Nuw & Delta Laboratories and anor [2004] NSWIRComm 1079 (17 September 2004)

Last Updated: 18 October 2004

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

McKENNA C

17 September 2004

Matter No IRC 4393 of 2004

NOTIFICATION UNDER SECTION 130 BY NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH OF A DISPUTE WITH DELTA LABORATORIES AND ANOTHER RE SUSPENSION OF UNION MEMBER

RECOMMENDATION

The Dispute

This matter concerns a notification under s130 of the Industrial Relations Act 1996 by the National Union of Workers, New South Wales Branch ("NUW") of a dispute with Delta Laboratories Pty Ltd and Manpower Services (Australia) Pty Ltd concerning the suspension of an employee named Vicki Barnes. Ms Barnes is a permanent employee of Manpower; she has been working at Delta's Somersby site in a production role following a placement by Manpower.

As a result of a number of alleged incidents involving Ms Barnes' conduct, Delta has advised Manpower that it wishes to have Ms Barnes' placement terminated. Manpower currently has no suitable alternative work available with another host employer, albeit Manpower is seeking to find another placement for Ms Barnes. Manpower has indicated that if alternative employment cannot be found for Ms Barnes, her employment will be terminated by redundancy for reasons of shortage of work, although it is plain that the reason for cessation of work at Delta has arisen against a background of issues related to conduct and performance. The suspension of Ms Barnes and her threatened termination of employment have given rise to the dispute notification by the NUW and threatened industrial disputation.

The parties have agreed, I am informed, to abide by the recommendation of the Commission to resolve the matter. To that end, evidence has been adduced and submissions have been made by the parties, in a comparatively informal way, with a view to a binding recommendation to determine the proceedings. Mr A Joseph of counsel represented the NUW; Ms J Hunt represented Manpower and Mr A Gotting of counsel represented Delta.

The recommendations proposed by the NUW are:

1. That Vicki Barnes be reinstated to her position at Delta [Laboratories] on or before [20] September 2004.

2. That Manpower Services remove the warning that has been placed on Vicki Barnes' personnel file.

3. That Manpower Services and Delta [Laboratories] take all necessary steps to give effect to draft Recommendations 1 and 2.

The NUW has submitted that if the Commission were to effect these recommendations, Ms Barnes and the union would also be prepared, without admissions, to consent to the following conditions:

1. Vicki Barnes shall not speak to Ms White nor Ms Coulter except as may be required for the performance of her work duties.

2. Vicki Barnes shall not attempt to solicit any individual to join the union whilst performing work functions, nor shall Ms Barnes request that any person join the union once, or if, the employee has indicated that he/she is not interested in joining.

3. Vicki Barnes shall undertake any supplementary training necessary for the performance of work functions at Delta [Laboratories].

Manpower and Delta are opposed the recommendations proposed by the NUW. They have submitted there is no cause for the Commission to intervene in the course that has been adopted by the respondents. If, however, the Commission were to make a recommendation in the terms similar to those proposed by the NUW, Delta has proposed the following alternative recommendations:

1. That Vicki Barnes be returned to a position at Delta Laboratories Pty Ltd ('Delta') on 20 September 2004;

2. That Ms Barnes must not during working time on the line encourage workers to join the National Union of Workers or any other union;

3. That Ms Barnes must perform the tasks required of her by Manpower Services (Australia) Pty Ltd ('Manpower') and/or Delta to the best of her ability and in compliance with any position requirements;

4. That Manpower must seek to place Ms Barnes at another worksite and that, if a position becomes available, Ms Barnes must accept such a position;

5. That Ms Barnes take reasonable steps to obtain permanent employment;

6. That, notwithstanding any other recommendation, Ms Barnes' placement at Delta will be for a maximum period of 3 months;

7. That Manpower and Delta take all reasonable steps to give effect to the above recommendations.

Background

Ms Barnes has worked exclusively for Delta for approximately one year. Ms Barnes was offered a promotional position in the time she has worked at Delta - hence it seems reasonable to assume her work performance was regarded by Delta as satisfactory. Indeed, the evidence indicated that Ms Barnes was regarded as a good worker until about June-July 2004, a time which broadly coincided with her joining the NUW or seeking to recruit employees at Delta into union membership, or both. There was evidence of concern by co-workers and supervisors from about that time, as well as the identification by an external source of some shortcomings in Ms Barnes' (and other employees') performance. A number of particular issues have given rise to concern by Delta and, as a corollary, concern by Manpower. Those concerns are related to the way in which Ms Barnes is alleged to have conducted herself at the workplace, and have largely stemmed from complaints from work colleagues. Those concerns focus on Ms Barnes' union-related activities and performance or conduct-related activities.

Delta and Manpower have, to varying degrees, conducted investigations into the allegations. The matters alleged against Ms Barnes, together with the outcome of Manpower's investigations, were compendiously outlined in a letter from Manpower dated 9 August 2004. The letter read as follows:

Dear Ms Barnes

We refer to the recent events pertaining to allegations of harassment, intimidation, bullying, and inappropriate behaviour of Manpower colleagues performing work at Delta Laboratories.

You will be aware the following four employees made the allegations:

. Tracey Coulter

. Callie White

. Fe Sollano

. Harriet Patarana

The allegations were made orally to Ms Michelle Byers, Business Manager, and later made in writing in witness statements provided to the NUW.

After having had the opportunity to discuss the allegations with yourself, and allowing you the opportunity to respond to the allegations (with NUW representation), Manpower is of the view that your alleged behaviour attributed to you did substantially occur, notwithstanding that you denied many of the allegations. Accordingly, the information provided by the above four employees has been substantially preferred to your response.

In particular, Manpower finds the following incidents took place at the premises of Delta Laboratories:

1. You repeatedly asked your Manpower colleagues if they "wished to join a union" during work time and meal breaks;

2. Despite being advised by a number of her colleagues that they (individually) did not want to join the union, you continued to question your colleagues during work time and meal breaks;

3. You said to your colleague words to the effect, "Do you like being treated like crap while they sit up there in their nice offices with their new computers while we get nothing?"

4. You said to your colleague words to the effect, "Don't you have a backbone, can't you make your own decisions, it is 2004?"

5. In an aggressive manner, you caused your fist/hand to come down heavily on a box containing Delta products, resulting in the box becoming damaged, and some product becoming damaged.

6. In an aggressive manner, you used your arm to swipe some Delta product from the line, resulting in a number of product becoming damaged.

7. When asked by your team leader to clean a spill on the floor, you said loudly, words to the effect, "Why the fuck do I have to clean that up?"

8. You asked a colleague to tell Ms White she had a telephone call, when in fact she did not.

9. After being suspended whilst an investigation into the allegations could be undertaken, you said to Ms White in the Delta car park, "Thanks for getting me suspended". Ms White responded, "What you did to me at lunchtime was a low act". You then responded, "Get fucked".

Manpower finds the above behaviour unacceptable. You are reminded that you are not to harass, intimidate or bully your colleagues, or any other person whilst at work. You are to ensure you act in an appropriate manner at all times whilst at work.

This warning will be placed on your personnel file. If there is any further inappropriate behaviour, Manpower will consider termination of your employment for all assignments with Manpower's various clients.

Manpower is presently awaiting advice from Delta Laboratories regarding its future need for your services or otherwise. We will provide Delta with a copy of this letter.

Delta has not yet advised us of its final position, however it is possible that it will instruct us to cease providing your services to its site. We are advised we can expect a decision from Delta by close of business, Tuesday, 10 August 2004. Until such time as Manpower is informed of Delta's position, you remain stood down with pay.

On 10 August 2004, after it had considered the warning letter issued to Ms Barnes, Delta decided that it did not want Manpower to provide Ms Barnes' services to it any more. The evidence of Diane Leach, Production Planning Manager, elaborated a number of other reasons Delta considered in reaching the decision. In reaching this decision, Delta considered:

(a) the conclusions in Manpower's letter;

(b) the information derived from its own investigations, which correlated with Manpower's conclusions;

(c) the findings of an external consultant that, among other workers, Ms Barnes' performance was poor;

(d) comments from five line leaders that they did not want Ms Barnes working on their lines due to potential quality issues.

Ms Leach deposed that Delta's view was formed against the following matters:

(a) Delta is a small workplace and Ms Barnes' actions had made the working environment "unbearable". Several employees had communicated to Ms Leach their concerns about any return to work by Ms Barnes;

(b) Delta cannot afford to take any risks regarding product quality;

(c) Delta does not have trust and confidence in Ms Barnes because of:

(i) unsatisfactory performance, manifested by damaged product and working on "go slow";

(ii) comments allegedly made by Ms Barnes;

(iii) perceived dishonesty and not appropriately recognising the seriousness of issues; and

(d) quality control issues/product sabotage.

The Allegations

Evidence has been adduced in the proceedings as to the allegations which formed the basis for the warning in Manpower's letter, and it is to that evidence I now turn.

It is unnecessary to consider a number of other allegations that were raised in relation to Ms Barnes. That is, the other, original allegations presumably were found by Manpower not to have been established, or were not considered appropriate for inclusion in any warning, in that they did not form part of the warning letter. However, it is necessary to consider the matters adverted to by Ms Leach in her evidence, given that the decision-making by Manpower and Delta proceeded, in some respects, on discrete bases.

Allegation 1: Ms Barnes repeatedly asked your Manpower colleagues if they "wished to join a union" during work time and meal breaks

Allegation 2: Despite being advised by a number of her colleagues that they (individually) did not want to join the union, Ms Barnes continued to question her colleagues during work time and meal breaks

As to allegations 1 and 2, I am satisfied Ms Barnes made approaches to co-workers with a view to asking them to join the union or encouraging them to join the union. I am satisfied that Ms Barnes also spoke to co-workers about union-related matters during working time as well as during non-work time. I am satisfied Ms Barnes spoke to some co-workers about union membership and union-related matters even after some had had expressed equivocation about joining or had indicated to Ms Barnes they did not want to join a union. The evidence about these issue was varied. For instance, Ms Barnes conceded she had asked Callie White about joining the union twice; Ms White initially stated to Ms Leach she had been asked "three times, all up", but then stated in evidence she was asked once or twice a week. It is common ground that Ms Barnes placed an application form in a bag being held by Ms Coulter even though Ms Coulter had indicated she did not wish to join. Ms Fisher said Ms Barnes did not ask her to join the union. There was a good deal of hearsay about other employees.

There was no evidence that employees at Delta were prohibited from speaking to each other while working on the production line. The topics discussed by individuals could not, I think, be constrained in a contemporary Australian workplace - subject to constraints that may be applied by, for instance, principles associated with having a work environment free from unlawful harassment. The evidence indicated that conversation, banter or "chit-chat" about all sorts of issues while working was not unusual. Even if Ms Barnes was overly enthusiastic about unions in her approach to co-workers in repeatedly encouraging them to join unions and in extolling the perceived virtues of union membership (or, on the other hand, expressing her opinions about the perceived shortcomings of Delta or Manpower, wages and conditions, etc), making those approaches or expressing those opinions, without more, would not give reasonable grounds for a warning, suspension or dismissal.

Equally, it is clear that, in the case of two (or more) employees, Ms Barnes' repeat approaches were considered unwelcome as were Ms Barnes' expressions about what she considered to be poor wages and conditions at Delta. For instance, Ms White and Ms Coulter did not wish to join unions and objected being asked on one or more occasions to join the union; and, apparently, had no wish to engage in Ms Barnes' discussions about union-related matters and similar issues, such as employment conditions.

The evidence established that Ms Barnes' approaches about the union made two employees, put at its lowest, quite uncomfortable. It is plain there were differences of opinion about union-related matters. There was also evidence of Ms Barnes' own upset at the way matters were unfolding, and of wanting to "remain strong in front of her workmates", particularly after she had cried in a meeting. Some employees considered that they worked in an environment with approachable, friendly management and there was no need for a union; whereas other employees, such as Ms Barnes, were critical of management and of the pay and conditions afforded to employees. Each is entitled to his or her own opinions about matters such as these. Just as Ms Barnes' right to be a member of a union and to promote unionism must be respected, other employees' rights not to be members and wishes or views concerning employment-related matters must have equal respect. As Connor C outlined in Gorman v BHP Integrated Steel Division (unrept, IRC99/4242, 13 July 200), the position of union delegate is often a thankless job - an intermediary between workers and management with the individual receiving criticism from both sides. As Connor C further noted, a union official doing no more than his or her role as a delegate would be entitled to expect the employer would respect his or her legitimate activities. Equally, being a delegate is not a licence to act inappropriately. As was noted in the Newcastle Steel Works Case (1961) AR 48 at 66, being a union delegate does not confer immunity. Given the concessions made by Ms Barnes that she approached some employees more than once about joining the union and given the nature of the concerns that have been raised by some witnesses concerning Ms Barnes approaches, it is appropriate that any recommendation involving Ms Barnes' return to work should be conditional on averting any further unwelcome, repeat approaches.

Allegation 3: Ms Barnes said to a colleague words to the effect, "Do you like being treated like crap while they sit up there in their nice offices with their new computers while we get nothing?"

There was no evidence that the use of swear words was prohibited at Delta, as is the case in some workplaces. Regrettably, given the warnings issued to Ms Barnes, there was no evidence one way or the other as to the prevalence of such language at the workplace. It is apposite to note the evidence did establish that language of this type was, however, used by at least one other employee at Delta, apparently without any warning being issued. That example is found in the evidence of David Leach, who is an employee of Delta and, notably, whose parents own and manage the business. Mr Leach deposed that he conversed with another employee in the following way:

On or around 22 July [2004], I was talking to a colleague (Miranda De Groot) in the washbay and I asked her if she had joined the union. She replied "I am not sure if I should tell you" and I said to her "That's fine Miranda, I don't give a shit whether you are or not". ...

If other employees such as Mr Leach engage in conversations of this tenor at the workplace, using words such as "shit", it would seem unfair or unreasonable for Ms Barnes to be disciplined for conversing with another employee in the terms alleged and using the word "crap". Even taking the respondents' evidence at its highest, I doubt whether the question allegedly asked by Ms Barnes could reasonably warrant inclusion in a formal warning of the type issued to Ms Barnes, albeit, as Manpower submitted, it might reasonably be regarded as "disrespectful" to its client company. Even if Allegation 3 were made out, putting such a question would not give reasonable grounds to effect a suspension or dismissal.

Allegation 4: Ms Barnes said to a colleague words to the effect, "Don't you have a backbone, can't you make your own decisions, it is 2004?"

Ms White worked with Ms Barnes at Delta in production. Ms Barnes asked Ms White to join the union, but Ms White declined to do so. On a subsequent occasion, Ms Barnes again asked Ms White to join the union. Once again, Ms White declined to join the union; on that further occasion, Ms White stated to Ms Barnes that her reason for not joining a union was associated with her husband's adverse views about unions and that he would not let her join. Apparently, Ms White, in discussion with her husband, had decided to make-up this reason as an excuse to give to Ms Barnes for not wishing to become a union member - put colloquially, to use him as an excuse to get Ms Barnes "off her back".

Although Ms Barnes has denied saying the particular words attributed by Ms White to her, it was common ground there was at least some discussion about women making their own decisions about matters such as union membership rather than allowing husbands to impose their wishes on their wives.

Having considered the evidence, it seems to me that something was said by Ms Barnes to the effect that Ms White should make her own decisions rather than deferring to her husband who, Ms White had said, would not allow her to join - but probably not in the particular terms alleged by Ms White. Allegation 4 has, in general terms only, been made out - but it seems to me that urging Ms White to make her own, independent decisions rather than deferring to her husband (even if Ms Barnes said this bluntly in the terms alleged) would not would not give reasonable grounds for disciplinary responses by an employer.

Allegation 5: In an aggressive manner, Ms Barnes caused her fist/hand to come down heavily on a box containing Delta products, resulting in the box becoming damaged, and some product becoming damaged

Ms Barnes conceded she had, during the course of a conversation, slapped the top of a box containing Delta product. Ms Barnes gave a demonstration of her action while giving evidence - which might be described as a light slap which brought the palm of her hand down to the top surface of the box. Ms Barnes denied her action was characterised by any form of aggression; she denied punching the box with her fist and contested the assertion there was any damage to the box or product.

The reports that formed the basis for this warning were made by Ms Coulter. In the first account given by Ms Coulter on 19 July 2004, Ms Barnes allegedly punched into a carton, i.e:

Vicki [Barnes] demonstrated that she was not happy by walking around to where there were some cartons with tube packaging ready for filling on the line and punching into a carton with her fist.

Ms Coulter said she immediately checked the tube packaging to see if there was any damage to the tubes. It is relevant to note that Ms Coulter said in the first account on 19 July 2004 there was no damage. Ms Coulter reported the matter to the supervisor. The supervisor said he had, in any event, personally witnessed the alleged incident. Apparently, the supervisor said nothing to Ms Barnes about the matter.

In a second account given on 31 July 2004, Ms Coulter wrote that the incident resulted in damage to the box, but there was no report of any damaged stock:

... [Ms Barnes] got very angry and closed her fist and came down on my packaging with her fist which resulted in the box being damaged ...

In a third account given by Ms Coulter on 6 August 2004, Ms Barnes allegedly formed a fist with her hand, raised her fist to shoulder level and brought her fist down onto packaging. In this account, and in contrast with her first and second accounts, Ms Coulter reported Ms Barnes had damaged both the box and stock. That is, Ms Coulter advised:

... a couple [of tubes] got dented in the process, I was lucky that we did not lose a lot more.

In this third account, Ms Coulter now also reported the following, "There was a hole in the top of the box where she came down with her fist" and "She put a hole in the top of the box and that's how the tubes ended up damaged".

In evidence in the proceedings, Ms Coulter retracted or qualified her initial reports, and stated that damage was inflicted to both the box and the product despite the content of her initial reports.

The reports by Ms Coulter in relation to Ms Barnes' alleged behaviour concerning this incident were, at best, contradictory and range to improbable. Had the "box" allegation been made out, the misconduct would have given reasonable grounds for a warning, suspension or dismissal. Having heard the evidence, I accepted Ms Barnes' characterisation of the incident. In accepting Ms Barnes' characterisation, it is relevant to note the alleged punch, aggression and damage occurred in the presence of a supervisor. According to Ms Barnes' uncontroverted evidence, the supervisor said nothing at all to her about the alleged behaviour and supposed damage, and this accords with Ms Coulter's recollections.

It seems improbable that a supervisor would not utter a word to an employee whom he had personally observed engaging in alleged misconduct of serious nature alleged, that is, punching a sealed box containing stock with sufficient force, and without the aid of an implement of any description, to create a hole in cardboard packaging and damage stock. I have considered the evidence of Ms Leach which was to the effect that the duties of the supervisor in question have been altered because Delta holds some concerns about him. Nonetheless, it is common ground that the supervisor - an employee of Delta - witnessed the alleged incident, yet he was not called to give evidence; moreover, if anyone actually asked the supervisor about his observations of the matter, there was no evidence of it. Mr Joseph submitted, and I accept, that the usual inferences may be drawn. There was no evidence to indicate that a box with a hole now in it was removed by anyone or that the damaged stock was removed or had to be replaced - which would seem improbable if Ms Barnes had punched a hole right through a box and created the damage as alleged. The damaged box was not produced in evidence and nor was there any evidence of itemisation of the stock alleged to have been damaged by Ms Barnes, despite the evidence by Ms Leach that any damaged stock must be accounted for internally in a Reconciliation Form. Lastly, Ms Coulter gave differing, and incompatible, accounts about whether and how the damage was alleged to have occurred, and the number of items of stock - and her statements and evidence thereto are to be evaluated accordingly.

Allegation 5 has not been made out; the conduct that was conceded by Ms Barnes would not give reasonable grounds for disciplinary action.

Allegation 6.

In an aggressive manner, Ms Barnes used her arm to swipe some Delta product from the line, resulting in a number of product becoming damaged

This is another instance where the reports relied on by Manpower in issuing the warning to Ms Barnes, and the evidence, are contradictory both as to the nature of the alleged conduct and the context in which it occurred.

There was no evidence of the quantity of product said to have been involved, despite the evidence as to the requirement for the stock Reconciliation Form.

In considering the issuing of the warning to Ms Barnes that she had aggressively swiped product from a line, it is relevant to consider the nature of the reports, as well as the follow-up interviews. The reports and interviews relied on by Manpower in deciding to warn about product damage Ms Barnes included the following. It was unclear whether they all related to the same set of circumstances.

In a note of a conversation prepared by Ms Leach, Fe Sollano is reported as having recounted the following (but Ms Sollano was not called to give evidence):

Fe also mentioned that Vicki Barnes had been working on her line and had never experienced so many tubes being put in the wrong way which caused product to be spilled out into the tube machine which then had to be cleaned up.

In a note of a conversation prepared by Ms Leach, Ms Coulter (who attested to this account in her evidence) is reported as having recounted the following:

There was also another occasion where Vicki [Barnes] showed her rage in front of a number of staff members by pushing a quantity of filled tubes off the packing bench because she was unable to keep up with the normal filling and packing regime.

In a tape-recorded interview (again attested to in evidence), Ms Coulter elaborated the matter in the following way:

Swiped the tubes, yeh [Ms Barnes] was on a go slow mode on our line, anyway she could not keep up with everybody else on our line, and she was putting the tubes off the bench into an inner carton and then putting it back on the line for another girl to close up, and she could not keep up and she got very angry and she just swiped the tubes with her hand straight off the table [indicates by raising her arm and pushing out] and a couple of tubes got dented in the process, exactly as I said before, they were aluminium tubes. ... She put her arm across and just swiped the whole lot off the table. ... Oh there probably would have been only about a half a dozen that actually fell on the floor, the rest that she swiped off they landed in a box so they weren't damaged.

Jannette Lindsay, Line Leader, who also gave evidence endorsing her earlier written observations, recounted Ms Barnes' spills on the line and other matters in the following way:

Vicki Barnes worked slower than the previous day. ...In the morning she said she would turn the speed down on the filling machine. I said no. Vicki had a few spills after that which slowed down the job. Crimping in the morning was quite slow so I changed her back to filling. In the afternoon she was able to keep up the crimping speed to the filling rate quite easily.

I had instructed at the beginning of the job to all three girls show shippers were to be packed. I went down to check when Vicki was packing to find she was not packing as instructed. When I brought this to her attention I got much sighing and rolling of the yes [sic] and banging down of pillow packs. I just ignored this."

In a tape-recorded record of interview on 6 August 2004, which she attested to in evidence, Ms White recounted the her description of events in the following way:

... [Ms Barnes] was always a good worker in my opinion. ... But I feel that she just changed. ... And I really noticed it when I got put on the 'Little Bit of Relief Line' because we had tubes going everywhere and she was throwing them on to the floor and everyone else could keep up with them coming out of the machine and that's not Vicki. She thought she was funny and it was going everywhere and we had to stop the fill and that's obviously costing Delta money cause we've all got to help Vicki who I know is capable to do that job in the first place. ...

Presumably, Manpower relied on Ms Coulter's account of Ms Barnes deliberately "pushing" or "swiping" stock off the production line in "anger" or in a "rage" in issuing the warning about aggressively swiping product off the production line, resulting in damage to it. It is unclear why accounts by other employees were discounted when Ms Coulter's account is qualitatively different from some other accounts. That is, the other accounts variously describe "spills" when Ms Barnes was unable to keep pace; the alleged "aggression" or "rage" is not referred to in any other reports other than that of Ms Coulter. It seems to me that the lack of reference to Ms Barnes' allegedly aggressive behaviour is notable by its absence in the other employees' accounts.

The only other report before Manpower as to Ms Barnes' demeanour at the time of the incident was from Ms White. Ms White said "we had tubes going everywhere and she was throwing them on the floor" and in her initial assessment Ms White reported that Ms Barnes was acting as if she "thought she was funny". It is to be noted that Ms White gave evidence in the proceedings as to this matter, indicating, by demonstration, that Ms Barnes had angrily swept stock from the production line. Ms White's characterisation of the matter in the proceedings appeared rather different from the characterisation she originally described to Manpower and which she otherwise attested to in the proceedings in endorsing the veracity of her earlier comments, and is to be assessed accordingly.

The only material before Manpower to support the contention of "aggression" is the description by Ms Coulter as to damage resulting from a "rage". However, this description is to be considered in the context of other employees' references to trying to cope with "product going everywhere" and "spills", coupled with a description of Ms Barnes acting as if she thought she was funny. In evidence, Ms Coulter made passing reference to the matter as when "tubes fell off the bench" (my italics). Having assessed the evidence, I am satisfied there was an incident involving spillage when Ms Barnes was working on the production line with a small amount of product falling to the floor or into a box, or both - rather than deliberate damage in the way of enraged swiping or throwing. The allegation of aggressively swiping product from the line, with resultant deliberately-caused damage to stock has not, however, been established.

I accept, as Mr Gotting submitted, Delta may have a reasonable concern about an experienced worker such as Ms Barnes not being able to keep pace. However, if I understood Ms Lindsay's evidence correctly, this was the first day Ms Barnes had worked systematically on the line for this particular product, albeit she had worked on it previously in short relief periods; hence, it seems Ms Barnes was not fully experienced on this particular line. There also was evidence Ms Barnes had complained to Ms Lindsay about lack of training and of a request to slow the pace of the machine. Moreover, there was evidence of other employees occasionally falling behind - with resulting spills - and that when the lines were running too fast that only every second tube was filled or packing or labelling was shared.

Lastly, I note that Ms Lindsay was sufficiently concerned about Ms Barnes' performance to start note-taking. As both parties' submissions noted, Ms Lindsay was impressive as a witness, giving "straight-forward and honest" evidence. I accept that her evidence should be regarded as reliable. If a supervisor raises legitimate, performance-related issues, eye-rolling and sighing might well be regarded as inappropriate. I am inclined to the view that there were at least some performance issues with Ms Barnes around late-July 2004, although the principal cause for Ms Lindsay's concern seemed to focus on a perception of "negativity" rather than performance simpliciter. I accepted Mr Joseph's characterisation that Ms Barnes was reasonably vocal in expressing her views about wages and conditions; I also accepted his related submissions that while Ms Barnes' views may be disagreeable to the respondents and some of their employees, her expression of views does not equate with evidence of poor work performance.

It hardly need to be said that a return to work by Ms Barnes must be accompanied by standards or pace or performance reasonably required by the respondents, as proposed in Delta's alternative recommendations. In fairness to Ms Barnes, however, some of the other complaints levelled against her seemed referred to comments which might otherwise be regarded as valid, innocuous, etc., e.g., commenting that Delta should provide employees with pens and stanley knives given they were needed in the performance of duties, or commenting about perceived inadequacy of training.

Allegation 7: When asked by her team leader to clean a spill on the floor, Ms Barnes said loudly, words to the effect, "Why the fuck do I have to clean that up?"

Ms Barnes' evidence as to this matter was that the mess was not of her making and did not understand why, in those circumstances, she should be told to clean-up. It is to be noted that, after voicing her question of protestation in the words alleged or with words to similar effect (including the use of the swear word), Ms Barnes cleaned the spill without further ado.

Ms Barnes considers she was being unfairly "picked-on" since she had become involved in the union - and that being asked to clean another person's spill was part of that pattern. Despite Ms Barnes' concern that she had been unfairly asked to clean a spill that she had not caused, it would not seem unreasonable for a warning to be given to Ms Barnes, given the tenor of the response to her team leader. On the other hand, if discourse involving the use of swear-words was as unremarkable at Delta as the evidence of Mr Leach would seem to indicate, it would seem unfair for Ms Barnes to be singled-out for discipline for using a swear word. Unfortunately, as noted earlier, there was no evidence on which to make a finding about the prevalence of this type of language at Delta.

Allegation 8: Ms Barnes asked a colleague to tell Ms White she had a telephone call, when in fact she did not.

The "telephone call" incident was the subject of comparatively detailed evidence from Ms Barnes and Ms White. The evidence as to the particular events in question was largely agreed; the perceptions of Ms Barnes and Ms White about the events were, however, widely divergent.

On the day in question, Ms Barnes asked an employee to tell Ms White there was a telephone call for her. In fact, there was no such call. It is common ground that when Ms White arrived to take the call Ms Barnes said words to the effect that there was no call, but the union was available on site if she wanted to speak to union officials.

Ms Barnes stated in evidence she had made-up the story about the telephone call so that Ms White could meet union representatives, without drawing undue attention to any discussions. It is common ground that Ms White had earlier stated to Ms Barnes that she was considering joining the union, given an issue that had arisen about the allocation of shifts. In this regard, Ms Barnes had offered to make representations on Ms White's behalf concerning shifts. Ms Barnes said her actions in making-up the story about the telephone call were designed to provide a cover for Ms White to allow her to discuss the matter with the union. Ms Barnes indicated that Ms White seemed unconcerned when she was told there was no call.

Ms White's perceptions about the same events were quite different from those of Ms Barnes. Ms White had left the lunch room and considered that Ms Barnes must have known she would have stayed if she had any interest in unions. Ms White conceded she had earlier stated to Ms Barnes that she was considering joining the union given an issue about shift allocations, but Ms White stated in the proceedings she had made this comment only in a sarcastic way that was not intended by her to be taken seriously by Ms Barnes. When Ms White received the message about a telephone call she was alarmed because she thought it was an emergency involving her sick child. Ms White perceived Ms Barnes' action as being a fairly galling example of harassment concerning union membership. She also considered Ms Barnes and NUW officials were mocking her.

Ms Barnes made-up a story that there was a telephone call for Ms White. It is common ground that Ms White had stated to Ms Barnes she was considering joining the union; Ms White said, in evidence, she was being sarcastic when she made the comment. However, Jacqueline Fisher testified that Ms White had also stated to her she was considering joining the union. Ms Fisher no longer works at Delta and she was not a member of the NUW; she has no partisan interest in the outcome of the proceedings and she gave her evidence credibly and consistently. I think Ms Fisher's evidence as to the conversation with Ms White is to be preferred over Ms White's denial. There was nothing on the evidence to indicate that Ms Barnes knew, or should have known, Ms White had made the comment about considering joining the union out of concern about her shift allocation only a sarcastic way rather than as a truthful expression of her intentions, particularly when considered in the context of Ms Fisher's evidence. Moreover, there was nothing, other than Ms White's own perceptions thereto, to indicate that Ms Barnes was acting maliciously in relation to the message about the telephone call; Ms Barnes characterised this action as trying to afford Ms White an opportunity to speak to the union about her shift problem. Further, there is no evidence that Ms Barnes knew in advance, or that there was any way she could have known in advance, about Ms White's understandably concerned response to the advice there was a telephone call for her. Ms White conceded that Ms Barnes could not have know about the concern about her child. Moreover, Ms Barnes has indicated she was "very sorry if I upset Callie. That was not my intention".

The principal cause for concern in issuing the warning was that the advice about the call was designed by Ms Barnes as conduct in the nature of harassment, bullying or intimidation. The evidence does not, however, indicate that the advice about the telephone call was designed by Ms Barnes to harass, bully, intimidate - or as any similarly unacceptable behaviour. On the contrary, it seems reasonable to infer that once Ms White had stated to Ms Barnes and to Ms Fisher she was considering joining the NUW it would not be unreasonable for Ms Barnes to attempt to facilitate discussions about the shift problem or membership, or both. In the context of the comments that had been made by Ms White about considering joining the union, it does not seem unreasonable to infer, as Ms Barnes' evidence indicated, that the advice about the telephone call was intended in a benign way.

Stating there was a telephone call, when there was none, was inappropriate and - given the absence of evidence to indicate a malicious intent - a light warning might reasonably stand for causing that advice to be given to Ms White.

Allegation 9.

After being suspended whilst an investigation into the allegations could be undertaken, Ms Barnes said to Ms White in the Delta car park, "Thanks for getting me suspended". Ms White responded, "What you did to me at lunchtime was a low act". Ms Barnes then responded, "Get fucked".

While there were some different nuances in the witnesses' accounts, it is common ground an exchange of this nature occurred between Ms Barnes and Ms White. The exchange is to be seen in the context of Ms Barnes' understanding that she had just been suspended from her employment following a complaint concerning the telephone call incident (being an incident which Ms Barnes perceived she had designed to assist Ms White) and Ms White's perception that the telephone call message had been of a harassing nature, coupled with the alarm she had experienced given her personal circumstances. Ms Barnes' retort then included the use of a swear word.

The three-sentence exchange between Ms Barnes and Ms White was regrettable, but is to be seen in context. It occurred after the mutual misunderstanding in relation to the telephone incident and after the suspension of Ms Barnes' employment. Those observations being made, it would not seem unreasonable for a warning to be issued to Ms Barnes, given the tenor of the comments to Ms White unless, as I have observed earlier, the use of swear words was unremarkable - as Mr Leach's evidence seems to indicate. I should also observe, however, that Ms White's own comment might reasonably be regarded as somewhat unfortunate in all the circumstances, given that Ms Barnes' intention was to assist Ms White after her statement to Ms Barnes that she was considering joining the union because of the shift problem.

Delta's concerns

There was little evidence in support of the matters independently relied upon by Delta. As to the conclusions in Manpower's letter and the information derived from its own investigations, these need to be evaluated in the context of the sworn evidence in these proceedings. An external consultant found that Ms Barnes' performance was poor, but Ms Barnes was one of an unspecified number of employees in this respect. There was no evidence of employees other than Ms Barnes being dismissed following the consultant's review and his report was not otherwise in evidence; rather, the outcome seems to involve an examination of improving production through measures such as quality assurance improvements. None of the five line leaders referred to in Ms Leach's statement was called to give evidence as to their reported views about Ms Barnes, and nor was any one of the several employees who were said to have concerns about any return to work by Ms Barnes. There was hearsay about the views of lots of workers relied on by Delta, but only a handful of employees gave evidence as to such matters including, particularly, Ms White and Ms Coulter. It can fairly be said that their evidence indicated they would prefer not to work with Ms Barnes, albeit Ms Coulter commendably acknowledged said that if Ms Barnes returned she would deal with the matter professionally.

Delta may be a small workplace, but the evidence did not support the conclusion that it was Ms Barnes had made the working environment unbearable; the evidence squarely indicated there has been some fault on all sides as well as misunderstanding. I accept that Delta cannot afford to take any risks regarding product quality, but the evidence, as considered above, did not establish that Ms Barnes deliberately jeopardised or deliberately damaged product. As to Delta's trust and confidence in Ms Barnes concerning (i) unsatisfactory performance, manifested by damaged product and working slowly, these matters are dealt with in relation the findings concerning the warning letter; (ii) some comments allegedly made by Ms Barnes were based on hearsay, and not otherwise substantiated in the proceedings - I otherwise preferred and accepted the denials by Ms Barnes; (iii) as to perceived dishonesty, I accept Mr Gottings' submission that credit "looms large" in these proceedings. The findings of fact and credit in relation to the matters which were the subject of sworn evidence are outlined earlier. The respondents were entitled to make their own assessments about matters such as preferred veracity, but, as Mr Joseph submitted, the Commission ultimately is bound to determine matters for itself, based on the evidence and submissions adduced in the proceedings. As to not appropriately recognising the seriousness of issues, Ms Barnes seemed, contrary to the conclusions of Delta, to have had an acute understanding of the seriousness of the issues. Her responses ranged from tearfulness when advised of complaints to ensuring she would have union representation when allegations were being put to her. Lastly, the evidence did not support the concerns about product quality issues being attributable specifically to Ms Barnes, and nor did they support the contention about product sabotage.

Mr Gotting submitted that the legislation does not envisage reinstatement in the relationship of host employer and, by parity of reasoning, that approach should not apply here (cf Nguyen v A-N-T Contract Packers Pty Ltd (trading as A-N-T Personnel) (2003) 128 IR 241). The issues concerning the contractual relationship and severance of employees' placements, or giving the work to another employment agency are, I think, to be assessed in what I had been informed was the parties' agreement to accept the Commission's recommendation.

Recommendation

I recommend that:

1. Ms Barnes be reinstated to her former position at Delta on or before 20 September 2004;

2. the warning already on Ms Barnes' personnel file be accompanied by a copy of this recommendation, with a notation they are to be read in conjunction;

3. Ms Barnes not speak to Ms White and Ms Coulter (and vice versa) except as may be reasonably required for the performance of their respective work duties and that such discussions be conducted in a professional, business-like way;

4. Ms Barnes not repeat any request to any co-worker to join a union if the employee states, or has in the past stated, to Ms Barnes that he/she does not wish to join;

5. Ms Barnes not attempt to solicit any co-worker to join a union at a time when work is supposed to be performed;

6. if Delta or Manpower consider it necessary or desirable, Ms Barnes undertake any additional training to address any perceived performance-related issues;

7. Ms Barnes perform her duties to the best of her ability and in compliance with any position requirements;

8. Manpower continue to seek an alternative placement for Ms Barnes and, if a suitable position becomes available, Ms Barnes consider accepting such a position;

9. Manpower, Delta, the NUW, Ms Barnes, Ms White and Ms Coulter take all reasonable steps to give effect to these recommendations.