C2004/6560, Transcript of Proceedings [2005] AIRCTrans 687 (21 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10865

COMMISSIONER SMITH

C2004/6560,C2005/1811

s.170LW - application for settlement of dispute (certification of agreement)

Media, Entertainment and Arts Alliance
and
Australian Broadcasting Corporation
(C2004/6560)
ABC Employment Agreement 2003-2006

s.170LW - application for settlement of dispute (certification of agreement)

Media, Entertainment and Arts Alliance
and
Australian Broadcasting Corporation
(C2005/1811)
ABC Employment Agreement 2003-2006

MELBOURNE

10.04AM, THURSDAY, 10 MARCH 2005

Continued from 9/3/2005

Hearing continuing

<GARY CRANE, RECALLED
<CROSS-EXAMINATION BY MR RYAN, CONTINUING

PN2573

MR RYAN: Mr Crane, if I can take you to your report on page 5 where you start dealing with the grievances made by Ms Barakat?---Yes.

PN2574

How did you come to express allegation 1 in the way that you did?---By looking at the grievance.

PN2575

That's not exactly a fair summary of the grievance, is it?---I thought it was.

PN2576

Because if you look at appendix 2, which is the actual grievance?---Yes.

PN2577

Ms Barakat sets out there the conversation that occurred between herself and Mr Bass, doesn't she?---Whereabouts?

PN2578

Over on to page 2 of appendix 2 of your report?---She talks about the conversation.

PN2579

Yes, a lot more to the conversation than just Mr Bass saying your behaviour according to Mr Nicholas was embarrassing, isn't there?---When I looked at the grievance central to that conversation was that that point that Ms Barakat was agreed that she'd - Marco had said to her that it was embarrassing.

PN2580

Yes, but the other way of putting it, what concerns Mr Bass to call Ms Barakat into his office, what business is it of his to do that?---You'd have to ask Mr Bass that question.

PN2581

Did you ask Mr Bass that question?---Did I?

PN2582

Yes?---Not specifically that question. I know that that event happened.

PN2583

But isn't it fundamental to Ms Barakat's allegation against Mr Bass, you put them all together, it's a pattern of behaviour of Mr Bass interfering where he had no reason to interfere?---Was that a question?

PN2584

Yes?---I didn't see it as that.

PN2585

Well, let's look at the point. You accepted yesterday that Mr Bass has no managerial responsibility for Ms Barakat, correct?---Correct. I said, a dotted line.

**** GARY CRANE XXN MR RYAN
PN2586

And we established there was no dotted line, didn't we?---On the chart.

PN2587

Yes, the chart that you put into your report shows no dotted line at all, does
it?---That's correct.

PN2588

So on that basis, Mr Bass, having no managerial responsibility to Ms Barakat, what business is it of his to call her into his office about a meeting he wasn't
at?---Mr Bass explained to me that he needs to manage the relationship between News/CAF and production resources and that's part of his responsibility as the senior News/CAF person in Melbourne.

PN2589

Well, on the basis of that did you interview other people about what happened at the meeting?---No.

PN2590

Why not?---I didn't need to.

PN2591

Why didn't you need to?---That Ms Barakat's behaviour, that was a subjective view expressed by Mr Nicholas, but wasn't expressed by other people at the meeting. I saw an email where Kate Torney had written in there that Neheda's behaviour was fine. So it wasn't supported by other people at the meeting.

PN2592

Which makes it more intriguing, doesn't it, why Mr Bass would seek to have a conversation with Ms Barakat?---He was just passing on - Graham Nicholas had explained to him - had said to him that Ms Barakat's behaviour was embarrassing. Marco was just seeking to find out what happened.

PN2593

But again it's no concern of Mr Bass', is it?---As I said Mr Bass is responsible for managing the relationship between News/CAF and production resources, so I saw that as just a normal business thing to do, to find out what happened at the meeting.

PN2594

On the finding, you say the allegation not substantiated?---Correct.

PN2595

But in your summary of the allegation you'd have to come to the conclusion the allegation was substantiated, that Mr Bass did call Ms Barakat into his
office?---Yes, he did.

PN2596

That's how you describe the allegation. The allegation on your findings has to be substantiated?---What I was talking about was - - -

PN2597

No, no. Look, read out the allegation?---

PN2598

On Tuesday, 23 March, Mr Bass called Ms Barakat into his office and said that her behaviour in a meeting to address a missing recording of a debate was embarrassing.

**** GARY CRANE XXN MR RYAN
PN2599

Right, and the finding - that happened, didn't it?---Yes.

PN2600

So how can you substantiate your claim that the allegation not substantiated when the event happened?---The event happened, yes.

PN2601

That was the allegation that you were investigating, wasn't it?---What I was talking about was whether or not Ms Barakat's behaviour was embarrassing or not. That's what I'm commenting about.

PN2602

No, no.

PN2603

MR SMITH: Excuse me, Commissioner, I'm sorry, but that is exactly what those words say regarding whether or not Ms Barakat's behaviour was embarrassing. That's what Mr Crane is answering to.

PN2604

THE COMMISSIONER: I don't think so.

PN2605

MR SMITH: I'm sorry, that's how I read it.

PN2606

THE COMMISSIONER: I don't. I think it's a valid question. The allegation was that Mr Bass called Ms Barakat into his office and said her behaviour in a meeting to address the meeting was embarrassing. That allegation is said not be substantiated and there's a question of fact, the witness says it happened?---Yes.

PN2607

So I don't now how it can't be substantiated.

PN2608

MR SMITH: Sorry, I think what the witness actually answered, Commissioner, although, I'm sorry, this is an important point and I think we just need to clarify what actually heard.

PN2609

THE COMMISSIONER: Yes.

PN2610

MR SMITH: What the witness, I think, answered, perhaps my ears are different, was that the allegation is that Mr Bass called Ms Barakat in and put to her that her behaviour was embarrassing. What Mr Crane has answered is that in fact he found on his investigation that Ms Barakat's behaviour wasn't embarrassing.

**** GARY CRANE XXN MR RYAN
PN2611

THE COMMISSIONER: But that's not the allegation.

PN2612

MR SMITH: Well, that's what that allegation read.

PN2613

THE COMMISSIONER: Well, it doesn't.

PN2614

MR SMITH: Okay.

PN2615

THE COMMISSIONER: Ms Barakat didn't allege that she was embarrassing. She alleged that Mr Bass said that her conduct was embarrassing and I can't see anything other than that was said. Now, what that means is another matter.

PN2616

MR SMITH: Well, I think that's what's we're trying to establish. I just wanted to clarify what it was we're trying to establish.

PN2617

THE COMMISSIONER: Well, it's important. Here's a report that says this was the allegation and it was not substantiated and my understanding of the evidence was it was clearly substantiated. That's what he said.

PN2618

MR RYAN: So do you stand by your finding that the allegation is not substantiated and the facts occurred?---What I was commenting on, my words might not express what I meant to say. What I'm commenting on is that as the investigator I did not find Ms Barakat's behaviour to be embarrassing.

PN2619

Well, y you're actually not commenting on anything. You're actually there to make findings of facts?---That's the finding of fact that I made.

PN2620

THE COMMISSIONER: Well, that's an answer.

PN2621

MR RYAN: And indeed, in allegation 2?---Yes.

PN2622

What business is it of Mr Bass to have a conversation with Ms Barakat about how she sought to get a pay rise or not?---Mr Bass said to me that that was instigated by Ms Barakat.

PN2623

And that was denied by Ms Barakat, wasn't it?---Correct.

PN2624

Again, in relation to allegation 3 - - -

PN2625

THE COMMISSIONER: Can I just ask you to pause for a moment. In relation to that matter you say the finding on this allegation is inconclusive. Do you mean that no finding could be made because there was no witnesses and there was a conflict in the evidence that was given to you, or what was put to you, there was a conflict?---I believe the discussion happened but when I looked at the allegation, you know, warned her with an intimidating facial expression, I didn't - I couldn't find because there were no witnesses.

**** GARY CRANE XXN MR RYAN
PN2626

So there's no finding that could be made on allegation 2?---Yes.

PN2627

Yes, thank you.

PN2628

MR RYAN: In relation to allegation 3?---Yes.

PN2629

Do you deny that Mr Bass didn't nominate Ms Barakat for attendance at the program?---He didn't nominate Ms Barakat.

PN2630

He didn't?---No.

PN2631

That's right, and therefore how do you come to the allegation that's not substantiated?---As I said in the finding, Ms Barakat reports to Mr Hamilton and Mr Hamilton is the delegate to nominate Ms Barakat for training program.

PN2632

Yes, but if you look at the fact in the allegation itself there is discussion that he said he'd nominate other people, not you, then go to Mr Hamilton to get on the course?---Yes.

PN2633

So he didn't nominate her, did he?---No, he didn't nominate Ms Barakat.

PN2634

And again the facts are proved but you say this allegation not
substantiated?---When I read the grievance the grievance was that Mr Bass had informed Ms Barakat that he didn't nominate her for the training program, and that's correct, he didn't.

PN2635

Yes, and therefore, how do you again come to the conclusion that the allegation wasn't substantiated when the facts are proved?---What I'm saying is that as I read from the grievance, the allegation was Ms Barakat was agreed because Mr Bass had informed her that he didn't nominate her for the training program. So that was correct, he didn't nominate her. He's not - - -

PN2636

Yes, so how do you come to the finding, you say, not substantiated, you said the facts as alleged were proven?---Well, that's what I'm saying. Mr Bass didn't nominate Ms Barakat for the training program.

PN2637

That's what she alleged. He confirms that and somehow on the workings of your mind you say that is not substantiated, when it's painfully obvious it was substantiated because the facts as alleged happened. So how could you possibly come to state the allegation not substantiated?---Well, talking about the allegation of bullying and harassment. That's - when I'm looking at the grievance, the grievance is in the context of bullying and harassment, so that's where my mind is.

**** GARY CRANE XXN MR RYAN
PN2638

Mr Crane, this is your report, you wrote it and you set out as you saw fit?---Yes.

PN2639

Read the allegation you're investigating there, in your own words?---

PN2640

In March 2003 Mr Bass informed Ms Barakat that he didn't nominate her for the management development program.

PN2641

That happened, didn't it?---I've said that.

PN2642

Then how can you possibly say that it wasn't substantiated when it
happened?---I'm saying that in the context of the grievance which is based on bullying and harassment, that's where my mind was.

PN2643

Well, all I've got to go on is not your mind, but the words you've written?---Mm.

PN2644

And again - - -

PN2645

THE COMMISSIONER: Can I just ask one more question?

PN2646

MR RYAN: Sorry, Commissioner.

PN2647

THE COMMISSIONER: That's all right. Mr Crane, were you advised whether or not Mr Bass told Ms Barakat that he wasn't going to nominate her?---No.

PN2648

You weren't advised?---No. When I talked to Mr Bass, Mr Bass said that Ms Barakat doesn't report to him. He was aware of he had to nominate people for a training program and that's what he did, he didn't nominate Ms Barakat.

PN2649

Do you know whether or not he told her that?---I don't know.

PN2650

Right, thank you.

PN2651

MR RYAN: Then again in allegation 4, Mr Bass was alleged to have told Ms Barakat she wasn't allowed to make an offer of employment to
Ms Werden?---Yes.

PN2652

What did you find there?---As Mr Bass advised me that he wasn't involved in - it wasn't his job to comment on Ms Werden's recruitment of Inside Business. That was not - he wasn't the delegate.

**** GARY CRANE XXN MR RYAN
PN2653

Did the conversation take place?---Under the context of harassment and bullying, as I've said, a more thorough investigation wasn't warranted because it didn't matter whether it happened or not. He wasn't the delegate for Ms Werden's recruitment to Inside Business. That person was John Cameron.

PN2654

No. Why would Mr Bass say to Ms Barakat you can't employ
somebody?---You'd have to ask Mr Bass.

PN2655

Well, you were going round finding facts. Did you ask Mr Bass that? Did you ask him whether that conversation took place?---He said he didn't - he wasn't involved in the recruitment of Ms Werden.

PN2656

No, listen to my question. Did you ask Mr Bass whether he had a conversation with Ms Barakat where he said she wasn't allow to employ Ms Werden?---Yes.

PN2657

And the conversation took place? That was a question?---Yes, I'm just - yes, I'm just - the conversation may have taken place. He - Mr Bass obviously was aware of Ms Werden and whether or - you know, obviously aware of people, you know, being recruited to the ABC, but he said to me that he wasn't the delegate for that recruitment so he didn't say - it wasn't his authority to say that somebody could not be recruited to Inside Business.

PN2658

But the allegation is that he said to Ms Barakat, you can't recruit Ms Werden. Did that conversation take place? Did Mr Bass say, yes, I had that
conversation?---No.

PN2659

He didn't say that, did you ask him that question?---What he said to me was that he didn't make comment about whether Ms Claudette Werden could be recruited or not. That he wasn't the delegate and that wasn't his position to say that.

PN2660

But did you ask the basic question whether he spoke to Ms Barakat about the appointment of Ms Werden?---Well, as I said, I said a more than thorough investigation wasn't warranted.

PN2661

No, no, no?---Whether he said it or not didn't matter.

PN2662

You investigated an allegation that Ms Barakat said, Mr Bass told me I couldn't employ Ms Werden. Wouldn't the first question you would ask Mr Bass be, Mr Bass, did that conversation actually take place, or not, did you ask that question?---I asked questions about Claudette Werden and - - -

**** GARY CRANE XXN MR RYAN
PN2663

Did you ask - can you answer the question I asked you?---I'm just trying to think. It was a while ago. I can't recollect whether I said those exact words.

PN2664

Words to the effect, Marco, did you have a conversation with
Ms Barakat - - - ?---Words to the effect, yes.

PN2665

So you actually asked a question and he said, what?---He said that he wasn't the delegate for the recruitment of Claudette Werden and that it wasn't his job to say whether she could be recruited or not. He said that job was up to John Cameron.

PN2666

Did he say he had the conversation with her or not, or did he answer your question, or did he go off like you are doing, off on a tangent and answer some other question not asked?---When I got that answer I accepted that answer.

PN2667

I put to you you'd never even asked if the conversation took place. I think you failed utterly to make - - -

PN2668

MR SMITH: Commissioner, is that a question or is that a statement that Mr Ryan is making, I think - - -

PN2669

THE COMMISSIONER: The proposition, he's - - -

PN2670

MR SMITH: Well, I think the witness has actually answered the question. Mr Ryan may not like the answer, but I think the witness answered it.

PN2671

THE COMMISSIONER: Well, let me see if I understand it, I'm unclear. Mr Crane, as I understand your answer, and please correct me if I am wrong because I think it is an important point, you didn't put to Mr Bass whether or not he made the statement - I'm sorry. You questioned him about that and his response didn't answer that question. It simply said that I'm not the delegate or the person responsible?---Correct. I asked him the general question of - about Claudette Werden. He gave me that answer that I've said and I accepted that answer. I didn't question further.

PN2672

Now in the context of bullying, the second aspect of the question, you've said a more thorough investigation is not warranted?---Mm.

PN2673

If somebody had said that, why wouldn't you investigate why it was said and the circumstances in which it was said to see whether the conduct was appropriate or inappropriate?---I do hear opinions all the time whether people should be employed or not. It's really up to the delegate to make the decisions and whether or not there's a selection panel that's put together to recruit people into the ABC. So you do hear opinions all the time.

**** GARY CRANE XXN MR RYAN
PN2674

Well, that's not an opinion. As I read the allegation it was a statement that she was not allowed to make an offer. Now that goes beyond an opinion, doesn't it, if, as you record the statement, it's almost a direction, a direction that you've now found could not have been made?---Well, the offer can only be made by John Cameron.

PN2675

Well, the direction could not have been made, the direction that you put in the allegation, Mr Bass had no authority to make, and if he had no authority to make it, if he made the direction, was it proper, was his conduct proper if he made such a direction, and that's where I had some concern about your finding?---Okay.

PN2676

Yes, Mr Ryan.

PN2677

MR RYAN: You've taken a few questions off me, Commissioner.

PN2678

THE COMMISSIONER: I didn't intend to do that, I'm sorry. I intended simply to understand, by Mr Smith's concern, to understand what the evidence was.

PN2679

MR RYAN: So even though you say you didn't investigate as to Ms Werden, you still come to the conclusion that the allegation is not substantiated and you never got an answer to the question whether the conversation took place or not. How does that finding hold up on that basis, how can you possibly justify that comment?---I'm talking about the context of bullying and harassment as per the grievance.

PN2680

Yes, I think Commissioner struck at the heart of what you should have done and what you didn't do. If that conversation took place and we know that Mr Bass had no authority to say yay or nay to the employing of somebody, wouldn't that be inappropriate?---I didn't hold any weight to that.

PN2681

But you never did anything about it, that's the problem. You're supposed to be out there investigating and you shirk your responsibility. You didn't do what you were meant to do. You failed - - -

PN2682

THE COMMISSIONER: Let him answer one at a time, the propositions that you want to advance.

PN2683

MR SMITH: Thank you, Commissioner.

PN2684

THE COMMISSIONER: Yes, Mr Smith.

**** GARY CRANE XXN MR RYAN
PN2685

THE WITNESS: The first question?

PN2686

MR RYAN: You failed in your duty, didn't you, you didn't investigate Ms Barakat's allegation about that conversation?---I didn't fail my duty.

PN2687

You didn't ask the basic question, whether the conversation took place or not, did you?---As I said, I didn't hold a lot of weight to it.

PN2688

THE COMMISSIONER: Well, I think the answer was he did, but the answer he got from Mr Bass - - -

PN2689

MR RYAN: Right, he never followed up, you never got to the heart of the allegation. If that conversation took place, if you found that that conversation took place, how would you have viewed Mr Bass' behaviour?---Would have been normal behaviour in the workplace related to the business. People talk about the business all the time. It's conversations that happen in offices, in corridors, all the time with regards to the - it's a business conversation.

PN2690

Well, no, Ms Barakat alleges that Mr Bass said you cannot employ somebody, that's not a normal conversation, is it?---I don't see it as that. I see it as a normal conversation.

PN2691

From somebody who hasn't got authority over Ms Barakat to go out of his way to say you can't hire somebody, why would he want to do that?---He can't make an offer. That offer has got to come from the delegate, who's John Cameron.

PN2692

THE COMMISSIONER: Move on, Mr Ryan.

PN2693

MR RYAN: Allegation number 6, on the bottom of page 7?---Yes.

PN2694

The allegation as you set out is Mr Bass emailed Ms Barakat rebuking her claims for entertainment expenses?---Correct.

PN2695

Did that happen?---Yes, he questioned the entertainment expenses.

PN2696

So that actually happened, again you put down allegation not
substantiated?---Well, the questioning of entertainment expenses was appropriate. That's what a manager does and the entertainment expenses were paid.

PN2697

How long after the event?---I couldn't be sure. I know the entertainment expenses were paid.

**** GARY CRANE XXN MR RYAN
PN2698

Yes, after an exchange between the two of them?---Yes.

PN2699

So that happened, but again you come to the finding that it wasn't substantiated, when the facts, as alleged, happened?---Well, what I'm - I'm in the context of the grievance of bullying and harassment and we have a manager questioning someone's entertainment expenses and that's just normal business practice. We would expect managers to do that before signing off on entertainment expenses. That's just normal course of events, so that's where my head is when I'm making that statement.

PN2700

But you may say that, but all your report says that is what happened, happened, and therefore wasn't substantiated. It can't hold up.

PN2701

THE COMMISSIONER: Well, the witness has answered you. He says it's not substantiated in the context of bullying.

PN2702

MR RYAN: Do you see a pattern of behaviour there concerning Mr Bass with Ms Barakat?---No, I see a pattern of people working in the same office and, you know, there were things to attend to, such as business expenses, people being recruited, normal conversations happening with regard to the business. I don't see anything unusual with it at all.

PN2703

You don't see a pattern of Mr Bass speaking to Ms Barakat about matters not of his concern?---No.

PN2704

No pattern at all?---No. I - I - no.

PN2705

Well, I put it to you that it's obvious to anybody there is a pattern of behaviour there and any reasonable person would have picked that up, particularly as you describe yourself as an experienced HR grievance procedure officer, would have noticed a pattern of behaviour of Mr Bass towards Ms Barakat?---What I saw was the interaction between a manager and an executive producer, in the workplace. Nothing unusual that wouldn't happen elsewhere.

PN2706

We've admitted that Mr Bass has no authority over Ms Barakat?---I said a dotted line and - - -

PN2707

No, you may have said that. You also said - we also showed it doesn't
exist?---No. With - when Mr Hamilton was away, when I talked to Mr Hamilton, he would delegate the responsibility to Mr Bass to sign off expense claims so that people could get paid more timely. So, you know, that's what I mean when I'm saying a dotted line, and also that he was responsible for managing the relationship between news and current affairs and production resources. So that's what I'm talking about when I'm saying a dotted line.

**** GARY CRANE XXN MR RYAN
PN2708

But matters concerning Ms Barakat's salary or her behaviour in the meeting is of no concern to Mr Bass, is it, or who she sought to employ on the program?---If someone instigates a conversation, well, then that conversation happens, that happens in the workplace.

PN2709

They weren't just bumping into each other in the corridor, were they? Mr Bass was summonsing Ms Barakat into his office for a meeting?---I didn't see it as a summons.

PN2710

The email said, can we meet to discuss that?---Well, that's not a summons. That happens all the time.

PN2711

With somebody in Mr Bass's position and somebody in Ms Barakat's position. Give me three examples?---It happens to me in the workplace, where I get asked to come and meet with someone, all the time, it just happens by email. People use email like picking up the telephone.

PN2712

In the situation where Mr Bass is not Ms Barakat's manager?---In the ABC it could happen with the State Director. The State Director doesn't have a line management responsibility, but, you know, I report to the Director Human Resources, but the State Director will quite often ask me to come into his office and ask me questions about the business. It just happens all the time.

PN2713

Yes, that's work related. This is nothing to do with work. This is about Mr Bass - - -

PN2714

MR SMITH: Excuse me, Commissioner, this is about work. I mean, I think we've established that that's the case. If Mr Ryan is going to be putting propositions, perhaps he could actually keep them accurate.

PN2715

MR RYAN: Getting back to the way this inquiry was dealt with by having the secret Hamilton concerns raised - - - ?---Can I just comment? Am I allowed to comment there?

PN2716

THE COMMISSIONER: Yes?---Those concerns with regard to performance were included I the letter to Pat O'Donnell from Mr Smith, that I was given a copy of. It mentioned in there work performance, so I can't see how it was secret.

PN2717

MR RYAN: Well, you admitted yesterday you never put the allegations that you were investigating directly to Ms Barakat?---No, I'm just commenting about your comment that it was secret. It wasn't secret.

**** GARY CRANE XXN MR RYAN
PN2718

You never put to Ms Barakat, as you admitted yesterday, what you were investigating. There's a pattern in your behaviour in this, isn't there?

PN2719

THE COMMISSIONER: Well, make it more clear.

PN2720

MR SMITH: Thank you.

PN2721

MR RYAN: In August of last year isn't it true that The Alliance through its Queensland branch notified a dispute about a grievance handled by yourself in Queensland concerning Mr Anderson?---Correct.

PN2722

I put it to you that Mr Anderson had a grievance against his state editor, Fiona Crawford, and his national editor, Scanlon, that's correct, isn't it?---That's correct.

PN2723

Your findings were that he had bad work performance and that you were going to introduce an improvement plan, that's correct, isn't it?---That was part of the finding, not the whole finding.

PN2724

Yes, well what's - - - ?---There were four elements to the finding.

PN2725

MR SMITH: I'm sorry, Commissioner, I've given a little bit of latitude there, but this is somewhat irrelevant unless we're leading specific evidence on another grievance in another state at another time which is not specifically related. I understand the issue of going to credibility of the witness, but without being able to test all of that, to have Mr Ryan running another series of allegations that can't be tested at this place, I think is going beyond the bounds of where he's allowed to go.

PN2726

THE COMMISSIONER: You'll have an opportunity to re-examine. He's prefaced it by saying there was a pattern of behaviour which required him to express more detail, and he's now going to it, so.

PN2727

MR RYAN: Yes, so you've dealt with two personal grievances pursuant to the employment agreement, haven't you, Mr Anderson's and Ms Barakat's?---And others.

PN2728

Under clause 62 of the EBA, not the salary ones?---Mm.

PN2729

Not the salary, number 23 of the agreement, but under clause 62?---And I'm dealing with another one currently.

**** GARY CRANE XXN MR RYAN
PN2730

I put it to you that your approach is against equity, transparency and fairness when you conduct your inquiries into people's personal grievances?---I don't accept that. The investigation that was conducted in to my findings in Queensland supported the findings that I made.

PN2731

I put it to you that when a person raises personal grievance, your approach is to lump that together in unspecified performance issues, so that the person's personal grievance is not treated in the way it should be treated?---I don't accept that. I treat every grievance differently and I treat them based on the facts and the evidence in front of me.

PN2732

On the two examples I've got - - -

PN2733

MR SMITH: I'm sorry, Mr Ryan hasn't actually substantiated anything with regard to the David Anderson grievance in Queensland.

PN2734

THE COMMISSIONER: He's allowed to put propositions to the witness and have the witness answer them. The witness has disagreed.

PN2735

MR SMITH: But Mr Ryan is persisting and he's talking about a grievance which we don't have the detail in front of us, Commissioner, as to what findings were in fact made with respect to that. So he's drawing quite a long bow on supposition about another matter of which we don't have any evidence in front of us, and I'm sorry if I'm repeating myself, but that is the situation.

PN2736

THE COMMISSIONER: Yes, I understand. I don't agree with your objection. Continue your questioning.

PN2737

MR RYAN: I put it to you that the two personal grievances I'm aware of, you've locked them together with management's concern about performance so that the grievances are unable to be dealt with as a stand alone matter?---With regard to - do you want me to comment on the Anderson one?

PN2738

THE COMMISSIONER: No, no, the simple question, I think, to you, Mr Crane, was that as a matter of procedure what you do is you put together a grievance of an employee with a issue of poor performance, that as a practice you do that. Now, it's a matter for you to either agree or disagree with it?---I don't do it as a practice. I do it - with the Anderson situation, that was related, that was the evidence that, in the inquiry into that grievance, there were four parts to it, very complicated grievance and I found there to be communication problems, relationship problems, performance problems related, yes.

**** GARY CRANE XXN MR RYAN
PN2739

MR RYAN: The upshot of that was that that matter went to the Commission, didn't it, and that grievance was reheard, wasn't it, by another person?---The - I made an inquiry into the - and made a finding and I drafted - I wrote a letter to Mr Anderson. Then in the Commission, the ABC agreed to conduct an investigation and that investigation occurred and a report was written of that investigation.

PN2740

Is it the view of Human Resources at the ABC generally that employees now bringing grievances when they've had poor performance issues at work?---I can't comment on the view of the ABC. I can comment on my view.

PN2741

That would be good enough?---In my experience a number of grievances are related to managers trying to manage performance.

PN2742

We showed yesterday, didn't we, that Ms Barakat had issues prior to her meeting with Mr Hamilton on 5 April?---Yes.

PN2743

I put it that your views were clouded by the fact that you thought this was a grievance lodged after performance became an issue?---No, I don't believe so. I don't believe I was clouded, no.

PN2744

When was the last ABC Human Resources meeting or conference?---We have meetings all the time.

PN2745

Yes, the question was, when was the last one?---We have a telephone hook-up. I'd have to look in my diary.

PN2746

It's all right. Are you aware of Mr Palmer's views as to the fact that in his view many employees are making serious allegations about others - - -

PN2747

MR SMITH: Excuse me, Commissioner, if Mr Ryan is referring to a document that he's got in existence which I may have, it's probably a document I've given him, he should really bring it to the attention of both the Commission and the witness if he's asking the witness to respond to something.

PN2748

THE COMMISSIONER: No, he doesn't have to. He's asking whether he's aware of a view. Now, the witness is either aware of a view or not. Yes?

PN2749

MR SMITH: Sorry, Commissioner, but with respect, I often get pulled up by Mr Ryan on this exact point. Is Mr Smith referring to a document, we should have it. I'm just simply doing the same and I think it would be fair if he's reading from something then to say, aha, trapped you, this is what Mr Palmer said.

**** GARY CRANE XXN MR RYAN
PN2750

THE COMMISSIONER: Well, Mr Smith, I'd hope I'd make the same ruling in relation to you, but the nature of cross-examination involves this sort of approach. Yes, Mr Ryan?

PN2751

MR RYAN: Are you aware of Mr Palmer's view that in his view many people bring grievances after they've been pulled up for poor performance and then claim it was bullying or harassment?---Yes.

PN2752

I put it to you that that view may have clouded the way you handled Ms Barakat's grievances?---I don't accept that.

PN2753

And finally, just getting to your findings on Mr Hamilton's concerns, for want of a better word, concerning abandonment of the program. I put it to you that because of your fundamental mistake in saying that Ms Barakat left work on 11 o'clock on 1 April and never came back that your findings are wrong in that she didn't abandon the program. She went home basically for half the day and then came back?---When I wrote the report, that is a mistake, I accept that. I was aware when - I was aware that she came back to work. When I've written that front page, quite clearly I've made that error and I accept that error, but in putting together any of the findings, I knew that Ms Barakat came back to work on the Friday and on the Saturday. The meeting then was arranged on the Monday and she presented a medical certificate from the Tuesday onwards.

PN2754

I put it to you that's just not substantiated by your report at all?---When the report was tabled, I found that mistake and I sent an email to my boss highlighting that error. I did that.

PN2755

I put it to you that that fundamental mistake of yours taints your findings in relation to Mr Hamilton's concerns?---I don't accept that.

PN2756

No further questions.

PN2757

THE COMMISSIONER: Thank you. Any re-examination, Mr Smith?

<RE-EXAMINATION BY MR SMITH [10.46AM]

PN2758

MR SMITH: Mr Crane, firstly can I take you to that correction of a mistake regarding your - sorry, at lines 51, 52 of your report. You say that you became aware, after you'd finished writing this particular report, you became aware of that mistake?---Correct.

**** GARY CRANE RXN MR SMITH
PN2759

And you advised - - - ?---Mr Tim Burrows.

PN2760

Mr Ryan put a proposition that on the basis of that mistake that it tainted your view of the various allegations and your findings and you - - - ?---I don't accept that.

PN2761

You don't accept that?---No. I was aware that Ms Barakat returned to work.

PN2762

The proposition has been put to you, Mr Crane, that you have a habit of lumping the performance management or performance issues together with people's grievances and the David Anderson case and Ms Barakat's case were mentioned. In receiving grievances, in both those cases, could you just describe the nature of the way the grievance was expressed to you? Were those issues put together within the grievance itself?---Well, with Mr Anderson's grievance there was a 24 page written document, but I was handling the grievance informally for about 18 months prior trying to resolve the differences within the news room which I saw as relationships - - -

PN2763

Just before I go further with those issues, you just mentioned there that you were handling the grievance informally. On what basis would you handle a grievance informally, that you know about?---Mr Anderson came to my office and spoke to me on a number of occasions. I was working with him, advising him on what to do, advising him to arrange a meeting and talk to Ms Crawford and Ms Scanlon. I actually sat in on one of those meetings.

PN2764

Is that consistent with the ABCs grievance policy?---Whenever possible, if we can handle a grievance informally and the whole point is to get people working together. That's inherent in anything I do.

PN2765

Is that the way you handled most of the grievances that arise within your area of responsibility?---Correct. If I can handle them informally in my experience, I have a much better chance of success.

PN2766

If you get a grievance, for example, with the Anderson grievance, 24 pages with this particular grievance from Ms Barakat's, I think, seven pages, often they're expressed in what way, how do they - - - ?---I found when I was reading through the grievance from Ms Barakat it very difficult to understand, to look at the grievance. So what I decided to do is exactly what I've done, is to look at each element and to pick out those allegations and then address those in turn and that's how I've handled it.

**** GARY CRANE RXN MR SMITH
PN2767

So in going to the way you've structured your report, if I can just take you to page 5 of the report?---Yes.

PN2768

At the top of that page under the heading, at line 206 or 7, Ms Barakat's allegations against Mr Bass, you've written there:

PN2769

Ms Barakat alleges Mr Bass bullied and harassed her in contravention of the ABCs anti-bullying policy. Ms Barakat claims she increasingly became distressed as to why Mr Bass would continually call her into his office or correspond on issues that she didn't understand were his responsibility. The specific allegations are contained in the attached appendix 2.

PN2770

So what was the purpose then of putting the full allegations of appendix 2, this paragraph there and then you've got quite short statements, with short sentences u under each allegation, what was the purpose of structuring your report in that way?---Well, the purpose was to address the main point that I make in line
207, that Ms Barakat alleges Mr Bass bullied and harassed her in contravention of the ABCs anti bullying policy. So what I wanted to do was to establish whether that occurred or not.

PN2771

Whether what occurred, sorry?---That whether Mr Bass bullied and harassed her in contravention of the anti-bullying policy.

PN2772

So are you saying that in reading each of those allegations as Mr Ryan was taking you through, I think you said that that has to be put in the context, did you, of what, of the full allegation or of the - - - ?---When I'm looking at those allegations, it's in the context of that opening paragraph.

PN2773

Can you just then explain for us when you say an allegation is not substantiated, what is it that you're actually leaning against those - - - ?---It's not substantiated in the context of the contravention of the ABC anti-bullying policy.

PN2774

How is that not substantiated, what is it in the anti-bullying policy that you're saying is not substantiated against?---Well, the anti-bullying policy defines bullying and I've defined it in my report.

PN2775

Is that at page 2?---Hold on, I'll go to page 2. Yes, I've defined bullying and I've defined harassment as well. So I've got the definitions and then I've got the allegations and then I've tried to separate each point and make a finding on that to come to a conclusion at the end.

PN2776

And included in that, is it the case that you've also identified what is not bullying, is that part of the ABC anti-bullying policy?---Correct. That's on page 2. I'm reading it now.

**** GARY CRANE RXN MR SMITH
PN2777

So was it in that context that you were looking at those abbreviated allegations and were you seeking to establish whether or not there was a pattern of unreasonable behaviour?---Correct.

PN2778

What was your findings in that regard, in a general sense, without necessarily going to each of those allegations?---I found that when you looked at those allegations they were normal interactions within the workplace, that conversations that happen. I didn't find them unreasonable.

PN2779

In what way were they not unreasonable?---With regards to expense claims, for instance, you know, I'd expect managers to question expense claims before signing them off. With regards to office space, you know, conversations happen all the time with regards to people competing for the limited amount of office space that there is. So I didn't find that that was anything unusual.

PN2780

Just a couple of specific issues that Mr Ryan raised. There was a question raised regarding how on earth did Ms Barakat's allegations against Mr Nicholas fit in to, I think he was asking questions about, how does that fit in to her work performance. Can you respond to that?---The allegations against Mr Nicholas?

PN2781

He was questioning - I think what Mr Ryan was doing is questioning why on earth, you know, are the issues regarding Mr Nicholas included I this context with other findings that you've made regarding Mr Hamilton's concerns over work performance, were they linked, were they related?---Well, they're in the context of the grievance that was raised by Ms Barakat and that was a grievance against Mr Nicholas.

PN2782

So you were looking at all of the grievances that Ms Barakat raised in a package rather than doing them individually?---Correct. The grievance was raised as one email so I looked at it in totality. There was a grievance against Mr Bass, a grievance against Mr Nicholas and against Mr Hamilton.

PN2783

Mr Ryan was also concerned about references, I think it's in allegations regarding Mr Hamilton, there was an allegation - this is going to clause 19.3, allegation
3, it's at page 15 of your report?---Yes.

PN2784

Where you've made reference there to clause 19.3.1?---Correct.

PN2785

On what basis did you make reference to clause 19.3.1 when the allegation, as you have paraphrased it there, is that:

PN2786

In order to justify his -

PN2787

That is, Mr Hamilton's:

PN2788

- decision to move Ms Barakat to a producer's role on The 7.30 Report, he used past issues that Ms Barakat believed were minor and were history.

PN2789

?---Well, that was the allegation, and I didn't find that that's what he did at all to justify his decision to move Ms Barakat. Mr Hamilton moved Ms Barakat under 19.3

**** GARY CRANE RXN MR SMITH
PN2790

THE COMMISSIONER: I'm sorry, would you say that answer again, I missed the first part of it?---Well, the allegation was, in order, Mr Hamilton, in order to justify his decision to move Ms Barakat, used past issues that believed were minor and history. I didn't find that to be the case. I found that Mr Hamilton moved Ms Barakat to that position in the meeting that occurred on April 5, and 19.3.1 allows him to do that.

PN2791

And what was the basis of him using 19.3.1, did you say?---The basis for him doing that was the conversation that he had with Ms Barakat on Monday the 5th and - - -

PN2792

That he'd lost confidence in her?---Yes. When she had left the program on a busy production day.

PN2793

And you thought it was limited to that?---Yes.

PN2794

That one incident?---Mr Hamilton, in my interview with him, said he made no predetermination. When he was talking to Ms Barakat on the Monday that she didn't express a concern with regards to leaving the program on that day. She - - -

PN2795

Sorry, made no predetermination of what?---Of moving her.

PN2796

Before he went to that meeting?---So he made that decision at the meeting.

PN2797

At the meeting?---Yes.

PN2798

I see, all right. Thank you.

PN2799

MR SMITH: Thanks, Mr Crane. Mr Crane, there was some concern expressed by Mr Ryan yesterday regarding your decision to not interview all of the people that Mr Pat O'Donnell had suggested to you. Can you explain why you would not have interviewed all of them?---I think we talked this morning with regard to the people who were at the meeting where Graham Nicholas described Ms Barakat's behaviour as embarrassing. I felt it was appropriate that if there was nine minutes of - or tape missing, I'm not too sure exactly how long, but it was that a tape was missing, that an executive producer would try and find out why that occurred. I was comfortable in reading an email where Ms Torney has expressed that - - -

**** GARY CRANE RXN MR SMITH
PN2800

I think it was actually Ms Johnson?---Ms Johnson.

PN2801

Karen Johnson?---I remember that there was an email and it was expressed and written to Mr Hamilton that Ms Barakat's behaviour wasn't embarrassing. Mr Hamilton didn't have a concern over it. He was her line manager and it was just a view expressed by Mr Nicholas. Mr Nicholas had told Mr Bass and Mr Bass is asking Ms Barakat about it. So I didn't need to interview anybody else at the meeting.

PN2802

What was your understanding of why Mr Bass would have an interest in asking that question?---Because of the relationship, he needs to manage the relationship between news/CAF and production resources and there were production resources staff at the meeting.

PN2803

Were you able to establish whether or not, to your satisfaction, whether or not that was an intimidating question arising from Mr Bass towards Ms Barakat?---Well, he's simply been given information by Mr Nicholas and he's trying to establish that information, so he's just putting that to Ms Barakat. That's what I would expect a manager to do.

PN2804

Look, and just finally, I think there was some concern raised yesterday, I think, by Mr Ryan regarding the terms of reference for your investigation. Can you set out or explain to the Commission just on what basis, in what context you were conducting this investigation?---The terms of reference, first of all with regard to the letter that was sent to Mr Pat O'Donnell and conversation I had with you, but I was given no specific instructions. It was - what I had to do was to look at the grievance, look at the performance concerns, establish the fact and write a report and then I went away and did that.

PN2805

What framework would you be doing that in, what were you relying on?---The grievance policy.

PN2806

And the grievance policy?---Yes.

PN2807

Look, I have nothing - - -

PN2808

THE COMMISSIONER: Before you sit down, I need to ask one further question and then you can follow it up if you need to.

**** GARY CRANE RXN MR SMITH
PN2809

MR SMITH: Okay.

PN2810

THE COMMISSIONER: You answered me earlier that you thought Mr Crane said it was that one incident of leaving - - - ?---Mr Hamilton?

PN2811

Mr Hamilton, I'm sorry, that one incident of leaving the workplace on 1 April. You've also given evidence that you thought the meeting between Mr Bass and Ms Barakat was about the production meeting?---Correct.

PN2812

Was a meeting that Mr Bass needed to understand what had happened to manage the circumstance with that inter-relationship. I'm trying to recall from yesterday, what still interests me is whether or not you know what was meant by Mr Marshall when he wrote the email on 5 April where he said - - -

PN2813

MR SMITH: Sorry, Commissioner, is that Mr Hamilton?

PN2814

MS CONNOR: Mr Hamilton, yes. Wrote to Ms Barakat on 5 April, whether you know what he meant by:

PN2815

and recently to another incident requiring counselling of you by the state editor.

PN2816

Now, if you're just having an inquiring meeting because you're concerned about the interaction of resources, that couldn't be regarded as counselling, so I wondered whether you know what Mr Hamilton meant, whether he told you what he meant by that?---No, I don't.

PN2817

You don't know?---I don't know.

PN2818

Okay, thank you. Any other questions that arise?

PN2819

MR SMITH: Just arising from your question, Commissioner, we had some conversation I think yesterday, I just want to clarify this, about what counselling - - -

PN2820

THE COMMISSIONER: Have you got a question you want to put?

PN2821

MR SMITH: I'm going to.

PN2822

THE COMMISSIONER: All right.

**** GARY CRANE RXN MR SMITH
PN2823

MR SMITH: Sorry, I just happen to be looking at you. Perhaps I should be looking at the witness. The issue of counselling, Mr Crane, you, I think, undertook to describe counselling can mean a range of things?---Correct.

PN2824

Correct me if I'm wrong, did you say counselling can be discussing or raising issues of concern?---Counselling can be a range of things. You can have the more formal counselling which really moves in to maybe a first verbal warning, that type of disciplinary misconduct type of counselling. But counselling can be managers expressing concern about a number of things.

PN2825

So could - I'll put this proposition to you, could the reference in Mr Hamilton's email to counselling by the state editor refer to counselling in the sense of raising the issue of managing the relationship between news and current affairs and production resources?---Yes, absolutely.

PN2826

Thank you. I have no further questions, Commissioner.

PN2827

THE COMMISSIONER: Thank you, Mr Smith.

<THE WITNESS WITHDREW [11.04AM]

PN2828

THE COMMISSIONER: Yes, Mr Smith?

PN2829

MR SMITH: Commissioner, I just need to check to ensure that my next witness is inside the building.

PN2830

THE COMMISSIONER: The matter is adjourned for five minutes.

<SHORT ADJOURNMENT [11.05AM]
<RESUMED [11.20AM]

PN2831

THE COMMISSIONER: Yes, Mr Smith?

PN2832

MR SMITH: Thank you, Commissioner. Commissioner, if I could call Greg Hoy.

<GREG HOY, SWORN [11.21AM]
<EXAMINATION-IN-CHIEF BY MR SMITH

PN2833

MR SMITH: Mr Hoy, could you give us your name and address for the purposes of the hearing this morning?---Yes, Greg Hoy, 91 Wilson Street, South Yarra.

PN2834

Mr Hoy, were you at one stage employed by the ABC?---I was. I was employed by the ABC for 18 months on the Inside Business program which culminated at the end of 2003.

PN2835

So you were employed from when, sorry?---So 18 months, so it must have been mid year 2002 that I commenced with the start of the program.

PN2836

So you commenced at the start of the program?---Correct.

PN2837

What was your role on the program?---I would do a feature report on one major financial institution per week.

PN2838

So you're a journalist reporter?---Correct, yes.

PN2839

Is there a difference between journalist and reporter?---You tell me. I'm not quite sure, actually.

PN2840

THE COMMISSIONER: It's a question that shouldn't be asked.

PN2841

MR SMITH: I've been trying to find this out for some years. Mr Hoy, what is your length of experience in journalism, how long have you been involved in journalism?---I've been in journalism since 1980 and I have worked as both political, foreign correspondent and roving reporter for both domestic and international, yes, over time.

PN2842

Was the 18 months you've just described your only stint at the ABC?---No. I have worked at the ABC previously and if you're going to ask me the dates, I might be embarrassed, I'm sorry.

PN2843

In that case I won't ask them. Are you currently working as a journalist?---No, I'm not.

**** GREG HOY XN MR SMITH
PN2844

You say you worked on the Inside Business program. Could you describe your role and what the working relationships were like within the Inside Business program?---Yes. My role, as I say, was to compile a feature report on a major financial institution per week and it was - I'm not quite sure what area you want me to discuss here, but it was a very stimulating enthralling subject matter, as we sort of traversed the landscape of corporate Australia and it was a very interesting time. There were some very major developments, some of which had not yet come to the public's attention, with some of the biggest financial institutions in the country.

PN2845

So it was a busy period, a busy time?---A very busy time, very busy time.

PN2846

How many people were on the program when you were there, on the editorial side, I won't - - - ?---On the editorial side there was Neheda as executive producer, there was another journalist doing a small business segment.

PN2847

Who was that?---It was, at the time that I finished, Luisa Saccotelli.

PN2848

Okay, thanks. So you, Luisa, Neheda and the presenter?---And a presenter and then in the second 12 months there was a researcher appointed, and the researcher went on, I think, to get the title of associate producer.

PN2849

Who was that, sorry?---Claudette Werden.

PN2850

Thanks. In your role as reporter who did you report to? Sorry, I'll rephrase that. In your role as a journalist who did you report to, who was your direct supervisor?---On a day-to-day basis it would have been Neheda, but similarly we tended to have team discussions at the end, or at the start, of each week.

PN2851

What was the purpose of those team discussions?---Workshopping really. These were big subjects we were wading into so there was, you know, collaboration was pretty important.

PN2852

Working to Ms Barakat, how would you describe your relationship with Ms Barakat?---I'd have to be totally honest and say that I think at times we did some of the most stimulating work together and my presence here has nothing to do with any interest in deriding Neheda Barakat's ability. That said, I didn't feel I could stand by and not make it plain that I think that this situation was inevitable.

**** GREG HOY XN MR SMITH
PN2853

What situation? Sorry, I'm about to ask - I may pre-empt your objection, Mr Ryan. What I was asking you is what was the nature of your relationship with Ms Barakat from a management perspective?---Very often it was very professional. There were times when I feel a secondary difficulty arose, and I hope that I'm delivering this in an appropriate manner, but, periodically, Neheda would make it plain that she was having trouble sleeping, and there would descend on our work space a total despondency, an air of oppression, a highly pernicious environment where, to anyone that would care to listen, anyone would be attacked in their abilities from - and I mean anyone, from senior management, to the host, to the subordinates and to myself, to others.

PN2854

Could you be more specific about what you mean by attacked, what sort of issues would arise, what were the issues?---It would be just a process of scoffing, scorning, sneering at different traits or - it was just so wide-ranging. It was just sharp tongued, you know, abuse of, you know, a variety of, you know, people, usually if they weren't around.

PN2855

Would it be fair to say that this was part of normal editorial management of the stories you were writing, for example?---No, I reject that. I mean, when this mood struck, and at times it did - you know, like, it would be misleading of me to say that this was a constant thing. It started emerging, it then seemed to return with increasing regularity and it - you could sense what was coming from the moment of entry, before any issues had been raised, you could tell that there was just an air of ice and it didn't matter what would happen the next, you know, whatever. Periods tended to vary, but it could be a week, it could be a month. We learnt to understand that these things would come and then they would go again in a cascade, but we always knew that inevitably it would return.

PN2856

Would you comment on Ms Barakat's editorial management? Were her editorial judgments and calls sound?---Yes. Look, as I said, I'm not here to in any way question Neheda's abilities. That is not my aim and it would be, you know, misleading for me to do so.

PN2857

Were you ever counselled on your work performance while you were working on Inside Business program?---Counselled on my work performance - - -

PN2858

By counselled, I mean were you ever called to question, had concerns expressed about the work that you were doing, the quality of your work?---With the sheer quantity of the subject matter that we were delivering, there were inevitably disagreements at times about, you know, elements of different reports, et cetera. But no, I don't think that there was any, you know, consistent problem.

**** GREG HOY XN MR SMITH
PN2859

Problems raised with your work?---?---No, no. In other words there were - you know, it was inevitable given the complexity of the subjects we were dealing with, that at times there were disagreements in editorial policy.

PN2860

Is that normal in - - - ?---Yes, and in fact I think it's terrific because what you're looking for is collaboration and a constructive working relationship.

PN2861

So issues that were raised in these program meetings, editorial meetings, were often debated robustly, you would say?---Yes. I found that on the whole these editorial meetings that we had, team meetings, were terrific and very cooperative.

PN2862

So how would you differentiate between those sorts of discussion, debates, meetings and what you were describing before as, you know, the air of despondency?---It was just a - the air of despondency. It was just an absolute, like, icy depression that would emerge and it - there would be nothing, nothing that could lift it until it ran its course.

PN2863

Did you have a clear line of communication with other members of the unit, with Allan Kohler the presenter, for example?---Well, can I say that I just think that absolutely everyone in this situation, though ultimately there was an acknowledgement that this was an issue, people were very professional and there was no - you know, in terms of any sort of - there was certainly no conspiracy to have any action taken on any of this. Everyone was hoping it would simply go away as a problem.

PN2864

THE COMMISSIONER: What's the objection?

PN2865

MR RYAN: In saying the word, the use of the word, "everybody".

PN2866

THE COMMISSIONER: There's no point in you objecting to the witness' answer.

PN2867

MR RYAN: Sorry, Commissioner, I certainly was a little nonplussed there for a moment.

PN2868

THE WITNESS: I think that's absolutely fair. I don't try and intend to give evidence for anyone else here. That's their business.

PN2869

MR SMITH: So this is your experience?---This is my view, my perspective.

**** GREG HOY XN MR SMITH
PN2870

You say you were employed up until the end of 2003?---Yes.

PN2871

On what basis did your employment not continue beyond 2003?---Probably about two months before the end of the program, I can't give you the dates precisely, someone else probably can, it was made known that Walter Hamilton, one of news/CAF management from Sydney was to come down and to discuss this issue and it was suggested to me that it was because - I was simply asked if I had found the sort of problem I'd tried to clumsily describe, was a problem and I acknowledged that I felt it was and I was then told that there would be - that Walter Hamilton would come to Melbourne to discuss this. At that meeting I had a very frank exchange with Walter. He was very frank and said that he did not envisage there'd be any action taken in relation to this problem at all and - or in relation to this issue, and that, you know, at that stage he did not feel that it was an issue at all and I accepted that, but you know, I made it pretty plain that - not made it plain, I stated very clearly that I felt it was very important - that I would not be continuing with the program, but I felt it was very important that somebody in senior management knew what I and, at the risk of objection, my colleagues were dealing with. I was asked to leave a written statement on that and I declined. I said that I felt that I had met my responsibility in just explaining to them a reality, that, you know, that was - that we were facing - I was facing.

PN2872

When you say explaining to them, you mean explaining to Walter
Hamilton?---Explaining to Walter Hamilton, yes.

PN2873

Did you ever have occasion to take your concerns to any other senior
managers?---I didn't seek to.

PN2874

You don't discuss these - - - ?---Not once. I did not approach anybody to discuss this, these matters at all.

PN2875

In the time that you were - - - ?---Can I say, short of Neheda herself.

PN2876

You raised these with Neheda?---I did, yes.

PN2877

What sort of conversation did you have with Neheda?---Neheda, there was some curt exchange made to me, I've forgotten what it was in relation to. It was some matter in relation to, say, one of my reports and I felt that it was totally unjustified and not only that I felt that it was all part of, at that time, it was more to do with this particular recurring mood problem that we were - that I was dealing with and so I made it absolutely clear to Neheda that I felt that, not only that, but that the way in which she would very publicly deride other individuals on the program, I can - that it had to stop. I just did not think it was professional. It was destructive to the program.

**** GREG HOY XN MR SMITH
PN2878

You say publicly, what do you mean by publicly?---It would be in the middle of our work space, you're not going to believe what someone has just done now, blab, blab, blab, and these were figures that were very important to our team and I just kind of felt it could have been dealt with much more discreetly and the only person that I raised this with was directly with Neheda herself. No one else was told.

PN2879

In the course of your employment on the Inside Business program, were you aware of any other senior ABC manager's involvement with the management of the program, other than Walter Hamilton? Any other interactions within - with the Inside Business program?---I wasn't aware of any, no.

PN2880

Were you ever advised by Neheda that anyone else had been involving themselves unnecessarily in the program?---No.

PN2881

When you left the program you said you had that frank discussion with Mr Hamilton?---Yes.

PN2882

Sorry, just refresh my memory. What did Mr Hamilton say he was going to do about that?---Talk to others.

PN2883

Okay?---He made no commitments to me in any way. I think it - what he did say was that, you know, he didn't envisage there'd be any - you know, that he was listening but he didn't envisage there would be any action whatsoever on this and that was, you know, that was all I expected out of that meeting, so I felt again that I had put on the record my view and that was that.

PN2884

Do you know Mr Peter Ryan?---I do, but I didn't have direct dealings with Peter. I think he was appointed to the position of head of the business program area or business reporting area towards the end of my time. So I didn't deal directly with him, no.

PN2885

So you had no occasion to talk to him or him to talk to you about your performance?---No, no.

**** GREG HOY XN MR SMITH
PN2886

Was it indicated to you that you were not going to have your employment continued with the ABC because of any concerns with your performance or your reporting?---No, no.

PN2887

I have no further questions at this point, thank you, Commissioner.

<CROSS-EXAMINATION BY MR RYAN [11.40AM]

PN2888

MR RYAN: Mr Hoy, you told us why you weren't here, why are you here today?---Why am I here?

PN2889

Yes?---Mainly because it seemed that I saw this - that the problem that I've attempted to describe to you I thought would go away, but it appears that it didn't and once it didn't somebody ultimately was going to have to set themselves in the path of - well, I don't know, grab the bull by the horns, you know, somebody had to deal with this and once they did my evidence was always going to be relevant but it's only once I was asked if I would give evidence, and that was very recently, that I said I would. Mr Ryan, could I ask, what could I have done? Could I - you know, perhaps - - -

PN2890

MR SMITH: Sorry, Commissioner - - -

PN2891

THE COMMISSIONER: You're objecting to the witness' answers now, are you?

PN2892

MR SMITH: I'm just thinking of the protocol that was applied to a previous witness where that witness was asked not to ask questions, but to answer them.

PN2893

THE COMMISSIONER: Indeed.

PN2894

MR SMITH: Sorry, I'm just trying to help the Commission.

PN2895

THE COMMISSIONER: You're trying to help me out, yes, thank you?---Sorry.

**** GREG HOY XXN MR RYAN
PN2896

No, that's all right. One of the things, Mr Hoy, it's just - - - ?---No, fair enough.

PN2897

You just answer the questions and we'll all be quicker?---That's why I'm here.

PN2898

MR RYAN: So how do you know this problem's continuing?---Well, I assume that the events that you're now talking about took place after I left the organisation.

PN2899

Are you good friends with Mr Marco Bass?---I would count Marco Bass as a good acquaintance of mine. If you - I'm happy to enlarge on that if you'd like.

PN2900

Go for it?---Okay. Socially - do we have social contact? I haven't spoken to him since I left the ABC. I wouldn't have seen him at a social occasion at least in the last five years or thereabouts. So, you know, I count him as a good acquaintance.

PN2901

Would it surprise you that your views and Ms Barakat's are at odds with three other of her colleagues, totally at odds?---This may well be. You know, they're entitled to their view.

PN2902

You've been using the word we previously in your answers. Who was the "we" that - it wasn't the royal "we", surely?---Well, the difficulty I will have here is that there are some who still work very close to the business and who will find it very difficult to go on the public record about what's said and - - -

PN2903

I'm sorry, Mr Hoy, you used the word "we". I'm entitled to find out who "we"
is?---Who - and I used the word we in relation to what? What are you questioning, "we" what?

PN2904

When you're talking about the air of ice, the periods of - - - ?---Okay.

PN2905

You go into a cascade, you spoke about "we" and everybody?---All right. It was made plain to me by three other individuals on the program that they were very anxious about this situation, but in saying that that may give the impression that there was extensive discussion about this. There was not. These were 10 second conversations. People were so professional about it. It was remarkable. What they preferred was to put their faith in authority and to hope that this situation would resolve itself.

PN2906

That seems to be at odds with your dramatic expression of air of ice, moods, cascades, when you're talking about the 10 second conversations here and
there?---What's at odds about that?

**** GREG HOY XXN MR RYAN
PN2907

Well - - -

PN2908

THE COMMISSIONER: The 10 second conversations related to the conversations Mr Hoy had with other staff?---Yes.

PN2909

Not in relation to what he states he faced. That's my understanding of it.

PN2910

MR RYAN: Indeed, Commissioner, I'm just trying to get a handle on your description of Ms Barakat, in much flowery language. It doesn't seem to be the subject of great conversation with others.

PN2911

MR SMITH: Sorry, Commissioner, is that a question or is that Mr Ryan's - - -

PN2912

THE COMMISSIONER: No, it was a question.

PN2913

MR SMITH: I'm having trouble with this question, I'm sorry. There's a nuance I'm missing.

PN2914

THE COMMISSIONER: Put it again.

PN2915

MR RYAN: It seems to me that your description of Ms Barakat is at odds with the 10 second conversations other people had had about her. It was such a great - I put it to you that if it was such a great concern you would expect a lot more discussion about it?---You might. In fact, I think you're absolutely right, you would, but people were being very professional.

PN2916

Do you blame Ms Barakat for your contract not being renewed?---No - well, no, only in that, as I say, I made plain that I was not going to continue to work on in that situation.

PN2917

I put it to you that the reason your contract wasn't renewed was that Mr Kohler raised concerns about your performance with Mr Ryan. Are you aware of
that?---Well, I reject that, but you know, I can only tell you what I - what dealings I had with people, Mr Ryan.

PN2918

Yes, and that Mr Hamilton took the decision some time in October not to renew your contract in October 2003?---Well, if that was the case he certainly didn't mention that to me. In fact when I suggested at our meeting that, you know, I wouldn't be continuing, he certainly didn't suggest that that was in keeping with, you know, any other plans he had, so that's all I can tell you on that.

**** GREG HOY XXN MR RYAN
PN2919

Any idea when that conversation was, Mr Hoy?---With Mr Hamilton?

PN2920

Yes?---No, I don't.

PN2921

Roughly?---Roughly I would remember it as being a month or so before, maybe two months before the end of the program.

PN2922

How far before Christmas was that program off the air?---Beginning of December.

PN2923

So roughly beginning of October?---Like, to the best - yes.

PN2924

I have no further questions, Commissioner.

PN2925

THE COMMISSIONER: Any re-examination, Mr Smith?

PN2926

MR SMITH: Look, I don't think so, Commissioner, unless there's anything you wish to raise?

PN2927

THE COMMISSIONER: No, thank you.

<THE WITNESS WITHDREW [11.48AM]
<KATE MARSHALL, AFFIRMED [11.49AM]
<EXAMINATION-IN-CHIEF BY MR SMITH

PN2928

MR SMITH: Ms Marshall, could you state your name and address for the purposes of the Commission, please?---My work address?

PN2929

Your work address is fine?---Kate Marshall, at the ABC Southbank Boulevard in Victoria.

PN2930

What's your role?---I'm a Senior HR Adviser at the ABC.

PN2931

What does that entail that you do?---Give advice to managers about a range of employment issues which can include interpretation of the employment agreement, performance management, health and safety, bit of training, health and safety matters. I also give advice to staff in relation to all those matters as well.

PN2932

What's your background, how long have you been in human resources?---I've been in human resources for about eight years. Previous to that I worked at Swinburne University in a range of HR roles.

**** KATE MARSHALL XN MR SMITH
PN2933

So eight years being - how long have you been at the ABC, I should have asked first of all?---Okay. I've been at the ABC for a bit over a year.

PN2934

Before that you were where?---I was working at Swinburne University.

PN2935

In HR?---In human resources.

PN2936

In human resources?---Yes.

PN2937

Commissioner, it may be convenient, I was going to take Ms Marshall through the chronology of this matter. I have a bundle of documents which the other side have got which I'd like to hand up and provide to the witness.

PN2938

THE COMMISSIONER: Thank you.

PN2939

MR SMITH: Sorry, Commissioner, I seem to have one copy short after having given a copy to the other side yesterday.

PN2940

THE COMMISSIONER: Well, that's all right, I'm not troubled, I have one.

PN2941

MR SMITH: I'll tell you what I'll do. I'll provide my copy and I'll go off memory.

PN2942

THE COMMISSIONER: All right. We can take a brief adjournment and just copy the first five pages if that helps you.

PN2943

MR SMITH: No, it's okay, Commissioner, I'm happy.

PN2944

THE COMMISSIONER: You want these marked as a bundle, do you?

PN2945

MR SMITH: Yes, please, Commissioner.

EXHIBIT #ABC4 BUNDLE OF DOCUMENTS CHRONOLOGY OF EVENTS

PN2946

MR SMITH: Ms Marshall, can you just have a quick look at those documents and identify them as documents that you're familiar with?---Yes, that's correct, I'm familiar with these documents.

PN2947

Thank you. Could you describe or advise the Commission when you became involved in this particular matter?---Yes. The first time I have actually spoken with Neheda was when she came to Human Resources and wanted some advice because she said a staff member had called her a bully. I then asked her to come and meet with me later and she told me that she was referring to Luisa Saccotelli, who's a journalist with Inside Business, and that Luisa had told Allan Kohler that she thought Neheda had bullied her and that Luisa had gone home early upset from that day. Neheda said she'd had discussions with Luisa in the past and showed me an exchange of emails from October 2003 about previous issues that her and Luisa had had. She said that - she told me that they were talking about a story that day and she wasn't sure where Luisa was coming from.

**** KATE MARSHALL XN MR SMITH
PN2948

Sorry, coming from?---Well, what Luisa meant when she called Neheda a bully. I suggested to her that given the past correspondence that what would be a good idea was that I would meet with Luisa separately, clarify her concerns, and then that I would facilitate a discussion between the two of them and I gave Neheda my card to do that. Neheda then asked when Luisa returned to work. Neheda gave her my card and Luisa came to see me.

PN2949

Separately?---Separately and on her own. Luisa took me through a range of concerns that she had with Neheda. She said that on that particular day when she went home upset that Neheda had taken an excessive amount of time to review a story and had been very abrupt with her. She said the office environment was very tense. She also talked more broadly about their relationship in that she felt that Neheda tried to control all communication she had with Allan Kohler, that she was reduced to emailing Allan covertly about stories that they needed to discuss. She also spoke with me about that on occasion when Neheda did ask her to speak with Allan that Neheda would set up a particular environment where she would speak with Luisa, speak with Allan and then it was a difficult environment for Luisa to negotiate. I assured - what I did was I said I wasn't going to go over the past with Luisa, that what I was seeking to do was come up with a set of agreements about the two of them working together in the future. Luisa told me she'd sought advice and support from Marco but that she would participate in the process with me and that she would come to a meeting that I facilitated between her and Neheda.

PN2950

When was this, what period are we talking about here?---This was - I had both meetings with them prior to 23 March, 2004, so it would have been mid-March 2004 some time. I'm not - - -

PN2951

How was that matter concluded, the issue between Neheda and Luisa?---We just - I didn't talk about the things that they'd raised with me separately. I talked about the things that I've mentioned in my letter on 25 March.

PN2952

Sorry, I think for the purposes of the Commission that's exhibit C2. If I can just briefly show that to the witness and then get it back, please, because I'm starting to run out of exhibits now, just to confirm that that is in fact the letter we're talking about?---Yes, that's correct. Where, just through the points in here, they both agreed to an open collaborative environment and Neheda to Luisa confirmed that she would tell Allan that he could discuss stories directly with Luisa and that we talked about the importance of having a courteous, calm, professional environment, that all communication be open and transparent. Neheda had previously raised a concern that she wanted Luisa to speak with her directly so Luisa agreed to do that. Neheda agreed that when she was too busy to discuss details of stories that she'd make time to discuss it with Luisa and they - Luisa confirmed the process that she knew Neheda had the final editorial decision on stories. So in the meeting that I had with her I confirmed that I'd put all the agreements in writing and give them both a copy.

**** KATE MARSHALL XN MR SMITH
PN2953

And that exhibit which has been shown is - - - ?---And that's that letter there, yes.

PN2954

And it's a fair summary of the outcome?---Yes.

PN2955

In your opinion was the matter resolved at that point?---I'd hoped that, yes, that it would be. Right at the end of the meeting Neheda asked Luisa about her performance and said that she worked in cycles or some conversation - description like that, I think cycles was the word that Neheda used, and Luisa replied Neheda don't go there, my performance is fine, I've done two stories two weeks in advance.

PN2956

Sorry, I just need to clarify when you - you said the word then, cycles, what did you mean?---That was how Neheda believed that Luisa was behaving.

PN2957

Sorry, I'm not sure I fully understand?---I didn't understand it particularly why that was the case but just that Neheda had chosen to use this mediator discussion as a way of talking to Luisa about performance. I did have some concerns about that. So after the meeting finished I asked Neheda to go back and assure Luisa that she was committed to the process and that they could have a positive working relationship together.

PN2958

What happened then with respect to Ms Barakat, is there any further involvement from you?---Yes. On that day, 23 March, Neheda asked me to stay back and have a confidential discussion with her, which I did. She raised some concerns about Marco Bass and the meeting that she had with him. She said that he'd talked to her about an incident with an erased tape and that the word embarrassing had been used. I suggested to her that she go and speak with Marco further about that to clarify what it was that he was speaking with her about. When, I think we were walking back to the office at this stage and she told me she didn't feel confident to do that. I said that it would be important for her to understand what it was about that meeting and her behaviour that it caused him to raise that with her. She said she was thinking about resigning. I said - I asked her not to do that. I talked to her about, if there's a couple of incidents in a row, sometimes that can make you feel a bit upset and hopefully that's not a decision she would take.

PN2959

When you say a couple of incidents in a row, what are you referring to?---This Luisa matter and the Marco, the conversation. So I said not to do that. She asked me if Marco had spoken with Luisa and I said I didn't want to discuss that because my undertaking to the both of them was that both conversations were confidential prior to the mediator discussion that I had between Neheda and Luisa. So, yes, that was when we were walking back into the building by that stage.

**** KATE MARSHALL XN MR SMITH
PN2960

So what occurred then?---I think a few days afterwards I was passing Neheda when she was sitting in Inside Business and I asked how things were going.

PN2961

Sorry, how many days are we talking about, where are we now, this is what, on 23 March?---No, I had our meeting on 25 March so it was after that, it would have been a couple of days after that and after I'd sent the memo.

PN2962

A couple of days, sorry to be pedantic, a couple of days takes you into the weekend. Would it have been the following week?---Well, it must have been on the - yes, it wasn't very long after. I don't know the exact date, yes. I just asked her how things were going and she said Walter had - she'd written an email to Walter about the situation and that he'd written her a very nice email back.

PN2963

Were you instructed by anybody to advise Walter Hamilton?---I - because I knew Marco had - Luisa had spoken with Marco, I said to Marco, I've had my meeting with - I've got a meeting with Luisa and Neheda and he said you'll need to tell Walter bout that, by which he meant, don't talk to me about it. You'll need to tell Walter as Neheda's line manager. Normally I probably would have spoken with Walter prior to actually doing these arrangements, but he was in the Commission about the sports wrap so he was unavailable so I just went ahead and organised it and spoke to him afterwards.

PN2964

That would be why on the bottom of that memo of yours on 25 March, is
it?---Yes.

PN2965

That you just recorded you had a brief discussion?---Yes, that's right.

PN2966

So you had a brief discussion with Walter. What was the nature of that conversation?---I briefly described what had happened between Luisa and Neheda. I said that I'd sent him a record of the conversation and the agreements that were reached. He said I thought this matter with Luisa had been resolved last year. I said, well, this is - I can't actually recall what I said in reply to that, but he said I thought I'd resolved this - it had been resolved last year. I said that I thought that that would be the end of it and that both people would resolve, to move forward. He said he had - he'd had a number of conversations with Neheda about her relationship with staff the year before and I said well, I think she's given an undertaking to change so hopefully that will be the end of it.

PN2967

Did you yourself make any findings with regard to the allegations that Neheda told you - sorry, this is a bit converse - that Neheda told you that Luisa had made regarding bullying, did you yourself - - - ?---About whether it was a bullying incident?

**** KATE MARSHALL XN MR SMITH
PN2968

Yes?---In the first instance I wanted to resolve it informally and this - through this mechanism. The incidents themselves were quite small. It did meet in part the definition about trying to isolate someone from the workplace, you know, in their work environment and perhaps excessive monitoring, but again I didn't think an investigation was warranted and that in any case we could resolve the matter like this.

PN2969

Is that consistent with the ABCs grievance handling policies?---Yes. At that time it was a previous person - it was a different person or grievance policy, but the first step is always mediation and informal resolution.

PN2970

THE COMMISSIONER: Sorry, Ms Marshall, did you say that you thought that her conduct did come within the definition of bullying?---Yes. There was some elements there which met the definition of bullying which was excessive monitoring and isolation and exclusion about the way Luisa felt about being isolated in that work environment and that she couldn't speak with Allan Kohler directly about a story.

PN2971

Yes, thank you.

PN2972

MR SMITH: Just following on from that, Mr Marshall. When you're looking at these sorts of issues, at what point with regard to identifying some elements, for example, of bullying, at what point do you take that matter further?---Do you mean - in taking that matter further do you mean - - -

PN2973

Is there some kind of mathematical formula that says, okay, we've canvassed two or three out of 10 elements of bullying and therefore we'll take that further? Is it an exercise of judgment?---It is - if it was very serious case of bullying, for example, verbal abuse, and very clearly completely inappropriate, you would probably move straight into misconduct proceedings. However in the instance where there is no definition it can be quite difficult. We'd always work through with the people involved, informal resolution, whether that be them speaking with someone in the first instance or mediation or some other mechanism to resolve an issue. We'd go through those steps.

PN2974

So generally speaking you were trying to get the people together?---Yes.

PN2975

And to air the issues?---Yes, that's correct.

PN2976

And then reach a conclusion one way or another?---Yes.

**** KATE MARSHALL XN MR SMITH
PN2977

Again going back to the chronology of how events were unfolding, we're
not - sort of, I think, at the end of March. You indicated you were having a conversation with Neheda. Was that a formal conversation, did she come to you in the office or was this when you were - - - ?---When I asked her how things were going, I just passed her in her office and in passing I said to her, how are things going, and she said that Walter had written her a nice email, so it wasn't a formal conversation, no.

PN2978

Let's move on from there. What was your next involvement with Ms Barakat?---I think that would have been the day that she left the office. I didn't speak with her directly on that day, but my manager, Hanan Gamali, had said to me Neheda's gone home upset, I think she may have resigned, something's going on and I asked Hanan, do you think I should contact her and she said yes. So I sent an email to Neheda later that day saying - asking her if she wanted to talk about anything.

PN2979

Did you get a response to that email?---I did, on the Monday which was - - -

PN2980

So it was on the Thursday, was it, 1 April, you sent the email?---I think - when did I send the email? I think it's in this, I think it was 1 April, there should be a copy in here, yes, it was on that day.

PN2981

Is it in that bundle of documents, I'm sorry if we could just refer - unfortunately I no longer have it in front of me, so we'll just do - - - ?---It doesn't appear to be in here.

PN2982

THE COMMISSIONER: Do you want to have a look at mine, Mr Smith?

PN2983

MR SMITH: Please?---But it was just a very short, do you want to talk, email which would be in - - -

PN2984

I think it's the - if they're still in order, it should be the third document down. It's an email - I'll give it back to you, Commissioner, it's an email dated 1 April at 5.44 pm addressed to Neheda Barakat, Subject: Do you want to talk?---Mm.

PN2985

Did you get a response to that email?---I did on the - late on Monday where Neheda replied to me and forwarded me a few documents after her discussion with Walter on that day and she said - - -

PN2986

What documents were they, I'm sorry?---She forwarded me a program review document, she forwarded me Walter's file note to her.

**** KATE MARSHALL XN MR SMITH
PN2987

That was an email from Walter, was it, dated 5 April?---Sorry, yes, she forwarded me a - Walter's original email to her discussing the stories on that day, and I can't recall what else.

PN2988

What did you do with that, what did Ms Barakat ask you to do?---She didn't actually ask me to do anything at that day. She said, sorry I couldn't talk to you, something along those lines, so I was in a bad state, matters took an unexpected turn, her email said something like that.

PN2989

So what did you do?---On that day I'd actually gone down and spoken with Walter Hamilton because - sorry, I've just lost my train of thought there. It was on the Monday - - -

PN2990

I understand that Ms Barakat actually advised you that she was - - - ?---Seeking - yes, that must have been in that email, yes, seeking medical advice and that she would be absent from work and that she would forward me medical certificates.

PN2991

You then said you - sorry, you then went to talk with Walter?---I spoke with Walter on the Monday during the day and he'd told me about his conversation with Neheda. I raised with him - and that he had spoken with her about moving her from the program and offering her a position in Inside Business.

PN2992

Sorry, offering her a position on Inside Business?---Sorry, in 7.30 Report.

PN2993

Thank you?---I raised with him some concerns at that time. I said I believe she had been promoted out of The 7.30 Report into Inside Business and that we'd need to have a look at how those clauses would be interpreted. I'd also just read the - I told him I'd just read the Lobez decision from Commissioner Smith and that there would be - I'd anticipate that if we were going to get into a dispute about this matter that Commissioner Smith would take the view, reading the different clauses together. I suggested to him that he actually make Neheda an offer of moving to The 7.30 - yes, moving to The 7.30 Report and give her a timeline to respond to that by.

PN2994

Did you have cause to talk to anyone else about the interpretation of those clauses?---Yes, I did. I sent - actually I think before that happened, I'll just check this chronology. Walter asked for some interpretation about that clause and I sent an email on 6 April about it.

PN2995

THE COMMISSIONER: 23 April?---23 April, yes.

**** KATE MARSHALL XN MR SMITH
PN2996

MR SMITH: I think it was later in April?---Yes, 23 April. Yes, this was, actually before this happened, Neheda had asked to - said no, she didn't want to move to The 7.30 Report, and she asked to have a further meeting with Walter and she'd asked to have a representative present.

PN2997

What occurred with respect to that meeting?---Neheda later ended up not agreeing to go to that meeting and I spoke with her about that on 15 April.

PN2998

Was it agreed that she could have a representative with her at that meeting?---I did it, in my advice to Walter later that yes, he could, there was no formal requirement for us to allow her to have a representative but that it would be a good idea given the issues that were being discussed.

PN2999

Was that conveyed to Ms Barakat, that she could have a representative at that meeting?---Yes, I believe Walter wrote her an email along those lines.

PN3000

Do you know, you've just said, I think that the meeting didn't actually occur, is that correct?---That's right, because I actually rang her on her home phone number on 15 April to ask her how she was, and that I took a file note of that conversation afterwards which is provided in the documents.

PN3001

What was the date of that?---That was 15 April.

PN3002

THE COMMISSIONER: Just a moment, let me see if I can find that file note. You say that's contained in these documents, is it, the file note?---Yes, yes.

PN3003

MR SMITH: They should be in chronological order, from oldest to youngest, I think, Commissioner.

PN3004

THE COMMISSIONER: Yes, I've found it, thank you?---So this was just a - this was a phone conversation. I asked her how she was. She said she had a medical certificate for the two weeks and will have another one for the next two weeks and I was ringing to organise a meeting. She'd raised some concerns in her email to Walter about what her role was with Inside Business and what Peter Ryan was doing in Inside Business and I confirmed with her that Peter Ryan was in an acting capacity. Neheda asked some further questions about that, but I again confirmed that Peter was in an acting capacity in Inside Business, and as I said in my file note, Neheda said Walter had known what was happening and had been much kinder on the phone to her when he'd spoken with her on the Thursday and she thought that the meeting on the Monday, 5 April was to be a heart to heart. She talked about feeling ambushed and I explained that I think he was looking for her to respond to certain matters he was raising. She asked about whether she was being demoted to The 7.30 Report and I reiterated that it was an offer only, and we were seeking to meet with her further about what - other issues she wanted to raise. She asked me what Marco's role was in this. I didn't know what she meant by that, but the only thing Marco had been involved in was about the tape being erased and the subsequent discussion about that, so I said, do you mean that, and I said, possibly Walter may have spoken with Marco about the matter.

**** KATE MARSHALL XN MR SMITH
PN3005

MR SMITH: You don't know whether or not Walter did speak to Marco about that matter?---I don't know. I didn't know then.

PN3006

Sorry, keep going?---Neheda asked me how she could return to the unit, by which she meant Inside Business. I told her I hadn't spoken to any of the other staff but
I - - -

PN3007

Sorry, when she asked you that, what do you mean, could you just explain or elaborate a little more on that?---Well, when Neheda asked me how could she return to Inside Business - - -

PN3008

What do you think she meant by that?---I think she thought it would be difficult - I don't - I'm not sure, I can't say what she meant by that. I think she was feeling some concern about work, back after she'd walked out the previous week.

PN3009

THE COMMISSIONER: Can I just ask one question, you may not know, it might be in your materials. Did that offer that you refer to, to move to The 7.30 Report, become a direction?---It didn't at this point, no.

PN3010

Did it subsequently become a direction?---We actually received Neheda's grievance before it became a direction, but we didn't actually get to that point, no.

PN3011

So there's been no direction for her to move to The 7.30 Report to your knowledge?---There was after that. There was after we got Dr Mutton's report which was much later, yes.

PN3012

MR SMITH: So we were going through?---Yes, going through the 15 April phone conversation. She said it would be - how could she return to the unit, and I said I hadn't spoken with anyone else, but I think it would be quite difficult and I think the staff would be concerned given she'd indicated she might resign and I said it would take - if she were to return, it would take some time to assure Walter and the staff that she could do the job and get her confidence back. Neheda said she did not feel she had any support, and I assured her that when I spoke to Walter around the time of the Luisa matter, he had mentioned to me that she had his support and that he'd just talked with her about staff relations previously. She asked me about the Greg Hoy matter. Basically I said I didn't now about that matter and the details of that, I wasn't involved in that issue and she passed on her views about the relevance of it.

**** KATE MARSHALL XN MR SMITH
PN3013

Sorry, could you just elaborate on that for me?---She said, as per my file note, that the Greg Hoy thing was in the past and other staff had raised concerns about him in the first instance, being Allan Kohler, and that it was - her view was that it was incorrect for Walter to say that Greg had been removed from the program because of her. She said, she brought to my attention that there was an article on Crikey.com saying that she had been removed from the program. I said that that wasn't the case. Walter had also mentioned that article to me and that he was of the view, that she had not been removed from the program. At the end of the conversation I confirmed with Neheda that I wanted her to be calm when she was speaking with Walter about the further matter she had raised, and she seemed quite angry and on that - then she said well, if that's the case, she wouldn't be ready to meet the next week.

PN3014

This is 15 April, you were what, attempting to set up a meeting the following week?---Yes, that's right.

PN3015

That's the thrust of your conversation?---Yes, and that's what she had asked to have happen.

PN3016

That she wanted to have that meeting set up?---Yes, and I'd spoken with Walter about setting up that meeting and arranged with him that she may have other matters that she wanted to raise, and so he'd agreed to make that time available, but then she didn't - she withdrew that request to have a meeting.

PN3017

When did she withdraw that request, was that on the same day or - - - ?---This was on 15 April, she said no, I won't be ready to meet if I have to be calm when speaking with him.

PN3018

What did you do about this issue then?---Then I think Walter emailed - I emailed Walter the file note in this instance on the - - -

PN3019

You advised, yes, sorry?---Yes, I advised him what had happened in my conversation.

PN3020

Identify for the Commission what email you're talking about?---There's an email called Neheda Barakat file note and there's exchange between Walter and myself on 15 and 16 April.

PN3021

THE COMMISSIONER: Yes?---And in reply, well, I said to Walter, please see attached, I hope she considers what we spoke about - - -

**** KATE MARSHALL XN MR SMITH
PN3022

MR SMITH: What was attached, sorry?---The file note of 15 April. Then Walter replied to me thanking me for the note and he said that no meeting had happened between him, Allan Kohler and Marco and he referred to the Greg Hoy - - -

PN3023

So that was an accusation, was it, or a suggestion put that Allan Kohler, Marco Bass and Walter Hamilton had met when?---Around the time of 1 April when she walked out of the program and he said no, we never did. He was responding to the matters that Neheda had raised in her file note. He explained his position about Greg Hoy, that he hadn't blamed her for his departure, but that he'd tried to talk to her about that. She needed to accept - it says that here there were lessons from her about the experience and that there was - the difficult relationship was a factor in his departure and he says at the end of that email, if there's anything more you can do to reassure Neheda that she will be treated with proper consideration, please advise me. I replied to him and saying I don't think there's anything at this stage. I knew she was very angry at that point and I didn't want to exacerbate the situation, and I suggested that he write her a brief email asking her how she was, and clarifying things. I also suggested that I wanted to keep Neheda speaking with Walter and myself and it will lessen a chance for misunderstanding and for the MEAA to persuade her to a path to adversarial discussion.

PN3024

Sorry, can you explain what you mean by that?---Because at that moment I was dealing with a few issues with the MEAA, I should say, Pat O'Donnell, without success, either - I didn't have much confidence in Pat O'Donnell's knowledge about ABC policies, particularly the new grievance and bullying policies. On occasions he'd directed not to speak with Human Resources. We would often have exchanges of letters which were fairly inappropriate, rather than having a conversation to easily resolve something.

PN3025

At this stage was Mr O'Donnell involved in this matter as far as you were
aware?---No, he wasn't at this stage. It was just me saying to Walter, I'd really like her to keep discussing it with us.

PN3026

So what action did you take to try and facilitate that conversation between Walter Hamilton and Neheda Barakat?---So then I later on - well, firstly there was an exchange of emails about the employment agreement and the different provisions under it, but I did try and - I emailed Neheda and rang her again on
26 - 27 April to try and set up another meeting on 28 April because Walter was about to go on leave and I wanted to set that meeting up between the two of them.

**** KATE MARSHALL XN MR SMITH
PN3027

What happened?---Again I think she did not agree to that meeting. If I could
just - I don't have - and I - she didn't agree to having a meeting with Walter and I ended up making another time where I met with her on my own.

PN3028

Did she explain why she didn't want to meet with Walter at that stage?---No, at that point she said she didn't want any further contact with Walter and that she only wanted to speak through me.

PN3029

So you were still maintaining conversations with her?---Yes, I was still trying to encourage her to speak with Walter directly to put her point of view over about all the events and that's what Walter had agreed to do at that time.

PN3030

In your experience is it possible to mediate a resolution of these sorts of issues by acting as an intermediary going from - - - ?---No, it's very difficult, so she - given her seniority and the fact that hopefully her objective was to assure Walter that she was capable and confident of leading Inside Business and that she was in a managerial role, I particularly thought it important that she speak with Walter directly about it and Walter was making a number of times available for that to happen and it was becoming increasingly difficult to persuade him that this could be a method of resolution and that she had something further to contribute.

PN3031

At this point, we're some, what, four weeks down the path, a bit less,
perhaps?---Yes.

PN3032

Were you - - -

PN3033

THE COMMISSIONER: I'm sorry to interrupt. I wanted to understand your answer there. Did you say that if there was to be a resumption to Inside Business there'd have to be a meeting directly between the parties?---Yes. I wanted
her - she was basically saying she had some concerns that she needed to raise with him. She didn't feel that the meeting she had with Walter achieved that.

PN3034

On the 5th?---On the 5th, and I was trying to set up another time where she could speak with him about any of the matters she wanted to raise and so that he could discuss with her any of his concerns.

PN3035

Was Mr Hamilton of the view at that stage to your knowledge that she could return to Inside Business?---He didn't talk with me about whether - well, he talked with me that the position was still an acting one, of Peter Ryan, that this was a temporary arrangement, that he would be meeting with her to hear what she had to say, yes.

**** KATE MARSHALL XN MR SMITH
PN3036

I see, all right, thank you. Sorry, Mr Smith.

PN3037

MR SMITH: That's all right, Commissioner, I think it's an important point to establish. So we're at the of April, I think you say you were setting up a - you yourself set up a meeting with Neheda?---Yes, I did.

PN3038

When was that?---That was on 5 May.

PN3039

Okay and - - - ?---And I - yes.

PN3040

What was the nature of that conversation with Ms Barakat?---I wanted to have that meeting with Neheda. Walter was on leave at that time so he couldn't meet with her, but again I was trying to encourage her to speak with Walter directly about everything that happened and also just to see how she was and to hopefully resolve it and I wrote a file note after that discussion and I should note that the date on the bottom is incorrect, that it should be 13 May that I signed off that - completed that file note, so, yes.

PN3041

Typos apparently do happen, Ms Marshall?---Yes.

PN3042

Sorry, what was the date of that?---The actual meeting was on 5 May.

PN3043

5 May?---Yes.

PN3044

That file note is an accurate representation of your conversation?---Yes.

PN3045

Can I ask you to take the Commission through that conversation, particularly about what advice you were giving Ms Barakat about how to move forward or how to resolve this issue?---Yes. As it says in the file note, we talked about, she advised me she was still unwell and she provided another medical certificate. I said I wanted to talk to her as I wanted to encourage her to talk to Walter directly before he makes any further decisions about the program, and that she would need to talk to him about any other context that she felt was important about her leaving or anything else she wanted to raise. I said Walter had made an offer for her to move to The 7.30 Report. She then queried whether that was the case, why were people told she was leaving. I said that wasn't - I said Walter was still seeking to discuss it with her and how to move it forward and I told her that the door was still open for her to have those discussions.

**** KATE MARSHALL XN MR SMITH
PN3046

THE COMMISSIONER: Was it your understanding it was still open to her to have discussions and go back to the Inside Business?---Yes, on 5 May, yes.

PN3047

On 5 May?---Yes. Yes.

PN3048

All right, thank you?---And that was - I discussed with Walter what we would talk about before I had this meeting with Neheda and that was what we'd arranged.

PN3049

MR SMITH: Can you elaborate on your conversations? What I'm trying to establish for the Commission is what steps were taken in an attempt to resolve this matter at that time, one way or another, how was it going to - - - ?---I had spoken with Walter on a number of occasions about that Neheda had further things to say which she had discussed with me, that I thought it was important that he hear what those things were. He made some time available to meet with her on two occasions. She didn't end up meeting - wanting to meet with him. He said we then arranged that I would go - because he was going on leave, that it was still important to try and progress it and he wanted to make sure that the program was still going and that he would need to make some decisions about that in the future. I said that I would ask her again to meet with him directly. I said that I would show her clause 19.3 because we were having separate discussions about whether we could use that clause, but we hadn't reached that point yet. Just make her aware of the meaning of that clause which I did in this meeting, but I - yes, so that was what I was doing on 5 May.

PN3050

Was it your understanding at that stage that Mr Hamilton was still open and receptive to having that conversation and hadn't shut the door on Ms Barakat returning?---Yes, and that is what she had asked, that's what she wanted to have happen. She was obviously concerned. I was relaying her concerns back to Walter. Walter was agreeing that he would meet with her, so they could further just talk about everything that had happened. So that's - mm.

PN3051

At this time were you, based on your experience and the nature of these various conversations, were you of the opinion that there was still a chance that this matter may be resolved through that conversation, through your mediation?---Yes, definitely. I thought if Neheda could explain and perhaps there was things that I didn't know about and that she wanted to speak with Walter directly, that Walter had given me a commitment that he would listen to what - you know, talk to her further about all of these matters and that he wanted to meet with her to discuss it.

PN3052

Ms Barakat, what were the reasons that she gave you for not meeting with Mr Hamilton?---Well, the first time I raised with her that she needed to be calm to have that conversation because I thought that would put her in a better position to be - build Walter's confidence in her and she said she would need to put off the meeting, and the second time she - by that stage she said she didn't want to talk with Walter and she only wanted to speak with me which is why I arranged to have the meeting with her by myself.

**** KATE MARSHALL XN MR SMITH
PN3053

Did you have in mind any plan for advancing this matter?---What I'd hoped was that after this meeting that she would then agree to meet with Walter with a representative present and a mediator, whether that be myself or someone external, and that they could then have a discussion about all the things that she wanted to raise and his concerns about the program.

PN3054

Now, in the event, that meeting didn't happen?---No, it didn't. I talked through all the items I've mentioned there in the file note and Walter came back from leave. He asked me what the next steps were.

PN3055

Is this around the same time, around 14 and 15 May, or where are we?---Yes, this is 14 May.

PN3056

Now, what action or what arrangements did you reach with Mr Hamilton on this matter?---He was - I advised him - well, firstly I emailed Neheda the clause, the 19.3 clause which I said I would, and I told her that, I'm hoping when he returned from leave, you will discuss with him any matters or contexts about Inside Business and that she was also to think about what would assist her to return to work and whether in her view, what she wanted was to return to Inside Business or whether there was any other opportunities. I then emailed Walter the file note of my conversation, the clause below and I've said I'm afraid the meeting I had with Neheda did not move it forward much. Walter asked for clarification about sick leave and what her sick leave balance was. He asked about what scope does he have to act under clause 19.3 immediately and that he wanted to have a meeting with her before she undertakes any other ABC activities. He also wanted her to attend a management training course that was happening in Sydney.

PN3057

Sorry, can you just elaborate on that last point. What was Mr Hamilton seeking to achieve there?---He was seeking to return her to work and because there was a Frontline management training course in Sydney, he thought she could go and do that and have a meeting with him about all the matters that we were talking about.

PN3058

Was that option put to Ms Barakat?---I'm not sure if she was contacted about that. I think I suggested that - I don't have that - I'm not sure if she was contacted about the management course, no.

PN3059

What happened next? Before you answer that, at this stage is it still your understanding that the ABC hadn't taken formal action under clause 19.3 to transfer Ms Barakat?---No, we had not taken action under clause 19.3.

PN3060

Were you still hopeful that the matter may be resolved?---Yes, yes.

**** KATE MARSHALL XN MR SMITH
PN3061

So what happened next?---What happened next? Shortly after that Neheda, on 16 May, emailed me a letter which stated she wanted to lodge a personal grievance against Marco Bass, Graham Nicholas and Walter Hamilton, that was her email of Sunday, 16 May.

PN3062

That's in that bundle of documents?---Yes, it is.

PN3063

What was your response to that?---I wrote back to her on 17 May which - sorry, I'll get my email - my papers have gotten out of order.

PN3064

That would be an email from you dated 17 May?---It doesn't seem to be here. Have you got a spare copy?

PN3065

I'm sorry, Commissioner, I understood that was included in the bundle of documents, but it may not have been. This is an email from Ms Marshall. I only have the one copy.

PN3066

THE COMMISSIONER: We'll copy it during lunch.

PN3067

MR SMITH: If we can just check that this is indeed the email?

PN3068

THE COMMISSIONER: Sure.

PN3069

MR SMITH: If you could just pass that to the witness, please?---No, that's not it. It's an email from me to Neheda and it attached the personal grievance policy that we were under at that time.

PN3070

So this was an email that you sent - I may not have it, but I'll check over lunch break, Commissioner, but I think the issue at hand here is that this is where you forwarded to Ms Barakat the - - - ?---Yes, the personal grievance policy.

PN3071

You describe it as - - - ?---And I described what the process was and I refer - said that I would need to pass it over to Hanan Gamali, my manager, the state HR Manager, yes.

PN3072

You mentioned that it was the old grievance policy?---Yes.

PN3073

What do you mean by that?---We have a previous grievance policy, it was revised shortly after that. The old personal grievance policy still had the same steps of informal resolution, mediation, adjudication of issues. In that email I advised Neheda that it was shortly about to change, but in essence the two grievance policies contained the same steps, so the matter could still be progressed, yes.

**** KATE MARSHALL XN MR SMITH
PN3074

When did the new grievance policy come into force?---It was about 25 May and I'd actually tried to call her at that time. On 26 and 27 May we'd called each other and then my follow up call on 28 May, she did not return. So I then sent her all the new personal grievance policy information, the - - -

PN3075

So approximately, what, a week and a half, two weeks later you sent her the
new - - - ?---Yes, when it was released.

PN3076

- - - policy?---Yes.

PN3077

Had you advised Ms Barakat how to progress a grievance under the grievance policy?---Yes, I told her that her contact would be Hanan Gamali and that she would need to speak to her further about it. Later, I think it was - I needed to phone her about the - her medical certificates because I was passing them on to the rosterer. Neheda said she was still working on the grievance. I told her she only needed to put short dot points. She didn't need to have an extensive written grievance because Hanan could talk to her further about that and, yes, so I - - -

PN3078

Are you aware when the grievance was actually lodged?---I think she provided it in writing to Hanan on 15 June.

PN3079

Do you have any further contact with Neheda during that period of time?---Not after 15 June, no, I did not, until we're in the Commission - well, I didn't - conciliation.

PN3080

Are you aware what happened with her grievance when it was lodged?---Hanan went to meet with her further to talk about the policy and she was - Hanan was again seeking to, as our personal grievance policy states, that matters should hopefully be informally resolved and Hanan had asked her to meet further with Walter about it, to which she later advised that she didn't want to. I believe at that time Hanan was quite hopeful that Neheda would meet with Walter and that she thought that that was the direction that she was heading and she arranged for Neheda to have further counselling sessions with Corp Psych to help her with that meeting with Walter.

PN3081

Corp Psych being the assistance program, at that time?---Yes, that's right. And then when Neheda advised Hanan that she didn't want to meet with Walter, Hanan then sent her a letter advising of the next steps.

PN3082

Did you have any discussions with Hanan Gamali, the state HR Manager, about the management of this case?---I'd given her my entire file and we did talk about the steps all the way through. I actually went on leave for a period in June so I didn't talk with her then about it. She did show me the letter which she'd sent to Neheda about how she wanted to progress it and I raised with Hanan that I'd previously told Neheda that I wouldn't be investigating the matter because I'd been involved with the Luisa Saccotelli incident. Hanan told me that the expectation was that it would be resolved at a local level and that's why she'd put me down as investigating it further.

**** KATE MARSHALL XN MR SMITH
PN3083

To your knowledge was the matter still capable of resolution at the local level in your opinion at that time?---Possibly it was - I hadn't been speaking with Walter during that time and, you know, it was increasingly difficult because Neheda had refused to meet with Walter on a number of occasions, so I wasn't - I wouldn't have been able to assess that until I'd spoken with all the people further.

PN3084

So you're not aware, or were you aware whether the door had been shut to Ms Barakat returning?---To Inside Business?

PN3085

Yes?---There hadn't been any formal arrangements put in place with another permanent Inside Business person. I'd had an exchange of emails previously about the meaning of 19.3 which we had some initial advice, and we were trying to meet with Neheda to see if we were going to progress down that path. But the personal grievance was lodged, so that halted all that, and there was no direction for her to return into another position until much later.

PN3086

THE COMMISSIONER: When was that, do you recall?---The direction for her to return to The 7.30 Report?

PN3087

Yes?---That - - -

PN3088

There's a letter somewhere, isn't there?---Yes.

PN3089

MR SMITH: I wrote a letter, Commissioner, it was - if you just bear with me, I'll - - -

PN3090

THE COMMISSIONER: Is it in the materials?

PN3091

MR SMITH: Yes, it is in the materials, Commissioner, I understand?---It's not in this chronology. It was after - it must have been in August some time.

PN3092

MS CONNOR: 11 August, Hanan Gamali.

PN3093

THE WITNESS: Yes, that's the one.

PN3094

MS CONNOR: Return to work.

PN3095

THE WITNESS: Yes.

**** KATE MARSHALL XN MR SMITH
PN3096

THE COMMISSIONER: Was that Hanan, was it?---Yes.

PN3097

All right.

PN3098

MR SMITH: Have you had any further dealings with this matter?---Apart from being here, no.

PN3099

Did you speak to Mr Gary Crane with respect to the investigation?---Yes, I participated in the investigation. He just asked me to tell him everything that had happened. I provided him with all my notes and I went through the sequence of events and my involvement I them and all the conversations that I'd had with Neheda and other people about it.

PN3100

Is there anything further that you feel you need to add to this matter before I hand you over to Mr Ryan?---No. The only thing I need talk about was the exchange of emails between myself, Luke Caruso and Walter about the interpretation of the employment agreement, but I'm sure he may ask me about that.

PN3101

He may well. Commissioner, subject to anything that Mr Ryan has to say, obviously, I have no further questions of Ms Marshall.

PN3102

THE COMMISSIONER: Thank you. I'm not going to hand you over just yet, we're going to adjourn for lunch and we'll resume at 2.15.

<LUNCHEON ADJOURNMENT [12.47PM]
<RESUMED [2.17PM]

PN3103

THE COMMISSIONER: Yes, Mr Smith?

PN3104

MR SMITH: Commissioner, during the examination-in-chief this morning there were a couple of documents that I understood to have been in that bundle that we found were not. I would just like to tender those.

PN3105

THE COMMISSIONER: Thank you.

PN3106

MR SMITH: Just for completeness.

PN3107

THE COMMISSIONER: Did you want those in the bundle of ABC4?

PN3108

MR SMITH: Yes, I think so, they should go in, in chronological order, I do apologise for that.

**** KATE MARSHALL XN MR SMITH
PN3109

THE COMMISSIONER: That's all right. Thank you. All right.

PN3110

MS CONNOR: Commissioner, I'm going to be doing the cross-examination of this witness, thank you.

PN3111

THE COMMISSIONER: Yes, thank you, Ms Connor.

<CROSS-EXAMINATION BY MS CONNOR [2.18PM]

PN3112

MS CONNOR: Ms Marshall, could I take you to the document, Chronology of events, which is the ABCs version of what happened when?---Yes.

PN3113

I'd just like to correct a couple of things that are in that. On 5 April, there's two entries for 5 April. The first is an entry that says email from Neheda Barakat to Kate Marshall at 11.03 hours?---Mm.

PN3114

Can you confirm that that was actually 11.03 pm?

PN3115

THE COMMISSIONER: This is in the - - - ?---11.03 pm, yes.

PN3116

MS CONNOR: So where it is in the actual chronology, is actually in the wrong order, isn't it, because it does seem to give people the impression that she'd told you she was sick before the meeting with Mr Hamilton?---No. She - yes, so if you want to correct that.

PN3117

THE COMMISSIONER: 23.03?---Yes. It was after the meeting with Walter Hamilton, yes.

PN3118

MS CONNOR: So perhaps the sick certificate was related to what had happened at the meeting?---Yes.

PN3119

Are you aware that Mr Hamilton actually met with Mr Bass before he attended the meeting with Ms Barakat?---No, I'm not aware of a meeting.

PN3120

But you are aware that Mr Hamilton refused to discuss the issues that Ms Barakat had raised with him about her grievances with Mr Bass?---In the meeting that they had on 5 April earlier that day, Walter Hamilton had asked me to be present at that meeting because he wanted a separate person there if those matters were to be discussed. Because the meeting was off site I wasn't available to talk about those - to attend the meeting and so he didn't go into the matters about Mr Bass at that time.

**** KATE MARSHALL XXN MS CONNOR
PN3121

This was despite her written request to him to ask him to discuss those matters with her?---Yes, and he'd - because she'd made that request Walter arranged with me that I'd be present and available to join them at the meeting, but because the meeting moved off site I couldn't come and join them at that moment so he didn't discuss it further with her. He raised his concerns, other concerns with her.

PN3122

Turning the page now, we've got 6 April, email. The next entry is 8 April, email from Walter Hamilton?---Mm.

PN3123

Was that to you?---Yes, it was to me and - yes, "Neheda has not been in touch with me as she agreed she would, I've left a message on her phone," that email.

PN3124

Did Mr Walter Hamilton alert that fact to you at any time?---I think after that time Neheda then sent an email on 13 April - - -

PN3125

Are you aware that Ms Barakat actually emailed Mr Hamilton on 7 April?---No, I'm not.

PN3126

So Mr Hamilton didn't bother to correct that - alert you to that fact?---I'm not aware of that 7 April email.

PN3127

I'll just read it to you.

PN3128

THE COMMISSIONER: Is it in the documentation that I have?

PN3129

MS CONNOR: I think it is, Commissioner. It's in our documents that we handed up to you. Yes, sorry, Commissioner, it's not the first email, it's not the second email, it's not the third - - -

PN3130

THE COMMISSIONER: Behind which tab, I'm sorry?

PN3131

MS CONNOR: It's the green tab and it's the fourth email and it's MSN Hotmail Message up the top of it.

PN3132

THE COMMISSIONER: Yes, that's one of two pages, isn't it?

PN3133

MS CONNOR: It's just one single page, Commissioner.

PN3134

THE COMMISSIONER: I see.

**** KATE MARSHALL XXN MS CONNOR
PN3135

MR SMITH: Sorry, which email is that, I'm just trying to - - -

PN3136

THE COMMISSIONER: Yes. Do you want to show that to the witness, Ms Connor?

PN3137

MS CONNOR: Yes, thanks, Commissioner?---Okay.

PN3138

Would you like to read the email?---Read Neheda's email aloud?

PN3139

No, no, I'm just wanting you to read it?---Yes, I've read it.

PN3140

The next document is actually from Mr Hamilton to Neheda dated 8 April?---Mm.

PN3141

Saying, I did receive your email. Can you explain why Mr Hamilton advised you that she hadn't been in contact with him?---I don't know. I'm not - I don't know what happened there.

PN3142

Now, I'd like to actually go to the personal grievance policy and the bullying policy. Have you got a copy of this?---No, not here. Okay.

PN3143

Have you got both of them?---Yes.

PN3144

Let's look at the anti-bullying policy first, okay?---Mm.

PN3145

I'm going to page 1 of 6 and I'm going to line 30?---Mm.

PN3146

Okay, which is the definition of bullying which I'll just read out to you:

PN3147

Workplace bullying is repeated unreasonable behaviour directed towards a workplace participant or group of workplace participants that has the potential to put their health, safety or welfare at risk. This includes physical and psychological wellbeing.

PN3148

Yes? And then I'd also like you to have a look at the next page over, dot point 40?---Mm.

PN3149

Generally for the conduct to constitute bullying it must be repeated, and one I think would not normally constitute bullying. There is no requirement that the person deliberately or intentionally bullied the person, however the intention may be relevant in assessing the level and severity.

**** KATE MARSHALL XXN MS CONNOR
PN3150

And then the next line down:

PN3151

Bullying may include treating one person or group of people less favourably than others.

PN3152

Then I'd just like you to actually turn now to page 3 and I'd just like to point out four definitions here to you because I'm going to ask you some questions about Ms Barakat's grievances:

PN3153

Examples of bullying -

PN3154

and I've got fourth dot point:

PN3155

Abusive or intimidating phone calls, emails, et cetera.

PN3156

Next dot point:

PN3157

Ignoring, isolating or alienating workplace participants.

PN3158

The next dot point:

PN3159

Deliberately sabotaging or impeding someone's ability to perform his or her role.

PN3160

And the next dot point:

PN3161

Deliberately withholding information that is vital to effective work performance.

PN3162

Ms Marshall, you're aware, very aware, I'm sure, of Ms Barakat's grievances concerning Mr Bass and Mr Nicholas?---I've read them, yes.

PN3163

Do you believe that those instances may, by a reasonable person, actually be comprehended in these four dot points?---I didn't investigate or speak to all the people involved which is what I would normally do if I was looking at a bullying case. Of the examples that I can recall, of which I did read some months ago, there was one comment from Graham Nicholas which I thought was inappropriate, but all the other examples I did not think fitted these definitions.

PN3164

Would you think, for example, if Mr Nicholas had not discussed the budget with the executive producer of a program and just submitted the budget upwards without any reference to the executive producer, would you consider that to be - that that wouldn't be normal behaviour for that person's job?---I'm not sure of how news and current affairs manage their budgets and what the normal interaction is expected from EPs. I don't know if - I don't know how they normally operate, if that was a normal practice for him to do. I would have to speak with him about it. I didn't, you know - - -

**** KATE MARSHALL XXN MS CONNOR
PN3165

It's in Ms Barakat's job description that she's responsible for the budget. If that's in someone's job description, an executive producer's job description, would you then expect people to talk to her about that budget before it is submitted?

PN3166

MR SMITH: Commissioner, I'm sorry, I'm kind of reluctant to interject, but I'm just not quite sure that it's of much use asking Ms Marshall, who didn't investigate these particular incidents, hypothetically what may or may not have occurred and what may or may not be the policy within the news and current affairs department.

PN3167

THE COMMISSIONER: Ms Connor, what do you say about that?

PN3168

MS CONNOR: Well, what I'm trying to get a handle on is what the HR department does actually, you know, see as constituting bullying and the steps that they would then take to remedy that.

PN3169

THE COMMISSIONER: Mr Smith?

PN3170

MR SMITH: Well, I think it's reasonable to have directed us to the anti bullying policy, which was developed by HR. That constitutes the sorts of behaviour. I think it is reasonable to ask that question of somebody who has investigated a particular instance of bullying, or allegation, sorry, of bullying as to whether or not the conduct - and Ms Marshall has indicated she didn't conduct that investigation - - -

PN3171

THE COMMISSIONER: No, the question is whether Ms Marshall is competent to answer the question, not whether she conducted the information, whether or not she's competent to answer a question about bullying given her position as a HR person.

PN3172

THE SENIOR DEPUTY PRESIDENT: Well, if that's the question, then I guess she could be asked that and she can answer it, whether she thinks she is or not.

PN3173

THE COMMISSIONER: All right, thank you.

PN3174

MS CONNOR: Ms Marshall, have you had a lot of experience of handling bullying matters, or allegations or grievances?---Well, in my previous organisation we did have a lot of issues around bullying, what was and wasn't bullying. We'd also undertaken a similar process as the ABC of rolling out training regarding bullying. I myself was - yes, so I have dealt with these issues before and I've also dealt with these issues in the ABC before in my time here, so.

**** KATE MARSHALL XXN MS CONNOR
PN3175

So, for example, if there were allegations of one manager involving himself in the operations of another manager's area of work?---Yes.

PN3176

With no clear line between them, would that constitute bullying under this definition?---Well, what I would do is ask if the complainant felt that that constituted bullying. I would speak to the manager to see if that was an appropriate area within their control. You would make an assessment about whether they were deliberately trying to sabotage or impede someone's work, if they were overstepping their lines or parameters. Perhaps if it happened repeatedly after it was agreed that that wasn't to continue happening, you might see that that was starting to be bullying, if it was inappropriate and then asked them to be stopped, or it could be a miscommunication. It would depend on what it was.

PN3177

I just want to take you to line 90 which says:

PN3178

If someone feels they are being bullied at work they should not ignore it.

PN3179

Then, as I understand it, the anti bullying policy then sort of basically refers to the personal grievance, it says if you believe you've been bullied or intimidated or interfered with in any such ways, then go to the grievance policy?---Mm.

PN3180

I'd now like to take you to the grievance policy. I'd like to take you to page 1 of the policy and I'd like you to go to the dot points which is where you:

The objective of this policy is to provide guidelines for resolving grievances.
that apply equally to all employees.

PN3181

right?---Mm.

PN3182

Encourage employees to come forward with personal grievances -

PN3183

okay? What I'd like to - sorry, and then on the next set of dot points:

PN3184

When to use this personal grievance procedure.

PN3185

?---Mm.

PN3186

It says here:

PN3187

The grievance can relate to almost any aspect of employment, for example -

PN3188

and I'm interested in the two dot points:

PN3189

interpersonal conflicts or difficulties

PN3190

?---Mm.

PN3191

and

PN3192

bullying

PN3193

?---Mm.

**** KATE MARSHALL XXN MS CONNOR
PN3194

It then says that:

PN3195

This policy should be used whenever an employee has a grievance at work

PN3196

?---Mm.

PN3197

All right. It then spells out grievances that shouldn't be pursued under this personal grievance?---Yes.

PN3198

And we're not up to the steps that are involved in it. I'd like to take you to page
2, step 1?---Yes.

PN3199

It says:

PN3200

If an employee feels comfortable doing so, then they should approach the person.

PN3201

?---Mm.

PN3202

In this instance, would you understand that Ms Barakat was not comfortable to approach Mr Bass on these issues?---When I spoke to her after the mediation with Luisa, I did suggest that she speak directly with Marco. She said to me, "I don't know if I feel comfortable doing that." And then I suggested that she do an email and at that point she was going to think about what she wanted to do, so I didn't hear back about that.

PN3203

So that takes us to step 2, right?---Mm.

PN3204

Which is the next step:

PN3205

If you don't feel comfortable talking directly to the person -

PN3206

The next step is to raise the grievance with management?---Mm.

PN3207

Are you aware that Ms Barakat emailed Mr Hamilton not long after your meeting with her and did exactly that? She instigated step 2, are you aware of that?---Yes, she said that - yes, I'm aware of that.

**** KATE MARSHALL XXN MS CONNOR
PN3208

You indeed actually saw that email, didn't you?---I think, yes, she forwarded it to me, yes.

PN3209

And I think Mr Hamilton might have forwarded it to you as well?---Yes, I saw it anyway.

PN3210

Who does it say that she should raise her grievance with?---Well, we give people a few contacts, the state HR manager, a grievance contact officer, manager/supervisor, their manager's manager.

PN3211

So Ms Barakat was correct in following the policy to actually email to Mr Hamilton and ask him if he could discuss these matters with her?---Mm.

PN3212

Are you aware of what Mr Hamilton's response was at that point in time?---He emailed me and asked me to be available for that meeting and later we spoke about that he wanted, if matters were to go there, he wanted to have somebody else present.

PN3213

When did he email you to that effect?---On the 1st - no, hang on, 1 April at 5.40.

PN3214

So on Friday 26 March, Ms Barakat emailed Mr Hamilton confirming her - about her concerns with Mr Bass's interference with her program, okay?---I think - yes. I think they spoke on the phone, though, that day and that she'd said - mentioned something about Mr Bass on that day and he'd emailed me to ask me to be there for that meeting, so I could be available.

PN3215

On the 1 April?---Yes.

PN3216

But let's just go back to the personal grievance policy, Ms Barakat's conduct of her behaviour in seeking to raise these with her manager?---Mm.

PN3217

Okay. Let's go to the bit in the grievance policy where it says:

PN3218

While the ABC does not require a written grievance, the employees may wish to provide details of their grievance in writing.

PN3219

So Ms Barakat was, you know, within the policy to have emailed him on those matters, alerted him to the issues and asked him to meet with her?---Mm.

PN3220

THE COMMISSIONER: Was that a yes?---Sorry. I'm just wondering if this policy was actually in place at the time of April, or whether it was the old - - -

**** KATE MARSHALL XXN MS CONNOR
PN3221

MS CONNOR: Ms Marshall, this is the policy that you gave her and you told her to progress - - - ?---No, I gave her the old - yes.

PN3222

MR SMITH: I'm sorry, Commissioner, the witness is trying to clarify just which policy we're looking at so we need to maybe just review the time line on
that?---The dates.

PN3223

I beg your indulgence.

PN3224

MS CONNOR: Well, Ms Marshall, can I ask you this, is this personal grievance policy in its steps significantly different from the earlier personal grievance
policy?---The earlier personal grievance policy isn't as prescriptive as this one. It does talk about the same principles, about mediation and things like that and how to raise grievances. But anyway - - -

PN3225

Are the informal grievance procedures similar?---Similar, yes, yes, okay.

PN3226

The policy goes on to state that:

PN3227

Wherever practicable within five working days of a personal grievance being raised with them, the person handling the grievance will conduct an initial meeting with the employee concerned.

PN3228

?---I don't think that was in - - -

PN3229

THE COMMISSIONER: Well, this gives rise to the earlier question, whether or not that was the policy in place at the time?---I don't think - yes.

PN3230

MR SMITH: I'm just having a look to see whether we've got a copy, Commissioner.

PN3231

MS CONNOR: What was it called? Commissioner, can I just take one minute? I may actually have the earlier one.

PN3232

THE COMMISSIONER: Sure. Look, we'll adjourn for five minutes to see if you can put your hand on that. I'll adjourn briefly.

<SHORT ADJOURNMENT [2.39PM]
<RESUMED [2.52PM]

PN3233

THE COMMISSIONER: Now, have we got the right one?

PN3234

MS CONNOR: Commissioner, I don't actually think I really need to refer back to that one. There is some confusion about which policy may have been in place at the time, but I'm happy to go with the policy that I think the ABCs - - - ?---Yes, it was definitely the three page one, at that time.

PN3235

Let's just, what I want to talk to you about is, Ms Barakat - what I want to put to you is this. Ms Barakat approached her manager in accordance with the
policy?---Yes.

PN3236

With her concerns that she was being - that Marco Bass was unfairly interfering in her program?---Yes.

PN3237

Okay. As a HR manager, what advice would you give to a manager if they had received a grievance like that?---You would need to get the details of what Neheda was talking about.

**** KATE MARSHALL XXN MS CONNOR
PN3238

So what would be the first step that you'd recommend to a manager?---You would be speaking with the employee about the detail of what needed to be discussed.

PN3239

Right, okay. Yet when - and you also said that after the - I think you'd spoken to Neheda perhaps on the 26th or, you know, a bit after that?---Yes, I spoke - sorry, which date?

PN3240

Well, I'm referring to the email correspondence between Ms Barakat and Mr Hamilton and you said that you'd spoken to Ms Barakat and she'd said that she'd received a very supportive email from Mr Hamilton?---Yes.

PN3241

And that's why she was feeling quite good about it?---Mm.

PN3242

Are you aware that in that email Mr Hamilton says to her, he responds to her issues, you've seen this email, haven't you?---Mm.

PN3243

At the end of it he says:

PN3244

I may be coming through Melbourne next week, so if that happens, we can sit down together.

PN3245

?---Mm.

PN3246

So that's the sort of recommendation or advice you would give to a manager once a grievance has been informally raised with him?---Well, yes, he wanted to talk to her, I know that.

PN3247

Where in the grievance policy then does it actually say that that meeting that - that you would have to attend that meeting?---It isn't specific. I think Walter just thought it was appropriate that I attend that meeting if Marco was going to be discussed. That's how he suggested we handle it.

PN3248

In the policy it says to your employees, raise it with your manager?---Often HR would be in discussions with the employee and the manager through the process, that's our function.

PN3249

The policy says if you can't raise the matter with the person itself, you should raise the issue with your manager, correct?---Yes, and the manager's quite free to discuss with HR what to do, ask us to the meeting. Sometimes we would meet with the employee prior to the meeting with their manager.

**** KATE MARSHALL XXN MS CONNOR
PN3250

Is there anything in the policy says if HR can't come to the meeting where you discuss the employee's grievance, then that meeting shall not take place?---I think there was subsequent things that happened that Walter felt he needed to raise with Neheda other than just her feelings about Marco.

PN3251

Which he did raise in the meeting on 5 April?---Yes, yes.

PN3252

Okay, but he didn't raise her concerns about Marco?---As I've spoken about previously I was - Neheda talked to me about some of her concerns, I approached Walter and said we need to speak to her again and we attempted to meet with her on a number of occasions to get that issue out on the table.

PN3253

Ms Marshall, Ms Barakat thought on 5 April that she was attending a meeting with her manager to talk about her problems or difficulties or however you want to put it with Mr Bass and that did not happen, did it, Ms Marshall?---I wasn't at that meeting, so I - - -

PN3254

Well, did Mr Hamilton - you said earlier in your evidence that Mr Hamilton said he only dealt with the issues to do with her work performance?---I know he had a number of things to talk to her about. I know I was supposed to be available if the conversation turned to discussions about Marco because he wanted to have someone else there. The meeting was moved off site.

PN3255

Why did Mr Hamilton feel he needed someone else there if - - - ?---You'll have
to - - -

PN3256

MR SMITH: Sorry, Commissioner, the question seems to be going to what's going on inside Mr Hamilton's head.

PN3257

MS CONNOR: No, it's not. Commissioner, I'm interested in a series of discussions that Ms Marshall had with Mr Hamilton in which they've discussed the meeting and what will and won't be talked about it, and then a de-brief that happened afterwards?---Okay.

PN3258

THE COMMISSIONER: Well, then you'll have to be careful about how you ask the question because you can't ask this witness to say what Mr Hamilton thought.

**** KATE MARSHALL XXN MS CONNOR
PN3259

MS CONNOR: What did Mr Hamilton say to you?---Okay. Prior to when he met with her I did not speak to him about the meeting he was having with her. I just got the email saying can you make yourself available. After the meeting - - -

PN3260

Sorry, when did you tell Mr Hamilton that you couldn't make yourself available for the meeting?---I was available. The only - and I rang down to news and current affairs to say what's happening and I was told the meeting's been moved off site. So I couldn't go, because I wasn't in the same building. I couldn't go and be there quickly.

PN3261

So Mr Hamilton chose to not take you to the meeting?---Well, no, I didn't get a - I don't know. I think he wasn't expecting to be meeting where he was either.

PN3262

But at the Sebel, which is the hotel in which he stays when he comes to Melbourne?---Yes.

PN3263

Which is, I think, what, a block away from the ABC?---I don't know where it is.

PN3264

I think it is about a block away from the ABC. Talk to me about what you and Mr Hamilton said after the meeting?---After the meeting I didn't - I went down and I can't - honestly can't recall how I found out that Neheda wasn't - he talked to her about not being on the program with Inside Business, because I spoke with my manager, I do recall speaking to Hanan Gamali about it and we looked in her file and it showed that she'd been promoted from The 7.30 Report into Inside Business. That's when I went down to speak to Walter Hamilton about what had happened and what he was discussing on that day. He was writing a file note about that. That's when I raised with him my concerns about the process and also about how we needed to clarify the clauses and I suggested to him that he make the - in The 7.30 Report an offer only for her to consider all the events that had happened.

PN3265

So in the meeting it wasn't an offer only, was it, in the meeting?---As I said I wasn't in that meeting, I don't know - - -

PN3266

What was the discussion you had with Mr Hamilton that led you to give him that advice?---He - - -

PN3267

Don't move her, make it an offer?---As I said I wasn't - I talked about the distinction between promotion, different clauses in the employment agreement. Is said if we're going to have a dispute or something about this, I was aware of the Lobez decision where the Commission had looked at how the clauses interacted together and for that reason I suggested he make it an offer and not just, you know, compulsorily transfer her.

**** KATE MARSHALL XXN MS CONNOR
PN3268

So you believed that he was compulsorily transferring her and that's why you suggested it would be an offer?---He did say that he was looking at moving her to 7.30 Report, yes.

PN3269

Ms Marshall, did you tell Ms Barakat about that discussion you'd had with Mr Hamilton?---Repeatedly through my discussions with her she asked me for some clarification about her role, whether Peter Ryan was acting or not, what was her status. I confirmed to her on a number of occasions that the door was still open, that it was an offer only, that Peter Ryan was acting and that, no, she hadn't been removed from the program, that the Crikey.com article was incorrect, I said all those things.

PN3270

What, no, she hadn't been removed from the program, but in fact you knew yourself that she had been removed from the program?---No, I'd asked Walter to make an offer which he did, so she had - and it had a deadline - - -

PN3271

So you suggested to Walter that he change his line between him having the meeting in the morning and removing her from the Inside Business program, you've discussed with him that afternoon, don't put it like that, let's make it an offer?---I suggested to him to make her an offer and that we would need to meet with her further, yes, I did do that.

PN3272

Okay, and is there anything else in the email that he sent to Ms Barakat that you assisted Mr Hamilton in writing?---Which emails is it?

PN3273

THE COMMISSIONER: Which email?

PN3274

MS CONNOR: Sorry, that's the email to Walter Hamilton dated April 5 - - -

PN3275

THE COMMISSIONER: Email to Ms Barakat dated the 5th?

PN3276

MS CONNOR: To Ms Barakat where Mr Hamilton says this is the substance of what I discussed with you at the meeting.

PN3277

THE COMMISSIONER: Yes?---I don't have that email here, no. No, I didn't. I didn't draft the email, I didn't talk about - - -

PN3278

MS CONNOR: You just talk about it being an offer?---I had the verbal conversation with him about making an offer, that's what I've discussed.

**** KATE MARSHALL XXN MS CONNOR
PN3279

So there's nothing else in there about it. Can you just have a look at that
email?---And also I suggested that he have a timeline for her to respond by.

PN3280

So on the one hand you were advising Ms Barakat about how she might be able to progress her matters and on the other hand you're advising Mr Hamilton on exactly the same issue?---What had - he'd already had the meeting. I didn't know what matters he was going to raise with her in that meeting. I suggested that he make an offer with a time line. Meanwhile, Neheda had raised some of her concerns with me. I was, if you like, trying to facilitate a discussion between the two of them. I was assuring her that he did want to speak with her, that
nothing - - -

PN3281

So you're assuring her - - -

PN3282

THE COMMISSIONER: Let her finish?---That he did want to speak with her, that it was an opportunity for her to present any other information, I was asking Walter to consider all other information she wanted to raise. I didn't know what other things she needed to raise. She didn't discuss them with me.

PN3283

THE COMMISSIONER: But you were aware of them because you'd seen her email to Mr Hamilton?---Is that the one where he's talking about the heart and soul of the program, that earlier one, yes, but I had assumed, given her - that there might have been some other significant thing with Marco Bass. I had thought that there might be some things of substance.

PN3284

So you were urging Mr Hamilton to actually meet with Ms Barakat and discuss those issues?---Yes, and he gave me his undertaking that he would and we proceeded on that basis very much.

PN3285

But he didn't, did he, Ms Marshall?---Well, we did, as I talked about earlier, trying to make a time with her on different occasions which she subsequently did not attend.

PN3286

Let's look at those. Ms Marshall, she said no to the offer, didn't she?---Yes, she did.

PN3287

In several of your emails to her and conversations with Ms Barakat you were talking about there being other options?---Yes. I had thought that when they could get together and talk about what the issues were, that either Walter could agree that with some assistance he could return her to Inside Business, maybe that wasn't a solution, maybe she would realise that, you know, 7.30 Report was a possibility, maybe there were things going on in other states, you know. I was trying to get the two of them to discuss how to resolve it.

**** KATE MARSHALL XXN MS CONNOR
PN3288

And Ms Barakat asked what those other options might be and was never provided with an answer on that?---I was trying to get her to talk to her manager about - and that's what he wanted to talk to her about as well.

PN3289

Okay. Can I just go to some of these other attempts that you made to organise a meeting?---Mm.

PN3290

In your discussions with Mr Hamilton and I'm particularly looking at around about 28 April?---Right.

PN3291

There's an email from Walter Hamilton to Ms Barakat dated Friday, 23 April?
---Mm.

PN3292

MR SMITH: Sorry, which bundle have we got?

PN3293

MS CONNOR: That's in our document.

PN3294

MR SMITH: This one, C1?

PN3295

MS CONNOR: Yes. Yes, that's in C1, it's the second last email in the green section?---I don't have a copy of that, sorry.

PN3296

I'll give you a copy of that.

PN3297

THE COMMISSIONER: What did you say it's dated, Ms Connor?

PN3298

MS CONNOR: Commissioner, it's dated Friday, 23 April. I have a spare copy here that I can provide to Ms Marshall. It's the second last email, Commissioner, in the green section.

PN3299

THE COMMISSIONER: Yes. Thank you.

PN3300

MS CONNOR: So you were aware that Ms Barakat had attempted to discuss her concerns with her relationships with Mr Bass, with Mr Hamilton?---Yes.

PN3301

This email here from Mr Hamilton, I'd like - can you read that out?---Yes.

PN3302

Dear Neheda, I hope you're feeling better. Plan to be in Melbourne Wednesday next week, April 28, and would like to get together with you to progress the issues which I raised on April 5. I would like you to take this opportunity to respond to the concerns which I raised. More than three weeks have passed and there is an obvious need to provide greater certainty to you and the Inside Business team. I would like to meet at 9 am on Wednesday, April 28, at ABC Southbank. I'll ask Kate Marshall to attend, though there is no entitlement for you to have an outside representative at such a meeting. If you wish to bring someone along I would not object. Please respond by Tuesday at 9 so I can finalise travel arrangements.

**** KATE MARSHALL XXN MS CONNOR
PN3303

So in this email here, Mr Hamilton is setting out the matters which he will discuss with Ms Barakat at the meeting. There's no mention of her issues. He does not concede that he will talk about her issues in this email, is that correct?---He's - the way he's - he has phrased the particular:

PN3304

I would like you to take this opportunity to respond to the concerns which I raised.

PN3305

I would have - if that wasn't clear to Neheda or something happened, she, I would have hoped, would have said, I also want to talk with you about some further items, that's the discussions I was having with the both of them at the time with her on the phone and also with him on the phone, so.

PN3306

So Mr Hamilton ignored your advice of actually discussing the issues with Ms Barakat?---Well, I wouldn't have said he ignored my advice - - -

PN3307

Ms Barakat's issues?--- - - - because he in other emails has said, please do anything to assure Neheda that she can be treated with due consideration. My conversations that I had, and I know I had them, with him were about listening to what other further things that she thought were important and I was also talking to her about that she would need to raise them in that meeting and that's - - -

PN3308

But this is the meeting that - this is the agenda for the meeting that Mr Hamilton sent to Ms Barakat. Can you understand her concerns about not going to that meeting, that's only going to be dealing with her work performance issues, when she believes that she had raised her concerns with Mr Bass and that Mr Hamilton would not talk to her about them?---If that was her concern, given that I was speaking with her at the time, I would have hoped that she said, Kate, I've got this email, you've said this, can you please assure me, you know, that such and such would happen, and I would have assured her that that would have happened.

**** KATE MARSHALL XXN MS CONNOR
PN3309

I think that there was correspondence between Ms Barakat and yourself in which she actually raised that issue. Just bear with me, will you?---Sure.

PN3310

Sorry about this. Yes, sorry, it's a bit later, on around 16 May?---Mm.

PN3311

Which is the last email in C1, in the green section. I understand, Ms Marshall, that Ms Barakat phoned you on 26 April and left a message on your
voicemail?---Mm.

PN3312

In which she said, in view of Mr Hamilton's intimidating tone, at this stage, she does not wish to have any direct contact with him?---And then I met with her on 5 May and outlined to her that she would need to talk with him and raise all of her concerns and - - -

PN3313

But, Ms Marshall, when Mr Hamilton tells her what he will meet with her about, he's very clear in his email that he will only deal with the issues that he raised at the 5 April meeting?---I think, again, I mean, emails are never going to be the best way to communicate with someone, which is why I was seeking to set up a meeting between the two of them. I'd spoken with Walter about it, I'd spoken with her about it. I repeatedly said that she needed to discuss with him directly. I wanted to set that up for her, so she, as senior member of staff, she could speak directly with her manager and I was going to help them have that conversation, give them an opportunity for that to happen - - -

PN3314

Were you urging Mr Hamilton to do the same?---Yes, I - yes, I very much was and he - - -

PN3315

But the email doesn't - - - ?---Well, you're relying on one email and I had several conversations with him to that effect and he'd agreed to do that. I would not
have - - -

PN3316

But he didn't do it in his email to Ms Barakat, did he?---Well, I would not - well, that was one email and I wouldn't have represented his views inaccurately which is why I was very keen to meet with her as soon as possible to assure her that she needed to come forward and speak to him because I'd had an undertaking from him that he would listen to her.

PN3317

But, Ms Marshall, on the one hand, you'd said before that you had to excuse - - -

**** KATE MARSHALL XXN MS CONNOR
PN3318

THE COMMISSIONER: I'm sorry, I'm going to have to interrupt both of you. The transcript is going to look dreadful if you keep interrupting each other.

PN3319

MS CONNOR: I'm sorry, Commissioner.

PN3320

THE COMMISSIONER: And not only that, I won't read it. So all of the
cross-examination will go to nought. Unless I can hear clearly the discussion, the question and the answer, I will not read it. Please continue.

PN3321

MS CONNOR: This is the first - Mr Hamilton's email to Ms Barakat on the 26th is to set up a meeting with Ms Barakat?---Yes.

PN3322

You'd advised him to make it clear that at that meeting they would be able to discuss Ms Barakat's issues. You were advising - yes, is that right?---Yes, yes.

PN3323

You were advising Ms Barakat that Mr Hamilton was willing to talk about her issues, were you?---Yes.

PN3324

But the email which he actually sends to ask her to come to a meeting sets out a very narrow set of issues which she is allowed to talk to him about, is that correct?---If that's - I'm not sure how she read it given that I had different types of conversations with her.

PN3325

THE COMMISSIONER: How do you read the email?---Yes, it does.

PN3326

I would like you to take this opportunity to respond to the concerns which I raised.

PN3327

Yes, it does sound like that, but I mean, I think you're going to have to ask Walter Hamilton about what he meant and what he intended to talk to her about at that time because that was not the flavour of the conversations that I was having and it wasn't the subsequent conversations either.

PN3328

MS CONNOR: Ms Marshall, can I take you to your email, to Walter Hamilton, dated Tuesday, 27 April?---Mm.

PN3329

THE COMMISSIONER: Where do I find that one?

PN3330

MS CONNOR: This one's an ABC one, Commissioner.

**** KATE MARSHALL XXN MS CONNOR
PN3331

MR SMITH: I don't have a bundle, so.

PN3332

MS CONNOR: It starts with an email from Mr Hamilton to Ms Marshall.

PN3333

MR RYAN: I think it's in that bundle, Commissioner, that Mr Smith handed up.

PN3334

MS CONNOR: The bundle, yes, Commissioner.

PN3335

MR RYAN: Augmented bundle.

PN3336

THE COMMISSIONER: All right.

PN3337

MR SMITH: Sorry, what was the date of his answer?

PN3338

MS CONNOR: This is a three pager, the top page has got Kate Marshall in the top left hand corner?---Yes, and it's got an email attachment and a phone number on it, that one?

PN3339

It's dated - the front page is Kate Marshall dated - from Walter Hamilton, Tuesday, 27 April?---At 9.27 am.

PN3340

Yes, that's it, that's correct?---Yes.

PN3341

Ms Marshall, I'm interested in the email that's at the back of those three pages, Thursday, 22 April?---Mm.

PN3342

I recollect, is that just so - the day before Mr Hamilton's email to
Ms Barakat?---Thursday, 22 April.

PN3343

It's the very last page?---Yes, yes.

PN3344

Mr Hamilton is here advising you of the meeting that he's going to have?---Mm.

PN3345

Okay, and it says clearly:

PN3346

The purpose of the meeting is to discuss the concerns I have about her handling of the program. It will also be an opportunity to discuss alternative roles.

**** KATE MARSHALL XXN MS CONNOR
PN3347

Okay. Is there anywhere in here where Mr Hamilton actually is advising that he's also going to be prepared to discuss Ms Barakat's issues?---Not in this email, no.

PN3348

Did you actually raise that with Mr Hamilton?---That's what I was talking with him at all times during this period, so.

PN3349

Can we go to your response which is the next page back?---And then Neheda, yes.

PN3350

Hello Walter?---Yes, this is - - -

PN3351

Okay?---In response to his question about 19.3 of the agreement, how that should be interpreted?

PN3352

Correct. So you spend quite a lot of time discussing in your advice to him that - you're discussing her move?---He's asked can he - given that - or he hadn't actually moved her yet and he'd asked me for an interpretation, could he do this, and I also replied to his question about the representative. I said that, as in the email, she doesn't have an entitlement to a representative because it wasn't a misconduct or performance matter, that's how we talk about it in the agreement, but I did suggest at the end that she - you know, she should have one. I then start talking about 19.3, and the mechanism of the preparation in performance management and I said, if, after the meeting with Neheda on the 28th you're not satisfied with her responses and reasons for her actions, because I had thought that she would raise some - you know, some issues, that she could explain, would give meaning to why she behaved the way that she did on - when she left the program. "You may want to utilise 19.3," and I outlined some reasons why he might like to consider that and I - most importantly I was doing this because I sent it to Luke Caruso, who's head of workplace - sorry, Workplace Relations Manager, because it was - I thought we might end up in the Commission and I wanted to get clarification about a reading of the employment agreement and Luke Caruso replied - he confirmed that 19.3 was a transfer option for the ABC, but Luke also confirmed again that we would hopefully need to meet with Neheda and - hang on, I'll just get his words:

PN3353

I understand the meeting on Wednesday is to address the issues previously raised and seek alternatives to resolve,

PN3354

Then at the end he concludes:

PN3355

However, before we get to that stage we should consider what Neheda has to say on Wednesday and then consider our options.

**** KATE MARSHALL XXN MS CONNOR
PN3356

You're actually pretty excited in the email about being able to take this matter to the Industrial Relations Commission, aren't you?---No. I am obliged to check my information and advice before I go here. I am obliged to also say, look, this is a risk, there's different interpretations about the agreement. If you think this is a significant risk to the success of the program, you know, you may want to sue the Inside Business program, that might be something you would consider. But I did need to refer it up to National Human Resources.

PN3357

Someone gets extremely distressed at work and they take the afternoon off. Is the first instance that you're aware of that the ABC - where that then leads to them being removed from the program?---I don't - I'm trying to recall an instance where someone's walked out.

PN3358

THE COMMISSIONER: Ms Saccotelli?---Yes, that. Yes, that there was, but I'm not sure when - - -

PN3359

MS CONNOR: Yes, what about Ms Saccotelli, was she removed from the program for walking out in the - - - ?---I'm not sure when that was.

PN3360

For going home early?---I'm not sure what time of the day she left.

PN3361

Well, you're aware that she went home early?---Yes, and I know she went home upset, that's what - yes.

PN3362

Are you aware of anyone else who, having become extremely distressed at work or, say, sick at work, all right, feeling under a lot of pressure, becoming extremely distressed, becoming sick, being advised by their colleague to go home and just have a little bit of time out because they aren't in any fit state to be actually trying to deal with their manager at that point in time, are you aware of anyone else inside the ABC who has been removed from their job for going home sick for an afternoon?---I don't think it's correct to say she was removed from her job, but anyway, I'm aware - - -

PN3363

Ms Marshall, you agreed with me earlier on that Mr Hamilton at the meeting of 5 April removed her from her job on Inside Business, and you counselled him to change it in the email to her to being an offer, so you are aware that Mr Hamilton removed her from her job. Are you aware of anyone else in the ABC who has been removed from their job for going home sick for the afternoon?---I think Walter did suggest that she go to The 7.30 Report for a range of reasons.

**** KATE MARSHALL XXN MS CONNOR
PN3364

Answer my question, please, Ms Marshall?---Not just the event on that day. In terms of other people leaving home - - -

PN3365

THE COMMISSIONER: I'm sorry, would you repeat the answer. I just wanted to make sure I understood. You think Walter did what?---I think Walter took that action about suggesting a move to 7.30 Report for a range of reasons, not just - - -

PN3366

MS CONNOR: Not just one - - -

PN3367

THE COMMISSIONER: Just a moment, please?---Not just the fact that she left upset that day.

PN3368

I see?---As is evidenced by his email.

PN3369

MS CONNOR: Well, we'll come back to that one, and we'll look at those range of reasons, and we'll get your, as a senior HR person, considered advice on whether or not that also constitutes grave misconduct or whatever?---Okay, but not on - - -

PN3370

Has anyone else in the ABC, to your knowledge, has been removed for going home for an afternoon because they're under great stress or they're crying?---I'm aware of one other person who had gone home early because they were upset. It's a completely different set of circumstances and I don't want to say their name and they came back the next day.

PN3371

Were they removed from their job?---No.

PN3372

Did Ms Barakat come back the next day?---Yes, I believe she did.

PN3373

Did she come back the day after that?---I'm not sure, I think - - -

PN3374

Well, she did come back the day after that as well and the program went to air and was fine on the Sunday. So just going back to your advice, did you make Ms Barakat aware of the extent of the information you were providing to her manager, Mr Hamilton, about how she could be moved, and that maybe she would end up as a crash test dummy for the ABC, if you like, in the Commission?---Did I tell her that we were discussing 19.3?

PN3375

No. I know you told her - you gave her clause 19.3 later on?---Yes, yes.

**** KATE MARSHALL XXN MS CONNOR
PN3376

Did you tell her that you were giving advice to her supervisor, Mr Hamilton, that maybe they might like to use Neheda Barakat in the Commission to test 19.3 to the benefit of the ABC?

PN3377

MR SMITH: Sorry, Commissioner - - -

PN3378

THE COMMISSIONER: Do you object to that?

PN3379

MR SMITH: Yes, I do object to that.

PN3380

THE COMMISSIONER: Yes, on what basis?

PN3381

MR SMITH: I object on the basis that yet again an inference is being drawn from advice in an email that I just don't think you can draw. If that's the question I think it should be prefaced by the question, Did you provide advice to use Ms Barakat in the Commission, before you then proceed to that second question. I think we need to establish that first.

PN3382

THE COMMISSIONER: Take Ms Marshall to the dot point that you're referring to.

PN3383

MS CONNOR: Okay, Ms Marshall, let's go to your advice on clause 19.3?
---Mm.

PN3384

First of all I'm interested in paragraph that commences, it's about the fifth paragraph:

PN3385

If, after the meeting -

PN3386

?---Yes.

PN3387

It says, can you read that out to me?---

PN3388

It may be worth further testing clause 19.3 in the Commission. This is because that the clause needs to be read in its entirety and is preceded by the words "may be required to perform a range of functions". The ABC should consider that the maintenance of the band 8 classification fits within the definition and the executive producer, journalists and related work level standards are within band 78 as per page 4 of the -

**** KATE MARSHALL XXN MS CONNOR
PN3389

and I've quoted the address of the work level standards.

PN3390

Can I just stop you there, Ms Marshall, to just ask you a few questions about that. Are you aware of the band, obviously you're quite aware of how the structure works at the ABC, the classification structure?---Mm.

PN3391

Which band level is the executive producer in?---With her, she was a band 8, Neheda was a band 8.

PN3392

Are there any executive producers below a band 8?---I'm not - actually, yes, there are, yes.

PN3393

There are some, but she was a band 8 executive producer?---Yes.

PN3394

Are there any producers above band 7 - band 6?---I don't know. I - those - you're referring to those shaded blocks in the work level standards - - -

PN3395

Yes, producer/presenter band 2 to 6?---Mm.

PN3396

So a producer fits into band 6 then, or from 2 to 6?---I think the role that she was being offered was a senior producer on 7.30 Report. Those work level standards are a guide to use to inform managers about how they can pay their staff and to use as some comparative purposes. It's not your traditional prescriptive award classification structure. It gives managers a guide so - - -

PN3397

THE COMMISSIONER: Would you arrange for me, please, a document that outlines what bands your producers are paid, in what bands your executive producers are?---Yes, yes.

PN3398

The spread?---Mm.

PN3399

MR SMITH: Sorry, Commissioner, if I can just clarify, you're looking for a further advice to the Commission?

PN3400

THE COMMISSIONER: Yes, a document that gives me the band that producers are paid in. It's a matter of fact. I understand what you're saying, but I want to know as a matter - - -

PN3401

MS CONNOR: Commissioner, you've got it. It's actually in our submissions to you. It's in my C1.

**** KATE MARSHALL XXN MS CONNOR
PN3402

THE COMMISSIONER: From the ABC?

PN3403

MS CONNOR: Yes. It's program maker, work level standards documentation.

PN3404

THE COMMISSIONER: No, it's a different question.

PN3405

MS CONNOR: Sorry, Commissioner.

PN3406

THE COMMISSIONER: I understand that's the work level standards. What I want to know is, in practice, whether or not any producer is paid band 6, 7 or 8, anybody styled with the title producer, and anybody styled with the title executive producer, what band are they - I don't want names, I just want - there are three executive producers in band 8 and one executive producer in band 7 and 300 producers in band 5?

PN3407

MR SMITH: Okay, we can certainly source that information. We won't be able to obviously do it today.

PN3408

THE COMMISSIONER: On the next day of sitting, which you've been advised, have you? 4 April, it will be 4 April for a week.

PN3409

MR SMITH: Thank you.

PN3410

MS CONNOR: So you were interested in testing the question of whether classifications - - - ?---What I was saying, if you think there was significant risk to the success of the program if Neheda was returned as executive producer Inside Business - - -

PN3411

No, I'm sorry, I'm just back on where we were up to before?---Yes.

PN3412

That you thought it may be worth the ABC further testing clause 19.3
because?---Yes, and a second dot point down after the work level standards.

PN3413

No, I'm just interested in the first one, work level standards?---Okay.

PN3414

Okay, and we'll get on to the rest of it eventually, Ms Marshall, but I'm just interested here, so you were interested in having - in using Neheda Barakat's case to perhaps give the ABC some broader room to move within your classification structure?---No, I wasn't actually interested in that at all, that. What I was providing advice about was the different clauses in the agreement. What I was most interested in the first instance was to get Walter and Neheda to talk to each other about the concerns he had about the program and the concerns that she wanted to raise about why she was feeling upset about - at the ABC and other incidents she wanted to raise. We moved somewhat past, and I continued to try to do that. I then wrote this email because I was responding to a question that Walter had put to me about 19.3 and I was also using this email to check with Luke Caruso, the manager of Workplace Relations, about what his understanding of 19.3 was and I put down a number of - you know, explanations about clause 19.3.

**** KATE MARSHALL XXN MS CONNOR
PN3415

So you were interested in further testing clause 19.3 to have a look at the first dot point you make there is whether or not you can broaden out the range of functions within the classification structure?---That wasn't what I meant. I was saying that the executive producer and producer positions are within bands 7 and 8 within that journalist and related work level standards. I wasn't - - -

PN3416

But they're not, are they, Ms Marshall? They're not, are they? Production manager, sorry, producer, presenter, it actually finishes at band 6.

PN3417

THE COMMISSIONER: Can I get that document out and show Ms Marshall so she can see it? Where's that, that's in your document?

PN3418

MS CONNOR: Yes, this is in C1 and it's in the yellow section.

PN3419

THE COMMISSIONER: The yellow section. The work level standards,
yes?---Yes. Okay, with that dot point I was referring to the work level standard that covered Neheda's type of role which is about producing. I wasn't looking at broadening out, that wasn't my intention of writing it like that. That wasn't the objective of referring it to the work level standard.

PN3420

MS CONNOR: The ABC will consider that maintenance of the band 8 classification fits within this definition?---Executive producer and producer, yes. Journalist and related, that's the relevant work level standard that applies to her band.

PN3421

Now, can we have a look at the band structure, the program maker work level standards. Can you give me the three points of which an executive producer is located?---Yes, bands 7, 8 and 9.

PN3422

Can you tell me where the producer/presenter classification ends?---At six.

PN3423

So you were interested in seeking - were you trying in this - in this clause you have here, was your interest in trying to push the producer/presenter up to the work level 8?---No. No, that's not why I wrote that. As in - this is a guide to how we pay people at the ABC. As I said it's not a prescriptive, you know, you must pay people from seven to nine if they're an executive producer. We'd have people lower, we would have people higher, every program is quite different from each other. It's meant to be a flexible system that we use. Why I wrote that point there was about her performing - you know, the way we talk about work level standards is that it's - the description is, executive producer, journalist - executive producer/producer, journalist, and related work level standards, and that was the relevant work level standard which I pointed to and that's further, this transfer meets her competence and training.

**** KATE MARSHALL XXN MS CONNOR
PN3424

But because you had some concerns that, in fact, if this matter came here, that it may be seen as a demotion?---I wanted - well, I didn't make a judgment about how the 7.30 role compared to the Inside Business role. I was just raising questions about the interpretation of the clause and the fact that we had moved her previously from that program with P, meaning promotion to a band 8, and then whether if we were sitting in a Commission like we are today, whether we'd be talking about how all those clauses fitted together and I basically was saying, well, work level standard does cover different bands, that if you - that if there are significant risk for the success of the program, then that would be a reason for us to, you know, perhaps proceed if it was a risk and that's why I've talked about this and I said I didn't think it would be considered de-skilling, if you're still supportive for further management training and she was still a senior member of staff.

PN3425

What about clause 19.3, the second paragraph there, I'd like to read this to you:

PN3426

I thought that if it was disputed, whether the AIRC would consider that we previously had deemed the move a promotion and then a transfer to the role would be considered a demotion.

PN3427

?---Yes, I was - thought we'd be having this conversation.

PN3428

If the role was exactly the same and reporting to an executive producer?---Yes. I don't know very much about The 7.30 Report and how it operates, and I think you would need to speak with Walter Hamilton about that, but as I said earlier, my role is interpretation of the clauses. I was checking with national HR about whether this would be the situation and that's why I wrote the email the way that I did.

PN3429

So you're giving quite a lot of advice to Walter Hamilton about whether he could or couldn't use clause 19.3?---Well, he'd asked me a question and I answered it.

PN3430

You've given it quite a lot of consideration too, I can see from that. At the same time you're dealing with Ms Barakat?---Mm.

PN3431

Did you make her aware of your views about clause 19.3?---No, I didn't talk to her about whether I thought it was possible or not possible. I did provide her with a clause 19.3 just to alert her that this was something that was being discussed, but I didn't say what my view of it was or how I talk about it with my HR colleagues or anything like that.

**** KATE MARSHALL XXN MS CONNOR
PN3432

Ms Marshall, Ms Barakat was trusting you to provide her with advice on how she should respond to Mr Hamilton. Do you think if she had have known about the advice that you were at the same time giving to Mr Hamilton that that may have made her concerned about your role?---I can't speak for Neheda. What I did do on her behalf was ask Walter to make his decisions based on a further conversation with her and to hold off making a permanent move, to make an offer only, and to give her an opportunity to speak with him further. That's what I was seeking to do. At the same time he'd asked me a question about clause 19.3, so I referred it to - I answered his question and referred it to my HR colleagues.

PN3433

In an earlier email, Friday, 16 April - - -

PN3434

THE COMMISSIONER: Whereabouts is that?

PN3435

MS CONNOR: I think that's in - - -

PN3436

MR RYAN: Mr Smith's bundle, Commissioner.

PN3437

MS CONNOR: Mr Smith's bundle. It's up the top, Kate Marshall, Friday, 16 April?---Sorry, what was that?

PN3438

Friday, 16 April, Kate Marshall to Walter?---Yes, with a file note attached.

PN3439

Yes.

PN3440

THE COMMISSIONER: Just a moment. 16 April, to Mr Hamilton, 10.26, is that the one you're looking at?

PN3441

MS CONNOR: Yes, that's it, Commissioner.

PN3442

MR SMITH: Sorry, Commissioner, is that the - I've just identified a different one, I thought.

PN3443

MS CONNOR: So while you're providing Mr Hamilton with a detailed understanding for him of clause 19.3 you didn't give such a detailed understanding to Ms Barakat, did you?---I talk with her about the clause in our meeting which - which meeting was that? 5 May but mostly - - -

PN3444

Okay, I'd like to take you to this email, Ms Marshall?---Yes.

**** KATE MARSHALL XXN MS CONNOR
PN3445

Can you read me the second paragraph of your - sorry, the third paragraph at
your - actually, can you read me the whole email from you to Walter?---Yes.

PN3446

I've corrected Greg's name in the attached file note, thanks. I don't think Walter had asked me if there's anything I can do now to reassure Neheda that she is and will be treated with proper consideration. Please advise me. And I have said, "I don't seek to do anything at this stage. I probably suggest that you write her a brief email next week asking how she is and saying that you would like to meet with her at Southbank to clarify matters to date or raise any new information as she now has had an opportunity to consider the points you raise." "The reason for above, I am attempting to keep her talking to you and me as hopefully it will lessen the chance for misunderstanding or, quite frankly, for the MEAA, I guess at this stage, to persuade her into a path of adversarial discussion.

PN3447

So do you know when Ms Barakat actually came to the MEAA?---No, I don't.

PN3448

I think it was at the end of June?---Okay. I just was saying that I wanted her to keep talking to me and Walter, for her to have the meeting with Walter directly because of some of the past experiences I've had with working with one industrial officer in the MEAA.

PN3449

Actually, it was the Secretary of the MEAA at that time?---Okay, the Secretary of the MEAA.

PN3450

That's Mr O'Donnell. What were those matters that you were dealing with Mr O'Donnell over?---I don't really know if I want to say other people's names.

PN3451

MR SMITH: Commissioner, is that particular relevant to this matter?

PN3452

THE COMMISSIONER: What's the relevance of that?

PN3453

MS CONNOR: Commissioner, the relevance of the matter is that I believe that Ms Marshall was dealing with allegations of bullying against Mr Marco Bass and that they had been raised by various members and that they were the matters that she was actually - she may be referring to.

PN3454

THE COMMISSIONER: Well, you can ask her directly whether those were matters.

**** KATE MARSHALL XXN MS CONNOR
PN3455

MS CONNOR: Were there matters between - - - ?---Other - sorry?

PN3456

Of other people having complained about Mr Marco Bass's bullying or intimidatory behaviour?---There was one person who was under a formal performance management process who did, yes, talk about Marco Bass and that suggested - I don't know if the word bullying was used, but yes, that was one example, and another one was also about a person had been counselled over their performance and had also alleged bullying against Mr Bass.

PN3457

Have you seen Ms Barakat's medical certificates that were presented to the
ABC?---Yes, I have.

PN3458

Are you aware of any other medical reports that have been presented to the ABC that reach a similar conclusion, that is that the person not work in the immediate vicinity of Mr Marco Bass?---Yes, well, there was two health and - Health Services Australia reports. One from Dr Mutton, and one from Dr Smith.

PN3459

In the case of Ms Barakat?---Yes.

PN3460

Are you aware of any other medical reports that the ABC has in its possession where the advice has been that the person may work, but not in the vicinity of Mr Marco Bass?---There is one person who I was talking about before in terms of their performance and raising an allegation that we got a very similar - we got a similar report from Health Services Australia.

PN3461

MR SMITH: Commissioner, I'm just wondering if this is new information that The Alliance are wanting to lead. If so, we would obviously then need to take instruction on how we seek to respond to that information, unless this is just simply peripheral questioning as to Ms Marshall's competence. This is not something that necessarily arose out of my examination of Ms Marshall.

PN3462

THE COMMISSIONER: Well, cross-examination doesn't have to rely upon your examination. It can range widely.

PN3463

MR SMITH: I've often been pulled up on that one, Commissioner, but I'll take your advice.

PN3464

THE COMMISSIONER: I'm surprised, but I thought re-examination you might be pulled up on, but I wouldn't have thought cross you were limited only to the questions raised in examination-in-chief.

**** KATE MARSHALL XXN MS CONNOR
PN3465

MR SMITH: All right, well, then the second part of my question remains. If this is new information I may need to take instruction on it.

PN3466

THE COMMISSIONER: Well, it may be when you come to re-examine you seek an adjournment to consider that issue. Yes, Ms Connor?

PN3467

MS CONNOR: Ms Marshall, are you aware of the medical reports for Mr Bill Rule, Mr Agnes Cusack and Ms Jacinta Tynan?---Yes, I am.

PN3468

Can you tell me what those medical reports said about Mr Marco Bass?---I can with Jacinta Tynan, it declared her fit for work and made the comment, because of her - I can't recall the exact words, but it did suggest moving her away from close association with Mr Bass, yes. Agnes Cusack, I can't recall the exact wording of that report, and Bill Rule l - -

PN3469

Do you recall it was something in a similar thing, that she couldn't work in that work plan - - -

PN3470

MR SMITH: I'm sorry, we're getting into speculation. I think given the nature - well, I'm sorry, Mr Ryan, you can snort as much as you like.

PN3471

THE COMMISSIONER: Mr Smith, what are you objecting to, the question or the possible answer?

PN3472

MR SMITH: No, I've got no concern with the possible answer except that - - -

PN3473

THE COMMISSIONER: Well, the answer is the speculation, isn't it?

PN3474

MR SMITH: Pardon, sir?

PN3475

THE COMMISSIONER: The answer is the speculation, not the question.

PN3476

MR SMITH: Well, I think what they're doing, Commissioner, is asking Ms Marshall from memory to talk about what usually are quite detailed documents. If they wish to - - -

PN3477

THE COMMISSIONER: So you're objecting to the answer, you're not objecting to the question?

**** KATE MARSHALL XXN MS CONNOR
PN3478

MR SMITH: I'm raising a concern, Commissioner, in this matter that I think goes to quite an important point. If we're going to be looking at what medical reports may have been put forward on behalf of other members of staff, then let's have a look at those reports, let's not speculate, either in question or answer. That's my concern, Commissioner.

PN3479

THE COMMISSIONER: No, there's no speculation. The question was not speculative. Whether the answer is speculative, the witness is entitled to say she doesn't know, rather than speculate.

PN3480

MR SMITH: Thank you, Commissioner.

PN3481

THE COMMISSIONER: Yes, Ms Connor.

PN3482

MS CONNOR: In the case of Ms Cusack's medical report, are you aware that the medical report also referred to her not working in that area, she was fit to work at the ABC but she shouldn't be working in the vicinity of Mr Bass, Mr Hamilton and that line of reporting?---Yes, all the people that had been involved with her previous concerns, yes.

PN3483

Are you aware that Mr Ball's medical report, again from HSA - - - ?---I'm not so sure about that one. There was three reports to do with Bill Rule and I'm not sure about the detail of them, but I know Marco's name, Marco Bass' name was mentioned.

PN3484

Well, would you - - - ?---I don't recall.

PN3485

Can I read you from point 3 and maybe that might help you recall, is that
okay?---Okay.

PN3486

All right:

PN3487

If work restrictions are imposed what specific restrictions should be observed or alternative work is suggested for Mr Rule to be able to return to the workplace?

PN3488

and the ABC doctor's reply is:

PN3489

He should not work under the direct supervision of Mr Bass.

PN3490

Does that help you recollect that Mr Rule is also - - - ?---I wasn't actually involved with Bill Rule's case which is why I can't - you know, we do swap information in the office, but now you've read it to me, I take it that it was in the report.

**** KATE MARSHALL XXN MS CONNOR
PN3491

How many issues, either informal or formal grievances, either informal grievances, formal grievances, just maybe a little meeting or a counselling session that you might have had with people, have you been dealing with in relation to people alleging Mr Marco Bass' behaviour is intimidatory, bullying, over the top or whatever it might be?---Or whatever it might be?

PN3492

Well, that his behaviour is not acceptable behaviour?---How many meetings - - -

PN3493

THE COMMISSIONER: Let me just make this clear because it's important the witness understands what she's asking her. You're asking how many formal meetings has she had where there's been a complaint against Mr Bass that his conduct is either intimidatory or inappropriate behaviour?

PN3494

MS CONNOR: Yes, Commissioner, yes, or bullying.

PN3495

THE COMMISSIONER: Or bullying, all right. Do you understand the question?---Yes. In the time that I've been at the ABC for the past year and a bit, the people that I've met with have been four people.

PN3496

MS CONNOR: How many of those have been - four people have raised their concerns with Mr Bass's behaviour with you?---Yes, so four people plus Mr Bill Rule, but I've never spoken with him myself.

PN3497

Okay, but you're aware of Mr Rule?---Mm.

PN3498

So there's five people?---Mm.

PN3499

That you're aware of that you've either spoken to yourself or - - - ?---Mm.

PN3500

How many of those ended up as being complaints?---Three - when you say formal complaints, you mean whether they've lodged a grievance or not, three of them did. Agnes Cusack was a complaint only after the unfair dismissal, or was in a Comcare claim, I can't - it was a no grievance issue, yes.

PN3501

So Ms Marshall, when Ms Barakat discussed with you her concerns with Marco Bass, did that ring any alarm bells with you?---She talked to me about the meeting that she had had with him on that day and she described what it was about and given what she told me about that one incident, I asked her to go and speak with him directly about it.

**** KATE MARSHALL XXN MS CONNOR
PN3502

You say you counselled Mr Hamilton to deal with Ms Barakat directly on her issues concerning - her concerns about Mr Bass?---Sorry, say that again, the?

PN3503

You counselled Mr Hamilton on him raising, addressing the issues that Ms Barakat had raised with him about her concerns with Mr Bass?---I asked him to consider all the issues that Neheda had to discuss. I didn't say about Mr Bass. I just said that she needed the opportunity to raise anything that she thought was important.

PN3504

You didn't specifically say, you need to really look at the grievances that she has with Mr Bass?---No, I didn't.

PN3505

So you didn't specifically say, really, as part of a grievance procedure, you know, you have to meet one step once someone raises the issue with you?---No, I didn't.

PN3506

So you didn't point out to him the importance in terms of the grievance procedure policies that the ABC has of him addressing those issues?---At that stage what I was aware of was Neheda had raised a meeting, and one conversation she'd had with Marco Bass where he'd talked to her about a meeting she'd had with other staff and that Marco had told her that there'd be no bullying and harassment in the newsroom and telling here that there would be - that Graham Nicholas had told him that her behaviour was embarrassing. That was the incident that I was aware of. I didn't put it as a grievance. I didn't talk about the grievance policy at that stage because I believed there just to be one incident. I asked Neheda to talk to Marco directly about what he meant and what his concerns were, to couch it in that way.

PN3507

Ms Marshall, you were aware that she had a range of issues concerning
Mr Bass?---No, I wasn't. I was aware that her concern about that discussion she'd had with him. That was the only thing I was aware of at that time. She didn't talk to me about any past other matters.

PN3508

On 5 April you received the email that Ms Barakat sent to Mr Hamilton?---Yes.

PN3509

So you were aware that there was a range of issues that she wanted to discuss with Mr Hamilton?---I didn't know what they were or, yes.

PN3510

In her email which you now do acknowledge that you did receive on 5 April, she raises a range of issues to deal with Mr Bass, doesn't she?---She's talking that Marco was aware of the Luisa and - yes, the Luisa and Neheda mediation and she was talking about the meeting that she'd - the embarrassing behaviour meeting, however you want to describe it and she raised some concerns about Graham Nicholas, she made a comment about him.

**** KATE MARSHALL XXN MS CONNOR
PN3511

Then in her final one she says:

PN3512

On much reflection this kind of approach and interference in my position as a manager makes it extremely difficult for me to fulfil my duties effectively and undermines my role

PN3513

?---Mm.

PN3514

Then she says to him:

PN3515

You appointed me EP. If you have any doubts about my capabilities I would appreciate you telling me so.

PN3516

?---But, as I said, she references the meeting that she had with Marco which was what I was aware of at that time, that one meeting.

PN3517

But would you agree that she raised a series of matters with Mr Hamilton concerning her relationship with Mr Bass?---That's not how I read that at the time. I knew she was concerned about the meeting that he'd held with her to talk about the embarrassing behaviour comment, but I wasn't aware about - of any other matters.

PN3518

But you were aware, because Ms Barakat told you, that she'd emailed Mr Hamilton about the issues and that Walter was coming to Melbourne and she was pleased with his response?---Yes, when I passed her in the corridor and said how are things going, she told me that Walter had written her a nice email and then she forwarded me this email on Monday, 5 April at 10 pm. I didn't - - -

PN3519

Right, so after 10 pm on Monday, 5 April you were aware that she had a range of issues that she wanted to - that she had actually spelt out to Walter concerning her relationship with Mr Bass. Is that right, yes?---I wasn't aware that it was a range of issues about Marco Bass. I was aware that - there was a meeting that she had some comments about the meeting that she had with Marco and that was the same meeting which Walter had quoted to her in his range of concerns that he had with her on Inside Business.

PN3520

Yes, but look at the dates of these. So this is well before 5 April that Ms Barakat's advised Walter Hamilton about the issue with Luisa Saccotelli?---Yes, but it was still about the same meeting.

**** KATE MARSHALL XXN MS CONNOR
PN3521

All right, and are you aware that she advised Mr Hamilton of this because you had told her that Mr Bass had instructed you to tell Walter about your counselling session with Ms Barakat and your informal counselling session with Ms Barakat and Ms Saccotelli?---As I said before, because I was - Luisa had gone to Marco for some advice about her perceptions about what was happening in Inside Business I started to say to Marco, I'm meeting with Luisa and Neheda and he said you'll need to speak to Walter about that, ie, Walter is the person responsible for Inside Business, you don't need to go into it with me.

PN3522

When you do informal counselling sessions of this type, do you always habitually tell the manager about it?---I would have told him previously before doing this approach. It's just that he was not contactable because he was in the Commission about another matter, so I was only able to tell Walter afterwards.

PN3523

But did you advise Ms Barakat of the conversation you'd had with Mr Bass and that you would be letting Walter know about this?---Yes, I did, yes.

PN3524

So it would have been reasonable for Ms Barakat to assume that Mr Bass wanted the matter raised with Mr Hamilton?---Yes. She actually said she - that was straight after the Luisa meeting and she said, I said, don't worry, that she doesn't mean anything, that's the normal - what I would normally do in this instance anyway.

PN3525

But you weren't aware of there being a bit of a history of issues between Mr Bass and her?---No, I was not.

PN3526

Then she goes on to actually also raise another matter with Mr Hamilton in this email?---Mm.

PN3527

On another matter, I was most distressed-

PN3528

?---Yes.

PN3529

So she's raised that issue of Mr Bass commenting on a meeting that he didn't attend and accusing her of being embarrassing at the meeting?---Mm.

PN3530

Then do you also agree that in her next paragraph she's also letting Mr Hamilton know that she sees it as a reproach, an interference in her program:

PN3531

In my position as a manager it makes it extremely difficult for me to fulfil my duties effectively.

PN3532

?---Sorry, what's the question?

**** KATE MARSHALL XXN MS CONNOR
PN3533

What I'm saying to you is this also another question of concern that she's raised with Mr Hamilton?---She's putting her point of view forward about - - -

PN3534

About Mr - - - ?---Someone different, Graham Nicholas.

PN3535

She says:

PN3536

On much reflection this kind of reproach and interference in my position makes it extremely difficult for me to fulfil my duties.

PN3537

?---Mm.

PN3538

Okay, and then she asks - she says to Mr Hamilton, if you've got any doubts about my capabilities let's chat about them?---Okay.

PN3539

I want to take you now to Mr Hamilton's reply because he makes reference to the meeting with yourself, Kate Marshall. Would you just excuse me? I just want to find your letter to - I'm now referring to the memo that you wrote to Ms Luisa Saccotelli, Ms Neheda Barakat and cc'd to Walter Hamilton?---Mm.

PN3540

THE COMMISSIONER: Where do I find that one?

PN3541

MS CONNOR: That's in the C2, Commissioner.

PN3542

THE COMMISSIONER: Thank you, C2.

PN3543

MS CONNOR: Do you have a copy of this, Ms Marshall?---Yes.

PN3544

Can you just read me the last line of that?---

PN3545

I had a brief discussion with Walter to update him on what we had arranged and confirmed that I would send him a copy of this note. He's of the understanding that you have resolved this matter.

PN3546

So Mr Hamilton was of the understanding that the Luisa Saccotelli matter had been dealt with?---Yes.

PN3547

Were you pleased with the outcome of the meeting?---Yes.

PN3548

Was Ms Barakat pleased with the outcome of the meeting?---I think so.

**** KATE MARSHALL XXN MS CONNOR
PN3549

And Mr Hamilton was pleased with the outcome of the meeting?---As I said earlier he did ask why it had occurred again because he thought that these matters had been dealt with last year, but I - and that he'd previously counselled Neheda about managing relationships with staff. However I said to him she has given an undertaking to change and he said okay.

PN3550

He is of the understanding that you have resolved this matter?---Yes.

PN3551

So that's what he indicated to you?---Yes, after our visit, yes.

PN3552

Were you surprised when this matter is raised by Mr Hamilton at the meeting on 5 April as a serious matter of her under - of Ms Barakat's under performance?

PN3553

THE COMMISSIONER: Where is that raised, I'm sorry?

PN3554

MS CONNOR: Commissioner, in the email C1 green, it's the email from Mr Hamilton to Neheda. Mr Hamilton's, you know, summary of the meeting he held with Ms Barakat on 5 April.

PN3555

THE COMMISSIONER: Yes, and which area of that email do you say relates to that?

PN3556

MS CONNOR: I think it's the area that says, look, rather than address your own contribution to difficulties in staff relations, that they led to mediation by Human Relations in two instances.

PN3557

THE COMMISSIONER: I see, thank you?---Was I surprised? Yes, I was.

PN3558

MS CONNOR: Because you thought that that had been dealt with and was over and done with?---Yes.

PN3559

Was Ms Barakat correct in coming to Human Resources to help her with this problem she was having with Ms Saccotelli?---Yes, if a staff member raises - calls a manager a bully and they need to get advice about it and how to best manage the issue, we would definitely want them to come and speak to Human Resources about it.

PN3560

So she did exactly the right thing. Are you aware of the other issue about staff relations, mediation by Human Relations, there's two instances, one with Ms Saccotelli and one - - - ?---I think he was talking about Greg Hoy. I'm not familiar with what happened with him the year before.

**** KATE MARSHALL XXN MS CONNOR
PN3561

But you are aware that Ms Barakat used the good offices of Human Resources a year previously to also resolve an issue between herself and a staff
member?---Yes, she did speak with - or somehow my manager, Hanan Gamali, was involved with that one, yes.

PN3562

The implication of the email, Ms Marshall, is that what she did was a sign of - well, he thinks it's a bad thing, don't you think?---I'm just looking for an email. Can I have a copy?

PN3563

THE COMMISSIONER: Yes, it's 5 April?---I don't have it. No, I don't.

PN3564

As long as you give it back to me, I'd hate to get my emails confused?---Okay. Rather than address her own contributions to difficulties in staff relations that have led to mediation by Human Relations in two instances.

PN3565

MS CONNOR: Who called for the mediation by Human Relations? Who asked Human Relations to help them with a staff problem?---Neheda asked.

PN3566

Are you concerned that it's now actually become a criticism of Neheda, that she went to you to seek your assistance?---Am I concerned that it's a criticism? I don't think it's a bad thing, no. I am concerned that it would be a criticism that they can come to seek advice from HR at any time. They would normally do it after a situation had deteriorated so they can't do it themselves or have a normal conversation, they would need to seek some assistance.

PN3567

And at least in one of those matters which you were intimately involved with, you were very satisfied that Ms Barakat had brought the matter to you and that it had been resolved?---Yes, I was glad she discussed it and we'd come to a summary of agreements and that hopefully that would work.

PN3568

Ms Barakat raised with you her concerns about Mr Bass calling her into a meeting to dress her down for being embarrassing in a meeting that he wasn't at?---I don't know if to dress her down is an accurate description of what happened, but - - -

PN3569

No, but I'm saying that's what Ms Barakat perhaps put to you?---She - well, she didn't use those words.

PN3570

What did she use?---She said that she didn't - Marco called her into a meeting, that he'd said that her behaviour, as reported to him, was embarrassing in that meeting and that also another staff member had - Pippa Warren had raised that issue with him. She didn't know what he meant. She was trying to retrieve a tape of that day and that's when I suggested to her that she go and speak to him again if she didn't know what he meant and ask what it was that was inappropriate about the way that she conducted that meeting because she really needed to find out if it wasn't clear from her first discussion. I asked her if she was abrupt or did anything else happen in that meeting. She said she didn't think so and I referred her to speak to Mr Bass, directly with Marco Bass, directly.

**** KATE MARSHALL XXN MS CONNOR
PN3571

This is now described by Mr Hamilton in his email as another instance requiring counselling of you by the state editor of Victoria. What does the word counselling mean in the ABC context?---It means that someone would be speaking with you about, or giving you advice about what situation had happened, how you did something, how you could do it better.

PN3572

But you are aware that this is the meeting that Ms Barakat wanted to talk to Mr Hamilton about?---Yes, she wanted to raise - yes.

PN3573

Are you aware that Mr Hamilton saw Mr Bass on the Monday, 5 April, before he went to the meeting with Ms Barakat?---No.

PN3574

Were you aware after the event that he'd actually seen Mr Bass?---No.

PN3575

Now I'd like to actually go back to your email about clause 19.3. Actually before we do that, perhaps you can help me with this one too, Ms Marshall, how, normally, are people counselled about their lack of performance?---It can be done a number of ways. Their manager would speak with them about it, maybe a colleague would approach another colleague, maybe HR would speak with a person. There's a - we have a performance management system, so using that there's a formal appraisal meeting and a documentation after that meeting, so there's a range of mechanisms.

PN3576

So it's a very large part of the enterprise argument, isn't it, the performance management system and the performance appraisal system and the under performance, you know, what you would perceive as under performance?---Yes, there's a section in the employment agreement about performance management.

PN3577

You'd know that section fairly well because I presume as an HR person you'd be involved in a lot of those meetings. Is it your understanding of that section that moving someone from their position's, you know, a pretty - you know, you're well into the procedure before you get to the point where people are removed from their position?---Well, there's different clauses that talk about transferring people. We have clause 19.3 which talks about transferring people across, as long as it's within their same competent skills and training.

PN3578

THE COMMISSIONER: Have you ever used that as a disciplinary
measure?---Not as a disciplinary outcome. I have - - -

**** KATE MARSHALL XXN MS CONNOR
PN3579

As a punishment for poor performance, have you ever used 19.3?---I have without - I have had another circumstances in television where a series producer, there was concerns raised with her by the executive producer of the program, the series producer spoke to their manager, that series producer - the manager suggested that the series producer might like to go be somewhere else and the series producer agreed to go to a producer position in a different television program.

PN3580

Have you ever compulsorily transferred, apart from Ms Barakat, a person under 19.3 for poor performance?---It works differently in different divisions. For example, in television they have something called producer's choice where, if the executive producer of a program doesn't like someone, they don't really need to go into particular detail about whether it's a personal conflict or whether they like someone's creativity versus someone else's, whatever, they just say it's my choice, I want, you know, someone instead of someone else because - so that does happen.

PN3581

MS CONNOR: Which clause is that?---That's a common thing that the television division uses because of the nature of the different programs that they're - and that can be about performance. In Radio Australia or local radio, I can't think of anything in the time that I've been there, and in news and current affairs, I can't think of another example in the time that I've been there in Victoria.

PN3582

THE COMMISSIONER: Which is, what, 18 months?---Yes, a bit over a year, yes.

PN3583

MS CONNOR: So performance issues are normally dealt with in accordance with the enterprise agreement?---I would hope that they always are, but there's a number of clauses that deal with performance management, but there's no rule about whether 19.3 comes into operation before or after a particular performance in that management matters. That's just a right that the ABC has. It's also a clause that is contained in all our contracts as part of our terms and conditions of employment.

PN3584

THE COMMISSIONER: What's contained - - - ?---That 19.3 clause is contained in all our contracts.

PN3585

Would you produce that document, please?---Pardon?

PN3586

Produce a document?---Produce a standard contract?

**** KATE MARSHALL XXN MS CONNOR
PN3587

Yes, please?---Yes.

PN3588

Thank you.

PN3589

MS CONNOR: But you're not aware other than Ms Barakat in your experience, in the time you've been at the ABC, of anyone else being, their performance issues being addressed in this manner - - - ?---Well, as I said there is, that - producers - television do that all the time, and it can be about a personality conflict. It can be that they think one particular editor performs better than another editor, is more creative, so that is how they can work it.

PN3590

Can you show me which clause in the agreement or take me to which clause in the agreement under this producer's choice?---There is no employment agreement clause, but in effect 19.3 is the mechanism that they're relying on to do it. I hadn't heard of it before I'd come to the ABC either.

PN3591

Okay. The only issues that you've dealt with in terms of performance, that you've been involved with in terms of performance have actually gone through the performance management clauses of the agreement?---There's - when I would be giving advice to people I would normally take them through the managing under performance clause which applies, which is about informal feedback and whether training, or whatever, is an appropriate way to rectify the issue. Then we'd check that the informal process is appropriate and that then, if it isn't successful, then we'd start the formal counsel, performance management.

PN3592

So did you give that advice to Mr Hamilton in Ms Barakat's matter?---That performance management was an option? Yes, I did.

PN3593

When did you give him that advice?---We spoke about it immediately after he'd had his meeting with Neheda which was on 5 April.

PN3594

So you spoke about it that meeting immediately after 5 April?---After, yes.

PN3595

What did Mr Hamilton say to you?---That we were talking about different - we were actually emailing about the clauses. He believed that there was a significant risk to the program to return her there at that time.

PN3596

Why did he believe that?---He didn't talk to me about other people's views in detail of her returning. He didn't discuss it with me further.

**** KATE MARSHALL XXN MS CONNOR
PN3597

So you did point out to him that there are a range of other mechanisms under the agreement to deal with his alleged concerns about Ms Barakat?---Yes.

PN3598

Can I take you back to this one and ask you to have a look at the alleged reasons that he gave for instantly removing Ms Barakat and I'd like you to comment on them in terms of whether you think as a bundle of issues that it
warranted - - - ?---I'm going to have to get a copy.

PN3599

- - - you know, unilateral and immediate removal?

PN3600

MR SMITH: Sorry, Commissioner, could I just ask a very simple question. Does the witness actually have a copy of that document, I think - - -

PN3601

THE COMMISSIONER: I think she's got mine, have you?---No, I think I gave it back.

PN3602

Did you?---Yes.

PN3603

MR RYAN: It's also contained as an appendix to Mr Crane's report.

PN3604

THE WITNESS: I don't have Gary Crane's report.

PN3605

THE COMMISSIONER: Right, thank you.

PN3606

MS CONNOR: Okay?---So if I'm talking about the sudden abandonment of the program last Thursday?

PN3607

Yes, that's my number 1?---

PN3608

We could actually consider that a misconduct issue, given that there were still some remaining things that needed to be done on that program.

PN3609

What were they, Ms Marshall?---I think the preparation of the program hadn't been completed. I believe that - - -

PN3610

Just on that, let's just - we'll do it one by one?---I don't - okay.

PN3611

Ms Barakat came to work, attended her meeting with her staff to allocate work, became extremely distressed, right, and went home?---Mm.

**** KATE MARSHALL XXN MS CONNOR
PN3612

After she'd completed a range of tasks and whatever, okay. If someone goes home in a state of high stress, right, or sick, is that really abandonment?---I believe she was talking about resigning at that time and that she'd handed in - - -

PN3613

Did she resign?---Well, we didn't get a formal resignation letter but - - -

PN3614

THE COMMISSIONER: How do you believe that? What gives rise to that belief?---Because as she was exiting I believe she spoke with Sue Charleson and gave her, her mobile phone, and Sue then told Marco who rang Walter.

PN3615

And how did you - - - ?---I was told about that by - - -

PN3616

MS CONNOR: Who told you?---My boss, Hanan Gamali.

PN3617

I see, okay, so that led you to the belief that she was thinking about
resigning?---Yes, and I'd also had a previous conversation with her where she told me she was thinking about resigning.

PN3618

Thank you.

PN3619

MS CONNOR: Just on that one, Ms Marshall, I've discussed that with Ms Barakat and she said she was joking when she raised that with you, that there were two small issues and she'd made a joke. Perhaps you didn't pick up the nuance of what she was saying then?---Well, we had a - she asked me to keep the conversation confidential, so to me that says someone - it's serious and I did keep that conversation confidential for a long period of time, and she seemed quite serious about it to me, so I didn't pick up that she was joking.

PN3620

Just so that you know, that wasn't her intention, and in fact she did come back to work?---On 5 April?

PN3621

No, after she'd had the conversation with - - - ?---Yes, yes.

PN3622

She came to work?---Yes. No, I'm thinking about - yes.

PN3623

She went home because she was extremely distressed?---On that day - - -

PN3624

She came back to work the next day, didn't she?---Yes, after Walter rang her and - - -

**** KATE MARSHALL XXN MS CONNOR
PN3625

Has Ms Barakat ever resigned?---No.

PN3626

Let me just take you back to that, abandonment of the program, okay?---Mm.

PN3627

Do you consider when people go home because they're facing significant stress, they are highly distressed or they're sick, would you categorise that as abandonment of work?---It would depend what they said when they left. It would depend on what they left behind when they left. I would suggest that when someone leaves things unfinished and they're in a senior position like that and other people are relying on them, that it is a serious matter. I haven't spoken with the other staff, just so you know, about what did you think when Neheda left the program on that day, so I don't hypothesise about that.

PN3628

THE COMMISSIONER: Do you know whether there was anything to do with the program, do you personally know?---I didn't personally speak with anyone about - - -

PN3629

No, but do you know now?---I believe that there was still things to do on that day.

PN3630

For example, do you know?---I think Allan Kohler was expecting Neheda to be there with him at the time when he interviewed his person, because that's the arrangement that they had and he was relying on her for that support and that's the role that she normally takes in the program.

PN3631

MS CONNOR: If Ms Barakat was ill and couldn't attend to her duties would that be abandonment of her duties?---If she called in sick and had a sick leave certificate, no.

PN3632

Okay. Who advised you that Ms Barakat - Mr Gamali advised you that Ms Barakat had handed her phone to Ms Charleson, did she?---I - yes, I think that - - -

PN3633

Okay.

PN3634

THE COMMISSIONER: I'm sorry, I was just going to say, I was thinking of adjourning at about 4.30 unless you - - -

PN3635

MS CONNOR: Commissioner, I think I've got a little longer to go here, so - - -

PN3636

THE COMMISSIONER: All right. Is it convenient to break now or - - -

**** KATE MARSHALL XXN MS CONNOR
PN3637

MS CONNOR: It certainly is, Commissioner. Commissioner, there's just one issue we did want to raise with you and that was the matter that we raised with you earlier on the first day of hearings this week, on Tuesday, concerning Ms Barakat being placed on - being paid in accordance with clause 57 - sorry, Commissioner, I'll just find the - there's a special leave clause. Miscellaneous paid leave, Commissioner, clause 42. Can I just - so we would like to actually request that that matter be dealt with particularly in light of the - - -

PN3638

THE COMMISSIONER: You can stand out of the witness box now, Ms Marshall. Please don't discuss your evidence in the interim period.

<THE WITNESS WITHDREW [4.27PM]

PN3639

MR SMITH: Just before we go to this other matter, in case I forget in the heat of argument, perhaps. The two issues that you've sought additional information, would you like those presented, Commissioner, in the context of Ms Marshall's evidence? Obviously she's going to be continuing in the box when we come back.

PN3640

THE COMMISSIONER: Yes, I think if you give a copy to the other side and then when you re-examine you can hand the documents to Ms Marshall. She can identify them and then hand them to you.

PN3641

MR SMITH: Would you like them sent to you before we do that?

PN3642

THE COMMISSIONER: No, thank you. Now, Ms Connor?

PN3643

MS CONNOR: Yes, Commissioner, we'd like to propose that Ms Barakat be paid in accordance with clause 42, miscellaneous paid leave. Ms Barakat, as you know, as you are aware, has been on leave without pay. We're seeking it, I'm sorry, under clause 42(1)(ii), point (e).

PN3644

THE COMMISSIONER: Yes.

PN3645

MS CONNOR: As you are aware Ms Barakat has been on leave without pay from the ABC since June last year. She hasn't had any other means of income because the ABC was insisting for quite a while that she not actually be able to go and take any paid work, even as a waitress, and so she hasn't been in paid work. She's been relying on the generosity of her friends. She gave up her own accommodation and has moved into accommodation with some friends of hers. She hasn't got a zack, Commissioner, to be quite honest and she's actually relying on the generosity of her friends to actually provide her with money to be able to come to the Commission from day to day, to be actually be able to buy a ticket and get here and be able to participate in the proceedings.

PN3646

We're also extremely concerned, I suppose, from the statements that the ABC made to you on Tuesday concerning their intention to run a big case on their rights under section 19.3, that is that they want to revisit those issues and also their contention on Tuesday that should they lose, they'll appeal the whole thing. So our concern now is that it's not just - - -

PN3647

MR SMITH: Sorry, Commissioner, I don't recall making that statement, certainly not in open court.

PN3648

THE COMMISSIONER: Yes.

PN3649

MS CONNOR: Commissioner, I was sure they'd made that statement in open court, but we'll let the transcript tell us about that. That is we're actually looking at a procedure that may go on and on and on and on. It is not fair or reasonable in this case that Ms Barakat bear the sole economic costs of her seeking to pursue her legitimate rights under the agreement.

PN3650

THE COMMISSIONER: Thank you. Mr Smith?

PN3651

MR SMITH: Commissioner, the relevant clause that Ms Connor referred to is one that is at the discretion of the ABC, certainly, but it does refer to other special circumstances considered appropriate in the interests of the ABC and the individual. The ABCs position is that that is not an appropriate clause to be applied. We do not see that this matter would be considered appropriate to the interests of the ABC. We have held out up until such time as we received the Health Service Australia report from Dr Smith that Ms Barakat could in fact mitigate her losses by returning to the position that we had on offer. At various stages we've indicated that that was totally without prejudice and would have remained as such.

PN3652

In respect of any delays that have occurred, the ABC flagged at a very early stage that it was ready and willing and able to run its case and it was only towards the end of last year regarding clause 19.3 that The Alliance indicated themselves that they wished to down tools and go away and rethink the issues and run what would appear to be a different case at that time. That would be on transcript, Ms Connor made that point I think the last time we were here last year. So the ABC has been ready to try and resolve this. We haven't sought to delay it. The facts are that there is, you know, a lot of evidence that needs to be run and we'd be seeking to run that evidence.

PN3653

So we would oppose any such exercise of that discretion and we would question the capacity, no disrespect intended, Commissioner, but we would question the capacity of the Commission to direct the ABC to exercise that discretion.

PN3654

THE COMMISSIONER: What happens if I made an exceptional matters order requiring payment? Does that overcome the capacity problem?

PN3655

MR SMITH: I don't know, I'd have to test that, Commissioner, I'm afraid. I can't answer that - - -

PN3656

THE COMMISSIONER: I think it would override the certified agreement and overcome the jurisdictional capacity problem, but in any event, yes?

PN3657

MS CONNOR: Commissioner, just commenting on some of the points that Mr Smith has made. Look, it's The Alliance's contention that Ms Barakat was ready, willing and able to return to a job at the ABC from the end of June. She made herself available, she made it clear to the ABC that she was no longer sick. They required her to get a medical certificate to that effect. She received a medical certificate to that effect which said she was ready, willing and able to return to work so long as it was not - sorry, and I'll quote - Mr Mutton said this, so in summary says she's ready, willing and able to return to work.

PN3658

This is the only restriction that he places on her return to work:

PN3659

Clearly there were some issues with management and the ABC. Ms Barakat quite clearly is concerned about the interventions of Mr Marco Bass and any direct reporting relationship or direct contact with this particular person should be avoided. I also understand that Ms Barakat is concerned about the approach that Mr Hamilton has taken in recent times and again any reporting relationships would need to be carefully managed. Nonetheless I must stress that Ms Barakat, whilst reacting in an understandable manner in terms of psychological distress, does not suffer from a psychological illness requiring treatment.

PN3660

The next effect of that, when the ABC received that, was that the ABC only offered Ms Barakat a job as a producer on The 7.30 Report and on The 7.30 Report, as the ABC are well aware, Ms Barakat on a Friday would report directly to her executive producer, Mr Marco Bass. So at least one out of five of the days she is directly in a direct reporting relationship with Mr Bass. Furthermore the physical location of the office means that when she moves to The 7.30 Report team she ends up in closer physical proximity to Mr Bass which is again contrary to the medical advice which the ABC sought and received.

PN3661

The ABC was extremely disingenuous in then writing to Ms Barakat, which Ms Gamali did, once she'd received that, saying the following - sorry, Commissioner, I'll just be one minute - saying the following, copy of the medical report from Health Services:

PN3662

The report concludes that you are fit to undertake your work as -

PN3663

and then they quote:

PN3664

Ms Barakat is currently fit to undertake her work as a program maker band 8 -

PN3665

dot, dot, dot, the ABC writes:

PN3666

... in a full time capacity.

PN3667

Now, the dot, dot, dot is in fact the qualification that the medical officer put on her return to work. So they've disingenuously written to her, ignored the advice of the doctor, they are aware that they've ignored the advice of the doctor because they've doctored the letter to show it, that is, they've doctored the quotes to say, "dot, dot, dot, in a full time capacity" and reported that she had to undertake her duties and return to The 7.30 Report. So, Commissioner, while the ABC is happy to - I don't know if happy is the right word, but concedes in the February medical report that she was able to return to work, but under certain restrictions, and those restrictions are identical to the June restrictions, I believe it is not, you know, that they were deliberately placing her in a position that was contrary to the medical advice, because the ABC knows who reports to whom and where people are placed in the organisation. It's their building, it's their geography, it's their manager, Mr Bass, they are well aware The 7.30 Report staff work for Stateline and Mr Bass directly. So for Ms Gamali to make the offer that she made was designed to keep - and this is the only offer of employment that the ABC has been willing to make to Ms Barakat since 5 April, despite a range of ABC people telling Ms Barakat that there might be other options and whatever, there's never been another option. The only option is The 7.30 Report job, which their own medical report said she cannot do.

PN3668

THE COMMISSIONER: Yes, thank you. Well, I don't underestimate the deep concern of Ms Barakat and her circumstances. My comments earlier this week related to the availability of witnesses. We have fully taken up the three days with witness evidence and no time has been lost. I have, with the support of other members of the Commission, been able to completely clear the week beginning 4 April. I expect all evidence to be heard and all submissions made and the matter to conclude that week. ABC has been given the opportunity to consider whether or not it wishes to make a payment. It's not minded to and I, at this stage, am not minded to make an order to that effect. The matter is adjourned to 10 o'clock on the 4th.

<ADJOURNED UNTIL MONDAY 4 APRIL 2005 [4.39PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

GARY CRANE, RECALLED ERROR! REFERENCE SOURCE NOT FOUND.
CROSS-EXAMINATION BY MR RYAN, CONTINUING ERROR! REFERENCE SOURCE NOT FOUND.
RE-EXAMINATION BY MR SMITH PN2757
THE WITNESS WITHDREW PN2827
GREG HOY, SWORN PN2832
EXAMINATION-IN-CHIEF BY MR SMITH PN2832
CROSS-EXAMINATION BY MR RYAN PN2887
THE WITNESS WITHDREW PN2927
KATE MARSHALL, AFFIRMED PN2927
EXAMINATION-IN-CHIEF BY MR SMITH PN2927
EXHIBIT #ABC4 BUNDLE OF DOCUMENTS CHRONOLOGY OF EVENTS PN2945
CROSS-EXAMINATION BY MS CONNOR PN3111
CROSS-EXAMINATION BY MS CONNOR, CONTINUING PN3232
THE WITNESS WITHDREW PN3638