243
AUSTRALIAN LIQUOR,
HOSPITALITY AND
MISCELLANEOUS WORKERS
UNION
and
RURAL AMBULANCE VICTORIA
Application under section 170LW of the Act
for settlement of a dispute re employment status
of an employee
MELBOURNE
10.04 AM, MONDAY, 26 JULY 2004
Continued from 23.7.2004
PN676
THE COMMISSIONER: Yes, Ms Forbath?
PN677
MS FORBATH: Thank you, Commissioner. I would like to call Mr Wayne Dyer, and I will ask Andrew Gunn to leave the Court room.
PN678
THE COMMISSIONER: Yes, thank you.
PN679
MR MEREDITH: Commissioner, there is a matter I would wish to briefly raise before we proceed potentially to the witness evidence that is anticipated. Commissioner, we wish to inform the Commission we consider that there is a question with respect to duty of care in the prospect of Mr Dyer proceeding with his evidence, and I will speak briefly to that, Commissioner.
PN680
Commissioner, Mr Dyer is presently on sick leave. That commenced on Thursday of last week. I am advised that a WorkCover medical certificate has been supplied by Mr Dyer to cover an absence of one week, and that I am further advised that that certificate states "that he is unfit for all duties.
PN681
THE COMMISSIONER: I am sorry, unfit for all duties, did you say?
PN682
MR MEREDITH: Yes, that is what I said, Commissioner. Now, Commissioner, the only thing at this stage that we know I think with some precision regarding the evidence that the AEA seeks to have Mr Dyer give, is that that evidence arises from his work within RAV and his role and his duties within RAV, and we reasonably conclude that such evidence that the union seeks to have Mr Dyer put is inextricably linked to his duties, his role and work as an employee of Rural Ambulance Victoria, and we consider that against what we understand to be the provisions of the medical certificate that is current.
PN683
Commissioner, I emphasise that we don't seek to prevent his evidence being heard, we don't seek to frustrate the proceedings, the further proceedings of this matter, but we genuinely raise the question and we inform you of our concern, most specifically the duty of care, given that the evidence relates directly to his role as an employee. If it please the Commission.
PN684
THE COMMISSIONER: Well, what does it mean then, Mr Meredith, the duty of care? It is a very important notion. What is one to make of this?
PN685
MR MEREDITH: Commissioner, I think the significance of this is the clear link, and even in the outline of evidence provided by Ms Forbath on Friday, that is exhibit F4, everything that is there, everything that is anticipated to be put before the Commission clearly, and as I have said, is inextricably linked to Mr Dyer's role and duties as an employee of RAV. Now, I see a relationship between that and the fact that at present Mr Dyer, by way of a certificate in support of the WorkCover claim that has been lodged, is to be excused from all duties. And that is without prejudice obviously to the status of that WorkCover claim or any other matters.
PN686
MS FORBATH: There is only a certificate lodged. There is no claim. It is just a certificate.
PN687
MR MEREDITH: I beg your pardon, I may had inadvertently misled you there. That I am not aware of any WorkCover claim as such that has been lodged, but our concern, as Mr Dyer's employer, is that an employee is unfit for all duties but in a separate forum may attend and provide witness evidence that goes and directly arises from their duties as an officer of the organisation. That is the question, Commissioner, and that is where I see, and that is why I have chosen to ventilate the issue of a duty of care as we see it.
PN688
THE COMMISSIONER: Yes, Ms Forbath?
PN689
MS FORBATH: Mr Dyer is here today, Commissioner, and feels able to give evidence.
PN690
THE COMMISSIONER: Well, of course, he is summonsed, isn't he?
PN691
MS FORBATH: Well, he is summonsed.
PN692
THE COMMISSIONER: It has to be said, I think.
PN693
MS FORBATH: Yes, that is correct. And although he was obviously released from the summons on Friday, but the summons was an ongoing summons, as I understand it.
PN694
THE COMMISSIONER: No, that isn't right. He was discharged from the summons, and I indicated to the union, or to the parties, that if it were necessary a further summons may issue. Now, a request wasn't made for a further summons. But I think I said I particularly reserved the union's right to seek a further summons, should they believe it necessary, requiring the attendance of Mr Dyer, and production of material relevant to aspects of the evidence proposed to be given by Mr Dyer, and that was after you had provided the material to RAV when they had objected to the breadth of the summons as originally issued.
PN695
So from my perspective there has been obviously no request for another summons, but I don't think it should be thought that Mr Dyer is ambling past. I mean, he is here because there is a request that he give evidence on behalf of Mr Gunn. And I will look and see what the original summons said. Well, to give evidence on behalf of the Liquor, Hospitality and Miscellaneous Union. And it is true that Mr Gunn, he was discharged by my associate on my behalf from the summons on the Thursday evening, Thursday afternoon. But I regard him, his attendance today in a technical sense as voluntary, and perhaps I can make that clear to him, but I don't think one can lose sight of the nature of the summons as the initial cause of him being involved in the proceeding.
PN696
MS FORBATH: Commissioner, Mr Meredith rang me yesterday about this matter, and I had spoken to Mr Dyer yesterday also, as he had contacted me after having received phone calls from Ms Desiree Harker suggesting to him that he shouldn't be appearing today because he was on sick leave. And Mr Dyer contacted me, most concerned about Ms Harker's phone call to him. I put it to Mr Dyer, does he feel able to come to the Commission today and give evidence? That if he felt unwell or not able to be here today, that you would respect that and would seek to have his evidence deferred to another time, and I suggested to him that he make contact with his doctor and talk to his doctor about that, which he has done, and his doctor is satisfied that he can be here today to give evidence.
PN697
And that, in a sense, is up to Mr Dyer in regard to his ability to give evidence, and if he feels able to do so, then we think that the matter should proceed. At the end of the day it is his decision that he takes in consultation with his doctor, and that is - - -
PN698
THE COMMISSIONER: And when do you understand that that consultation took place?
PN699
MS FORBATH: I understand it took place this morning by phone.
PN700
THE COMMISSIONER: So is this right, that Mr Dyer spoke with his doctor on the telephone this morning?
PN701
MS FORBATH: This morning, yes. There is a letter from his doctor that has been faxed through to the union office. I haven't got it with me at the moment because it arrived after we left, and Mr Morris is bringing it down shortly, if the Commission requires to see it.
PN702
THE COMMISSIONER: Do you know what that letter said? That is the letter from whom to whom?
PN703
MS FORBATH: Mr Dyer's doctor.
PN704
THE COMMISSIONER: All right. And to whom is it addressed?
PN705
MS FORBATH: I haven't seen it, so I am not sure if it is addressed to the union or whether it is addressed to Mr Dyer. But essentially what it says is that Mr Dyer is able to give evidence today.
PN706
THE COMMISSIONER: All right.
PN707
MS FORBATH: Mr Morris is on his way down here I think. If you think it is appropriate to defer proceedings till we see that letter, then clearly that is at the discretion of the Commission. But I can assure you that letter has come through.
PN708
THE COMMISSIONER: I don't doubt what is put from the bar table in a matter such as this, in the same way as I don't doubt the sincerity that Mr Meredith puts what he put in bringing to notice the concern. And I do propose to tread very carefully. One is aware that - and it would be entirely unnecessary for the Commission to tell the parties in the ambulance industry how to take care of people's well being, but, of course, one is aware of the enormous care with which one has to approach dealings with someone who is proposed to give evidence before a Court or the Commission.
PN709
Now, very serious issues arise in relation to dealing with parties who it is proposed are to give evidence, not only in relation to care for their well being, but lest there be any possible thought that there could be something by way of dissuasive effort. And my concern in this case is for the well being of Mr Dyer, because I take very seriously what was put by Mr Meredith, and I propose to adjourn now. How long will it be do you think before Mr Morris arrives?
PN710
MS FORBATH: Well, if Mr Morris is delayed in any way I can ring our union office and get them to fax it through to your - - -
PN711
THE COMMISSIONER: Yes. My acting associate will give - - -
PN712
MS FORBATH: Yes, that is another way of doing it.
PN713
THE COMMISSIONER: And I will look at that and, importantly, Mr Meredith can be shown a copy also. Yes, Mr Meredith?
PN714
MR MEREDITH: Commissioner, I simply want to correct one matter that was raised briefly by Ms Forbath, and it may well be that I need to put to Mr Dyer, rather than rely upon the second hand accounts of what is stated to be the content of telephone conversations that he has had with people, however, it certainly was advice, clear advice conveyed to Mr Dyer by Ms Harker that Mr Dyer seek the advice and/or support of his medical practitioner before making any decision about attending the Commission today, but some other date.
PN715
Given the current medical certificate, we simply must have fairly immediately the record show that we say that the clear advice that was given to Mr Dyer was to seek the advice and support of his medical practitioner before any attendance, potential attendance in these proceedings. With respect to the adjournment you propose, we raise no objection at all to the course of action you propose, Commissioner, and we take on board the comments you have made with respect to the general conduct of proceedings, and the importance of matters upon individuals both within and without these proceedings.
PN716
THE COMMISSIONER: I will adjourn for a short time.
SHORT ADJOURNMENT [10.17am]
RESUMED [10.40am]
PN717
THE COMMISSIONER: I have received a communication from your office, Ms Forbath, which I propose to mark. Now, I understand that the parties haven't been given copies. I take it you tender this, Ms Forbath?
PN718
MS FORBATH: Yes.
PN719
THE COMMISSIONER: Well, I will bring it to notice anyway, I won't mark it as an exhibit then. I have received a communication from Ms Ruben at the union office, and attached to it is a letter from - it is a photostat of a fax of a photostat of a fax from Dr Matthew Gibney from Drummond Street North in Ballarat, and it is addressed to the Ambulance Employees Association, with attention to Brenda Forbath, re Mr Wayne Dyer, care of, and it gives his address:
PN720
Dear Brenda, Mr Dyer consulted with me on 22.7.04, and was certified unfit for work duties. I do consider him to be perfectly able to appear in court to give evidence. Yours sincerely, Dr Matthew Gibney.
PN721
That is what I have received. Have you got a copy of that, Mr Meredith?
PN722
MR MEREDITH: Yes, we do, Commissioner.
PN723
THE COMMISSIONER: All right. I will place that on the file. Yes, Ms Forbath? Do you want to be further heard about that, Mr Meredith?
PN724
MR MEREDITH: One element, just in the interest of saving time perhaps, Commissioner, we have also during the adjournment been provided copies of two sets of handwritten notes that Ms Forbath has advised she intends to place some reliance on, and these are notes, as I understand it, handwritten notes of Mr Dyer's. Of the two sets of notes, one set appears to be an account of a meeting that occurred in March of this year, and it appears to be an account of a meeting involving a number of representatives of Rural Ambulance Victoria and representatives of the Victorian WorkCover Authority.
PN725
Commissioner, we do have some difficulty with that, in as much as there are separate records within our office of those same proceedings. I would foreshadow, Commissioner, on that basis, assuming that Mr Dyer is to provide evidence-in-chief, we would respectfully seek the opportunity to be able to consult the notes that we have within a file within the human resources division of the organisation.
PN726
That file note deals with the same, certainly the same meeting as is outlined in Mr Dyer's, well, I understand to be Mr Dyer's handwritten notes, therefore Commissioner, and reluctantly, upon Mr Dyer concluding his evidence-in-chief we would seek an adjournment to enable us to consider the other records that we have of the same meeting, because it is certainly probable that there would be matters within the two sets of records of that meeting that I would wish to put to Mr Dyer in cross-examination.
PN727
THE COMMISSIONER: Yes, thanks, Mr Meredith. Yes, Ms Forbath?
PN728
MS FORBATH: I would like to respond to that. The Rural Ambulance Victoria has done everything within its power to try and discourage this evidence being provided to the Commission, in our view. Last week we tabled an outline of the issues to be explored in the evidence of Mr Dyer, and that was exhibit F4, and we were asked to provide that by the Commission, and the Rural Ambulance Victoria has had that now for some time. If you have a look at the very last sentence of F4, it says:
PN729
Mr Dyer will be asked to produce notes and minutes relating to the above matters.
PN730
Now, it was quite clear in that, that Mr Dyer would be brining his notes and any minutes that he might have had in relation to these matters. Now, I have only received those notes this morning myself, so I have only had a chance to look at them and have them photocopied by your associate this morning. But Mr Meredith was well aware that such notes may be produced today, and if he had the forethought he could easily have had his own minutes or RAVs minutes here today, instead of seeking to further obstruct the delivery of this evidence and the conclusion of this case.
PN731
I do believe that that is an unreasonable request on the part of Rural Ambulance Victoria. They have had adequate notice that notes and/or minutes would be produced today, and they could have brought their records with them if they had wanted to put those minutes to Mr Dyer. They should have had all of that material here today, and asked Mr Dyer to respond to it.
PN732
PN733
MS FORBATH: Thank you, Mr Dyer. Now, just again for the record can you state your full name and address?---Wayne Neil Dyer.
PN734
And your address?---And address (address supplied).
PN735
Now, who is your current employer, Mr Dyer?---Rural Ambulance Victoria.
PN736
And when did you commence employment?---I commenced on 24 November 2003, in the role of OH&S projects officer.
PN737
Could you just face the Commissioner?---Sorry.
PN738
Thank you. Sorry, just to state again what your current position is, or what job you commenced in, I should say?---I commenced in the role of occ health and safety projects officer on 24 November of 2003.
PN739
And what position do you currently hold?---I am in the role of acting OH&S coordinator, and I have been in that role since the end of February.
PN740
And how do you come to be acting in that position?---My predecessor, or Peter Donald, who was the previous occ health and safety coordinator, resigned. At that time, I am fairly sure it was 28 February when he resigned, and I was appointed into that acting role.
PN741
THE COMMISSIONER: Ms Forbath before you go on.
PN742
Thank you, Mr Dyer. I didn't realise that, of course, you had been sitting there, Mr Dyer, while we were dealing with the preliminary aspect of your coming into the witness box this morning, and I want to put this to you. We have got before the Commission Dr Gibney's view, after his consultation with you on 22 July. Have you seen Dr Gibney since 22 July?---I saw Dr Gibney last Thursday.
**** WAYNE NEIL DYER XN MS FORBATH
PN743
Yes, that is the 22nd?---And spoke to him on the phone this morning.
PN744
Did you? All right. And naturally one doesn't want to hear anything about your medical condition, but are you feeling in yourself well enough to give evidence today? Are you content about giving evidence from a medical point of view?---Commissioner, certainly I am more than comfortable to proceed with this. When I received the subpoena on the Thursday, and had a two and a half hour session with my director HR that night, I was more than willing to, whether it is subpoena or not, and I just want to get this over and done with.
PN745
All right. Well, I am not asking you to diagnose your own medical state, because perhaps that wouldn't be a wise thing to do, or to act on such a diagnosis, but you are a mature person, you are feeling well in yourself to be here today to give this evidence?---I am fine to do that, Commissioner.
PN746
Thank you. Go on.
PN747
MS FORBATH: Can you just briefly explain what your current position involves?---Yes, certainly. The role really is the coordination of all the occ health and safety related matters from dealing with WorkSafe through to dealing with the health and safety representatives, the full gamut of occ health and safety matters as the point of contact within RAV.
PN748
Thank you. Can you detail your qualifications for the Commission?---Yes. I have been around a little while now, but from a paramedic in the early - late sixties, early seventies, operate ..... technician, a bachelor degree in commerce majoring in industrial relations, a graduate diploma in occ health and safety management, a graduate diploma in training development, accredited auditor of the international safety, quality and environment management rating systems, a registered industrial fire protection officer, and numerous other short courses, but they are the primary tertiary and work related qualifications.
**** WAYNE NEIL DYER XN MS FORBATH
PN749
Thank you. And could you describe for us, and take your time about this, your previous work experience prior to coming to Rural Ambulance Victoria?---Certainly. Nine years in the Royal Australian Army Medical Corps, went back to school, then started in the coal industry in New South Wales, initially for nine years, in actual fact, in that industry, started off as a training officer, worked my way through various human resources roles, and finished as the human resources manager. Returned to Victoria as the human resources manager with the Ballarat Water Board. After that, three years as executive director of the Victorian Farmers Federation Industrial Association. Went to Tasmania at the Hydro Electric Corporation as their occ health and safety manager. That organisation was then split into three, and I assumed the role of industrial relations manager with Aurora Energy, which was the power distribution arm of that business. I then had a four year sabbatical, got out of the industry after so long and bought a hotel, played some music, had a bit of a holiday, if you like, what seemed to be a holiday, I suppose. It was a definite break away from what I had been doing for so long. And then started with Rural Ambulance in November of last year.
PN750
Thank you. Now, do you know Andrew Gunn?---Yes, I do.
PN751
Okay. And how did you come to know him?---Well, I guess right in the beginning when I first arrived at Rural Ambulance Victoria, Andrew Gunn's name was mentioned quite regularly, but I came into contact with him initially after I had started dealing with Andrew, if you like, in the attempted resolution of a number of provisional improvement notices. Really I got involved from about sort of January, I guess, of this year up until the present day.
PN752
When you say you heard his name mentioned a lot, in what regard?---Look, I really have to say there appeared to be this, right from the beginning there was this almost unhealthy attitude towards Mr Gunn. It seemed like everybody was talking about him, and in the beginning I wondered why that was, and even in discussions with my predecessor there seemed to be this really stressful environment because Andrew Gunn appeared to be, in a lot of people's opinion, over reactive in the way he dealt with occ health and safety issues.
**** WAYNE NEIL DYER XN MS FORBATH
PN753
Now, what has been your personal experience of working with Andrew Gunn on occ health and safety issues?---Well, I have to say that what really is over reactive in occ health and safety, you know, that is the issue, and my opinion is that you can't be over reactive in occ health and safety if there is a particular issue, if there is a problem, if there is a lack of systems or a lack of approach to resolving some of these issues. You know, I need to address those issues. And I believe that some of the provisional improvement notices that I have been aware of, generally speaking, they have become raised because of a need, and that need is whether they haven't been addressed in one way or another, and that is generally affirmed by the WorkSafe involvement, where the pins may have been removed or changed that were placed on by Andrew Gunn, but they were only removed or changed based on an agreed position between myself, area managers and Andrew Gunn, but we would do certain things. And I guess from my own personal opinion that is unfortunate, that we need to put provisional improvement notices on, but I can definitely understand why Andrew Gunn has proceeded down that path.
PN754
Are you aware, or are you not, of Andrew Gunn's dispute with Royal Ambulance Victoria regarding his appointment to the senior communications officer position at the Ballarat communications centre?---Yes, I am aware of it now. Prior to my dealings with regard to the WorkSafe matters and the allegations of breaches of a couple of sections of the Occ Health and Safety Act, I wasn't really aware in a lot of detail, but I was definitely aware just through discussions with colleagues within human resources, that there was issues. But I couldn't say that I was totally informed and was aware of the circumstances, of all the circumstances at least at that stage.
PN755
Right. And so if you could just clarify for the Commission, you alluded to it in that answer, but can you just explain to the Commission how you specifically came to be more aware of it?---Certainly. I was contacted by Mr Mick Roberts, who is the principal, or a principal field officer with WorkSafe, and it has generally been dealing with all RAV matters in sort of area three, area four areas. He rang me and outlined to me that there was a verbal complaint made by Andrew Gunn, and that there was allegations of breaches of section 54 and section 21 of the Occ Health and Safety Act. I obviously questioned him about that when it was done, what do you want to do? And Mr Mick Roberts - I will
**** WAYNE NEIL DYER XN MS FORBATH
be subjective in this - it was because of the allegations and a specific manager was involved in that, which was John Shrink, that he wanted to interview John Shrink, and his words at that time was, this is to conduct an initial inquiry, whether, in fact, the allegations have any substance.
PN756
Thank you. And so after you received that phone call from WorkSafe, what did you do?---The first thing I did, in actual fact, I spoke to Mr Meredith and e-mailed the director HR, Ms Harker, outlining the comments and the request that had been made by Mr Mick Roberts.
PN757
Can I just also clarify for the Commission, when did you get that call from WorkSafe about the complaint?---As I understand, it was - what I must say, I haven't got the file. I know there is a file, and I am just relying on my handwritten notes. I know there is a file in human resources, but I am sure it was either the 13th or the 18th, or somewhere at that time. I am fairly sure it was the 13th.
PN758
Was that when they first made the phone call?---When WorkSafe rang me, yes.
PN759
Right, okay.
PN760
THE COMMISSIONER: I think you were going to go on and say, Mr Dyer, 13th or 18th of what?---February.
PN761
Thank you?---Yes, February 2004, sorry.
PN762
MS FORBATH: Was that this year?---2004, yes.
**** WAYNE NEIL DYER XN MS FORBATH
PN763
And so you contacted Mr Meredith, and you sent an e-mail around advising them of this complaint. And then what happened?---Look, I spoke to Greg, Mr Meredith, and Mr Shrink. We just sat, you know, it wasn't a formal meeting, but we met and, in actual fact, John Shrink asked what the issue was. I outlined the allegations and really talked about what section 54 and 21 was. There was a couple of allegations that Andrew Gunn had made to WorkSafe, and I felt obliged to ask those questions, and similarly got a response from Mr Shrink, and I then said, well, okay, the next step in the process, I need to speak to the WorkSafe advisory hotline to identify what is the proper process for an inquiry of this kind, and that had come about from discussions or e-mails transferred between the director of human resources and myself.
PN764
I would like to table Mr Dyer's handwritten notes from that meeting. Do you have a copy of those notes in front of you, Mr Dyer?---Yes, I do.
PN765
PN766
MS FORBATH: Now, Mr Dyer, at the top of that page there it says 13 February '04 that the meeting actually occurred. I note that you said earlier in your evidence that you thought you got the first phone call from WorkSafe on the 13th?---No, the 12th.
PN767
Right. So you got the phone call from WorkSafe on the 12th, and you immediately e-mailed the relevant managers?---Yes.
PN768
And a meeting was set up, is that correct?---That is correct, yes.
**** WAYNE NEIL DYER XN MS FORBATH
PN769
Now, I think perhaps to assist all of the parties, given that this is your handwritten notes - and I am not casting any aspersions on your handwriting - would you like to just take us through those notes so that we can clearly understand them?---Sure. It was just a meeting between the three of us, Greg Meredith, John Shrink and myself, re the alleged breaches of section 54 and 21 as relayed by WorkSafe to me. Talked about the time, you know, the phone call from Mick Roberts was at 3.30 on the 12th, and that he outlined RAV, or the alleged breaches were RAV had discriminated against him, that being Gunn, as a health and safety rep, he has been disadvantaged in his employment prospects, and that he is seeking a meeting. This is WorkSafe was seeking a meeting at that stage, on the 20th of February. I go on to say that Andrew Gunn alleges that John Shrink, JS, said, or made the statement, be a good boy, keep your head down. I asked in relation to what, and John Shrink said about getting the job. I put to John at that point - - -
PN770
THE COMMISSIONER: Mr Dyer, can I ask you; I see JS, there is a dash, and what is the next word there?---On getting the job.
PN771
On getting the job. Thank you. Yes?---I then asked John Shrink, did you say it? And he said, well, yes. And I said, okay, well, we will have to deal with that. I raised the second allegation then, which is apparently in relation to a cease work at a training session that Mr Gunn was involved in, and after that to cease work, Andrew Gunn said that JS, or John Shrink said "I thought you were going to keep your head down." I said, did you say it? He said, yes, but I also discussed with him that he should do the training. John asked what section 54 was all about. I explained that particular section of the Act, and that either dismiss or injure an employee performing in the role of an HSR. And really there was no further comment there except that I related that I needed to contact WorkSafe advisory to find out what the proper process to determine whether this is an inquiry or investigation, and I - - -
**** WAYNE NEIL DYER XN MS FORBATH
PN772
Should that read, this is an inquiry, or investigation? What do you say that says, Mr Dyer?---Okay. What I am saying there is really what Mick Roberts from WorkSafe said to me, or passed to me, and which I subsequently passed on. He said that this is merely an initial inquiry. Perhaps the human resources people were concerned that it was an investigation, and I just needed to inquire with WorkSafe advisory if, in fact, this is a normal method of investigation, if you like, was it an investigation, is it an inquiry? I guess it is semantics, but that was the request.
PN773
And so that word between inquiry, something investigation, can you tell us what that is please?---Or investigation.
PN774
Or. Thank you?---And I then informed that I will inform DH, the director of human resources, Desiree Harker, of that outcome and get back to you, get back to John, the next step in the process. I guess I must say, Commissioner, I am not a prolific note taker, but I do take sort of key points and then use that as a memory jogger.
PN775
MS FORBATH: So, Mr Dyer, following that meeting did you - when was the meeting then set up with WorkSafe?---There was a fair amount of to-ing and fro-ing, I guess, between our legal advisers and RVA, and there was a number of letters exchanged, eventually, I guess you could say, the meeting occurred on 16 March.
PN776
Who attended the meeting on 16 March?---At that meeting we had Desiree Harker, the director of human resources, John Shrink, Andrew Pipcorn and myself for RAV, and for the Victorian WorkCover Authority was Mick Roberts, the principal field officer, and Kevin Ford, who was acting in the role of Mick Roberts' supervisor at that stage.
PN777
Okay. I would like to table Mr Dyer's notes from that meeting. Mr Dyer, do you have a copy of those notes?---Yes, I do.
**** WAYNE NEIL DYER XN MS FORBATH
PN778
PN779
MS FORBATH: Now, before going to the detail of those pages, which I will come to in a moment, just in overview can you tell the Commission what was discussed at the meeting?---Well, really it was outlined by Mick Roberts, the allegations, and it really was one of gathering information from RAV on whether, in fact, there was evidence with regard to a breach of section 54 and 21 of the Occ Health and Safety Act, and whether, in fact, the non appointment, I guess of Andrew Gunn was, in fact, related to him, perform functions or duties as a health and safety representative, and whether, in fact, there had been any moves to really discriminate against him because of him performing his role as a HSR.
PN780
And did WorkSafe ask Mr John Shrink about his alleged statements?---Yes, he did. If I can refer - I haven't numbered these pages, but really we are talking about the fourth page, halfway down the page.
PN781
Perhaps if you can just read out the notes on that little relevant statement?---Yes. Well, the question was asked by Mick Roberts, and yet again to quote "Be a good boy, keep your head down," and the answer given by John Shrink at that time was no.
PN782
THE COMMISSIONER: Well, what was the question, Mr Dyer?---The question was, did you say to Mr Gunn, be a good boy, keep your head down.
PN783
And who posed that question?---Mick Roberts from WorkSafe.
**** WAYNE NEIL DYER XN MS FORBATH
PN784
MS FORBATH: Now, just to clarify again. Mr Shrink's answer was?---Yes, he did say no.
PN785
Now, we will come back to some of the detail of that in a moment. In fact, it is probably helpful again if we go through the process that we did last time, Commissioner, and I hope you will bear with me. We will try and do it as quickly as possible. I know that there are quite a lot of notes there, but I think that given that they are handwritten notes, that it would be appropriate for Mr Dyer to take us through them carefully. So if I can ask you to do that, Mr Dyer, for the benefit of the Commission?---Okay. Right from the start, I guess, it has got, Desiree outlined receipt of the letter, ie, a letter from WorkSafe, which made reference to - I don't know whether this has been tabled, or whether this - but there was a letter dated the 11th of March which outlined what WorkSafe were seeking with regard to this inquiry, and in that letter it outlined the claims that had been made by Mr Andrew Gunn with regard to being injured in his employment, there was three issues there. It goes on to say that there is a contravention, and there were specific questions or specific answers to previously asked questions by RAV, and there was half a dozen of those. So we are really saying that Desiree has there outlined the receipt of the letter. Andrew's involvement relates to rosters and placement of staff in rosters, and grievance relating to rosters, and that is Andrew Pipcorn's involvement. Then went on to say that John's involvement, ie, John Shrink, was, in the first point, was the selection process up to the recommendation to the director ops. The second part of that was the response to Andrew Gunn re the senior comms officer position, and at that point Mick Roberts responded that Andrew Gunn acknowledged that Andrew Pipcorn is really the mailbox in this regard, ie, just the passing on of information. We really went then into the allegations as directed, and Mick Roberts took the lead in that, outlined the two issues, the section 54, which is a separate issue to the obvious bullying arrangements which was in the Commission at the time. Mick Roberts outlined the provisions of section 54, and outlined the Andrew Gunn claims, and that was particularly injurious to professional development, overtime during training, and talked about a letter from Stephen Ford. Now, that was tabled at the meeting. I haven't got a copy of that, but it is probably in this proceeding, so I am not sure. So we continued on. There was a number of questions and answers at that stage. Mick Roberts outlined - in the outline of the allegations, and he asked what the rate of pay for the senior MICA
**** WAYNE NEIL DYER XN MS FORBATH
paramedic was, is Andrew Gunn an elected HSR, and really went through the process which resulted in these allegations and other grievances, etcetera, in January 2003, applied for the senior communications officer position, the rate of pay, in February 2003, the person, or Andrew Gunn was interviewed twice, offered the position subject to acquiring skills, etcetera. John Shrink then responded that all offers in writing subject to appointment, but raised the issue that we would, RAV would provide training. Desiree Harker asked, was he offered the senior comms position, did you offer the position, John? John Shrink answered no. Mick Roberts then asked the question, would Gunn assume the position was offered? John Shrink said yes. John Shrink reiterated the position was subject to sign off by the director of operations. Mick Roberts then referred to the Stephen Ford letter of March 2003, where offered interviews, inquiry, but considering your recent offer of SCO, the SCO position, please advise if you wish to consider this other application. And this, as I understand, was a position in the Wendouree branch, of which this letter particularly referred to.
PN786
If I can just ask you to - just for the benefit of us all - that letter that Mr Dyer is referring to is attached to Mr Gunn's witness statement, which is F2, and it is AG3, just for the benefit of clarity, Commissioner. You might want to have that in front of you. I am not quite sure what else Mr Dyer was going to say about that, but if you have got it in front of you, we all know what is being referred to there. Just continue?---So it really was then just capturing what was said with regard to that process. And I think we got up to another letter which was sent on 23 September '03, where he was not successful, referred to training, etcetera, the senior comms officer position with regard to ongoing career opportunities, etcetera. And that really was one of just capturing the detail. Mick Roberts was asking the questions of what the process was in this senior communications officer employment position. We then went on to say, or John Shrink went on to say, outlined that he was never offered the position of senior comms officer. Went back to April 2003, where John Shrink stated that he wrote a letter that Gunn had been unsuccessful, but put an alternative, ie, without formal qualifications he could not proceed, but then there was discussion about training of Andrew Gunn in that role. Mick Roberts made mention of this position, and John Shrink made mention of he would, Andrew Gunn would mature in the role, we need training in - he needed mentorship, and he needed to mature, ie, he needed to establish that Andrew, that he himself was capable of performing the role. We've then got where Mick Roberts asked, okay, well, now that the training is completed, what was the
**** WAYNE NEIL DYER XN MS FORBATH
process of re-advertising? And it really just kept referring to that. And the only part that I particularly paid attention to in great detail was the fact that John, when Mick Roberts asked John the question that I had previously known that John had answered, I really, really listened to what that response was.
PN787
THE COMMISSIONER: I didn't hear what you said then, Mr Dyer. You really, really what?---I really listened to that response, and when I got that response, ie, no, I didn't say, or he didn't say it, well, that is when I thought, well, hang on, this has already been said, that you did, in fact, say it.
PN788
Are you referring to a page of the notes there?---Yes, halfway down that fourth page. We're on the fourth page.
PN789
All right. Well, perhaps, Ms Forbath, if you could have the witness go down that page.
PN790
MS FORBATH: Yes. I did go to that before. So if I can just clarify then with you, Mr Dyer. So on the one hand your notes of the meeting of the 13th of February, which is F5, in those notes Mr Shrink admits to saying to Andrew Gunn, now, be a good boy and keep your head down. But when he is confronted with the WorkSafe investigation, is it correct to say that he denies making those statements to Andrew Gunn?---That is true.
PN791
Now, if you can just go on, take us down the rest of that material?---After that comment - - -
PN792
THE COMMISSIONER: Well, is this in the middle of the fourth page?---That is right, yes.
PN793
It might be this is important. You might care to go through that rather than not go through it. You have gone through the other parts.
**** WAYNE NEIL DYER XN MS FORBATH
PN794
MS FORBATH: Yes, that is right.
PN795
THE COMMISSIONER: I can't think why you wouldn't go through that. What does it say, April?
PN796
MS FORBATH: April the 6th.
PN797
THE COMMISSIONER: Is that a six, or is that G?---Where are we now?
PN798
MS FORBATH: Sorry, have a look at that fourth page right in the middle of the page?---No, the next page, it is the page after that.
PN799
The fourth page?---The page that I am referring to starts, JS, blank, related exclusively to his abilities in inter personal skills, not HSR activities. It is the first line.
PN800
Yes, that is right.
PN801
THE COMMISSIONER: Why do you say it is blank, Mr Dyer? Mine reads, JS, and then there is Imran, or something, I don't know what the first word is, and then there is something, a convulsion or, I don't know, conversation perhaps?---Yes, in conversation related exclusively to his abilities in inter-personal skills and not his HSR activities. So what is that really meaning, during the conversation with Mick Roberts, John Shrink said that there is no way that he was attacking his health and safety representative employees, but he was really referring to his abilities or inabilities in his inter-personal skills.
PN802
Thank you?---The next bit, Mick Roberts referred to, have apologised, and that specifically refers to, as I understand it, of that directly after he didn't get the job, or he thought that he got the job, and John Shrink said, no, look, I apologise for that, if you thought that I offered you the job, but that is not the case. And then he goes on to say, or the question was, was the offer reiterated to Gunn, ie, the offer of the position? And then answer then was no.
**** WAYNE NEIL DYER XN MS FORBATH
PN803
MS FORBATH: Who said no, was that John Shrink, or someone else?---John Shrink.
PN804
Keep going?---And we then got to the situation of the rejection of a communications officer role, which obviously that was made sometime, January or February, I think it might have been January, and Andrew Gunn rejected that position, and the director HR said, but this is a promotion.
PN805
DH, is that Desiree Harker?---That is right, yes. The next line, John Shrink just made the point of, while he was working in the role he was paid the rate. Now, what does that mean? Look, I am not really quite sure, but I think there was then allegation that Andrew wasn't paid the correct rate of pay. John Shrink said in this line that he was paid the rate. The next line was another comment from Mick Roberts, a question. In April was told by John Shrink that he should do the training, ie, do the training to qualify him in the communications centre. In May of that year John Shrink told Gunn that the position would be re-advertised. And then Mick Roberts asked the question in that section, did you say, be a good boy, keep your head down? And he said, no, definitely not. And John went on to say that he said at the time, do the training and demonstrate that you could do the job, and he is competent. The next section in May, where Andrew Gunn was advised by Andrew Pipcorn that if the training course was completed he would be appointed by Christmas. And then the quote from John Shrink was, no, it did not take place. During the training, or there was training, ie, ISEPs training, there was a procedure for dealing with psychiatric patients. In Andrew Gunn's mind the procedure was wrong and illegal. He raised it, as I understand, Andrew Gunn raised it with the instructors, but he was unsuccessful in dealing with that, and he subsequently issued a cease work order. And he believed that there was an immediate risk if the training procedure proceeded, the people would have the wrong information if they were confronted with a situation in dealing with a psychiatric patient. Mick Roberts then asked the question of John Shrink, and he said, Gunn said that John Shrink said, "I thought you were going to keep your head down." And John Shrink responded to Mick Roberts from WorkSafe at that stage, no, not my words. This training program that they were particularly talking about was outlined at that session from in front of me here, that it was six or eight people, and John Shrink made the comment
**** WAYNE NEIL DYER XN MS FORBATH
regarding the cease work, that this was not the way to achieve things, but nevertheless the program was changed, and the quote in there was that the questionable section was altered. John Shrink then went on to say that Andrew Gunn was acting as a health and safety representative, and that was obviously questioned by Mick Roberts, was he acting as a health and safety representative? And John Shrink responded, yes, I spoke to him and together identified ways to fix the problem. Mick Roberts asked the question, was obviously Andrew Gunn construed it as an intimidated HSR, and to my recollection there was no real answer to that. Mick Roberts then wanted to ask a question, and apparently this happened in the September of 2003, and he made the statement and asked the question obviously, there was a perception at headquarters is that you can't be managed, ie, Andrew Gunn can't be managed.
PN806
THE COMMISSIONER: Mr Dyer, how was that put? I don't quite follow that. Your notes read, MR, which is this WorkCover, Mr Roberts. And what does he say there? What do you say your recollection of the meeting saw him say?---Yes, that Mick Roberts made the point of asking the question whether, you know, is it right that there is a perception at headquarters that you, ie, Andrew Gunn, can't be managed, he asked that question.
PN807
To?---To the group, John Shrink, Desiree Harker, etcetera.
PN808
Yes?---As I said in the beginning, there is definitely a file of this, and the notes from really all the parties were put into that file in typed form.
PN809
MS FORBATH: Can I just stop you there for a second, Mr Dyer. When that statement was put to the group, that Andrew Gunn had said that there was a perception at headquarters that he can't be managed, did anyone respond to that?---Not in any real detail, no.
PN810
No?---No.
PN811
So Mr Mick Roberts from WorkSafe pursued that, or did he just let it go?---No. He just let it go.
**** WAYNE NEIL DYER XN MS FORBATH
PN812
Keep going?---It goes on to the next line down really, and it was, as I understood it, it is a question or a comment from Andrew Gunn to Mick Roberts, was that there is a perception of John Shrink's inability to handle Andrew Gunn. And John Shrink said, not the sort of things that I would say. It goes on to say that, where I refer to the vacant position three, vacant position meaning the senior comms officer position, and there is three MICA paramedics, and he is the final incumbent in a relieving role, I guess, over January, February, March, as I understand it. And it just went on to say that RAV is waiting on the outcomes of the AIC hearing which was on at the time. As I am of the understanding, this is still the same matter. There was a - I can't remember the question, but Desiree Harker made the comment that it is not uncommon to have someone acting in a higher duties role, obviously in a relieving situation in this matter. Talked about applying for the vacancies, that Andrew Gunn, I think, was on 10 weeks leave. And there is a comment which I wrote down because it is something that contradicts comments. Now, without referring to the actual final typed account of that meeting, I honestly can't remember what that part was all about. Desiree Harker then went on to say that the AIRC proceedings have concluded, but it is open for any party to re-activate. The next line, AG is the third person because of his leave. That specifically refers to the three people that were acting in the senior communications role, and he was the third person on the list, if you like, because he was on leave at the time. She then went on to say the union has sought not to have it re-listed, and then we just reiterate the three issues really, where Gunn allegedly suffered professional development, financial loss during the training, and financial loss by declining the interview. Now, that refers to the Wendouree role, the Wendouree station officer job, of which he declined that interview based on this other document, this other letter. And there was a number of letters tabled at that stage outlining the correspondence between Andrew Gunn and RAV over this senior communications officer position. Then went back to refer to section 54, of which is all about employer discriminating against the HSR, and it has to be sustained. Mick Roberts made particular mention of that, that the discrimination has to be sustained over a period of time. And then we really to-ed and fro-ed about - to be quite honest, since that matter on page four, I was more than a little concerned about what was going on, and I was going through the motions of writing those minutes. The next page refers to the training that Andrew Gunn participated in with regard to the communications officer position. Mick Roberts asked a question, did you commence the training in May and conclude it in September? Yes. He
**** WAYNE NEIL DYER XN MS FORBATH
then referred to Andrew Gunn's comment that statements were inaccurate, that there was financial loss due to the rejection of the SO, station officer position. He might have been successful in that job if he had have attended the interview. And then Mick Roberts asked a question, why did he reject the communications officer position, ie, or the station officer position. It would have given him greater opportunity to progress, develop, etcetera. And then another comment, it cannot appoint him, that he can apply for the position. I am assuming that is in recollection that would be the senior comms officer position. Then we went on to the bullying issue, and the bullying issue specifically, I remember, was one of, wasn't given enough notice with regard to the change of his roster when he went from the communications centre to the operations centre, to back on the road. The allegation was that he was only given 26 days notice instead of the mandatory 28 which is required as part of the enterprise bargaining, or the certified agreement. John Shrink said he was in the office but not at work because he was off duty. And then we referred to a number of correspondence between Stephen Ford, the area manager, and John Shrink, with regard to the to-ings and fro-ings of changing that roster. The next page we are really talking about the machinations of was he in the office or was he at home, was he notified by phone, was he not. You see, there is a bit of to-ing and fro-ing there. Andrew Pipcorn actually got involved in the process then by saying he actually posted the roster. And Mick Roberts asked a question, what is the normal custom and practice of the rostering arrangements? And Andrew went on to say that if there was any changes he would ring the individuals involved and notify them by telephone. Andrew Pipcorn then went on to say he was notified verbally on the 17th of December of the change, the roster was tabled that was published on the 24th, the roster was posted, etcetera, and Andrew Gunn's comment that he was back on the roster, the roster disadvantaged him because he had personal commitments and it didn't suit those commitments. So there was a fair amount, Commissioner, of to-ing and fro-ing over who said what and why at that stage. It then went on, quite interestingly, this part of it was comparison between the grievance procedure, and there was discussions between WorkSafe and RAV over the existing internal grievance procedure and the existing issue resolution procedure which deals with occ health and safety matters. And those comments were really the first couple of - the first few lines was what the grievance procedure is, verbally to a formal letter, formal grievance procedure all documented, grievance process discussion between Stephen Ford and Andrew Gunn which occurred, and I really don't know the dates for that, but it really was to hear Andrew Gunn's grievance, and apparently it was terminated prematurely because, in Stephen Ford's mind, there was threatening behaviour from Andrew Gunn towards Stephen Ford.
**** WAYNE NEIL DYER XN MS FORBATH
PN813
THE COMMISSIONER: And who said that, Mr Dyer?---This was captured in the discussions as asked by Mick Roberts from WorkSafe.
PN814
Do you remember who it was from RAV who spoke of the threatening behaviour towards Mr Ford from Mr Gunn?---Look, I really can't remember who said it initially, but there was discussions.
PN815
Thank you?---You know, I could say, and without fear of contradiction, it was Andrew Pipcorn, but it could very well have been John Shrink. I really just can't remember. And then it went on to say that Stephen Ford posed a 30 minute time frame in that meeting. Desiree Harker said it was a one on one meeting in those early stages. Mick Roberts then made the comment, well, you shouldn't do that, just have a one on one meeting. Mick Roberts and Andrew Pipcorn both had the discussion about the grievance issue, and Andrew Pipcorn even said that, okay, despite the escalation of all this over the period of time he was still prepared to proceed one on one with Andrew Gunn in an effort to resolve those issues. John Shrink said the next step in that process then was John Shrink, Andrew Pipcorn, Andrew Gunn to deal with the grievances. Mick Roberts then reiterated, and counselled those sitting there against, well, you know, you really shouldn't have a one on one meeting in matters as serious as this. And Desiree Harker outlined that due to the large geographic area that RAV covers at times there is no other way of doing it, and the one on one is probably the normal way of doing things because of lack of being able to coordinate large numbers of people together, and that was just a general comment more than anything. Mick Roberts outlined the requirements of the bullying matter, ie, the section 21 matter, and he made the comment that because of the definition as required by the Act, that this matter is unlikely to be satisfied, ie, satisfied in Andrew Gunn's favour because of the evidence that was provided, and the actual definition of that section in the Act, it would be difficult to say yes, he was bullied. This is with regard to the roster changes. Desiree Harker there, the issue is not the blurring of the disciplines, ie, the grievance issue and the OH&S issue, resolution issue, but with regard to the bullying, the training is currently under way. I can't remember. Supervisors are conducting that training. I really don't know. Hang on, yes, I do, I remember. I remember what this is all about, sorry, I remember what this is all about now. This was all about the issue of bullying training within RAV, and
**** WAYNE NEIL DYER XN MS FORBATH
Desiree Harker made the comment that training of managers, HSRs, supervisors, etcetera, in the recently released procedures with regard to bullying and harassment would be proceeding. Mick Roberts then asked the question, can you provide me with an outline of that training, and she said, of course, I will provide that training. He also asked for some evidence of where health and safety representatives were involved in a consultative way in the formulation of that training, of which Desiree Harker agreed to provide that information. And really that is the extent of it, I guess. I guess it is a little convoluted, but as I said, I take key point notes and put that into a proper typed file afterwards.
PN816
MS FORBATH: Thank you, Mr Dyer. It did take a little while, but I think it was necessary for us to ensure that nobody is confused about any of the things that are contained in those notes. So can I just ask you, Mr Dyer, before we conclude, how did you respond at the time to Mr Shrink's comments to WorkSafe, given what he had said to you in the meeting that you had between yourself, him and Mr Meredith? How did you respond to that at that precise moment?---This is during the WorkSafe meeting, are you talking about?
PN817
Yes?---Look, I didn't respond at all. I was fairly confused about the whole matter, and I wasn't quite sure what was going on. I knew that it wasn't the same answer that was given previously. I didn't really know what to do about it, and I guess I've got to say, I have been carrying this around with me since that time too, and I was having difficulty with the fact that, here is an inspector from WorkSafe, and we're telling a particular tale, and it is not what I was previously advised, and I was having difficulty with that, still having difficulty with it actually, that I heard that, I didn't know what to say in the meeting, and didn't know what to do subsequent to that. I wasn't prepared to raise it with my superiors. Why wasn't I prepared to raise it with my superiors? I had been aware of a whole range of other things that the organisation had said that we were going to do and hadn't with regard to occ health and safety systems, etcetera. I had alerted the organisation to what we did say over the years that we would do, and suggestions for improving it, but that had generally fallen on deaf ears. So I really didn't know what to do when I got that answer.
PN818
Thank you, Mr Dyer. I have no further questions for Mr Dyer at this point?---Would I just be able to have a five minute break at all, Commissioner?
PN819
THE COMMISSIONER: Yes, Mr Dyer. But it is important that you not discuss your evidence. You can speak to people, but not about this case?---No. I won't talk to anybody.
PN820
Well, you can, but you can't talk about this case, and you might be asked whether you have. We will adjourn for five minutes.
SHORT ADJOURNMENT [11.49am]
RESUMED [12.04pm]
PN821
THE COMMISSIONER: Yes, Mr Meredith?
PN822
MR MEREDITH: Thank you, Commissioner. Commissioner, we would seek to reserve our rights as far as being able to consider the record of the meeting in March with representatives of RAV and Victorian WorkCover Authority, and, indeed, I think Mr Dyer in his evidence-in-chief made a number of references to the separate perhaps more fulsome office file.
PN823
THE COMMISSIONER: Yes.
PN824
MR MEREDITH: But on the basis of what we have heard thus far, I don't press the earlier foreshadowed application for an adjournment to allow us to consider that file, but we would seek to reserve our rights and potentially put further submission with respect to the alternative record of that meeting.
PN825
THE COMMISSIONER: All right. So that is to put further submission? I take it your words mean what they are. Yes. So you don't seek to encumber your cross-examination in that regard?
PN826
MR MEREDITH: No, Commissioner.
PN827
THE COMMISSIONER: Thank you. Very well. And it is F6, that is the meeting, the 16 March meeting to which you have just referred when you mentioned the file notes?
PN828
MR MEREDITH: I believe that is right, Commissioner, yes, F6, the more lengthy of the two sets of handwritten notes.
**** WAYNE NEIL DYER XN MS FORBATH
PN829
PN830
MR MEREDITH: Mr Dyer, you have given extensive evidence-in-chief based on your notes of a meeting with representatives at WorkSafe and RAV, that is the meeting in March?---That is right, the 16th of March.
PN831
And that meeting as to continue the investigation by WorkSafe into a complaint made by Mr Gunn?---That is true.
PN832
And the complaint made by Mr Gunn was that, in fact, he had been discriminated against as the health and safety representative, is that correct?---There was two allegations of section 54 breach, and a section 21 breach.
PN833
Section 54, is that the section of the OH&S Act that goes to damaging or injuring an employee because of their role as an HSR?---That is correct.
PN834
And that investigation that was being progressed at that meeting in March, did that investigation conclude?---On that day, on the 16th of March. That was - - -
PN835
Are you aware of the - sorry, go on?---That was the WorkSafe inquiry of RAV people to gather evidence, to then go away, speak to the employee, the alleged aggrieved person, and then determine whether, in fact, there was any answers to, or any charges to answer.
PN836
And are you aware of any such determination that was ultimately made by WorkSafe?---Absolutely, yes.
**** WAYNE NEIL DYER XXN MR MEREDITH
PN837
Are you aware when that determination was made?---I can refer to the field report.
PN838
THE COMMISSIONER: Mr Meredith, there seems to be some reaction to the evidence that has been given from your end of the bar table, and it might be that I have misheard that. But, of course, there can't be any reaction to evidence as it is being given, so I would like to be confident that that either isn't happening or won't happen. I have detected several audible responses to the evidence being given by Mr Dyer, and you will know that there can't be any reaction in a hearing room or a court room to evidence as it is being given.
PN839
MR MEREDITH: Understood, Commissioner.
PN840
THE COMMISSIONER: Thank you.
PN841
MR MEREDITH: Mr Dyer, you were aware that there was a conclusion to the inquiry by WorkSafe?---That is right.
PN842
Did that conclusion uphold the complaint made by Mr Gunn?---No, it didn't. It said he was unable to support the allegations.
PN843
Thank you. One other matter that I would like to take you to. In exhibit F5, your notes of conversations with essentially Mr Shrink. I know that my initials are there, but there doesn't seem to be any reference to me in your notes. They seem to be largely notes of conversations between yourself and Mr Shrink. Is it your evidence that you had sent an e-mail to me or that you had a discussion with me?---No. Briefly discussed with you, said, well, we better talk to John Shrink. And we went down the corridor to John's office and sat and had that meeting.
PN844
Do you recall me subsequently telephoning Mr Roberts?---Yes, I do, yes.
**** WAYNE NEIL DYER XXN MR MEREDITH
PN845
Do you recall me raising with Mr Roberts my concerns at the apparent jurisdiction shopping being undertaken by Mr Gunn?---Yes, absolutely, yes.
PN846
Do you recall me telling Mr Roberts that Mr Gunn's complaint had already been aired in the Australian Industrial Relations Commission in January 2004?---Yes, I did.
PN847
I have got no further questions, Commissioner.
PN848
THE COMMISSIONER: Yes, Ms Forbath?
PN849
MS FORBATH: I have no further questions.
PN850
PN851
MS FORBATH: Commissioner, are we ready to proceed with Mr Andrew Gunn?
PN852
THE COMMISSIONER: With Mr Gunn?
PN853
MS FORBATH: Yes. That is, I think, the order of things, that the cross-examination of Mr Gunn will then take place.
PN854
THE COMMISSIONER: Yes. There is no impediment, is there, Mr Meredith?
PN855
MR MEREDITH: No. We would presume now that the next stage in the proceeding could be our cross-examination of Mr Gunn. Rather than commence and then break, would it be more reasonable for all parties to take a luncheon adjournment now, and we would then proceed unimpeded with our cross-examination of Mr Gunn?
PN856
THE COMMISSIONER: Well, it is a slightly early lunch. I am not opposed to that. Ms Forbath, do you say anything about that? This is a case notorious for its adjourning. I don't know that I have ever done more adjourning in one case, but we're going along. Do you say we can't adjourn slightly early?
PN857
MS FORBATH: No, I am not opposed to an adjournment now instead of in an hour's time, but it is really at the convenience of the Commission.
PN858
THE COMMISSIONER: All right. Well, the Commission will now adjourn for one hour and 15 minutes.
LUNCHEON ADJOURNMENT [12.11pm]
RESUMED [1.32pm]
PN859
THE COMMISSIONER: Yes, Mr Meredith?
PN860
PN861
MR MEREDITH: Mr Gunn, I think I had previously given you a copy of the witness statements for the witnesses that RAV will produce. Do you have that set of copies with you?---Yes.
PN862
And do you have a copy of your own statement with you?---Yes, I do.
PN863
Let's commence with some of the matters that Ms Forbath put to you in your evidence-in-chief. You spoke about a cease work notice that you issued in May of 2003, during the communications officer training. Do you recall talking about that?---Yes, I do.
PN864
And you stated that you were advised by an officer of Victorian WorkCover Authority to issue a cease notice. Who actually gave you that advice?---At the Victorian WorkCover Authority?
PN865
To proceed with issuing a cease notice?---I rang the WorkCover emergency line, emergency advice line for health and safety situations, and the consultant that I spoke with advised me to follow that course of action.
PN866
And that consultant's name was?---I don't have - I got his Christian name, didn't get his surname. I did mention that to WorkSafe at Ballarat, and has since been followed up.
PN867
And who did you mention it to in WorkSafe in Ballarat?---To Michael Rogers.
PN868
Sorry?---Michael Rogers.
PN869
Rogers?---A field inspector at Ballarat.
**** ANDREW GUNN XXN MR MEREDITH
PN870
And when you say it was to be followed up, what do you mean by that?---Well, just in that he was going to verify, I believe he was going to verify the details of that.
PN871
And you also gave mention in your witness statement, and Ms Forbath asked you some questions about this, but in your witness statement at - I beg your pardon, I will withdraw that. You gave evidence-in-chief to Ms Forbath about a complaint that you lodged with the Victorian WorkCover Authority concerning an alleged breach of section 54 of the OH&S Act, do you recall that?---Yes.
PN872
And I will tender an exhibit at this point, Commissioner. Commissioner, the exhibit I propose to tender is the document headed WorkSafe Field Report. You will see towards the bottom of the page, it is a single page document, and you will see that it is issued by Inspector Michael Anthony Roberts, it is dated 29 March 2004.
PN873
THE COMMISSIONER: Yes. Do you tender this?
PN874
PN875
MR MEREDITH: And I wonder if a copy of M7 is now tendered, could we provide it to Mr Gunn please.
PN876
Mr Gunn, exhibit 7 that you now have is the report from WorkSafe into, in the first instance, your allegation that RAV was in breach of section 54 of the Occupational Health and Safety Act. Have you seen this report before?---Yes, I have.
**** ANDREW GUNN XXN MR MEREDITH
PN877
And you note that under the heading of my observations and proposed actions at item one, you can see the finding there that Mr Roberts come to with respect to your complaint regarding an alleged breach of section 54. Can you see that sentence there? I will quote it to you:
PN878
In regard to the non appointment of Andrew Gunn to the position of senior communication officer, I formed the opinion that he has not been injured in his employment by reason only that he, Gunn, has performed functions or duties as a heath and safety representative.
PN879
You have read that before, haven't you?---Yes.
PN880
You didn't think to tender that with the various papers that you tendered with your witness statement?---No.
PN881
So just so we're clear on it. The outcome of your complaint alleging that RAV had injured you by not appointing you to the senior comms officer, the outcome of that complaint is shown here by the competent inspector from WorkSafe Victoria. Do you agree with that?---Sorry, what do you mean? What was the question?
PN882
Do you agree that this report provides the outcome and a result of your complaint alleging that you were injured in your employment because you are a heath and safety rep?---I agree that is WorkSafe's conclusion.
PN883
Very well. Mr Gunn, you have said a number of times in your witness statement and in talking to it, you have stated that at the first meeting with Mr Shrink and Mr Ford, you stated the term, preferred applicant, or recommended applicant was not used. Is that still your recollection of the conversation at that first meeting?---Yes, it is.
**** ANDREW GUNN XXN MR MEREDITH
PN884
Do you recall also saying that you were told at that first meeting - I will rephrase that. Do you also recall stating that there was no reference in that first meeting to final approval or sign off by the director of operational services?---Yes, I do.
PN885
Is that still your recollection?---Yes.
PN886
Do you recall the telephone call from John Shrink to you several days after that first meeting?---I recall a few phone calls from Mr Shrink.
PN887
The question I asked you was, do you recall the phone call from Mr Shrink to you several days after the first meeting with you, Shrink and Ford?---I couldn't recall that exact phone call.
PN888
I will just check my point there. I think Ms Forbath asked you about that question also. It is paragraph nine in Mr Shrink's statement. And your answer to Ms Forbath was that you say that you discussed a number of things with Mr Shrink in that phone call. You discussed terms and conditions of employment, you discussed the salary, you discussed allowances. That was the answer you gave to Ms Forbath when you were talking to your statement on Friday. So I repeat, do you recall Mr Shrink calling you several days after the first meeting?---I recall several phone calls with Mr Shrink.
PN889
Are you saying that Mr Shrink did ring you, but he made no reference to the need for final sign off or final approval by the director of operational services?---I am saying in the discussions that we had there was no reference to sign off.
PN890
In your statement of Mr Shrink it is quite clear on this point and, again, you have been taken to it. It is paragraph nine of Mr Shrink's statement. Can you offer any reason to the Commission as to why Mr Shrink would misrepresent the content or the purpose of that telephone call?
**** ANDREW GUNN XXN MR MEREDITH
PN891
THE COMMISSIONER: Just a moment, Mr Meredith.
PN892
MS FORBATH: I think a question like that requires Mr Gunn to be speculating on what is in the mind of Mr Shrink, and I don't think that is a fair question for the witness, as to speculating about why Mr Shrink has said a particular thing. That is really for Mr Shrink himself to answer that question. How can Mr Gunn possibly speculate on that?
PN893
MR MEREDITH: No more than Mr Dyer was asked to speculate about a number of matters that he traversed in his evidence-in-chief, Commissioner. Well, implicitly I would accept that I have asked Mr Gunn to speculate, but Mr Gunn is quite clear in his evidence-in-chief thus far that it was not said. Mr Shrink is quite clear in his statement that will be tendered, and he will be taken through, he is quite clear that it was said. I am asking - - -
PN894
THE COMMISSIONER: Well, thanks, Mr Meredith.
PN895
Mr Gunn, you were asked, do you know of a reason. Now, that is a different question than saying, can you surmise or deduce or infer, or some other thought. Now, do you know of a reason?---Commissioner, I would just like to apologise. I was sent Mr Shrink's statement separate to the other statements, and they must be back with my other documents. I don't have - - -
PN896
I see. Because Mr Meredith has been referring you to it?---I don't have it.
PN897
You haven't seen it?---I have seen it, but I just don't have it in front of me.
PN898
Well, you haven't got it in the box there?---No, I don't have it in front of me right now.
**** ANDREW GUNN XXN MR MEREDITH
PN899
All right. Well, you can be shown that. Ms Forbath, have you got a copy there of Mr Shrink's witness statement? It came in separately?---Yes. I beg your pardon, I have got it back with my other documents.
PN900
And you have been taken to paragraph nine. It says:
PN901
Some days after the meeting, on or about 19th of February, I telephoned Andrew Gunn.
PN902
And it goes on. Have you read that? Can you familiarise yourself with that please?---So the question?
PN903
MR MEREDITH: The question is, and there has been an objection taken, but the question is, can you offer any explanation as to why there might be such a significant distinction between your recollection of that telephone call and Mr Shrink's recollection of that telephone call?---No.
PN904
THE COMMISSIONER: And, Mr Gunn, in answering that question in the way it is posed, you will see you have got to make a step in logic. The evidence, which hasn't been given yet, of course, but it is foreshadowed, sets out what the purpose of the call was. Now, it doesn't say that that is what happened during the call, but implicit in Mr Meredith's question is that that is what the evidence will be. Can you see that distinction?---Yes. I think I understand what - - -
PN905
I think what you are being asked to do is assume that that is what the evidence will be, that not only was the purpose of the call to do that, but that it was a purpose fulfilled, and that he did say to you, he said things which had the effect of ensuring that you understood and you accepted the advice given by he and Mr Ford earlier, that the recommendation of the panel was subject to the final approval of the director of operational services. So that is what you are being asked about. Can you think of a reason why he would say that?---Well, I guess now that is part of the main theme as to why RAV did not proceed with the position.
**** ANDREW GUNN XXN MR MEREDITH
PN906
MR MEREDITH: You also advised, in response to a question from Ms Forbath, that it was somehow agreed between you and Mr Shrink that you were to receive a higher rate of pay whilst you undertook the comms officer training. Do you recall saying that?---Yes.
PN907
What was that higher rate of pay to be?---My pay rate went to MICA station officer.
PN908
Communications officers in training, what are they normally paid, to your knowledge?---I understand the pay rate does not increase until the student - until the incumbent is qualified.
PN909
Is it the case that the person undertaking comms officer training is paid at the substantive rate of pay for the first week, that is, the supervised - that is, the formal training program, but beyond that first week they are, in fact, conducting dispatch duties under a mentoring program, but they are operational comms officers, are they not?---They're working under supervision as operational comms officers.
PN910
And what I am putting to you is the fact that after that first week the rate of pay that applies to communications officers in training is that of a communications officer?---That could be the case. I have not checked.
PN911
Right. And just to round this out. The rate of communications officer is equivalent to station officer, is that not true?---I think that is correct.
PN912
And communications officer who is MICA qualified would likewise continue to be paid the MICA allowance?---I believe so, yes.
PN913
So leaving aside the question of when it may have kicked in, there was, in fact, nothing exceptional about you being paid as a station officer with MICA loading whilst you were a comms officer in training?---And what was exceptional was that it started five weeks prior, approximately five weeks prior to me actually starting the training.
**** ANDREW GUNN XXN MR MEREDITH
PN914
What I just put to you was, leaving aside the question of when it kicked in, there was nothing exceptional about you being paid as a station officer with a MICA loading whilst you undertook the communications officer training?---Once I started it, well, if that is the provisions of the EB, well, once I started my training then that wouldn't be exceptional.
PN915
I beg your pardon?---Once I started my training then that wouldn't be exceptional, if they are the provisions of the EBA.
PN916
And your evidence, or your answers to Ms Forbath were that you were to be paid from an earlier date, and the words you used was, as compensation for not being appointed to the senior comms officer position. Is that still your evidence?---Yes.
PN917
Mr Shrink's evidence will be that it was agreed that you would be paid as a MICA station officer on the basis that you had accepted his proposal to you of you being subsequently appointed to a communications officer position. What do you say to that?---I say that I was paid the higher rate of pay from an earlier time well before I started the training, and it was a compensatory measure for the appointment not going ahead.
PN918
Have you got Mr Shrink's statement there?---Yes.
PN919
Just go to paragraph 14 of his statement, which deals directly with this point. Are you still saying that you dispute the version Mr Shrink offers at paragraph 14 of your statement?---I don't agree with that.
PN920
You were also asked some questions about the statement of Mr Gough. Do you have a copy of that there with you?---Yes, I do have Mr Gough's statement here.
**** ANDREW GUNN XXN MR MEREDITH
PN921
Ms Forbath asked you to comment on paragraphs five and 11 of Mr Gough's statement. Could I also, however, take you to paragraph 10 of Mr Gough's statement, which commences:
PN922
In late April 2003 I met with Andrew Gunn.
PN923
Would you read that paragraph please. Now, do you recall telling Ms Forbath, when she asked you some questions regarding your statement, that you did not agree with Mr Gough's analysis of the requirements of the operations centre environment, and that, in fact, there were a number of matters discussed in that meeting with Mr Gough, do you recall saying that?---Yes, to that effect, yes.
PN924
So can you and I agree on one thing perhaps, that there was a meeting involving yourself and Stephen Gough, and then latterly John Shrink, and that meeting occurred in April 2003?---Yes.
PN925
And can we further agree that the matters discussed at that meeting included, amongst other things, Stephen Gough's reasons for not accepting you as the recommended applicant?---Yes, that was covered.
PN926
So if that is the case, Mr Gunn, can I take you then to your statement, and can I particularly take you to paragraph 34 of your statement. And you talk there at paragraph 34 about your lack of knowledge of the recruitment and selection procedures, but it seems to me from what you have just told me, it is quite clear that Stephen Gough told you face to face his reasons for not accepting the recommendation of you for the position of senior communications officer?---That was covered.
PN927
You make no reference in your statement to the meeting with Mr Gough, where he told you of these reasons. Why did you not think to include that perhaps in your statement, that you had been told why you were unsuccessful?---I guess there were more important things that I wanted to include.
**** ANDREW GUNN XXN MR MEREDITH
PN928
I mean, I can accept that it is not particularly palatable for any of us in our working lives to apply for a position and be unsuccessful, but it seems to me it is a notable omission from your statement, that you choose not to make reference to having been told of the reasons for the lack of success of your application?---I am happy to discuss that though. It is not as if I - I have problems with the process, but I am not exactly sure where you are going.
PN929
Well, that is - - -
PN930
MS FORBATH: Can I just intervene there, Commissioner. I mean, Mr Meredith seems to be making a submission here about Mr Gunn not making reference to this in his witness statement. I mean, if he wants to draw conclusions from the fact that Mr Gunn does not make reference to the meeting with Mr Gough in his witness statement, then that would be surely something for final submissions. They would be conclusions that you might draw. I mean, the fact is that Mr Gunn did not make reference to them, and that is just a fact. I mean, he can draw whatever conclusions he wishes from that in final submissions. I mean, he is just making, you know, using this situation to make a statement from the bar table.
PN931
MR MEREDITH: Well, Commissioner, we will, of course, put submissions in due course on this, but I am, you know, given that - - -
PN932
THE COMMISSIONER: Yes. I am not going to stop you. Your cross-examination can roam far and wide. But it is important to ask questions, but I understand the questions that you have put, and Mr Gunn will answer further questions no doubt.
PN933
MR MEREDITH: Thank you, Commissioner. The only other thing I would offer is, that there is a certain theme that occurs in the statement as tendered by Mr Gunn.
**** ANDREW GUNN XXN MR MEREDITH
PN934
THE COMMISSIONER: Well, I don't want to hear too much about themes, not now. I will hear a lot about it whenever you choose to put it, but not while you have got Mr Gunn there. Put it to him, of course.
PN935
MR MEREDITH: I think I have done that.
PN936
THE COMMISSIONER: I don't know that there has been anything about themes, but perhaps I will see them in the transcript.
PN937
MR MEREDITH: Mr Gunn, you also were asked some questions about the statement submitted by Mr Ford, and you offered some commentary about events that took place when you first met with Mr Ford and Mr Shrink in February of last year. You have told us that Mr Ford met you and said he had good news. You went into a discussion then with he and Mr Shrink in Mr Shrink's office. Now, you say in your statement at paragraph 14, that you met with Mr Shrink and Mr Ford, and that you were offered the position of senior communications officer. Who offered you that position?---Mr Shrink.
PN938
What precisely did Mr Shrink say in offering you that position?---I don't think I could repeat it precisely word for word.
PN939
Do your best?---There was a handshake, performed well at the interview, we would like to offer you the position.
PN940
What did Mr Ford say?---At that exact moment?
PN941
In that meeting?---In that meeting?
PN942
In the context of you say that Mr Shrink had offered you the position. Did Mr Ford support the offer that you say was made, did he make any comment about the offer that you say was made?---I guess Mr Ford participated in highlighting some of the good things about the - some of the benefits that I would enjoy with the position.
**** ANDREW GUNN XXN MR MEREDITH
PN943
You have given us a bit of a description about people's - the mood perhaps of the meeting. Can you recall anything else that Mr Shrink said to you in this, I would have thought rather significant conversation, where you say you were being offered a job that you keenly wanted and that you had applied for. Again, to the best of your recollection, exactly what did Mr Shrink say to you?---What other things did Mr Shrink say?
PN944
What did he say to you in offering you the job? You started to tell us a moment ago?---That I interviewed well, performed well at the interview, and he wanted to offer me the position.
PN945
Did he ask you to respond?---I responded at several points during the meeting. There were, as I said, there was discussion about the position, about how it was a good time to be involved in communications centres.
PN946
All right. Let's turn to the latter section of your witness statement, and paragraph 36. You say that an offer was put to you, that unknown to you the interview panel submitted your name for approval by the divisional director. Now, you also attach to your statement, it is AG7, the RAV recruitment and selection procedures. And I think I have separately tendered these in the initial proceedings in January, Commissioner.
PN947
THE COMMISSIONER: Yes.
PN948
MR MEREDITH: And you say there at paragraph 36, that on your reading of these recruitment and selection procedures proper process has not been followed. Have you got a copy of AG7 there, of the recruitment and selection procedures that are attached to your statement?---No, I don't seem to have one there. I beg your pardon.
PN949
Do you have a copy there?---Yes, I do have AG7, that is HR3170.
**** ANDREW GUNN XXN MR MEREDITH
PN950
That is correct, I agree with that. Could I take you to page eight of that document. Can you see the heading Appointment process, next to the number 5.7 on the top of that page eight?---Yes.
PN951
Can you see paragraph 5.7.1, Recommendation and letter of offer. Would you like to take a few minutes and read that paragraph please. Have you read that now?---Yes.
PN952
Well, I put to you that what happened with respect to your application for the senior communications officer is entirely consistent with what is contained there at paragraph 5.7.1. I put to you that the fact that you didn't know about paragraph 5.7.1, doesn't change the fact that what occurred is entirely consistent with those procedures there. What do you say to that?---Well, I guess what I say to that is, the way that I was being communicated with by the RAV managers throughout this process was not entirely consistent with this as well, in the sense that I am being offered the position, I am having repeated discussions about the development of the position, about the terms and conditions of the position, about what I would do once I was - once I had taken up the position. I guess the behaviour that I was experiencing from the managers was not consistent with this as well. And I would have thought, and maybe I am wrong, but I would have thought that the word of these people would be honoured by the company.
PN953
That, of course, assumes that your version of events as opposed to theirs is closer to the truth. And we will hear from those other people. So you say that it wasn't proper process because you say that you were being offered the job, no strings attached. That is the essence of what you are saying, isn't it?---I guess it depends what you mean by no strings attached, but I have been offered the job. We were talking, we were developing the terms and conditions.
PN954
The distinction you draw is that it was not proper process because what was put to you was more of a recommendation?---Yes.
**** ANDREW GUNN XXN MR MEREDITH
PN955
Can you turn to paragraph 35 of your witness statement. And that is where you say that you are not aware of AG7, the document we have just looked at. You say that you are not aware of any encouragement to employees to read it, you say that you have not been trained to use the Intranet, and that access to the computer at Ballarat branch is difficult. Let's start with your training on the Intranet. Now, Ms Forbath put some questions to you about training that was provided to you by Mr Tilson. Do you recall Ms Forbath asking you about that?---Yes.
PN956
And you say that you don't recall the training last 2.5 hours?---Yes.
PN957
You do recall that Mr Tilson did attend and there was a one on one session between you and he at the Ballarat branch?---Yes.
PN958
And your recollection is that it was more focused upon e-mail and at most, I think you said, a very brief overview of the Intranet. Do you recall saying that to Ms Forbath?---Yes.
PN959
At this stage it is question of degree perhaps. Mr Tilson has told the Commission that he is quite certain that the training went for two and a half hours, and that the Intranet, the RAV Intranet site and the navigation of that was a key element of that training. So I say that there appears to be a difference in degree perhaps between yourself and Mr Tilson. Are you aware - have you ever heard the term customer service guidelines?---Yes.
PN960
Can you tell the Commission what they are?---In my mind I am trying to define them from operational procedures.
PN961
If I try to help I will be accused of leading you, so you are just going to have to answer it and do your best.
**** ANDREW GUNN XXN MR MEREDITH
PN962
THE COMMISSIONER: Well, you are allowed to lead in your cross-examination?---You can lead me a little bit on that one. It is a document or a - I believe it was formerly the quality system, would that be correct?
PN963
MR MEREDITH: It was before my time, Mr Gunn?---I believe it was, but I might stand corrected on that, but it is one of the documents or one of the structures that the operational - we have got operational procedures as well, but the operations of the organisation.
PN964
Okay. Does the term customer service guideline include the operating policies and procedures of Rural Ambulance Victoria?---I am not sure, because there is operational procedures as well.
PN965
Yes. Does the term customer service guideline include the policies and procedures for Rural Ambulance Victoria across different functional areas, eg, operational - - -?---I think so to some degree, because there is operational procedures as well. It has not been explained very well, it is not very accessible within the branch.
PN966
We will come to that. When was the last time you looked at them, any of them?---I attempted to access the hard copies just prior to taking leave, which was about six weeks ago. I have had four weeks leave.
PN967
Is it true that the customer service guidelines used to be provided in hard copy and then subsequently made available on the Intranet site?---Possibly.
PN968
I beg your pardon?---Well, I thought they were still available in the hard copy.
PN969
That is not what I asked you. I asked you is it true that they were previously issued in hard copy, and are now accessible on the Intranet site?---I know that they would be accessible on the Intranet site.
**** ANDREW GUNN XXN MR MEREDITH
PN970
I would like to tender an exhibit at this point, Commissioner. There is a copy there for Mr Gunn. The exhibit I propose to tender is headed Instructional circular. It is a document of some three pages. The reference number shown on the front page is CSG August 2002.
PN971
THE COMMISSIONER: Have you seen this, Mr Gunn?---Have I seen this?
PN972
I know you're looking at it now that it has been handed to you?---Have I seen it in the branch?
PN973
Yes. I mean, it is being introduced through you. Are you familiar with that document, have you ever seen that before?---I can't recall, but I may have.
PN974
PN975
MR MEREDITH: Now, Mr Gunn, I was asking you about your knowledge of customer service guidelines. We seem to be agreed that they cover operating procedures. Have you ever attended ISEP training days, which are in-service training days, Commissioner. Have you ever attended ISEP training days where operating procedures and policies from customer service guidelines have been dealt with in ISEP training?---Yes, I have. I know operational procedures have been referred to.
PN976
Very well. Now, just returning to exhibit M8, you say you may have seen that before, I think that is what I heard you say to the Commissioner, and you will see that it makes reference there in the first paragraph, that current - and this circular is dated August 2002, and it advises that currently the customer service guidelines are in paper format, but as of August '02 they will be produced in CD format and updated four times per year. I can't help but ask, Mr Gunn, is that what you were referring to on Friday, when you said you don't need CD ROMs in your life, in response to a question from Ms Forbath?---No.
**** ANDREW GUNN XXN MR MEREDITH
PN977
And you will see in the second paragraph there it also notes on exhibit M8 that the RAV Intranet site also has the latest customer service guidelines, procedures, forms and working instructions. Can you turn over the page. Are you familiar with the screen that is reproduced there, the information that is shown there?---No.
PN978
You have never looked at that?---I have probably seen it, but I am not familiar with it.
PN979
Now, Mr Gunn, you have said earlier on that you were a heath and safety representative. How long have you been an elected heath and safety representative?---It would be eight or nine years.
PN980
And if I wanted to find the current RAV policy with respect to health and safety committee meeting procedures, where would I find that?---Yourself, or myself?
PN981
Let's assume that my name is Joe Dirks, and I am a new employee of RAV, and I want to find out what the procedures are for RAV health and safety committee meetings, where would I find that?---My hunch is, the way that we're going, probably in the customer service guidelines.
PN982
What about if I wanted to find out what the provisions are if I want to get involved in affairs within the organisation, what if I want to find out what the procedures are for attendance at meetings and working parties and working groups, where would I find that?---Where does this person work?
PN983
RAV?---Which branch?
PN984
Sealake?---I don't know the answer.
**** ANDREW GUNN XXN MR MEREDITH
PN985
What about if this person wanted to find out what a hazard report form looked like, where would they find that?---I do not know.
PN986
But you're a heath and safety rep with nine years standing?---That is correct.
PN987
Why don't you know?---I guess because RAV hasn't implemented these systems properly.
PN988
Mr Gunn, I put to you that there is approximately occupational health and safety policies and procedures available on the customer service guidelines page of the RAV Intranet site. I will repeat the question. Are you sure that you don't know where you would find the hazard report form?---If I could answer it this way. That the first port of call for my involvement in health and safety situations is the Occupational Health and Safety Act, the Victorian legislation, and that is - - -
PN989
That is interesting. But what I asked you was, where would you find the hazard report form within RAV?---I am not familiar with that document. Can I just explain why I am not familiar with that document?
PN990
Which document is it that you are not familiar with?---The hazard report form.
PN991
You have indicated that you are not familiar with it?---I will let it go, I am sorry, I will leave it go.
PN992
You are a heath and safety representative who is not familiar with it. Okay, you are not familiar with it, let's leave it there?---Yes.
PN993
Again, with respect to your claim that you have had no training and that you have no particular exposure to the RAV Intranet site, are you familiar with the memorandum issued by Mr David Tilson in May of this year concerning the disposal of surplus computers within the organisation?---Yes.
**** ANDREW GUNN XXN MR MEREDITH
PN994
Okay. I will seek to tender this also, Commissioner?---Well, I am aware of that program. The memorandum I have probably seen, but I have participated in that situation.
PN995
I will seek to tender this, Commissioner. And, again, I will provide a spare for Mr Gunn.
PN996
Mr Gunn, have you seen that before?---No.
PN997
In that case I will withdraw it, Commissioner. Well, in that case I will withdraw the document that I seek to tender, if Mr Gunn now says that he hasn't seen it.
PN998
THE COMMISSIONER: So do you say - - -
PN999
MR MEREDITH: I appreciate that I properly ought tender this through the witness. The witness is saying he hasn't seen it. All right, that is what he says, he hasn't seen it, so I can hardly introduce it through the witness.
PN1000
THE COMMISSIONER: Well, I can mark it for information, is the normal way that is done.
PN1001
MR MEREDITH: In that case, Commissioner - - -?---What you don't seem to understand, there is a lot of these documents - - -
PN1002
THE COMMISSIONER: Just a moment, Mr Gunn. All you have to do is answer questions?---Sorry.
**** ANDREW GUNN XXN MR MEREDITH
PN1003
I will mark this because you have asked a question about it, Mr Meredith, so it will help me, so I know what it is he has never seen.
MFI #M9 INFORMATION CIRCULAR DATED 10/05/2004
PN1004
MR MEREDITH: Mr Gunn, exhibit M9, and I think you have got a copy of it, is a memo from Mr David Tilson, who has previously given evidence in these proceedings, it is dated 10 May 2004, and the subject of the memo is the disposal of computer equipment to staff. Can I take you to page three of that exhibit please. Can you see the bold heading there, registering your interest to purchase a computer?---Yes.
PN1005
Can you see the second paragraph below that heading, which directs an interested employee to go to the RAV Intranet site, or to select a certain item and to proceed from there?---Yes.
PN1006
Did you, in fact, complete that process and register your interest?---Did I?
PN1007
Yes?---Not exactly.
PN1008
Mr Gunn, did you put in a bid to purchase a surplus an RAV computer in May of this year, or thereabouts?---I participated in this program via the Intranet with the assistance of two of my colleagues on shift in the Ballarat operational centre while we were on night shift.
PN1009
And did you receive an e-mail response from Mr Tilson addressed to you confirming that your expression of interest had been received?---Yes, I can recall that.
**** ANDREW GUNN XXN MR MEREDITH
PN1010
And, in fact, your bid, I think, was successful, was it not?---That is correct.
PN1011
So you were able to bid, but you now tell us that it needed the assistance of two other people to complete the process of accessing the Intranet site?---That is why that is correct, because if you are following up my participation in this you will see where the e-mail, or the expression of interest was actually sent twice, because I was unsure if I had hit the target the first time. And then I actually sent a fax as well to head office to ensure that my registration did go through, because I wasn't sure if my e-mail or expression of interest had been successful, I am not sure if I hit the target, I wasn't sure how you tell. So I recall that night following it up with a fax to head office. And yes, I was successful, I did secure one of the computers.
PN1012
So, in fact, when you say at paragraph 35 of your statement that access to the computer at the Ballarat branch was difficult, that wasn't the case when the three of you were working as a committee to get your bid in, I take it?---What I am suggesting when I state that the access to the computer is difficult at Ballarat branch, is the - often - there is only one computer for road staff to use, and that is for 36 people, so sometimes there is a queue to use the machine, sometimes it doesn't work.
PN1013
But it did work and there wasn't a queue when the three of you finalised - - -?---Well, this was from the - I am referring to a computer for road staff. This was from the operations centre where I sent this expression of interest.
PN1014
And it is the operations centre, is it not, where you have been located since at least April of last year?---May.
PN1015
May?---Yes.
**** ANDREW GUNN XXN MR MEREDITH
PN1016
Can we turn to your statement again, and I would like to look at some of the words that you use in your statement. We have already discussed the fact, you say at paragraph 14 that you were offered the position. At paragraph 15 you say that the offer was confirmed. This is in your statement. Can you tell us exactly how the offer was confirmed?---This was our second meeting, and when we started our discussions, once again, the same things were gone over about my success, my performance at interview, my success, and there was a reaffirmation of the offer.
PN1017
Well, how? Did someone put their hands on your shoulder and say, arise senior communications officer? I mean, how did they confirm the offer?---No, they don't do that.
PN1018
Well, what do they do, because so far you haven't been able to tell us?---A handshake and going over the point again.
PN1019
Who?---Mr Shrink.
PN1020
And precisely what did he say?---I couldn't repeat it word for word.
PN1021
Do your best?---That I performed well at interview, that I had been successful, and I was being offered the position.
PN1022
I think that is what he may have said on - well, that may be what you say he said on the 17th or the 19th. We are talking about the second meeting, where you say in your statement that the offer was confirmed?---That is my best.
PN1023
THE COMMISSIONER: Mr Gunn, lest there be no mistake, did you understand when you gave your answer a moment or two ago with those features, that you had gone well in interview, you had been successful, and you were being offered the position, did you understand you were responding to the question, what happened on the 27th of February?---The same things were gone over, that is what I am saying. There was - - -
**** ANDREW GUNN XXN MR MEREDITH
PN1024
Thank you.
PN1025
MR MEREDITH: In your statement you say that there was discussion about a number of other conditions matters. There is nothing else traversed in that meeting on the 27th, nothing new, nothing else?---About the conditions of the position?
PN1026
Yes?---There was feedback about points that have been discussed prior to that meeting. I think I mentioned before that Mr Ford left the room. We discussed points about me working with Mr Ford, and where would we go to hopefully in the future with me working in the position, working with Mr Ford.
PN1027
So it is your evidence that when the offer was confirmed to you on the 15th, that was a handshake from John Shrink, and essentially John Shrink repeated what he had said to you on the 19th?---I am not sure about those dates that you have just said then.
PN1028
That John Shrink is essentially repeating what he had said to you at the first meeting. Let's leave aside the debate about whether it was the 17th or the 19th of February?---It is just you said the 15th then.
PN1029
I may have done. I am referring to the first meeting?---Okay.
PN1030
And your answer is yes, that it was essentially a repeat of what had been said to you at the first meeting?---Yes.
PN1031
Now, you further say in your statement at paragraph 21 that you were - this is after you had been told by Mr Shrink that Mr Gough did not accept the recommendation - and in the last line there of paragraph 21 you say that you were led to believe. How were you led to believe?---I will just have to read the entire statement. Mr Shrink - the question was, how was I led to believe?
**** ANDREW GUNN XXN MR MEREDITH
PN1032
That is correct?---Mr Shrink was telling me that I was still the best candidate, and that I lacked the experience in the communications area, and what was implied to me, what I took away from it was that if I did the training I would be on the right track for the position, that I would be doing all I could.
PN1033
So you say that was what was implied. But what you say in your statement is how you were led to believe. Now, this was a telephone conversation, there was no eye to eye contact, no, you know, sort of nudge, nudge, wink, wink. This was one voice in a phone handset to another. Again, how did he lead you to believe that if he did that the comms officer training, certain things would follow, what exactly did he say to you?---I couldn't say the exact words.
PN1034
Well, surely this is a fairly important conversation?---Well, there was a lot happening. I had just been delivered some pretty devastating news, and it was quite a lengthy discussion.
PN1035
So here he is, he dashes your hopes with one hand, and then with the other nonetheless he leads you to believe that certain things will happen, but you can't recall what words were said to lead you to believe?---Not the exact words, no.
PN1036
No. Any of them?---Not the exact words.
PN1037
What I just asked you was, can you recall any of them?---Only to the effect that if I proceeded and did the training that I was still the number one choice, and that I performed well. I was also informed by Mr Shrink, I remember, during that discussion he told me that it didn't eventuate, but he also told me that there was going to be some project work ongoing in the communications area, and there needed to be a staff representative involved, and he asked if I would be interested in being that staff representative. It didn't eventuate, but that is another thing that was mentioned during that discussion, because I think he was feeling disappointed for me, and I believe that he wanted to keep me in the loop and wanted to offer some kind of way of keeping me involved and showing that I was a strong choice for the position.
**** ANDREW GUNN XXN MR MEREDITH
PN1038
But if he had just told you that you weren't going to get the job, how did he know who was going to apply for it in the future, how did he know, how could he possibly say that you would be the number one applicant in the future?---Well, I guess I don't think he could be sure, but he did keep the position open, and it has only been filled last week.
PN1039
When you say he, you mean Mr Shrink. It is not really his decision there is it?---I am not sure.
PN1040
So he may or may not have kept the position open, is really the answer, the comment you should have made a moment ago, isn't it?---Well, he did advise me that the position would be kept open.
PN1041
We're back to, he did keep it open, now are we?---Well, it has been kept open.
PN1042
But you are not sure by whom?---By HR I guess.
PN1043
Mr Shrink says you made no comment to him in that conversation about being previously assured that the position was yours. Now, what might lead Mr Shrink to say that? He doesn't infer it, he says it quite plainly in his statement. He says:
PN1044
Andrew Gunn did not say to me that he understood or believed that the position had been offered to him in our previous meetings and conversation.
PN1045
?---Are you referring to his statement?
PN1046
I am quoting from his statement?---From?
**** ANDREW GUNN XXN MR MEREDITH
PN1047
Well, let me put it another way. When do you say you first raised the question that you believed you had been offered the job?---Sorry, say it again?
PN1048
When do you say you first raised your view that you had been offered the senior communications job, and that the offer was not being delivered on, when did you first raise that?---When did I first raise?
PN1049
Your view that you had been offered the senior communications officer position?---When did I form the view, or when did I raise?
PN1050
When did you raise that view?---With whom?
PN1051
With anyone?---I guess when I walked out of the first meeting on the 17th of February.
PN1052
Let's be clear on this, Mr Gunn. By the time this meeting takes place in April, you say that you were offered the job on the 17th or 19th of February, that is what you are saying, isn't it?---Yes.
PN1053
And you are saying that offer was confirmed on the 27th of February in a process that none of us appear to be able to recall, least of all you?---No. I do recall it.
PN1054
But you just can't tell us about it?---No. I did tell you about it. I just was not able to repeat the words verbatim for you.
PN1055
So you say it was confirmed on the 27th of February?---20?
PN1056
27th of February?---Yes.
**** ANDREW GUNN XXN MR MEREDITH
PN1057
And then you say out of the blue you are told on the 4th of April or so that it is not going to happen, is that what you say?---I was advised it was not going ahead on the 4th of April, yes.
PN1058
And you launched your formal grievance proceedings on this matter in October, some six months after April?---Yes.
PN1059
Why did it take so long? If this was such a major matter, and you had been so profoundly wronged, why sit on your hands for six months?---From April to October? I wasn't sitting on my hands to start with.
PN1060
Why did it take six months?---Because I had a meeting with Mr Shrink, Mr Williams and Leleve, and following that I had discussions with - I had also - I had had discussions with my logistics manager at Ballarat who had been liaising with Mr Shrink. And the things that I was told suggested to me that if I finished my training, which was around six months later in October, that I will be going into the position. That is why I decided to play the game and not lodge a grievance immediately. I did get advice along those lines, but I chose to follow the advice that I was receiving from my line managers, or line manager. And so I did the training and gained experience. Sorry, I thought you wanted an answer then.
PN1061
I am listening, Mr Gunn?---I did the training and gained experience, and around October that is when things were supposed to progress with me taking up the position. That is why there was a - and when it became abundantly clear that that was not going to be the case, that there was no way that I would be installed into the position, that is when I decided to lodge a grievance, and that was also taking into consideration the advice that I received from Mr Shrink about being too active as a heath and safety representative, and also being told that it was the view of head office of RAV that I couldn't be managed, so there was no way that I could be a manager.
**** ANDREW GUNN XXN MR MEREDITH
PN1062
Look, I appreciate you are free to answer the question in your own words in whatever way you wish and, of course, if it is your view, and no doubt you will tell the Commission that you probably suspected it was RAV that started the great fire of London. But the question that I asked you was, why it took six months. Now, can you go to your statement and can you look at paragraph 26.
PN1063
That is where you talk about the meeting that you had with Shrink, Williams and Leleve in May. Have you got that paragraph there in front of you?---Yes.
PN1064
I am interested in what you say there, that you say that you were, again, led to believe. I mean, how were you led to believe in that meeting with those people that you name there, what was said to you?---I was told again during that meeting that I had interviewed very well, and I was also told that my skill set was almost complete except for the fact that I wasn't communications trained. I was advised that if I proceeded with the communications training which I had started and gained some more experience in the ops cen, that my skill set would be complete, and that any other person who would apply for the position would not have as good a chance as myself for the success of going into the position.
PN1065
And I note that you also say there in paragraph 26, in the final sentence, the latter part of the final sentence, that you would:
PN1066
Easily move into the senior communications officer position even if it was to be re-advertised.
PN1067
Doesn't that suggest there in your own words that you accepted that the job might be re-advertised?---No.
PN1068
How can that be? Your own words there clearly indicate that you were prepared to accept that you were probably going to be the best applicant for the job if it was to be re-advertised?---That is not what I am trying to convey there.
**** ANDREW GUNN XXN MR MEREDITH
PN1069
Okay, we will come back to that point in a moment. But the further question I ask you then is, if a job is advertised or re-advertised, it is generally the case that that position is vacant at the time it is advertised, isn't it?---I believe so. So it does seem to suggest at paragraph 26 in your statement that you considered, you say, you considered that you were going to be the best applicant for the job when it was re-advertised, and you just agreed with me that a job that is advertised is generally a job that is vacant?---No.
PN1070
It is a job that doesn't have anyone in it?---No.
PN1071
What part do you disagree with?---I don't agree with you.
PN1072
What part don't you agree with?---That I am accepting that it would be re-advertised.
PN1073
I think I asked you that a couple of minutes ago, and you said yes, that it might?---Sorry, I have misunderstood then. I thought you were saying that if a job was advertised it meant it was vacant. I thought you meant any job.
PN1074
And your answer to that was, that is usually the case?---Yes.
PN1075
So what I am putting to you beyond that is, if the job, in fact, is vacant, it couldn't really have been offered to you, as you claim, earlier in the year, could it?---It was a dynamic situation. Things were changing, things could have continued to change, and I did not have a lot of control or impact on the situation, so this is one of the scenarios that may have eventuated.
PN1076
What exactly are you meaning when you say it was a dynamic situation?---Things were changing.
**** ANDREW GUNN XXN MR MEREDITH
PN1077
By that do you mean that you were gaining skills and training as a communications officer?---I mean, I am not sure what you mean, what you are referring to when you say that things were changing. Could you kindly inform the Commission?---I mean, I was offered a position, and we were developing a position, and then the position was taken away.
PN1078
But we are talking about May, we are talking a month, almost a month and a half after John Shrink says he had a telephone conversation with you, where you were told that your application was not successful. So what was changing in May, what was the position that we were interested in that we were developing?---I am talking about earlier on in the year.
PN1079
Well, I am talking about May, and what I am asking you about is, that that part of your statement that talks about a meeting that you say you had in May?---Yes.
PN1080
I am talking about May?---Yes.
PN1081
So when you say things were changing, do you now say - you are not referring to things changing and a position being developed in May? I mean, I am a little bit unclear what you are telling me?---What I am saying is, going through the experiences that I have gone through to date, you would have to be - keep an open mind for anything to eventuate.
PN1082
What you are saying is, that in May you say that you were led to believe that you could move into the senior comms officer position even if it was to be re-advertised, that is what your statement says. So you were aware in May of last year that the position might be re-advertised?---I guess it is always a possibility from that point.
PN1083
Frankly, Mr Gunn, so is another Carlton premiership, but that is not what I am asking you. Were you aware or were you not in May of last year that the position might be re-advertised?---Was I aware that it might be re-advertised?
**** ANDREW GUNN XXN MR MEREDITH
PN1084
Or were you not aware?---Nothing - it was not definite, but it was a possibility, it could have been a possibility.
PN1085
Now, I asked you before why it took until October for you to formally commence a grievance process. Do you recall sending an e-mail to Stephen Ford on the 25th of September, indicating your interest in performing a higher duties relieving role in the senior comms officer position?---I would have to see the e-mail to - I am not denying that I sent it, but I would have to see the e-mail.
PN1086
Do you recall Stephen Ford, as area manager, sending out a circular, a staff information circular, inviting expressions of interest for employees to act in the position of senior communications officer?---You don't have it there?
PN1087
I beg your pardon?---You don't have a copy of that there?
PN1088
I am not tendering it at the moment. I am asking you if you recall it?---I believe I do, yes.
PN1089
And do you recall responding to it by indicating your interest in seeking to have a spell of higher duties in the senior communications officer position?---Yes. Yes, I do.
PN1090
And do you recall sending that e-mail to Mr Ford on the 25th of September last year?---I am not exactly sure of the date, but it sounds around that time that it occurred.
PN1091
Late September. And then, in fact, I think it is the 1st of October that you initiate the grievance process?---Yes.
**** ANDREW GUNN XXN MR MEREDITH
PN1092
I am curious as to why you would express interest in higher duties, and then two working days later lodge a formal grievance about this. Could you tell me why that happened?---Well, I guess you would have to take into consideration what had happened to me in the first part of the year, being offered a position, then the position being taken away, and then being told - if I could explain how I believe the upward relief came about, would that be okay?
PN1093
No. My question to you was, why would you express interest in acting in the job, and then two days later commence formal grievance proceedings about the same job? I mean, the two positions are a little bit inconsistent, do you agree with me there?---No, I don't.
PN1094
Well, how are they consistent?---Because I was - I had trained for the position, I was advised that I would be the most appropriate person for this position once I had finished my training, and then RAV had decided to do the upward relief situation. So naturally I had to show that I was interested and participate in that process, even though there is no permanency attached to upward relief, I believed it would be - there were several reasons I believed why I should have applied. One is to indicate that I was still interested in the position, two, to gain valuable experience. This is the first time that the position would have been run in Ballarat, so I wanted to have some experience with the position. So that is the first part of your question. Then I chose to register a grievance because Mr Shrink had advised me around the same time that I would not be suited to even upward relief, let alone the actual permanent position because of my health and safety activities. He advised me of that twice. And I became - - -
PN1095
Can I just stop you there. When do you say Mr Shrink put this to you?---I can refer to my diary and tell you exactly.
PN1096
No. I would prefer you to refer to your witness statement?---In September of '03.
**** ANDREW GUNN XXN MR MEREDITH
PN1097
You have just said that you were told by Mr Shrink, you have said on two occasions, that your health and safety activities precluded you from being considered for upward relieving in the job?---Yes.
PN1098
And you are saying that this was said to you in September?---Yes.
PN1099
Was this before or after you had expressed interest in upward relieving in the job?---I was advised that I would - that the advice from Mr Shrink came before I applied for the upward relief.
PN1100
Okay. Did both sets of advice from Mr Shrink, did they both come to you before you expressed interest in acting in the position?---In the upward relief?
PN1101
Yes?---Yes.
PN1102
So the sequence that you are telling us, is that you were somehow - and we will come back to it in a moment - you were somehow told twice by Mr Shrink that you would not be considered suitable for upward relieving before that upward relieving was advertised, and you would not be considered suitable because of your health and safety activities?---That is - - -
PN1103
You lodged an expression of interest in the upward relieving, and then two working days later lodged a formal grievance about the position?---That is correct.
PN1104
Where do you say that Mr Shrink told you that you would not be considered for upward relieving, where did those conversations take place?---In the yard at the Ballarat branch.
PN1105
And was there anyone else present in those conversations?---No.
**** ANDREW GUNN XXN MR MEREDITH
PN1106
What exactly were his words to you?---If I may refer to my diary?
PN1107
I prefer you referred to your memory?---With the assistance of my diary?
PN1108
I am in your hands, Commissioner. The diary has been conspicuously absent on other matters that I have asked for detail about.
PN1109
THE COMMISSIONER: Do you have a recollection?---Okay, certainly.
PN1110
You see, in part these things are a test of memory?---Okay.
PN1111
And then if you say, well, I can't remember, but I took some notes at the time, well, we would have regard, we would normally have regard. So the question that is being put to you is, what can you say from your memory about these conversations in the yard?---Well, the first conversation in the yard was immediately after a meeting, a staff meeting that was held at the branch. I met Mr Shrink in the yard, and it was suggested in that meeting that an upward relief situation for comms supervisor occur at Ballarat branch. After that meeting I met Mr Shrink in the yard and asked if I would be considered for that upward relief. Mr Shrink said no, I had been too active as a heath and safety representative, and there would be no moving away from the cease work. The second time we had a discussion in the yard.
PN1112
MR MEREDITH: I didn't you clearly then. No moving away from?---The effects of the cease work notice that I put on in May.
PN1113
In the second discussion I asked Mr Shrink about the topic again, and he said it was the view of RAV head office that I could not be managed so I would not be able to be a manager.
**** ANDREW GUNN XXN MR MEREDITH
PN1114
And the second conversation that you say took place between yourself and Mr Shrink, where did that take place?---In the yard at Ballarat branch.
PN1115
And were there any other people present in that conversation?---No.
PN1116
And what was the occasion of Mr Shrink's attendance at the Ballarat branch on the second occasion in September where you had, you say, this further tete a tete?---I can't recall.
PN1117
THE COMMISSIONER: And do you say they were in September, both those?---Yes.
PN1118
Thank you.
PN1119
MR MEREDITH: Mr Gunn, you have seen Mr Shrink's statement, and you are aware that Mr Shrink will, of course, be giving evidence to this Commission. But I put it to you, what you have just informed the Commission about two solo conversations between yourself and Mr Shrink, where Mr Shrink advised that you would not be considered because you were unmanageable or untouchable, or whatever, I put to you that that is a complete fabrication, that Mr John Shrink said no such thing to you, and that those conversations didn't take place?---That is not correct.
PN1120
In the time since September last year, when you say these conversations took place, have you had the opportunity to act in the senior communications officer position?---Yes, I have.
PN1121
And who arranged that upward relief?---I think it would have been Mr Shrink and Mr Pipcorn.
**** ANDREW GUNN XXN MR MEREDITH
PN1122
So in September Mr Shrink - you are telling us that in September Mr Shrink says you are untouchable, and then some months later - - -?---No.
PN1123
- - - in a process that you agree he has arranged, you have taken a turn of acting in the position?---I have never used the word untouchable.
PN1124
In September, you tell this Commission, that Mr Shrink said that you were unmanageable and would not be allowed to act in the position, and yet later you also inform the Commission that John Shrink has overseen or managed the process where you have, in fact, acted in the position for some weeks. Do you see any inconsistency there?---Any inconsistency?
PN1125
Mm?---No.
PN1126
Do you recall a meeting between yourself, Mr Morris, Mr Shrink and myself in December last year with respect to the grievance that you had lodged?---Yes, at RAV in Albert Street, Ballarat.
PN1127
And do you recall there were a number of potential resolutions discussed at that meeting, and there was no agreement reached between Mr Shrink and myself and yourself and Mr Morris?---Yes.
PN1128
Can you recall what were the two proposals that RAV put to yourself and Mr Morris in that meeting in December?---I think one of them was that the position be re-advertised immediately. Is that correct?
PN1129
I think there were two?---Yes. If I got the first one right I was going to go into the second. The second one, I believe, was a period of upward relief for myself and the other candidate who applied for the position, who was unsuccessful.
**** ANDREW GUNN XXN MR MEREDITH
PN1130
And that period of upward relief for yourself and the other candidate, the original candidate for the position, what was to happen following that upward relief in the proposal that was put at that meeting?---I think it would be to advertise the position.
PN1131
So the two options that were put by RAV at that meeting, as represented by Mr Shrink and myself, were to advertise the position immediately, or you and the only other candidate for the position, the original two applicants, have a specified period of upward relief, then the position be advertised. And there was a third alternative, a proposal put by yourself and Mr Morris, and it is fair to say there was no agreement reached on that proposal either?---Yes.
PN1132
Do you recall sending an e-mail to John Shrink on 18 December 2003 on this matter?---I don't recall the e-mail.
PN1133
PN1134
MR MEREDITH: Do you recall, now that you have a copy in front of you, do you recall sending that e-mail now, Mr Gunn?---Yes.
PN1135
And in the second paragraph of that e-mail you appear to be proposing to accept the suggested period of upward relief, do you agree with that?---It appears that way.
PN1136
And in the first paragraph you clearly link that upward relief to what was put to you in the grievance meeting that we discussed just a moment ago, do you agree with that?---Yes.
**** ANDREW GUNN XXN MR MEREDITH
PN1137
Do you recall subsequently receiving an e-mail in reply from Mr Shrink, dated the 18th of December?---I would like to see that. No, I don't recall the e-mail at the moment.
PN1138
PN1139
MR MEREDITH: I will give you a moment to re-acquaint yourself with M11, Mr Gunn. Now, I should, as a point of clarification, Commissioner, and for all the parties, in the text of the message there is, below point three, there is reference to the e-mail below. The e-mail below is exhibit M10. It was one of these exchanges, Commissioner, where someone, person A sends person B an e-mail, and person B types a response, hits reply, and their reply sits on the screen over, etcetera.
PN1140
Now, Mr Gunn, you have had a few moments. Have you read that e-mail?---Yes.
PN1141
Do you recall seeing that before?---Yes.
PN1142
And Mr Shrink is saying to you there that he, in response to your e-mail proposing upward relief, if I can take you to the third last paragraph, the sentence reads:
PN1143
Whilst I am not dismissing or denying your proposal, it is reasonable to then construe that this change of course will provide the means of settling your outstanding grievance as per option one.
**** ANDREW GUNN XXN MR MEREDITH
PN1144
Option one is one of the two options that you and I discussed a moment ago that had been put in the grievance meeting. And what Mr Shrink is saying there is, that in reply to your apparent acceptance of the offer of upward relief, he is quite prepared to proceed with that, but he seeks some clarification that if, indeed, you know, your belated acceptance of the upward relief amounts to resolution of the grievance. What was your reply to that e-mail, Mr Gunn?---You will have to show me.
PN1145
I beg your pardon?---I don't have the next - there were quite a few e-mails exchanged, I don't have the next one in front of me, so I couldn't speak to that.
PN1146
Well, did you say yes or no?---I recollect saying no, it would not resolve the grievance.
PN1147
So that seems to mean that you were proposing that you act in the job, which had been put to you as a grievance resolution, but that somehow you acting in the job, I think in your e-mail you propose that you be the first person to act in the job, although that had been proposed as a resolution of a grievance, you then say that you advised that that was not resolution of your grievance. Did you say that to Mr Shrink?---Can you say that again.
PN1148
Did you say to Mr Shrink, did you respond to his e-mail and say that your acting would not resolve the grievance?---I would like to see the next e-mail.
PN1149
I am not showing it to you. I am asking you what your recollection of your reply is?---My recollection is that I would have advised that it would not resolve the grievance.
PN1150
Can we not use the conditional tense. What was your further reply, if any, to John Shrink following his e-mail to you of 18 December 2003, that is, exhibit M11?---I am sorry, I can't speak with enough precision on that, so I would rather see the next e-mail. My feelings are - - -
**** ANDREW GUNN XXN MR MEREDITH
PN1151
Mr Gunn, we will probably proceed a bit better if you answer the question, and the question is, what was your reply?---I haven't got the reply in front of me.
PN1152
You don't recall what your reply was?---Not exactly.
PN1153
Well, there is limited choices here. It was either yes, no or maybe.
PN1154
THE COMMISSIONER: Well, he answered it several times, Mr Meredith, and said his best recollection is that he would have replied, he doesn't remember the words of his reply, but that it would have been to the effect that it would not settle the grievance?---That is correct.
PN1155
That is as I understand his evidence on this point. But do you have any closer recollection of sending a message, Mr Gunn, than that?---No. No, I don't have a closer recollection. There would have been a message, I believe, but I would have to see it. And this has been taken out of context.
PN1156
Well, we will just see what Mr Meredith asks you?---Sorry.
PN1157
MR MEREDITH: What you appear to be saying, Mr Gunn, is that you accepted a course of action that was proposed to you to resolve a grievance. When you were asked if your acceptance meant that the grievance was resolved, your answer was no. Have I got that correct now?---The grievance would not be resolved, no.
PN1158
Can you tell the Commission in that case what was in your mind when you sent off your e-mail to John Shrink, that is exhibit M10, saying that you would like to proceed with a period of upward relief or higher duties, what was in your mind in saying that you would now like to do that?---Well, that is why I have said it is taken out of context. I think something had occurred, whether it was some of my colleagues actually applying for the upward relief, and it seemed
**** ANDREW GUNN XXN MR MEREDITH
as though I was going to be left by - concurrently we had the grievance going, and I had said I didn't want to participate in the upward relief as a resolution to the grievance. That made it - that was different to just doing upward relief. To then change upward relief into resolution of a grievance would have not been fulfilling what I wanted to achieve through starting a grievance. But then at the same time I had some of my colleagues applying for the upward relief, and I could see while the grievance was active, I could see that by me not participating in the upward relief - and this is not the best constructed e-mail to make the application. At that stage I am, I guess, for want of a better description, I am running scared here, I have got - I have applied for - I have indicated an interest in the upward relief, my colleagues are applying for the upward relief, I have then said no, I don't want to do upward relief because it wouldn't fix the grievance, and I was going to be left out of the entire situation, and I thought that was to my disadvantage. That may have been a bad call, I am not sure, but it was a very messy situation, and I was becoming - the whole situation was starting to wear me down. And it must be kept in mind as well, that here it is, it is December, and I not have - I am doing shift work, which is part of my role, but I had not had annual leave since January of that year, a proper block of annual leave, on the advice of my logistics manager. I was quite fatigued at that stage, I really was. I should have had two one month blocks of annual leave. And maybe the calls that I was starting to make were not the best, but that is where I was at, at that stage.
PN1159
Mr Pipcorn will give his evidence about the discussions he had with you and your agreement to defer your leave. But I think that by the time we are talking about, in fact, I think you had taken some leave last year?---Not a proper four week block of annual leave which we are prescribed to have.
PN1160
No. I think your evidence on Friday was that you had taken two weeks of ADOs?---No.
PN1161
No?---No.
PN1162
Mr Pipcorn will be able to better inform us all. You see, the difficulty I have with that, however sympathetic I might be to your state of fatigue at that time of the year, the difficulty I have with the e-mail that you wrote, is that the first sentence reads:
**** ANDREW GUNN XXN MR MEREDITH
PN1163
I refer to the e-mails, discussions and the grievance meeting with Mr Morris, where you offered me the opportunity.
PN1164
Where were you offered the opportunity? You were offered the opportunity at the grievance meeting. So I think it is difficult to put it in the broader context that you now to do when you chose to tie it squarely to the grievance process in the e-mail that you initiated. Now, when do you say that Stephen Ford invited applications for others to act in the higher duties role in the senior comms officer position?---I am not exactly sure.
PN1165
Well, presumably it was before this pre-emptive offer of yours. I mean, you have just said you were concerned that others were acting in the job and you hadn't had a turn?---I think it had occurred around this time prior to this.
PN1166
THE COMMISSIONER: Did you say, Mr Gunn, that others had acted?---No. They were - - -
PN1167
I thought you said earlier that others had applied?---They were applying, yes.
PN1168
Thank you.
PN1169
MR MEREDITH: And it is true, isn't it, Mr Gunn, that the number of people who were to act in the position was limited, there were three?---Yes.
PN1170
Yes. And they were three of the more senior, or three of the longest serving employees within the Ballarat office then?---No.
PN1171
No, not in your case, not long serving in the ops cen, but a longer serving paramedic employee?---They were not the longest serving.
**** ANDREW GUNN XXN MR MEREDITH
PN1172
No, I didn't say they were the longest serving, I said long serving?---No.
PN1173
There were three people ultimately proposed to act in the senior comms officer position?---Yes.
PN1174
Each was to act for the same period of time, is that correct?---Yes.
PN1175
You were one of those three people, is that also correct?---Yes.
PN1176
And the times at which people were to act were programmed according to leave, any leave that people may have had planned, and to other roster requirements that people may have had?---Yes.
PN1177
And you acted in the position for the same amount of time as the other two?---Yes.
PN1178
And those arrangements, I put to you, were made in November of last year. Because in the grievance meeting that took place in early December, the first of those periods of higher duties hadn't commenced, and it would have been feasible to forestall that and proceed with simply two people acting in the position as one of the ways of resolving the grievance at that first level?---No.
PN1179
No? What do you disagree with?---Most of that.
PN1180
Well, what do you say was the case?---The periods of upward relief were not agreed upon until - it wasn't in November, I believe it was later.
PN1181
Well, when do you say?---I think it - well, I wasn't advised of mine until, I think it was January, or something like that.
**** ANDREW GUNN XXN MR MEREDITH
PN1182
Were the others advised at the same time, do you know?---I am not sure.
PN1183
You see, the problem with that is, you have earlier said a few moments ago that the reason that you sent that e-mail in December was that others were being acted, were going to act in the position, and that arrangements had been made. And now you are suggesting that those arrangements weren't made until January?---No.
PN1184
No?---No.
PN1185
Well, how should I interpret what you have just said?---I said others had applied.
PN1186
In December?---That is my recollection.
PN1187
Well, that is, again, a question of fact that we can clarify with Mr Ford or Mr Pipcorn, because they were the people who were handling that process locally?---That would be good.
PN1188
I did ask you about this in brief at the commencement, and I just wanted to tidy up one further point. It is about your meeting with Mr Gough. Now, we have discussed that there is no reference in your statement to your meeting with Mr Gough. What I wanted to ask you about that, how often do you meet with Stephen Gough?---Virtually never.
PN1189
So you did have a meeting in April with the director of operational services, at which his reasons for not accepting the recommendation were discussed with you. This is the man with whom you say you virtually never meet, and this is that same man telling you why you have missed out on a job that you suggested you were very keen to get, and yet you didn't think that was in any way significant enough to include it in your witness statement?---Yes.
**** ANDREW GUNN XXN MR MEREDITH
PN1190
I have got no further questions, Commissioner.
PN1191
PN1192
MS FORBATH: Mr Gunn, Mr Meredith put to you that there was nothing exceptional about being paid as a marker station officer at the time that you were training to be a communications officer. Can I clarify again - I think you did say this to the Commission, but I want you to clarify again about when you started being paid as a marker station officer. When did you start being paid as a marker station officer?---Monday, the 7th of April, is my recollection.
PN1193
Right. And when did you commence your training in the communications centre?---Monday, the 15th of May, is my recollection.
PN1194
right. And why were you paid for that period prior to your commencing your training?---As a compensatory measure for having the offer of the communications officer position, senior communications officer position taken away from me.
PN1195
Right. And who arranged for you to be paid that amount of money?---Mr Shrink.
PN1196
Right. When you do the communications training you are in the classroom for about one or two weeks, is that correct?---One week.
PN1197
Right. And then is it correct that the rest of the training involves being placed in the communications room and being mentored by someone?---That is correct.
**** ANDREW GUNN RXN MS FORBATH
PN1198
Now, when you were in the classroom for that week were you being paid the marker station officer rate of pay?---Yes.
PN1199
Were the other people who were in that one week of training being paid either marker station officer or station officer rates of pay, as far as you are aware?---Not to my knowledge.
PN1200
Right. And then when people commenced in the mentoring period, which is, of course, a longer period, does everybody get paid the station officer from that point onwards?---I believe so.
PN1201
Now, Mr Meredith put to you whether you were disputing clause 14, and I need you to clarify your answer to that. Is there anything in clause 14 that you agree with, or is there anything in clause 14 you don't agree with? Perhaps if you can just clarify?---This is my own witness statement?
PN1202
John Shrink's witness statement, sorry?---Sorry.
PN1203
Clause 14?---14?
PN1204
Clause 14, yes?---I don't agree with that.
PN1205
Well, explain what you agree with and what you don't agree with?---I agree about the references to pay rates, but I don't agree about accept a position of communications officer in the Ballarat ops cen.
**** ANDREW GUNN RXN MS FORBATH
PN1206
Okay. Now, Mr Meredith also asked you a series of questions about the RAV customer service guidelines, and put to you a series of questions about how you would go about accessing information about RAVs occupational health and safety procedures, and he was particularly asking you about, well, how would you go about finding out what a hazard report looks like. Now, can you explain to the Commission in regard to that what - and clarify for the Commission how you actually perform your function. Because you said that you didn't go to the Intranet, didn't go to the customer service guidelines to find out all of this. How then do you access that information and how do you know what to do as a health and safety officer, and what procedures to follow, and so forth?---Well, firstly, as far as the reporting of hazards is concerned, I don't use the hazard forms that are referred to, I have never been advised to use the - - -
PN1207
THE COMMISSIONER: Just a moment, Mr Gunn. Yes, Mr Meredith?
PN1208
MR MEREDITH: The questions that I put to Mr Gunn went to his knowledge of the location of particular extant health and safety policies and procedures. I don't believe that I put any questions to him as to his general role and function as a heath and safety representative. I am not - well, my submission is that what is now being pursued by Ms Forbath are not matters that arise from my cross-examination of Mr Gunn.
PN1209
MS FORBATH: Well, my recollection and my notes say that Mr Meredith went through a number of questions, are you familiar with the screen on page two of M8 that he put up, and he went on to ask for Mr Gunn, how do you access the procedures for RAV occupational health and safety meetings, how would you go about finding out what a hazard report looks like, and so forth.
PN1210
Now, Mr Gunn says that he is aware that the procedures for the RAV occupational health and safety meetings are probably in the customer service guidelines, but he goes on to say he doesn't know where to find the RAV hazard report form in the customer service guidelines and on the Intranet. So following up from that and clarifying, you know, the position as to why, if Mr Gunn has been a health and safety rep for some nine years, how does he actually perform that function if he doesn't access those guidelines.
**** ANDREW GUNN RXN MS FORBATH
PN1211
Can that information be accessed somewhere else, is essentially the point, because it may be that he doesn't need to go into those guidelines, that that information may exist elsewhere. That is what I am trying to clarify.
PN1212
THE COMMISSIONER: Yes, go on?---When reporting hazards in my role as a HSR in RAV, it is not essential to use the hazard reporting forms. The way that I report a hazard is to have a meeting with one of my line managers, advise them of the issue, and we try to put, hopefully we try to put together a strategy to address the issue. We don't use those forms, and we follow the issue, hopefully we follow the issue resolution procedure.
PN1213
MS FORBATH: And where is that issue resolution procedure to be found?---That is - there is a copy of that posted on the health and safety noticeboard at my branch.
PN1214
Right. Is it true to say that it is in the enterprise agreement?---Yes, it is.
PN1215
Mr Meredith asked you a series of questions about your clause 15, which was the second meeting that you had with Mr Shrink, and Mr Ford was present on 27 February 2003, and these were the two managers that you had met with some 10 days before when, as you say, you were offered the position. Now, you met again on the 27th. And Mr Meredith was pressing you on your statement that the offer, the position offer was confirmed, and he asked you how it was confirmed, and what was discussed. And then he went on to respond to something you said. You said, I was getting feedback on the issues that we had discussed 10 days before. Can you, for the Commission, just clarify what that feedback was that you were getting on the 27th of February?---We had discussed issues around what rate of pay the position would attract, what allowances, such as the mobile intensive care margin, the communications room allowance, annual leave was discussed, we made some progress on annual, and that was actually - it was agreed that that would be at the same level that I was enjoying as an on road paramedic. We also discussed the possibility of working a nine day fortnight. Mr Shrink advised me that as a comms supervisor if I was to have a situation where I wanted to liaise with
**** ANDREW GUNN RXN MS FORBATH
some of the people who work in the operations centre, that I could change my - although he would have - he preferred me to work basically nine to five. I could be working afternoon shifts if I wanted to catch up with particular people who were working a night shift, something like that, if I wanted to work a shift in parallel with them and go through some issues, or something to do with my role, I could vary my roster in that way, or weekends as well occasionally, to have opportunities to liaise. We were talking of things along those lines.
PN1216
Now, Mr Meredith questioned you extensively on your clause 26 in your statement about the statement that you make at the end of clause 26, where you say:
PN1217
I would easily move into the senior communications officer position even if it was to be re-advertised.
PN1218
And Mr Meredith was putting to you, well, if you said that in your enterprise agreement, that you must have known from that meeting that the position was to be re-advertised. Now, I put it to you for clarification, was it stated at the meeting that the job would, you know, definitely be re-advertised, or was this just a possibility, was it stated as just a possibility? Was it a definite thing, or was it just stated as a possibility, or was it something that you just concluded yourself?---I recollect it being stated as a possibility.
PN1219
Right. And you said to Mr Meredith that you had had a couple of conversations with Mr Shrink in the yard at the Ballarat station, where you canvassed with him in around about September, whether or not you might act up in the position as senior comms officer, given that the idea had been floated at a staff meeting. Is that what you said?---That is correct.
PN1220
Yes. And that was when your evidence says that Mr Shrink was decidedly negative about that, and saying, you know, that your health and safety activities precluded you getting a go at that, and that you couldn't be managed, and so forth. These were the statements that you say Mr Shrink made to you. But later you did, in fact, get an opportunity to act into the position. And my question is, was it after the grievance was lodged at the beginning of October,
**** ANDREW GUNN RXN MS FORBATH
or was it after the meeting about the grievance was held at the beginning of December, that you decided that you would, in fact, seek to be one of the people who rotated through the position of senior comms officer?---It was I chose to apply after the grievance meeting in December.
PN1221
Right. And at that stage had you detected a kind of change in attitude from Mr Shrink from his earlier comments to you in September?---Yes, I think things had started to improve. I think time had improved things to some degree.
PN1222
And in regard to M10, which was your e-mail to John Shrink, saying that you would participate in the upward relief exercise, would you say that in regard to that e-mail were you in a sense trying to keep all your options open while the grievance was still being pursued?---That is correct.
PN1223
I have got no further questions.
PN1224
THE COMMISSIONER: Yes. Mr Gunn, I think Mr Meredith may have asked this, but I don't really recall what your answer was, but it might be that it wasn't put in a way that elicited a response. The two February meetings that you had with Mr Shrink and Mr Ford, whether the first one was the 17th or the 19th, perhaps immaterial for the moment, but this second on the 27th of February, dealing with the first one first, you say, don't you, that you were offered the job on that occasion?---Yes.
PN1225
And that thereafter you - is this right? And you have put this in different ways - but that you were developing the terms and conditions?---Yes.
PN1226
All right. And do you say you accepted the offer that they put to you on the 17th?---Yes.
PN1227
And do you remember how you accepted it?---I said yes, I would like to do the position. Not those words exactly, but I said I would do the position.
**** ANDREW GUNN RXN MS FORBATH
PN1228
And is it right in understanding how things developed, Mr Gunn, that for your part there was nothing then conditional. It seems that you had to discuss some aspects of the working arrangements. Is it right that by accepting the job in the way that you did at that first meeting, the fact of you wanting to, or accept the offer, was complete, that you had for your part, your understanding was that you had accepted the position, you had been successful, you have been offered the job, and you had accepted the job. Is that how I should understand it?---Yes. There were details to sort through, but they weren't insurmountable. I had accepted the position, we were working through the process of getting the details right. It was very early days. Even I had asked Mr Shrink if the position paid the MICA margin, and his response at that stage was that he wasn't even aware if it attracted the MICA margin. And one of my colleagues who took up the position at Geelong as a comms supervisor, for his first couple of - I had been speaking with him - for his first couple of pays he didn't receive the MICA margin, and then it was worked through and was included in his pay rate. So it was because the position was so new that we were working through these things.
PN1229
So should there be some quality of conditionality about your acceptance of the job? What is the right way to understand? I mean, from your perspective you have told us that you had accepted their offer of the job?---Verbally.
PN1230
And yet there remained some things to iron out. Sometimes in your evidence I have detected a notion of conditionality, as if it wasn't put to rest, and I want to understand what your evidence is?---Well, I guess what I had - although I had said I want the position, I guess if ultimately that the terms had not come out the way that I wanted them, I guess I saw it that I may not follow through with the position. And I guess that puts a partial conditionality on it. But I was optimistic, we were all optimistic, and I thought that we could get to the right end point.
PN1231
Were you expecting any further offer from RAV about the job?---How do you - I am not sure what you mean by a further offer.
**** ANDREW GUNN RXN MS FORBATH
PN1232
Yes. Well about the job. Well, I have got no fixed view on this. I want to hear what your evidence is. But you have said that the job was offered to you, and you firmly accepted it. Because you say that you had accepted the job, and what followed was either wrong or unfair or dishonourable, it was whatever quality, whatever description one gives to it, that you for your part had accepted the position, and there were some loose ends that had to be tidied up. Is that a fair way of looking at it?---Yes.
PN1233
Mr Gunn, I am looking at - there is some material that is in Ms Forbath's bundle of correspondence that deals with this case, and it is known as F1. I don't know what you have got in the box with you, but have you got F1 there, which is an omnibus exhibit?
PN1234
MR MEREDITH: I think we have, Commissioner, yes.
PN1235
THE COMMISSIONER: We have got some exhibits, I remind the parties, from earlier in this case, and F1 is a bundle of correspondence going back and forth. Have you got them, Mr Meredith?
PN1236
MR MEREDITH: Yes, I have, Commissioner, yes.
PN1237
THE COMMISSIONER: Yes. And it is about 20 pages long. It starts off with the 20th of January, Joanne Clarke.
PN1238
MS FORBATH: Yes. And then there is a whole series. I haven't actually got them tied together, but how far do they go?
PN1239
THE COMMISSIONER: All right. Because I am going to ask a question about Mr Gunn's letter of the 7th of May to Mr Shrink, which is about four or five pages in, the fifth page I think.
**** ANDREW GUNN RXN MS FORBATH
PN1240
Is it right, Mr Gunn - yes, we will just show that to you in a moment - is it right that you don't accept, do you, Mr Gunn, that there was any further role, perhaps other than some administrative role through to the pay office or something, but there was no further role of the RAV hierarchy that was necessary to consummate or to bring to formal conclusion the fact of them offering you the job, and you having accepted it. Is that right?---No. I thought we were clear.
PN1241
You thought it was all done?---Mm.
PN1242
Because I noticed in this letter, and if you have a look at it, the 7th of May, in the third paragraph you say, in the second sentence, this is to Mr Shrink:
PN1243
You may recall informing me at that meeting -
PN1244
you refer to February -
PN1245
that my application had been successful, and an offer of the Ballarat senior communications officer position would ensue.
PN1246
Does that suggest that you understood there was something further from the hierarchy that had to occur?---Which part do you mean?
PN1247
Well, can you see in the third paragraph:
PN1248
In a meeting in RAV in February 2003 the area manager, Stephen Ford, asked me to meet in your office as he had some good news. You may recall informing me at that meeting that my application had been successful -
**** ANDREW GUNN RXN MS FORBATH
PN1249
and, of course, I will interpose there to say that you say you accepted his advice of your success. And go on -
PN1250
and an offer of the Ballarat senior communications officer position would ensue.
PN1251
I have taken that to be a reference to the first of the February meetings, but it might be that is wrong, but in any event it seems to suggest that you had in your mind a notion that there was something to follow to formalise the offer to you from the hierarchy of Rural Service?---I guess that that is after the crunch had happened, after the April telephone call.
PN1252
Yes?---I was about to start communications training, and I guess at that stage I am - you can see the things fell - the wheels fell off relations later on, in around September, or for quite a while around the grievance. At this stage we were still getting on well, we were relating well. And even though I had this big hurdle in front of me, the brick wall in front of me, do the training, and I thought we would be okay. Yes, I am describing things in the terms that things were being constructed then, that things were being explained. Because I made my mind up that I wouldn't have confrontation with RAV and - it happened later, but at this stage be argumentative about the way things were being, or the way things had unfolded.
PN1253
Is that all you want to say on that point?---Yes.
PN1254
Mr Meredith, or Ms Forbath, I have raised that issue. You may wish to ask something about that.
PN1255
MS FORBATH: Yes, Commissioner. Perhaps if I could just get it back again, because I don't have another copy of it.
**** ANDREW GUNN RXN MS FORBATH
PN1256
THE COMMISSIONER: We will give the witness a copy, so if you are going to ask something he has a copy of his own. There is some detail in that letter.
PN1257
MS FORBATH: The fact of an offering ensuing, the usual process in RAV that you might be aware of when people go for jobs, is they get interviewed, they get told whether they have been selected. Now, of course, the contentious issue here is whether they have made an offer, or whether it goes to the operational director as a recommendation, and he ticks it off, that is the point of contention here. But the further formal offer, is that in the form - do you get a formal contract, if you like, for the new position in a written kind of form from the human services department, is that what happens at the end of that whole process?---It is my understanding that there is a letter of offer that is made, or a document that is forwarded out, and it is signed off by the applicant, and that would be the end result of all the details that we were trying to put together in tidying up the allowances and the annual leave, and things like that, and that is the sort of document that would happen, and that would be how you would be formalising what had happened today.
PN1258
Would that be the kind of the tying up of all these bits and pieces that you were talking about?---That is what we were working towards.
PN1259
Right. That is all, thank you.
PN1260
THE COMMISSIONER: Yes, Mr Meredith? The option is there if you wish it.
PN1261
MR MEREDITH: Mr Gunn, the letter that the Commissioner has taken everyone's attention to, that is the letter from you to Mr Shrink of the 7th of May, that letter was referred to in the first proceedings back in January of this year. Do you recall that reference then? Because it was said in January, in the first proceedings, that the meeting that occurred on the 19th of May between yourself, Mr Shrink, Mr Leleve, was in response to your letter of the 7th of May, do you recall that?---That may be the case, but I don't exactly recall.
**** ANDREW GUNN RXN MS FORBATH
PN1262
And one other thing just with respect to the terms and conditions matters. In the discussions that you had in February was there agreement reached on the terms and conditions that were to apply, had your application been successful?---We didn't get to - there were lots of discussions, but I don't think we got to an ultimate end point.
PN1263
Is that an ultimate end point of agreement or detente?---I don't think - what I mean is we didn't get to an exact set of prescribed conditions that would be included in the position.
PN1264
Nothing further from me, Commissioner.
PN1265
PN1266
THE COMMISSIONER: Now, I make no secret of the fact that I have kept that exhibit on the file, and if there is something that anyone says I shouldn't have regard for, they can take it on notice at the moment that I have got that material that was tendered by both sides earlier on, and if there is something there that falls outside the scope of this case I am sure I will be told, but for the time being I am doing some melding.
PN1267
MS FORBATH: As I understand it, we were to go on to the RAV witnesses, but I don't believe any of those people are here today. That is as I understand it.
PN1268
MR MEREDITH: Commissioner, we certainly have made arrangements for our witnesses to be available for tomorrow. We gave some consideration to whether we might seek to have someone on stand-by this afternoon. Our best guess was that perhaps there might be a need to - there might be some utility in having a witness available from about 3.45 or so today, so we were correct in guessing, but it was also our view that if we were to start with our first witness at four o'clock or thereabouts, it would tend to be truncated, the proceedings, nonetheless. That is a lengthy way of saying that we don't have any witnesses in available in advance of the proposed time tomorrow morning.
PN1269
THE COMMISSIONER: Yes. Mr Meredith, do you think the witnesses will be - we have got - this follows, the later day, haven't we, or in the book already, a second day?
PN1270
MR MEREDITH: Yes, Commissioner. We would propose tomorrow to be calling Mr Pipcorn, Mr Ford, Mr Shrink and Mr Gough.
PN1271
THE COMMISSIONER: Yes, very well. We will adjourn now till 10 o'clock tomorrow morning.
ADJOURNED UNTIL TUESDAY, 27 JULY 2004 [4.57pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
WAYNE NEIL DYER, SWORN PN733
EXAMINATION-IN-CHIEF BY MS FORBATH PN733
EXHIBIT #F5 MR DYER'S HANDWRITTEN NOTES PN766
EXHIBIT #F6 MR DYER'S NOTES OF 16 MARCH MEETING PN779
CROSS-EXAMINATION BY MR MEREDITH PN830
WITNESS WITHDREW PN851
ANDREW GUNN, ON FORMER OATH PN861
CROSS-EXAMINATION BY MR MEREDITH PN861
EXHIBIT #M7 WORKSAFE FIELD REPORT, DATED 29/03/2004 PN875
EXHIBIT #M8 INSTRUCTIONAL CIRCULAR CSG AUGUST 2002 PN975
MFI #M9 INFORMATION CIRCULAR DATED 10/05/2004 PN1004
EXHIBIT #M10 E-MAIL FROM MR GUNN TO MR SHRINK DATED 18/12/2003 PN1134
EXHIBIT #M11 E-MAIL FROM MR SHRINK TO MR GUN DATED 18/12/2003 PN1139
RE-EXAMINATION BY MS FORBATH PN1192
WITNESS WITHDREW PN1266
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