Electrical Trades Union of Australia, NSW Branch and Energy Australia [2008] NSWIRComm 1128 (11 November 2008)

Last Updated: 16 January 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Electrical Trades Union of Australia, NSW Branch and Energy Australia [2008] NSWIRComm 1128
This decision has been amended. Please see the end of the judgment for a list of the amendments.


FILE NUMBER(S):
972

HEARING DATE(S):
20/10/08 21/10/08, 11/11/08

DATE OF JUDGMENT:
26/11/2008

EX TEMPORE DATE:
11 November 2008

PARTIES:
Electrical Trades Union of Australia

Energy Australia

CORAM:
Murphy C


CATCHWORDS: Union's delegate as electrical Installation Inspector found by employer to have bullied and harassed supervisors over issue of disconnection duties. Respondent issued third written warning and requirement to undergo anger management training and reviews. Union sought Commission's intervention to have warning requirements withdrawn. Evidence brought as to elaborate inquiry by company, inclusive of interviews with witnesses etc. Union's member/delegate found to be an unreliable witness and to have failed to give reasonable level of co-operation to employer's enquiry and to have engaged in bullying, harassing and uncompromising behaviour towards supervisors with insufficient justification, even allowing for challenging role as delegate and contentious issue involved. Intervention by Commission denied.

LEGAL REPRESENTATIVES

APPLICANT
Ms A McKinnon, ETU
RESPONDENT
Mr B Cross of Counsel briefed by Deacons Lawyers

CASES CITED:


LEGISLATION CITED:
Industrial Relations Act 1996


TEXTS CITED:




JUDGMENT:

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: MURPHY C

11 November 2008
Date issued: 26 November, 2008

Matter No IRC 972 of 2008

Notification under Section 130 by the Electrical Trades Union of Australia, New South Wales Branch of a dispute with Energy Australia re alleged breached code of conduct

EX TEMPORE DECISION

[2008] NSWIRComm 1128

1 This is an ex tempore decision given in this matter following extensive submissions heard by the Commission on 11 November, 2008. The final submissions follow the two days of hearing on 20 and 21 October.

2 The Commission received a notification of industrial dispute under Section 130 of the Act from the Electrical Trades Union of Australia, which was referred to me on 27 June seeking the withdrawal of a third written warning issued by Energy Australia to its member, Mr Kevin Ottewill.

3 The dispute notification contained the following summary:

The question, dispute or difficulty concerns the following industrial matters:

(i) Member has been accused of bullying against his supervisors.

(ii) Investigation found the employees had breached Energy Australia's Code of Conduct...... The member refutes the findings and believe he did not engage in bullying behaviour against his supervisor.

4 The Commission then proceeded into conciliation on 2 July, 10 July for a report back and further conference, and on 28 July, again for a further conference and report back, at which point it was decided that conciliation was exhausted and the union exercised its right to have the matter arbitrated, culminating in hearing on 20 and 21 October and final submissions on 11 November.

5 Mr Ottewill, for whom these proceedings were brought was an Installation Inspector, grade 3, with Energy Australia and has been employed for some 38 years in that area. He was a delegate of the union from the Oatley depot of Energy Australia for approximately 25 years.

6 In his affidavit evidence, marked exhibit 1 during proceedings, the applicant responded to the issue for which he received a letter outlining allegations against him on 5 February. The letter of 5 February was sent to him following complaints as to his behaviour on 9 January and 15 January towards his supervisors.

7 Mr Ottewill claimed that the issue which gave rise to his alleged behaviour related to an occupational health and safety issue. This was disputed by the respondent, who in turn suggested that the warnings given to the applicant were themselves, in response to the obligations of an employer under occupational health and safety principles to issue him with a third warning in respect of his behaviour on both 9 and 15 January 2008.

8 The matter involved in the altercation on the 9 January meeting involved Mr Alec Baird who gave evidence in these proceedings and provided an affidavit, exhibit 6. His substantive position in the organisation is one of Superintendent Customer Operations Installation and is also referred to in evidence by the applicant, in particular, as his team leader.

9 The applicant outlined in his affidavit that as an Inspector he undertakes installation inspections - but that the controversial duty highlighted in these proceedings also involved disconnections of approximately 60 per week in the months in which he and others are assigned those particular duties. Other evidence contradicted this statistic somewhat. Disconnections apparently concern electricity retailers other than Energy Australia. And to provide some background - loosely put - can involve awkward situations where householders are disconnected from their electricity supply when in default of payments for power supplied by those retailers.

10 The matter of disconnections was relied upon heavily by the applicant to justify his behaviour towards his supervisors, Mr Baird on 9 January and Mr Loy on 15 January, on that basis that Mr Ottewill was genuinely concerned for his and other employees' safety, being the union delegate, and that his conduct towards Mr Baird and Mr Loy simply reflected his duty to be assertive as union delegate and little more.

11 The matter was first brought to his attention by a phone call, which according to his affidavit, he received on 30 January, when he was informed that Energy Australia had received complaints against him; and that he was to meet with the human resources branch in respect of the complaints.

12 Those complaints were formalised in documentation to him, which was KO2 of the applicant's material lodged with the Commission. On 5 February, the applicant received correspondence which included the extract set out in the following paragraph.

13 The conduct which the applicant was said to have engaged in, was an intimidating, aggressive and threatening manner towards colleagues. His engaging in bullying conduct towards colleagues, was said in the letter of 5 February to be a breach of the code of conduct in the Equal Employment Opportunity and Discrimination and Harassment Prevention Policy - namely it was alleged that he had engaged in the following conduct on 9 and 15 January:

1. Behaving in an aggressive manner, using aggressive gestures such as standing over people when talking and standing inside their personal space;

2. Talking over the top of people in an intimidating manner as they speak, not allowing them to explain their position;

3. Persistently addressing issues in a meeting rather than at a later time as requested; and doing this in an aggressive and threatening manner;

4. Using abusive language in conversation with Mr Peter Loy - that was on 15 January;

5. Following and harassing Peter Loy as he walked to his car to leave the premises on 15 January;

6. Criticising and making derogatory comments regarding Energy Australia employees.

14 The 9 January meeting included, among other things, some discussion in relation to the disconnections, the evidence of Mr Baird, Mr Loy and others made it clear that the applicant was very much opposed to that policy. Mr Cross accentuated in his submissions here this afternoon, the extent to which the applicant has made clear his whole hearted opposition to anything to do with the disconnections requirement. Mr Cross also emphasised in relation to this that the applicant, in 2004, had been in receipt of a pay rise to reflect the new duty then undertaken in respect to disconnections.

15 It is unclear as to the extent of the pay rise, although the evidence was that it was significant, but what proportion of that amount related to the controversial policy remains unknown.

16 The applicant, (by way of background to this matter), finally received a letter dated 27 May which advised him that he had received a warning.

17 That was attachment KO5 to the applicant's affidavit. Again, I won't at this stage read the whole of that document, but required the following of the applicant, under the heading of training:

"As a result of the findings of the investigation into this conduct, you are required to attend:

Anger management training at the direction of Barbara Graham, human resources manager network. You will be notified of the date and location of this training by Ms Graham; and, secondly:

Bi-monthly, one-on-one enforcement and assessment sessions for a period of six months. These sessions will reinforce the messages delivered during the Working with Equity and Respect training and will determine your understanding of your obligations under the EEO policy and codes of conduct. Should it be determined that you have not made sufficient progress in these understandings, you will be required to attend this training on a monthly basis for a further six months."

Under the heading of formal written warning, it says this:

"As a result of the findings it has been determined that a formal warning regarding your behaviour is warranted. This letter serves as a written confirmation of that warning. It is very important that you understand that you must not engage in a further breach or breaches of the codes of conduct, or EEO policy. Should you do so, or should you fail to comply with the training obligations outlined in this letter, you may be subjected to more serious disciplinary action up to and including the summary termination of your employment."

18 It is relevant to mention (again by way of background), that this was the third warning that the applicant had received. The first involved an incident with an Energy Australia engineer by the name of Mr Goldsworthy and occurred in 2004. The upshot of that is outlined in EJ52 and EJ53 of the affidavit provided by Ms Jewel (exhibit 5) on behalf of the respondent in these proceedings and is said to have resulted in an apology being written to Mr Goldsworthy by the applicant who, it was alleged, had made threats to Mr Goldsworthy following the outcome of pay negotiations, a threat which was judged to be a serious matter

19 The applicant, on the basis of that apology (EJ53), was not required to undertake anger management training, similar to that which he is now required in the letter of 27 May this year by his employer.

20 The second warning occurred in July last year and, as pointed out by Mr Cross in submissions. some six months prior to the allegations, now the subject of hearing of this matter. On that occasion the applicant received a warning following an investigation of sexual harassment charges involving a female officer of the organisation. I won't go into that second warning and suffice it to say, that the applicant was on notice of his conduct.

21 It was partly because the most recent warning, that is the one he received on 27 May, 2008, had turned up the heat, so to speak, on him (resulting in a third warning), that the applicant acknowledged in cross-examination as the reason why he was opposing its imposition upon him. Surprisingly, the applicant seemed to believe it was a final warning; but, as disclosed in these proceedings, it was not.

22 The applicant was required to attend two meetings: one on 5 February this year, and the minutes of that meeting were at EJ31 of the affidavit of Ms Jewel; and the minutes of the other on 5 March which, it was suggested, may have been wrongly dated and should have perhaps been dated 8 March, were at EJ34.

23 This case was characterised by the size of the investigation as emphasised very much by Mr Cross in his submissions here today. It was shown to have been an elaborate process; and I suggest that was because of the important position held by Mr Ottewill, that is, of union delegate. It was also obviously a reflection of the seriousness with which the respondent held what had occurred; and an indication of the size of that investigation was evident from the attachments, statements and minutes taken of the interviews of several employees at EJ45 of Ms Jewell's affidavit.

24 It is not my intention, at this stage, to take any highlights from the statements of fellow employees, but sufficient to say that there was definitely evidence arising from those statements of the type of conduct the applicant was found to have indulged in on 9 January and 15 January, which generated the latest warning, after a full investigation.

25 The Commission was naturally very concerned that a proper investigation take place in respect of this matter when the matter came for conciliation. And it wasn't very long into those conciliation proceedings when the size of the investigation became apparent.

26 The Commission was likewise concerned that an employee who is a union delegate, particularly one who has had some 25 years in the job, is not being targeted because of his role. There is a concomitant obligation though, which resides in the same union delegates, to have a very sharp focus upon both their rights and their duties and not to overstep the mark, so to speak.

27 One of the matters which the Commission focussed on and to some extent tested Mr Cross during his final submissions here today, was that there is a lack of direct evidence in the terms of what Mr Ottewill actually said, as one might have expected from any of these witnesses, including Mr Baird, Mr Loy and also, of course, the applicant himself. So the Commission was left with a more generalised description of the conversations.

28 Another less than satisfactory aspect of this case was that there was also some confusion, indeed, by all of the witnesses (and the Commission was unable to clarify) as to a precise chronology of when some changes were made to the requirement on the disconnections procedure, relative to the applicant's defence of being concerned about an occupational, health and safety issue.

29 It was obviously a vexed question for the applicant and there was evidence enough that it was necessary for some changes to be made. But, as to precisely when and what those changes were, the Commission is uncertain. It appears that one significant issue in the disconnections role was that employees caught in a situation where there is belligerence shown by householders, may opt to simply walk away. Again, the Commission is unable to be precise as to when that occurred and as to what the previous requirement might have been, despite efforts made by the Commission itself during the taking of evidence.

30 The Commission has heard evidence in respect of the incident on 15 January which resulted in Mr Ottewill's alleged abuse of Mr Loy. That concerned an incident originating from where the applicant had gone to a wrong address. When the matter was double checked, it was found that the name was correct, but the address was wrong. And when the householder indicated and showed Mr Ottewill the invoice to show that there was another retailer involved, he had contacted Mr Baird and Mr Loy who were both travelling in the same motor car. The applicant advised Mr Baird that he was stressed out and was intending to take the rest of the day off. But what finally occurred was that Mr Ottewill did turn up at about 3pm in the office. Mr Loy was the first person to meet Mr Ottewill, and it was there that the abuse began, according to the respondent's evidence.

31 Mr Baird entered the office, and apparently very little was said to Mr Baird, but more importantly, the applicant was accused of exacerbating the situation by following Mr Loy to the car park and continuing his abuse. Again, the Commission was not assisted with actual words, and whilst the applicant used unsavoury language, Mr Loy gave evidence that it was not actually directed at him so much personally.

32 It was significant then, that the applicant, when brought to interview on 5 February and on 5 March, was most uncooperative in the process. He gave blanket denials. Indeed, Mr Butler, the local organiser, on his behalf, suggested to those assembled that he was not going to answer any questions and demanded that the matters to be investigated should be put in writing. It was during the second meeting then, on 5 March, when this occurred again, that Ms Jewel went to the trouble to read out the six points which I have indicated earlier in this decision, were being investigated.

33 There were some responses given by the applicant but, as highlighted by Mr Cross in submissions, the applicant, whilst claiming such things as that he did not remember the exchange with Mr Loy, when he was given the opportunity at the interview,, had a sudden regaining of his memory and was able, in his affidavit, to make certain denials and claims.

OTHER FINDINGS

34 I cannot really identify anything in Mr Cross's submissions that I've been able to seriously contest here today. They were extremely comprehensive, but also accurate. It is true, as suggested by Mr Cross, that Mr Ottewill was probably one of the worst witnesses that this Commission, as currently constituted, has seen. In his efforts to be evasive, which were mammoth, he painted himself as a totally unreliable witness. And when it came to his denials, therefore, of certain conduct, whilst the Commission was still wrestling with the notion that there was a lack of direct evidence as to precisely what he said that gave such offence, I certainly could not accept his contentions that he was not generally abusive, disrespectful, and overall threatening in his behaviour in the manner in which he conducted himself.

35 Again, the Commission is conscious that union delegates occupy a very important role for the employees as well as the union; but in this case I am satisfied that the applicant on those occasions, overreached himself and his overall behaviour was as described. Albeit that he can be said in part to be very keen to pursue his role in the interests of members, his behaviour was not supported by employees interviewed by the respondent. And the two witnesses that gave evidence on his behalf, Mr Welsh (exhibit 4) and Mr Cantlon (exhibit 3), did not really take the issue much beyond what the other witnesses had already testified to during the investigation.

36 Mr McKinnon, in his submissions to the Commission, made short submissions and really no convincing reply largely , I suggest, because there was very little that Mr McKinnon, despite his best efforts, could really make out of a bad situation for his delegate. But he did forcefully submit that the Commission should take account, in his written submissions and the outline of the case, that the applicant did not undertake the conduct alleged; and secondly, that the investigation was inadequate.

37 I am satisfied that Mr McKinnon's representations must fail on both counts. There was an extensive investigation and the applicant was provided with some four opportunities to explain himself, which was acknowledged by Mr Butler in his evidence in support of the applicant. The applicant, in cross-examination was forced to made certain acknowledgements as to talking over people, and other admissions highlighted by Mr Cross here today. Overall it must be said that his conduct was finally seen by the Commission as being essentially in the manner for which he was taken to task, and certainly proven to have been reasonably considered to be against the respondent's policies.

38 The concessions, of course, made by the applicant in cross-examination, finally were not made in his pleadings and had he been more cooperative instead of being totally uncooperative at those meetings referred to earlier, it might very well have been that the respondent might have been able to take note that the applicant was prepared to alter his behaviour and not felt compelled to issue the warning and anger management training.

39 Accordingly, in the circumstances, the Commission has formed the view that the applicant took a dishonest approach with both the respondent in its extensive inquiry, and indeed, to this Commission, itself; that his conduct exceeded that which one can expect from an assertive union delegate; that his conduct was understandably offensive to his supervisors; that he showed a pattern of conduct; that his previous warnings given to him in 2004 and in July 2007 were all indicative of the matters in which the respondent was entitled to pursue.

40 The issue which the applicant relied upon of the disconnections function was shown to have been finally resolved by the parties, albeit, that at the stage of the 9 January meeting, it was not entirely resolved. Nonetheless, the applicant's attitude was one of total opposition to a duty for which he had received a wage rise in 2004, as I have already indicated. And, had he come up with some changes, as suggested by Mr Baird, the respondent might have been in a much weaker position today. The total opposition displayed by the applicant at that meeting, and his personally abusive conduct then and towards Mr Loy on 15 January were matters which the respondent was entitled to take note of, and to take action upon in the manner in which it did by warning the applicant again, as it did on 27 May, 2008.

41 Again I say that the representations made on behalf of the respondent here this afternoon and this morning, by Mr Cross, were not such as which the Commission could take issue with. It was unnecessary for me to repeat in any further great detail what he relied upon and emphasised. The Commission was taken, in great detail, to those areas of the affidavits of Ms Graham, at exhibit 8, and the affidavit of Ms Jewel at exhibit 5, which included several very important attachments which I have already alluded to, not in complete form, of course.

42 Accordingly, the application brought by way of dispute notification under Section 130, as set out at the beginning of this decision, which claimed that the member has been wrongly accused of bullying against his supervisor; and also challenging the results of an investigation which found that Mr Ottewill had breached the Energy Australia's code of conduct, has been found not to be deserving of the Commission's intervention. Therefore the matter is concluded on that basis.

J P MURPHY

Commissioner

oOo

AMENDMENTS:


26/11/2008 - Legal representatives omitted - Paragraph(s) Front page


LAST UPDATED:
26/11/2008