C2005/2614, Transcript of Proceedings [2005] AIRCTrans 1391 (27 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11889-1

COMMISSIONER BLAIR

C2005/2614

THE AUSTRALIAN WORKERS' UNION
AND
ONESTEEL TRADING PTY LTD
s.99 - Notification of an industrial dispute
(C2005/2614)

MELBOURNE

9.33AM, WEDNESDAY, 15 JUNE 2005

Continued from 11/4/2005

PN1

MR G ROBERTS: I appear for the union and with me is MR P BOLAND.

PN2

MS G CAPASSO: I appear for the company and with me is MR J BURROWS, the operational manager who was not here on the last occasion, MS L ARCHER and MS J MUSTAC who were here on the last occasion.

PN3

THE COMMISSIONER: Thanks. Mr Roberts?

PN4

MR ROBERTS: I think on this occasion the ball is in the company's court, Commissioner. We have had a discussion this morning. The company views the interim period that your recommendation covered, the employees' attitude and attendance was unsatisfactory. I have simply spoken to them this morning and said, look, there is still the industrial reality of what is occurring out there and in my view the best way to get over it was to reduce the proposal that they had on the last occasion from a final warning to warning and leave the person on their own to go from there. But maybe we can hear from the company on that.

PN5

THE COMMISSIONER: Thank you. Ms Capasso?

PN6

MS CAPASSO: Commissioner, you recall that the company had some concerns about Mr Guyett's ability in terms of his high level of absenteeism and his inability to present for work on time. The issues were discussed in confidence on the last occasion before the Commission on 11 April. A medical condition and its effects were raised by Mr Guyett as the reason for absenteeism and lateness for work and the company sought details of the effect of the medical condition and the medication on his duties but there was, from the company's perspective, little cooperation in this regard and a final written warning was issued. That matter then came on before the Commission, the AWU instituted a section 99 notification before the Commission and that matter was on before you on 11 April 2004.

PN7

Since that time, reporting back, Commissioner, at the conclusion of the hearing in the corridor outside the Commission hearing, the company gave Mr Burrows' mobile number to Mr Guyett as was indicated in the recommendation. And approximately 20 minutes after the Commission hearing, Mr Guyett contacted
Mr Burrows and said that he had his mobile number and confirmed that he had to call Mr Burrows if he was going to be late or not attend work. On the day the company received the recommendation from the Commission, written recommendation dated 14 April 2005, Mr Burrows had a meeting with Mr Guyett and took him through the recommendation. Mr Burrows confirmed with Mr Guyett that he had to call him in advance if he was going to be late or not attend for work.

PN8

Unfortunately, Commissioner, there have been a number of incidences since that time whereby Mr Guyett has not provided advance notice and has arrived late for work or has not attended work and has not provided advance notice. There are five incidences which I wish to report back to the Commission. On
Thursday 24 April 2005, Mr Guyett requested overtime work for the Saturday being 16 April. A number of employees in the area were working overtime and Mr Burrows searched for work for Mr Guyett given the restrictions in terms of his not being able to do forklift duties or operate machinery whilst the medical issues were being sorted out and apparently some work - there was a backlog receipt in product that needed to be completed that Mr Guyett had been doing during the week and Mr Guyett agreed to perform this work on overtime on the Saturday.

PN9

Saturday arrived and Mr Guyett did not attend for work and did not contact anyone at the site to explain his absence. He did not provide advance notice prior to his scheduled commencement. On Monday 18 April, Mr Burrows asked Mr Guyett why he had not turned up for work on the Saturday and Mr Guyett gave us his explanation that he did not work on principle. He did not turn up for work on principle. On this occasion, Mr Guyett had specifically asked - - -

PN10

THE COMMISSIONER: What is the principle?

PN11

MS CAPASSO: Well, the principle was that the work that he had been asked to do he said that he could do during the week and, on that basis, he didn't think that he needed to do it on overtime. But from the company's position, Mr Guyett had specifically asked to do overtime work and this was overtime work that was available to him and he chose, after agreeing to do it, chose not to turn up.

PN12

THE COMMISSIONER: What date was that?

PN13

MS CAPASSO: That was the Saturday 26 April was the overtime date.

PN14

THE COMMISSIONER: Okay. Thank you.

PN15

MS CAPASSO: On 26 April the company's medical practitioner reported to the company that he had consulted with Mr Guyett's medical practitioner about the medication Mr Guyett had been taking, its effects and his ability to perform his role including the forklift duties. Mr Guyett's medical practitioner advised that there had been no obvious adverse effects from the medication and that there were no specific contra-indications to him working on the forklift or on dangerous machinery. The doctors discussed the specific medication that Mr Guyett was taking and both agreed that there was no reason for him not to be working his normal duties involving machinery or forklifts. In respect of Mr Guyett's lateness for work it was reported by the medical practitioners that there is no link between taking the medication and being late for work.

PN16

THE COMMISSIONER: And how was that conveyed to the company that the outcome of the discussions, was it- - -

PN17

MS CAPASSO: The outcome of the discussions, Commissioner, was communicated by the company's medical practitioner as a result of a discussion that had taken place between the two medical practitioners.

PN18

THE COMMISSIONER: Right.

PN19

MS CAPASSO: And then that was provided in writing, Commissioner, to the company.

PN20

THE COMMISSIONER: It was.

PN21

MS CAPASSO: Yes, by the company's medical practitioner.

PN22

THE COMMISSIONER: Confirming that the discussions had occurred and this was the agreed outcome.

PN23

MS CAPASSO: That is correct, Commissioner.

PN24

THE COMMISSIONER: Okay. Right.

PN25

MS CAPASSO: And the next incident occurred on Saturday 20 April. Mr Guyett was scheduled to start work on overtime at 6 am in his normal duties as he had been given the clearance from the medical practitioners in respect of his normal duties. This overtime was arranged in advance the previous Thursday and the overtime was agreed between Mr Guyett and the company. On Saturday 30 April, Mr Guyett did not arrive at work for the start of shift and did not notify the company in advance that he would be late. Mr Brian Ruskin who is the deputy team leader who was working on that day received a call from Mr Guyett at 7.30 am which was one and a half hours after the scheduled start time. And
Mr Guyett said that he was on his way to work.

PN26

He did not in fact arrive until 7.55 so that was an hour and 55 minutes late after the scheduled start time. On 3 May 2005 Mr Burrows approached Mr Guyett to ascertain why he was late on 30 April and Mr Guyett's explanation was that he slept in and came to work as soon as he woke up. The third incident occurred on Wednesday 11 May, Mr Guyett was scheduled to commence work at 6 am. No-one at the company received a call or message from Mr Guyett prior to his start of shift. At 12.45 pm the company tried to reach him and left a message on his mobile. Mr Guyett returned the call at 1 pm to say that he was dealing with a sick daughter. The following day, Mr Guyett did not approach Mr Burrows at the start of shift to explain his absence and delay in advising the company of his absence the previous day.

PN27

Mr Guyett did not approach Mr Burrows until the end of his shift. Mr Burrows said to Mr Guyett that he expected him to call him directly when he knew he would be late for work. Mr Guyett said that he was at the hospital with his daughter who had a high temperature. Mr Burrows said he expected Mr Guyett to have called him as soon as he could and Mr Guyett responded saying that 1 pm was the first chance that he had to call the company. So on this occasion, on Wednesday 11 May, Mr Guyett was scheduled to start work at 6 am, the company tried to reach him at 12.45 and he returned their call at 1 pm. Mr Guyett has also been absent from work from Friday 3 June until Friday 10 June, one week.

PN28

He left work 55 minutes after the start of shift on Friday 3 June, he reported to
Mr Burrows that he was stressed over some comments that had been relayed to him that allegedly the team leader had made to another employee the previous day about orders not being picked because Mr Guyett and another employee spent time talking and not working, and also due to a verbal altercation he had with a colleague the previous Monday and said that he was going to see his doctor because he was stressed. He was absent on Monday 6 June and did leave a message for the company in advance at the start of that shift.

PN29

However, on Tuesday 7 June he didn't contact the company until 9, 10 am which was more than three hours after the scheduled start of his shift. And at 9.10 am he called Mr Burrows to say that his child had conjunctivitis and could not go to school and he was staying home to look after the child. On Wednesday 8 June, Mr Guyett left a message on the extension number that he would not be attending work and would explain later, he would call later to explain. So on this occasion he provided advance notice on Wednesday 8 June that he was going to be absent but he did not contact Mr Burrows later to advise, to give an explanation as to why he wasn't attending work.

PN30

That was the four things, Commissioner. The fifth and last incident occurred on Thursday 9 June, Mr Guyett was scheduled to start work at 6 am, he did not arrive at work for the start of shift and did not provide advance notice of his absence. At 12.56 pm, Mr Burrows received an SMS message from Mr Guyett saying "Cam Guyett will not be in today. Apologies". That was more than six hours after the start of shift.

PN31

THE COMMISSIONER: What date was that?

PN32

MS CAPASSO: That was the Thursday 9 June 2005. And on 10 June the company had to chase him to obtain a medical certificate and to obtain a statutory declaration from him in respect of the period he took for carer's leave which was for the 7th, 8th and 9 June which he finally did provide. Commissioner, the company's position with respect to the final warning at this stage is firm and clear. The final warning would stand and will not be placed on hold for any further period. It is clear that despite the latest opportunity given by the company and the Commission in the last two months for Mr Guyett to address the issues of failure to notify the company of intended absences and lateness, he continues to fail to do so.

PN33

Mr Guyett continues to be late for work or absent from work without giving notice to the company prior to the scheduled start time. In addition the medical practitioners have consulted and have made it clear that Mr Guyett can perform his normal duties including machinery and forklift operations and there is no link between the medication Mr Guyett is taking and his lateness for work. On the basis of these matters, the company cannot see that there would be any reason to prevent it from terminating Mr Guyett's employment given the events that have occurred over the last two months. However, on the basis that the Commission recommended that the final warning be placed on hold for two months until this report back, the company's view is at least the circumstances now warrant the final warning take effect.

PN34

The company's position is that it will not tolerate any single future instance of a failure by Mr Guyett to notify Mr Burrows in advance of any intended absence or lateness for work. The company treats the matter very seriously and has gone to extreme lengths to give Mr Guyett the opportunity to address the issues. If
Mr Guyett fails to provide notice to Mr Burrows prior to the scheduled start time of his absence or lateness for work in any future instance and fails to provide a satisfactory explanation for his absence or lateness, his employment will be terminated. The events of the last two months clearly indicate that Mr Guyett does not take this matter seriously and he has exhibited conduct in defiance of the company's good faith and the recommendation of the Commission. Those are the submissions of the company, Commissioner.

PN35

THE COMMISSIONER: Thanks, Ms Capasso. Mr Roberts?

PN36

MR ROBERTS: No, I don't wish to report.

PN37

THE COMMISSIONER: Well, the recommendation that was issued on 14 April 2005 that was given in transcript on 11 April - sorry, typo. The recommendation says following the conference 11 April 2004 - wrong conference. It was 18 April 2005 that the Commission gave its recommendation in transcript following a conference of the parties. The intent of that recommendation was to provide Mr Guyett with an opportunity to deal with the issue of sleep apnoea, I think it was, and the difficulties that he said that created. Part of that recommendation made reference to the company doctor and
Mr Guyett's own doctor conferring over the use of appropriate medication.

PN38

The report given to the Commission this morning by Ms Capasso on behalf of One Steel indicates that Mr Guyett has not only not accepted the intent of the recommendation but simply flaunted it. And in the Commission's view has put Mr Roberts and Mr Boland in a very embarrassing position where they have to come along, rightly so as officers of the union, to defend in the Commission's view what is indefensible. The Commission will take no further action on this matter at all. Mr Guyett stands on his own and the final warning will stand and if he breaches it then he suffers the consequences. Commission will stand adjourned.

<ADJOURNED INDEFINITELY [9.49AM]