C2004/5313, Transcript of Proceedings [2004] AIRCTrans 3665 (15 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 8392
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/5313
C2004/5615

SHOP, DISTRIBUTIVE AND
ALLIED EMPLOYEES ASSOCIATION

and

BUNNINGS BUILDING SUPPLIES
PTY LTD

Notification pursuant to section 99 of the Act
of dispute re alleged suspension of SDA member
Kosta Kiprov from his employment at Bunnings
Warehouse, Frankston and an employee at the
Bunnings Warehouse store, Frankston

MELBOURNE

2.06 PM, MONDAY, 6 SEPTEMBER, 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Yes, I have called both of these matters on together. Perhaps there is some issue about that, noting the two employer organisation. But I will take appearances in both matters and we can work out how we proceed from there. Mr Curtain?

PN2

MR A. CURTAIN: I appear on behalf of the SDA and appearing with me is MS S. PUTRATOS, our members, MR J. ROBINSON and MR K. KIPROV. And your Honour, I might just say that if the two could be put together - they concern the same incident - - -

PN3

THE SENIOR DEPUTY PRESIDENT: They do, right.

PN4

MR CURTAIN: - - - in relation to the two members.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Yes?

PN6

MR D. GREGORY: I appear for Bunnings, from the Victorian Employers Chambers of Commerce and Industry. I have with me MR J. NEWMAN, the employee relations manager for the company and I have MR C. CALLAGHAN, who is the complex manager down at Frankston where the incident occurred.

PN7

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Gregory. My sincere apologies, Mr Newman, I should have recalled is no longer - - -

PN8

MR GREGORY: I think you are referring to a past life.

PN9

THE SENIOR DEPUTY PRESIDENT: - - - an employer organisation representative. Very well, that solves that problem. Mr Curtain?

PN10

MR CURTAIN: Thank you, your Honour. Your Honour, this is an application pursuant to section 99 of the Workplace Relations Act. The instrument relied on is by the Bunnings Warehouse Enterprise Agreement 2003. You may recall, your Honour, we appeared before you about a month ago concerning a member from Bunnings, Sunshine.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MR CURTAIN: At that hearing we did attempt to seek assistance from the Commission to circumvent the termination of our member for, what we believe, to be a minor issue, but were unsuccessful. Today, your Honour, we appear before you in representing members of the Frankston warehouse, two members whose employment has not been terminated. The reason for this is that at the interview which the organiser believed was going to be the termination interview - she produced an application under section 99 explaining to the employer that in these circumstances that we believed there was in existence an industrial dispute concerning SDA and its members.

PN13

In short, your Honour, the matter concerns an alleged incident where our members were on a break sitting in a car park of the Bunnings warehouse in Frankston watching a movie on a portable DVD player some time during the week commencing 9 August 2004. At one point a member of the management team, a Mr Wayne Nicholls, saw them in the car and asked them what they were doing. When one of our members, Jeremy, was on his lunch break later that day watching the same DVD player in the car park, a female team member asked him what he was doing to which Jeremy jokingly replied, I am watching porn.

PN14

It is this comment which set off a reaction from the company based on, what we believe to be, rumours and innuendo and the ultimate decision of the complex manager to interview our members some two and a half weeks later and suspended our members on 26 August advising them that they were to come back to show just cause as to why they shouldn't be terminated. Your Honour, it was decided by the complex manager at the interview, after consultation with the SDA organiser, not to terminate the employment of our members and they were not presented with a counselling form on 26 August. I would like to, if I can, your Honour, just hand up a few documents, if I could tender them to the Commission.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN16

MR CURTAIN: If I could just outline the first document there. It is entitled, "Bunnings building supplies harassment policy" your Honour. I bring your attention to the first paragraph there which says:

PN17

BBS, Bunnings Building Supplies is committed to conducting all of its business operations in a professional and ethical manner.

PN18

I just bring that to your attention, your Honour and will allude to it later, but I tender that to the Commission.

PN19

THE SENIOR DEPUTY PRESIDENT: You want to tender each of them separately?

PN20

MR CURTAIN: Yes, if that would be okay, your Honour.

EXHIBIT #SDA1 BUNNINGS BUILDING SUPPLIES HARASSMENT POLICY

EXHIBIT #SDA2 COUNSELLING INTERVIEW RECORD IN RESPECT TO MR ROBINSON

EXHIBIT #SDA3 COUNSELLING INTERVIEW RECORD IN RESPECT OF MR KIPROV

PN21

MR CURTAIN: Just looking at SDA2 then, the counselling form with Jeremy Robinson. It is three pages, I think, your Honour.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MR CURTAIN: Entitled, "HR resources policies and procedures." Your Honour, the document at the front is dated 26 September 2004. I assume that that is mean to be 26 August 2004?

PN24

THE SENIOR DEPUTY PRESIDENT: Yes.

PN25

MR CURTAIN: The document on the first page concerns an incident that was alleged to have occurred on 24 August which our member Jeremy denies that that incident occurred. But I bring your attention to the second page which is dated 26 August as well and this relates to an incident that I mentioned earlier which occurred during the week commencing 9 August. It is hard to read the contents, your Honour, but the final sentence at the bottom there which I think I may have highlighted states:

PN26

I have suspended Jeremy and asked him to come back at 9 am on the 27th to give just cause as to why I should not terminate his employment.

PN27

The following page there, your Honour, is dated 26 August 2004. Your Honour, the next document, SDA3 is dated the 26th of the 8th '04 with an alteration. Again, the final sentence states there:

PN28

I have suspended Kosta to come back with just cause as to why I should not terminate his employment at 10 am on 27 August.

PN29

The next page, your Honour, of SDA3, the final sentence states there:

PN30

I have reissued the harassment policy to Kosta and advised that a further breach of any policy will result in the termination of his employment.

PN31

And I just note that the date at the bottom of that document is the 3rd of the 9th '04 - 3 September. In both instances, your Honour, our members, Jeremy Robinson and Kosta Kiprov were presented with these counselling forms this morning, 6 September. Your Honour, we say that this is a clear breach of, what we would say, would be procedural fairness. We seek assistance from you today for a recommendation that these counselling forms be scrapped from the files of our members. I do have a previous recommendation from another member of the Commission from a different - in a different industry. The union attempted to bring about procedures to circumvent a possible termination of their employment.

PN32

THE SENIOR DEPUTY PRESIDENT: What is the present position in respect of these two gentlemen?

PN33

MR CURTAIN: The employees are employed, your Honour, they haven't lost their employment. Jeremy has been employed with the company for just over five years full time and Kosta has been with the company for two and a half years. They are full time but they have sought our assistance today to have these counselling forms removed from their employment records as a result of local procedural fairness.

PN34

THE SENIOR DEPUTY PRESIDENT: Well, in respect to Mr Kiprov it appears that the outcome as of 3 September is a warning in respect to that activity and an indication that any further breach of policy would result in termination. It is not clear what the position with Mr Robinson is.

PN35

MR CURTAIN: We are happy to go into conference.

PN36

THE SENIOR DEPUTY PRESIDENT: I am sorry, the 26th of the 8th indicates something similar, I guess.

PN37

MR CURTAIN: The 24th.

PN38

THE SENIOR DEPUTY PRESIDENT: So it appears as though the status is of a warning with an indication that any further breach of policy will result in termination. Is that as you understand it?

PN39

MR CURTAIN: That is correct, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Gregory?

PN41

MR GREGORY: If the Commission pleases, this is a matter that, I guess, we would wish could have been resolved without the necessity to be here today but we haven't been able to achieve that outcome up until this point. It is just - we are going to go into conference, as I understand it, but just to simply indicate from the company's point of view, we have acknowledgments here from employees in the past about behaviour that we consider to be inappropriate. Behaviour that took place during working hours within the organisation.

PN42

Behaviour which clearly had the potential to cause offence to others and which did in fact do so in regards to a female employee. Behaviour that, from our point of view, is clearly in breach of stated company policies that have been made known to employees generally within the organisation and I think behaviour which, by any standards, we would suggest, is inappropriate. There have been, certainly, acknowledgments made, as far as we understand it, from the employees involved. We took action in response to that which, as you have indicated in both cases, involves employees being told that they were given a final warning in regards to the behaviour, and if there was any recurrence, that termination would be the next step that would be taken.

PN43

As far as we are concerned we have got responsibilities to staff, to customers and behaviour of this kind had the potential to jeopardise those responsibilities. These are not matters that the company is prepared to take lightly and believes that the action it has taken in the circumstances is entirely warranted. There have been some comments made about dates and procedure and I would need to get some further clarification from the company about those particular issues.

PN44

But as far as I understand it the matters were made known to the employees as soon as the complex manager was made aware of the particular issue by the female employee concerned. There was a brief gap, as I understand it, a couple of days before that employee was able to make contact with the complex manager simply because of rosters that were occurring. On the first occasion that the two did get together the matter was made known to the manager and the manager then took it up with the employees involved. That is the position that we are in at the moment. If the Commission pleases.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr Gregory. Yes, very well, I will adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SDA1 BUNNINGS BUILDING SUPPLIES HARASSMENT POLICY PN21
EXHIBIT #SDA2 COUNSELLING INTERVIEW RECORD IN RESPECT TO MR ROBINSON PN21
EXHIBIT #SDA3 COUNSELLING INTERVIEW RECORD IN RESPECT OF MR KIPROV PN21