Australian Workers' Union, New South Wales (on behalf of Marek Kuczwal) v... [2007] NSWIRComm 1026 | Case summary

Australian Workers' Union, New South Wales (on behalf of Marek Kuczwal) v... [2007] NSWIRComm 1026 | Case summary | Zoe

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1 This is an application by The Australian Workers' Union, New South Wales ("the Union") on behalf of Marek Kuczwal who was dismissed from the position of Plate Operator at the Plate Mill in Port Kembla by BlueScope Steel (AIS) Pty Ltd. The application is made pursuant to section 84 of the Industrial Relations Act 1996. The dismissal followed a notification of a dispute between the Union and the respondent arising from Mr Kuczwal being suspended from his position. 2 The dispute was notified on 13 September 2006. In that notification the Commission was informed that the matter had previously been before Commissioner Connor and had subsequently been withdrawn. The current matter was listed for conciliation before Connor C who issued a Certificate of Attempted Conciliation as required under section 135, on 3 October 2006. 3 The application for unfair dismissal was filed on 6 November showing that the dismissal of Mr Kuczwal took effect on 1 November 2006. 4 Both matters come before me consequent on referral agreements pursuant to section 146A of the Act. The terms of each of the two referral agreements between the respondent and the Union allow the current proceedings. 5 Mr Kuczwal's work was covered by the BlueScope Steel (AIS) Pty Ltd - Port Kembla Steelworks Employees Award 2006 ("the Award"). 6 Marek Kuczwal, known as Mark Kuczwal, was dismissed following over 20 years of employment by the respondent. Since 1992 he has been a workplace delegate for his crew for the Union. At the time of his dismissal, Mr Kuczwal was a delegate for C crew, in which he worked, and A crew. He has also been an occupational health and safety representative "on and off" for many years. Mr Kuczwal believed that he has been subjected to victimisation by management at work because of his position as a Union delegate and OHS representative on numerous occasions. 7 The letter of dismissal read as follows: This is to confirm that your employment with this Company has been terminated, with 5 weeks pay in lieu of notice, as from Wednesday 1 November 2006. The termination is due to 1. Your behaviour in the incident, which occurred on Friday 27 October, was misconduct, which offended other employees and caused disruption in the workplace. 2. You have failed to comply with a reasonable and lawful request from management. 3. You have continued to issue a document, which upset certain employees, even after being instructed by management to refrain from doing so. 4. Your past behaviour has shown that you are not prepared to comply with reasonable and lawful requests by management, and that you continue to engage in conduct which has the effect of disrupting employees and the business. The company considers your conduct in relation to the incident on Friday 27 October to be misconduct, and in the circumstances of your employment history your employment is terminated for repeated disruptive behaviour. 8 The remedy sought in the unfair dismissal matter was that Mr Kuczwal be reinstated and paid remuneration that he would have received but for the dismissal. The remedy sought in the dispute was a recommendation that BlueScope remove the final warning from Mr Kuczwal's employment history and reimburse him for the four days lost pay. Background 9 The background to the incident on 27 October 2006 includes the Company's efforts to introduce a re-structuring in the Plate Mill. The proposed restructure was subject to a dispute before the Industrial Relations Commission. Following arbitration, Deputy President Grayson allowed the restructure to continue: BlueScope Steel (AIS) Pty Ltd v AWU [2006] NSWIRComm 248. That decision was appealed but the appeal was not upheld: AWU v Bluescope Steel (AIS) Pty Ltd [2006] NSWIRComm 318. While employees were not happy with this result, in accordance with Mr Hancock's evidence, the respondent clearly had every right to proceed with the restructure and it did so. 10 Also relevant is the warning issued to Mr Kuczwal in September 2005 that he was to act within the limits of his positions as Union delegate and OHS representative, not raise issues without foundation and comply with all reasonable directions of managers or supervisors. This was originally issued as a final warning but, following proceedings before the Commission was reduced to a warning: Australian Workers Union v BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1096. The two day suspension without pay remained in place, indicating the seriousness with which the Commission viewed Mr Kuczwal's conduct. 11 On 27 October Mr Guy met with Mr Kuczwal and told him not to distribute inappropriate material in the workplace. Although he did not define the word 'inappropriate', by way of example Mr Guy showed Mr Kuczwal several editions of The Inquirer, a document produced and distributed by Mr Kuczwal. Later that day, Mr Kuczwal placed on a noticeboard a copy of a document called "The Seven Commandments". It was dated October 2006. Mr Kuczwal wrote the document which said: THE SEVEN COMMANDMENTS You have been chose to change our practices which we enjoy for over 40 years, and you shall follow those commandments which we will teaching you in next 40 days. REMEMBER!!! I You are not senior and you are equal to all employees of the Plate Mill II You are not supervisor and you will not treated as such III You shall work harder then all of us to justify your pay IV You shall respect all your team members even if they do not respect you because you are the one who asked to work with them and you joined the team team did not joined you. V You shall not put yourself above any of team members at any time because we will not tolerate that kind of behaviour by anyone except staff supervision VI Remember your function is new to our team and is junior in our department so your name shall be JUNIOR VII You shall not covet any conditions which are not given to your team members TEAM MEMBERS 12 Although the document was signed "team members", Mr Kuczwal agreed it was written by him alone and was not authorised by anyone else. It was prepared at a time when the new position of Senior Operator had been created, replacing the previous position of Team Leader. The Inquirer 13 On 21 August 2006 Mr Kuczwal distributed a leaflet that showed a turtle covered in soot and another turtle dressed as a doctor treating a rabbit who was also dirty with soot. The doctor was depicted as saying "is nothing wrong all in BlueScope standards". The document was headed "take two cribs only, shower prohibited in working hours by decision of NSWIRC on request of our management". The word "temporarily" was inserted after the word shower. The turtle was a replica of the image of a turtle used by the respondent in its safety pamphlets. The pamphlet came under the title of The Inquirer. 14 An issue of The Inquirer in July 2006 showed two posters of the C crew in the Plate Processing plant, of which Mr Kuczwal was a member, with a chainsaw which Mr Kuczwal admitted represented the company and a picture of a worker holding a sign saying "homeless", and with a picture of a house with a for sale sign in front. A further document which was authored by Mr Kuczwal during the consultation process about the restructure showed people with closed zippers in place of their mouths with the words Plate Mill restructure 2006 and the words "if you worry about you and others listen to us our name is zippers". 15 A further document had a heading Agenda of Deception. It said "tactic of deception used by corporations which aiming to maximise profit and reduce work conditions of its employees. Priority is to destroy unions in order to enforce slavery". It listed seven tools of success going from "EA enterprise agreements" through to "PW using psychological warfare against employees". A box at the bottom of the page contained the words "Remember your rights. You have the right to remain silent, whatever you say will be used against you by corporation". The document also had the face of a devil with the words "trust us". This document was marked The Inquirer December 2005. 16 These documents and others had been prepared and distributed by Mr Kuczwal. Prior to October 2006, management had not discussed them with him.

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Evidence of Witnesses for the Applicant 17 I do not attempt to summarise here the evidence of Mr Kuczwal, extending as it did over two days. Comment on Mr Kuczwal's evidence is made later in this decision. 18 Evidence was called from Mr Dave Hancock, an organiser with the Union in the Port Kembla Southern Highlands Branch. He has been an organiser since March 2003 with specific duties to look after the Plate Mill since 2005. Mr Hancock said that he has observed Mr Kuczwal on a number of occasions and believes he took his role as union delegate "very seriously". 19 Mr Hancock referred to a proposed restructure at the Plate Mill that arose in mid 2006. There were two main issues he said, the first being about shower breaks which he believed the union and most employees accepted. The second issue was about the change from Leading Hand to Senior Operator but that was not the major concern, he said. He had heard employees making jokes about the new Senior Operators' positions but he did not believe they were meant seriously or that anyone was offended by them. When he saw the document distributed by Mr Kuczwal he took it as a joke. He was not contacted by any employee about the document nor did anybody tell him they were offended by it. 20 Mr Paul Bessant gave evidence that he had been employed by the respondent for about 10 years and had been a co-delegate for about five years. He spoke highly of Mr Kuczwal's enthusiasm and persistence in representing the rights of the union members in the plant. Mr Bessant said he was not aware of anyone who was offended by the document distributed by Mr Kuczwal nor that it had any disruptive effect on the work place. He did not believe that anyone was influenced by the document distributed by Mr Kuczwal, although he was aware that a number of people thought it was "a bit stupid". 21 Mr Bessant was employed as an Operator and was co-delegate on B crew. He expressed strong support for Mr Kuczwal. He believed he had not been misinformed in regard to Mr Kuczwal's activities. He believed that delegates and co-delegates of the union were persons of influence in the work place exercising that influence by informing the other workers of things that were taking place in the work place. 22 Mr Tim Kangas was also a Union delegate, having been employed by the respondent for 28 years. He is an operator in the Plate Mill. He too spoke highly of Mr Kuczwal, referring to him as "a good union delegate" who "focuses on the issues that are important". He also described Mr Kuczwal as persistent. Mr Kangas agreed that delegates and co-delegates have some influence with others in the workplace by providing advice and assistance to diverse crews and needing to be careful how to explain things because of the mix of backgrounds evident amongst the work crews. 23 When presented with a number of documents that were in evidence that had been distributed by Mr Kuczwal over a period of time, Mr Kangas agreed he was aware of some of those. The use of the word "deception" in one of them he referred to as being "not a strong word" but only a description. 24 The evidence of Mr Stephen Jamieson, a co-delegate with Mr Kuczwal on C crew, went to events in March 2006. He described his and Mr Kuczwal's roles in the meeting and discussion surrounding actions taken by the C crew employees when another employee was stood down for being late for work. Mr Kuczwal had been absent from the meeting on 8 March. When Mr Jamieson was asked by Mr Cugaly on 9 March to provide the names of those who voted to stop work, Mr Kuczwal advised him that he did not have to do so. Later on 9 March, Mr Jamieson said that Mr Kuczwal advised C crew not to impose an overtime ban, but they voted in favour of the ban.

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27 Mr Michael Burton also provided a statement without being required for cross-examination. An Operator on A crew, Mr Burton described events around the suspension of Mr Kuczwal that occurred in March 2006. Mr Burton said that A crew decided to "go home" on 14 March because Mr Kuczwal had been suspended for attending a meeting called by A crew. He said that Mr Kuczwal had advised A crew not to join C crew's ban on overtime. Evidence of Witnesses for the Respondent 28 Mr Steven Guy, the Plate Despatch Manager of the Plate Mill, gave evidence about the events surrounding Mr Kuczwal's dismissal. On 26 October, he had warned Mr Kuczwal against bringing inappropriate material into the workplace and distributing it at work. He said that Mr Kuczwal replied, "It is a free country. I can put out what I want." Mr Guy saw the material, now identified as past issues of The Inquirer, as portraying company policies or programs in a bad light, or encouraging non-participation in processes such as consultation or overtime, and in contrast to the one team approach encouraged by management. 29 When Mr Guy had read the Seven Commandments and discussed the document with Mr Mahoney, he asked Mr Dam to remove it from the noticeboards, and to tell Mr Kuczwal the material was inappropriate and he was not to put up any more copies. Mr Guy said that Mr Dam reported afterwards that Mr Kuczwal had said that if the document appears on noticeboards later, it was not his fault. 30 The following morning Mr Guy spoke with a number of Senior Operators. A number of copies of the document were located on noticeboards and on tables. It was decided to suspend Mr Kuczwal while his behaviour was investigated. Mr Guy provided copies of contemporaneous hand-written notes he had taken during interviews with a number of workers, as part of the investigation. These notes showed that a number of employees had been upset by the document. 31 When Mr Guy met with Mr Kuczwal to tell him of his suspension, Mr Kuczwal taped the conversation, although Mr Guy had said he refused him permission to do so. 32 After an investigation had been conducted and the decision had been made to terminate Mr Kuczwal's employment, Mr Guy called a meeting for 1 November 2006. He attended the meeting with Ms Styles. Also present were Mr Hancock and Mr Jamieson. Prior to the meeting formally commencing, Mr Kuczwal provided a copy of a document entitled ER Guide Contents. The document showed photographs of graffiti in company premises. He said that Mr Kuczwal said words to the effect: This is ready to go at the push of a button. I will send it everywhere. It will be on the worldwide web in USA, Asia, the whole world.

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Mr Hancock suggested that Mr Kuczwal put the document away. 33 The meeting formally commenced by Mr Guy putting the outcomes of the investigation and asking for Mr Kuczwal's response. Mr Kuczwal started to verbally attack Mr Guy and when Ms Styles intervened he turned angrily to her and spoke at her in a way that shocked both Mr Guy and Ms Styles. After a brief break in proceedings Mr Kuczwal apologised for what he had said. 34 Mr Kuczwal then spoke about the Seven Commandments document saying that it was not designed to harm anyone or to humiliate anyone. After a second break in proceedings, Mr Guy told Mr Kuczwal that his statements and explanations had been taken into account but the decision is that this conduct has occurred and a decision had been made to dismiss Mr Kuczwal with five weeks' payment in lieu of notice. Mr Kuczwal immediately responded that he would claim unlawful dismissal. Mr Guy reported that Mr Kuczwal replied saying that he would put his information on the worldwide net. As he was leaving Mr Kuczwal said to Mr Jamieson, his co-delegate "Watch your back they'll be after you next". 35 Mr Guy gave further evidence in regard to the 2006 restructure of the Plate Mill, including the consultation process and the matters before the Industrial Relations Commission. 36 Mr Guy also gave evidence in regard to incidents of March 2006 when Mr Kuczwal was provided with a final warning. The final warning was confirmed to Mr Kuczwal in June 2006. 37 On 29 June 2006 Mr Guy said that Mr Kuczwal had initiated a Tracking Document. A Tracking Document is designed to identify issues to record their progress under the dispute settling procedure. In the tracking document Mr Kuczwal alleged misconduct by managers at all levels. Mr Kuczwal gave evidence that it had been agreed that Mr Kuczwal's behaviour in doing this constituted a possible ground for termination of his employment but decided not to at the time. 38 Mr Guy's evidence was that Mr Kuczwal's lack of respect for management had become much more personal over the last year also, being more personally abusive to himself and others. 39 Mr Guy rejected Mr Kuczwal's claim of being victimised or harassed. 40 Mr Daryl Kilby is employed by BlueScope Steel as a Performance and Reward Specialist. Mr Kilby was required to investigate Mr Kuczwal's allegations made on 27 and 28 October to Mr Kirby Adams, Managing Director and Chief Executive Officer of the company, and to Mr Michael O'Loughlin, Vice President - Human Resources for the Industrial Markets. In his first email, Mr Kuczwal demanded a reply within seven days, saying, "You representing BlueScope Steel, not a chicken farm you should understand it." [sic] Among other things he stated, "You managers terrorizing workforce and I believe that someone will put stop to it very soon." The following day Mr Kuczwal sent a second message to Mr Adams (cc Board of Directors), referring to the management of the Plate Mill as "the most hated management in history of the Plate Mill". Mr Kilby conducted his investigation into the allegations contained in these two documents, separate from the investigation being undertaken concurrently into the Seven Commandments document. 41 On 31 October, Mr Kilby invited Mr Kuczwal to meet with him on 2 November. That meeting was abandoned by Mr Kuczwal, being subsequent to his dismissal. Mr Kilby received further written communications from Mr Kuczwal and met with various managers, as part of his investigation. He found no evidence of misconduct as alleged by Mr Kuczwal. He noted in his evidence that previous investigations into complaints by Mr Kuczwal had had similar results. 42 Mr Ian Nicholson, a Senior Operator on A crew, said he was not offended by the Seven Commandments document, nor had anyone else told him they were offended by it. He described previous issues of The Inquirer as "inappropriate", saying that some people had complained of them, others had not. He confirmed that he had told Mr Guy, on the morning of 27 October, that he thought Mr Kuczwal would make the transition difficult for Senior Operators. He was not challenged on Mr Guy's statement that he had said, "The notice should not be handed out at work." 43 Mr Brendon Elderfield is employed as a Senior Operator on B crew. Mr Elderfield gave evidence that he saw a copy of the Seven Commandments document at the beginning of night shift on 26 October. He thought the document was inappropriate. He later heard Mr Kuczwal make the following remarks: You guys think you are kings, but really are rats for the company. We will watch you scatter and run and hide under plates now. There will be listening devices and infra red equipment watching you at all times.

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When challenged on this Mr Elderfield agreed it was possible that Mr Kuczwal had been talking about something that was not work related. However he said that he thought the comment was inappropriate. Mr Elderfield also confirmed that he had told Mr Guy that he felt the Seven Commandments document was a personal attack on Senior Operators rather than an attack on the company implementing the changes. 44 Mr Gia Dam was employed as the Despatch Supervisor on C crew. He gave evidence that he spoke to Mr Kuczwal on behalf of Mr Guy to remove a copy of the Seven Commandments document from a notice board. He also attended the meeting on 27 October with Mr Guy and Mr Kuczwal where Mr Kuczwal recorded Mr Guy in spite of Mr Guy's refusal to give him permission to do so. In his written evidence Mr Dam expressed his frustration in dealing with Mr Kuczwal. He said that Mr Kuczwal displayed a complete lack of respect for management of the Plate Mill and has made his work as a supervisor frustrating. During cross-examination he also admitted frustration at waiting for management's response to some of Mr Kuczwal's requests and agreed that Mr Kuczwal treated him with respect. 45 Mr Luis Lopez, is a Processing Shift Supervisor on C crew. He has been a shift supervisor for 19 years and has been employed by the company since 1972. He is an employer representative on the Plate Mill OHS committee. 46 Mr Lopez said that at the start of the team meeting on 26 October 2006 Mr Kuczwal gave him a document. Mr Kuczwal and other operators then began to giggle, said Mr Lopez. Mr Lopez glanced at the document and saw the heading The Seven Commandments and asked Mr Kuczwal "where are the other three?". He did not read the document in full because he did not have his reading glasses on at the time. When he subsequently read the document in full he believed it was trying to make the Senior Operators feel uncomfortable in their new role. 47 Mr Lopez gave evidence about the events of March 2006. Mr Lopez believed that The Inquirer documents indicated that Mr Kuczwal held a deep mistrust for managers and other authoritative functions of the company. He found Mr Kuczwal "generally difficult to supervise". He believed that Mr Kuczwal persisted with many matters that he raised well after the matters in question had been properly concluded, going beyond his role as a union delegate. 48 Ms Karen Styles, the Human Resources Adviser gave evidence that she saw the Seven Commandments document as being intimidating and inappropriate and was concerned that it might undermine the confidence of Senior Operators and their ability to fulfil the role. On 27 October Ms Styles said that she attended the final stages of a management meeting to discuss Mr Kuczwal's production and distribution of the Seven Commandments document where it was agreed that an investigation was needed, during which time Mr Kuczwal would be stood down. 49 Ms Styles and Mr Guy met Mr Kuczwal on 1 November together with Mr Hancock and Mr Jamieson. Ms Styles confirmed Mr Guy's description of that meeting. In regard to the comment Mr Kuczwal directed at Ms Styles, she said that she had never been spoken to with such aggression and disgust. She shook from the shock of the confrontation. She acknowledged that Mr Kuczwal offered an apology but she did not believe that it was sincere. 50 Ms Styles said that she had previously had a lot to do with Mr Kuczwal over a period of about two years. She found him a very difficult employee raising a lot of issues and occupying an enormous amount of management time, not restricted to his role as a delegate or OHS representative. She said a lot of the issues appeared to be very personal for Mr Kuczwal. 51 Mr Gerard Mahoney is the Manager of the Plate Mill. Mr Guy and Mr Cugaly report directly to him. Mr Mahoney reported of his knowledge of the events of March 2006 and his involvement in Mr Kuczwal's appeal about his suspension and warning at that time. Mr Mahoney was responsible for hearing and determining the appeal. The appeal was denied because Mr Kuczwal had not substantiated his claim, nor had he taken any positive steps to follow the dispute settlement procedure to have any issue addressed in an orderly way. Mr Mahoney at the time was concerned with Mr Kuczwal's attitude to management typified by his description of Mr Cugaly as a "whinger" who "jumps up and down" when confronted with Mr Kuczwal's actions. 52 Mr Mahoney also gave evidence about the events of June 2006 and the tracking document issued by Mr Kuczwal. Mr Mahoney noted that Mr Kuczwal was occupying a great deal of management time and placing an unnecessary level of tension into the work place with baseless allegations. Mr Mahoney referred to an example of Mr Kuczwal's vindictiveness in a fair treatment complaint which he reviewed in October 2006. He described that complaint as a personal attack on Mr Guy. 53 In reference to the Seven Commandments document, Mr Mahoney said that he believed it was intimidating and humiliating to the Senior Operators. He discussed with Mr Guy how the document related to the final warning that Mr Kuczwal had been issued in March 2006. Mr Mahoney also said he sought the opinion of Mr Kilby regarding the document. Mr Guy and Mr Cugaly appraised Mr Mahoney of their conversations with employees. Mr Mahoney described his role in the investigations and procedures that followed and his decision to dismiss Mr Kuczwal. 54 Mr Mahoney also described a meeting with Mr Kuczwal which took place on 6 November as part of an internal appeal process following the dismissal. Mr Mahoney came to the view that Mr Kuczwal had not presented any new material that justified reversing the company's decision to dismiss him. 55 Mr Paul Cugaly is the Plate Processing Manager in the Processing Department of the Plate Mill. He spoke about allegations made by Mr Kuczwal over the last few years of his employment. As a key member of the Plate Mill management, Mr Cugaly said that he not only rejects the allegations but finds them quite upsetting. 56 Mr Cugaly gave evidence about his role in the events leading to the dismissal of Mr Kuczwal on 1 November. He also gave evidence about events leading to the final warning issued to Mr Kuczwal in March 2006. His evidence can be said to be generally consistent with that of other witnesses for the respondent. Similarly, Mr Cugaly gave evidence regarding the events of June 2006. 57 Mr Cugaly said that he made very deliberate efforts to try to deal with Mr Kuczwal's issues in a proper way, consistent with those raised by other employees. He found Mr Kuczwal threatening in his demeanour, often using words that depicted the work place as a battlefield. He also said he felt that Mr Kuczwal's ongoing degradation of his character had considerable ill-effect on his ability to engage his employees. Consideration 58 In his opening address Mr Hatcher, counsel for the Union, submitted that the distribution of a document on 27 October did not constitute misconduct, it did not offend anybody and did not disrupt the work place. He said that no direction had been given to Mr Kuczwal regarding the distribution of the document and therefore there could be no failure to comply with a direction. Because of these two matters there was no reason to look at past behaviour. As a result, there was no sound reason for the dismissal. Mr Kuczwal was seeking reinstatement to his former position with compensation for loss of pay. 59 As to the dispute in the current proceedings, Mr Hatcher said that it was the Union's wish to have the final warning removed from Mr Kuczwal's file and for him to be paid for the four days during which he was suspended without pay. The warning in question related to Mr Kuczwal's four-day suspension while the matters resulting in his dismissal were investigated. Mr Hatcher conceded that this question was academic should the claim for unfair dismissal be unsuccessful. 60 Four reasons were provided for the dismissal, as set out in the letter of termination provided to Mr Kuczwal on 1 November 2006. Mr Hatcher submitted that the evidence established that the reasons for dismissal surrounding the Seven Commandments document either lacked any basis in fact, or were not of such a nature as to justify dismissal. I shall consider each of the reasons in turn. Reason 1 61 The first reason given for dismissal was Mr Kuczwal's behaviour on 26 October and the offence and disruption caused in the workplace. 62 The first point in Mr Guy's notes in his meeting with Mr Kuczwal stated: That you were the author of a document titled '7 Commandments'. You provided that document to a number of recently appointed Senior Operators. You had several follow-up conversations with a number of employees. Some of those operators were offended and concerned about the treatment of them in carrying out the duties of the Senior Operator.

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65 Mr Hatcher's submissions regarding the Seven Commandments document were as follows: · Viewed objectively, the document contains nothing which would justify dismissal for its contents. · It contains no offensive language. It does not threaten anything. · It was attempting to be humorous, and the evidence demonstrates that a number of persons found it to be humorous - and were in fact in on the joke. It was impliedly critical of the new Senior Operator system, but it was not suggested by BlueScope that criticism of the result of the restructuring process was not permitted. · The tone of the language used, which BlueScope criticises, is clearly a parody of the ten commandments of the Old Testament. · The leaflet does agitate the view that Senior Operators should not hold themselves above or apart from the rest of the workforce, but that does not take it beyond the limits of the permissible expression of a person's point of view in the workplace. · Whether the view it expresses is one which BlueScope agrees with is entirely beside the point. 66 Of the points made in defence of the document, I can agree with some. The evidence showed that a number of persons found the document humorous, but not that they were in on the joke. Mr Lopez found people giggling, implying that they were laughing at him, not with him. The document does not contain offensive language as such, but when read as a whole, a reasonable person could find it offensive. In my view, it is intentionally offensive. A joke is not funny when one is the butt of it. The document was clearly aimed at these workers who were, or were about to be, appointed as Senior Operators. Mr Kuczwal himself took offence at the implication that he would be regarded as junior when working under someone with the title of "senior", yet he claimed that the direction "your name shall be JUNIOR" was not intended to be offensive. This is inconsistent. I do not accept that Mr Kuczwal's intention was limited to being humorous, but was designed also to undermine the authority of those appointed to the new role of Senior Operator. 67 The document does not criticise the restructuring process, but is aimed directly at those employees who were successful in their applications for the positions. A co-delegate, Stephen Jamieson, had applied unsuccessfully for the position. In fact, there were more applications than required, indicating that others were no longer critical of the process at this time. Mr Kuczwal did not apply for his own philosophical reasons. The document purported to be from the team members but clearly was not. By signing it in the way he did, Mr Kuczwal pretended to be acting on behalf of his fellow workers whereas, in fact, he was acting entirely on his own and for his own purposes. 68 It is impermissible to harass or bully fellow employees in the workplace. The document is not merely an expression of Mr Kuczwal's point of view, although I agree that it reflected his view. Mr Kuczwal agreed in evidence that the position of Union delegate carries some influence. In posting the document in the workplace, he was attempting to use that influence to encourage others to share his view. 69 Parodying the Ten Commandments in style and language, Mr Kuczwal can be seen to put upon himself more authority than he would as an individual or as a Union delegate. This is a step up from the importance he puts on himself through an earlier document which showed himself as "Wanted Dead or Alive". While the apparent attempt at humour is clear, the implication is that the message in the document is unarguable. Given the context, the Seven Commandments document could be seen as an instrument of harassment. 70 Mr Kuczwal admitted that not everyone shares the same sense of humour, and that some could take offence. He also admitted taking offence at documents that others displayed in the workplace and at graffiti that had his name on it. He agreed that calling Mr Guy a criminal was offensive. Even allowing for Mr Kuczwal's statement that he did not intend to offend anyone with the Seven Commandments, based on his other evidence, I have no doubt that Mr Kuczwal understood the offensive nature of the material he produced, displayed and distributed in the workplace. 71 There was no evidence from any Senior Operator that he was "offended and concerned" by the Seven Commandments document, Mr Hatcher submitted. The only two Senior Operators who gave evidence in the proceedings made it clear that they were not offended by the document. There was no explanation advanced in BlueScope's evidentiary case as to why the other Senior Operators who were interviewed were not called to give evidence. In that circumstance, the Commission is entitled to draw a Jones v Dunkel ((1959) 101 CLR 298) inference, it was submitted. On the other hand, Mr Guy said it was management's job to stop such a thing from happening. 72 I believe that the foreseeability of offence was inherent in the document, and it was not necessary to wait for a complaint to be made. Indeed, in the robust workplace atmosphere of the Plate Mill it was unlikely that a person would admit to being offended when appointed to a promotion position, as that could be interpreted as weakness. In addition, Mr Kuczwal's strong following in the workplace, as evidenced by a four day stoppage taken in support of him, would result in a reluctance to complain about a document he produced. I do not believe a Jones v Dunkel inference is appropriate, given these circumstances. 73 I do not accept Mr Hatcher's contention that no employee could have been "concerned about the treatment of them in carrying out the duties of the senior operator", because no employee was yet carrying out those duties. It is true that the Senior Operator system had not commenced, nor had the appointees been publicly announced (although the appointees had been told of their appointments). However, all those who had been leading hands had applied for positions, as had others. Mr Kuczwal had not. As Mr Hatcher acknowledged, the successful applicants had been informed. The timing of posting the document on the noticeboard was such that those appointed as Senior Operators could have taken offence and/or been concerned about their treatment in carrying out their duties in the very near future. 74 Further, I am satisfied that the intention was to cause disruption to the workplace by undermining the confidence of the Senior Operators and encouraging others to disregard the authority of that position. Where the nature of the document was so blatantly obvious, it would have been negligent for management not to act on it, allowing the potential for disruption to take effect. The foreseeability of risk to the well-being of the workforce, particularly Senior Operators, was such that the real prospect of serious damage had to be averted by management. Not only that, but I am satisfied that the reports provided to the managers on the morning of 27 October were that a number of people were upset by the document. Reason 2 75 The failure to comply with a reasonable and lawful request from management refers to the request by Mr Guy not to distribute inappropriate material in the workplace, issued to Mr Kuczwal on the morning of 27 October. Mr Kuczwal's argument that he was not given a definition of 'inappropriate' is not persuasive. 76 During cross-examination Mr Kuczwal, referring to the Seven Commandments document, said: I don't acknowledge it was inappropriate and I didn't breach any laws or any rules by distributing this.

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Mr Kuczwal had displayed his capacity to access dictionary definitions in an earlier edition of The Enquirer. It is transparently obvious that the derogatory nature of the document, directed to the Senior Operators on Mr Kuczwal's own admission, was inappropriate in the workplace. 78 In response to a question during cross-examination, Mr Kuczwal said: I respect authority of the company I work for and I always ask could you tell me what is material disruptive, could you tell me a definition, could you give me some kind of rules for what we can do, what we cannot do, and no one give me nothing. 79 I do not accept that Mr Kuczwal needed to be given a definition. He was told to remove the Seven Commandments document from the noticeboard on instruction from Mr Guy, within an hour of being told by Mr Guy not to distribute inappropriate material. The relevant extract from transcript of cross-examination reads as follows: Q. Now, that instruction from Mr Dan to take your "Seven Commandments" document from the board was within an hour or so of the meeting with Mr Guy and Mr Dan where Mr Guy said don't distribute inappropriate material? A. But they didn't say what was inappropriate. Q. So it was within an hour or so of that meeting, was it? A. That was distributed by that. When they told me-- Q. The question I asked, Mr Kuczwal-- A. Yes, yes, but it was already-- Q. Did you make a connection between the meeting with Mr Guy where he says don't distribute inappropriate material and what you've just told us Mr Dan said, that Mr Guy wants that, being the Seven Commandments document, taken off the noticeboard? A. I was told exactly from the noticeboard and I was ..(not transcribable).. Q. Did you make any connection between the meeting with Mr Guy and an hour later receiving (No verbal reply) instruction from Mr Dan conveyed from Mr Guy? A. Instruction was to take off the board and I says, what papers, he says, this one off the board, don't put nothing on the board. There was board, there was board, and I put on, and I said, I not responsible for others. There was no instruction to - I can give to my friends, whatever I like. Q. Mr Kuczwal, I'm going to ask you for the third time, did you make any connection between the meeting with Mr Guy and an hour or so later receiving an instruction from Mr Dan to take the "Seven Commandments" document down? A. No. Q. You made no connection? A. He talks about you distribute some things and I said, why you talking to me today. He says, I supposed to talk to you before, but I couldn't. He didn't mention that document, he was talking about the documents. 80 I do not accept that Mr Kuczwal was wholly truthful in response to these questions. Mr Kuczwal clearly demonstrated that he is an intelligent man and I believe that he would have to have made the connection. In addition, the evidence of Mr Guy and Mr Dam both went to examples of inappropriate material referred to at the meeting, being earlier issues of The Inquirer. 81 Notwithstanding the lack of definition provided by the respondent, the evidence shows that several people believed it to be inappropriate. Mr Kuczwal did not argue about removing it from the noticeboard - an indication, in my view, that he understood the nature of the document. Whether or not the word was used, and despite a lack of instruction not to distribute it, I am satisfied that Mr Kuczwal knew that the document was inappropriate and that he intended to cause disruption in the workplace when he produced the document and posted it on the noticeboard. 82 Mr Kuczwal said that he removed the document from the noticeboard when instructed to do so, and then gave copies of it to several employees. 83 Mr Kuczwal's attitude has been reflected in behaviour from time to time, including the production of various issues of The Inquirer. The respondent did not act on these at the time they were distributed, but did raise them with Mr Kuczwal prior to the distribution of the Seven Commandments, warning him against the distribution of inappropriate material at work. Mr Kuczwal was warned, in effect, that the lenience shown by the respondent had come to an end. Rather than respond to the warning given by reducing the negative impact in future issues, Mr Kuczwal chose to direct that negativity at particular people who were appointed as Senior Operators, just one step above the position of Operator which he himself held. In doing so, he raised the level of inappropriateness, bringing on himself the penalty of dismissal, of which he had been directly warned on 21 September. Reason 3 84 The third point in the letter of dismissal stated: You have continued to issue a document, which upset certain employees, even after being instructed by management to refrain from doing so. I give little weight to this point. Mr Kuczwal continued to issue the document after being asked to remove it from the noticeboard, even adding a comment at the time. 85 Mr Hatcher submitted that the actual conduct found by BlueScope to have been committed by Mr Kuczwal which underlies the reasons for dismissal are set out in Mr Steven Guy's notes prepared for the 1 November meeting. One of those points alleged the following: Your Team Leader advised you that the '7 Commandment' document was not appropriate in our workplace. It was requested that you not promote this document in the workplace. We have evidence that further distribution by you occurred after that time. 86 Mr Hatcher's submission that the evidence did not substantiate this finding is correct in that Mr Dam, the Team Leader, did not advise Mr Kuczwal that the Seven Commandments document was not appropriate for the workplace, nor did he request that he not promote the document in the workplace. The only thing he said to Mr Kuczwal was to direct him to take a copy of the leaflet from a noticeboard. Mr Kuczwal immediately complied. However, Mr Kuczwal himself said that he gave it to three fellow employees after that time, whom he regarded as his friends. 87 Mr Dam had not followed Mr Cugaly's instruction, so that Mr Kuczwal had not been instructed specifically not to distribute it further. However, he had been told at the earlier meeting not to distribute inappropriate material. I cannot accept that he did not know this material was inappropriate; he certainly demonstrated no reluctance to remove it from the noticeboard. Reason 4 88 Mr Hatcher submitted that the 'trigger' for the dismissal needs to be established before the earlier conduct becomes in any way relevant. The fourth reason given by the respondent for Mr Kuczwal's dismissal was substantially dependent upon past instances of "behaviour" for which Mr Kuczwal was warned and, in some cases, suspended. Where an employee is dismissed for serious and wilful misconduct, the employer cannot rely on previous instances of misconduct for which the employee was not dismissed at the time, submitted Mr Hatcher. The employer is taken to have condoned such conduct and waived the right to summary dismissal with respect to that conduct: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [31]. Here, Mr Kuczwal was not summarily dismissed, but upon payment in lieu of notice, so that the principle in Burge does not strictly apply here. Nonetheless, that earlier conduct could not by itself justify the dismissal unless the immediate grounds for the dismissal, namely the conduct surrounding the Seven Commandments leaflet, were made out, said Mr Hatcher. 89 It is implicit in the fourth reason for Mr Kuczwal's dismissal that BlueScope held the view that his conduct on 26 October 2006 had "the effect of disrupting employees and the business". It was submitted that there was no evidence of any disruptive effect caused by the Seven Commandments document, and that neither the business, nor the performance of work by any employee, was affected at all. 90 Again, in my view, it was management's role to minimise any potential disruption. Undermining the authority of those properly appointed to the position of Senior Operator would automatically cause the Senior Operators to be less effective than otherwise.

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98 The June 2006 issue described in the evidence did not result in any addition to Mr Kuczwal's disciplinary history. A situation where Mr Kuczwal made an inquiry as to what procedure existed for making a complaint about a manager, in the context of a genuine concern that an OHS issue had not been appropriately responded to, said Mr Hatcher, escalated into a situation where BlueScope considered that Mr Kuczwal had engaged in misconduct possibly justifying his dismissal. 99 In my view, the circumstances cannot be explained as simply as this. I do not accept that the lack of appropriate response was the cause of the escalation. Rather, the evidence shows that Mr Kuczwal's actions contributed substantially to the consideration of his dismissal. 100 The final paragraph of the letter of termination referred to "the circumstances of your employment history". I am satisfied that those circumstances included the length of Mr Kuczwal's employment and his roles as Union delegate and as OHS committee member. It was appropriate to do so. An employment relationship extending over 20 years requires some sympathetic treatment of any employee's transgressions, in my view. However, in this case the transgressions were so deliberate and so serious as to warrant summary dismissal. The respondent's decision to dismiss Mr Kuczwal with notice and still to allow the internal appeal process shows, in my view, appropriate response to the length of Mr Kuczwal's employment. 101 In addition, Mr Kuczwal's history as Union delegate and OHS representative was well known to the respondent, as was his understanding of other avenues available to him including the internal appeal process and proceedings before the Commission. The circumstances of Mr Kuczwal's employment history would have caused the respondent to anticipate such proceedings where they would be required to justify the decision, which was not taken lightly. 102 I note Mr Kuczwal's role in the restructuring process, and the high esteem in which he is held by a number of employees giving evidence in these proceedings, as an effective Union delegate. Such support was noted previously by Connor C, and therefore must have been known to the respondent. 103 A further part of Mr Kuczwal's history known to the respondent was his history of unfounded and unsubstantiated complaints about management. Apart from that set out above, Mr Kuczwal had made similar complaints in 2000 and in 2004, all of which were properly investigated by the respondent and none of which were found to be substantiated. All of these demanded use of the respondent's resources, to no avail. I am satisfied that the continuing complaints - lacking specificity and reiterating his own issues whenever he was not satisfied with the outcome - had the effect of disrupting the business on an ongoing basis. 104 I concur with the comment made by Mr Kilby that the company should not have to devote time to such issues. In spite of this expression of frustration, after investigating a series of baseless accusations, I am satisfied that the respondent continues appropriately to investigate all complaints raised with it, including Mr Kuczwal's most recent allegations against management and his concern about graffiti in the workplace. Personal issues 105 Mr Kuczwal gave evidence that he does not take up personal issues but only speaks on behalf of his fellow workers, in his role as Union delegate. The following examples give lie to this statement. 106 In or about December 1999, Mr Kuczwal had been wrongly identified in a document where the comments by someone with the initials MK had been attributed to Mr Kuczwal. When this was drawn to the respondent's attention, steps were taken to rectify the problem and an explanation and apology was given to Mr Kuczwal. During the current proceedings, Mr Kuczwal said he was not satisfied and that he intended to take the matter further. Yet he failed to identify anything else that could have been done or to specify anything that he expected to be done, and he failed to accept the apology. Such a situation means that the respondent remains in an impossible position of unfinished business, causing a breakdown in the relationship between employee and employer that remains to this day. 107 A second example relates to Mr Kuczwal's claim during these proceedings that the respondent used listening devices to record a meeting attended by Mr Kuczwal. There was no evidence that a recording device was used and Mr Guy and Mr Cugaly both denied that any such devices were used. Written advice to that effect was provided to Mr Kuczwal in March 2006. Yet Mr Kuczwal continued to hold to the claim that devices were used. He responded to the request not to distribute the allegation to employees by stating in writing: "Your request has been deny!" The allegations were subject to the company's internal appeal system, but no evidence was produced to substantiate the claim. Mr Kuczwal was advised in writing of the outcome of the investigation. Again, this is a personal issue, not raised or supported by any of Mr Kuczwal's fellow workers and investigated through the proper procedural channels. 108 Mr Hatcher submitted that Mr Kuczwal was "entitled to be an agitator": Neal v The Queen (1982) 149 CLR 305 at 316-7 per Murphy J; see also 325 per Brennan J. His Honour Justice Brennan commented that the magistrate in the initiating proceedings was right in condemning the fomenting of hatred, but wrong in condemning the legitimate exercise of political rights. In the current proceedings, Mr Kuczwal's actions were more akin to the former than the latter. He used the cover of exercising political and industrial rights, while working outside their reasonable limits when it suited him, acting for his own purposes in opposing and attempting to undermine the authority of the respondent. Mr Kuczwal's language, attitude and conduct 109 During cross-examination, Mr Kuczwal first denied that a letter written by him on 9 September 2005 contained strong language. Cross-examination then continued as follows, where he admitted using strong language: BROTHERSON: Q. Mr Kuczwal, can I put to you again that that second sentence in the first paragraph that says, "I would like to present to you a case of ignorance and irresponsible behaviour of plate mill management team", is a very strongly worded allegation? A. Yes. That was a strongly worded and that was an allegation, because if you put anybody in life threatening situation, you are unresponsible and that's unresponsible behaviour. And when I was talking about the ignorance, ignorance if I was meaning by ignorance they don't - in those accusations I was saying they don't know how to deal with situation, so that was-- Q. It's the sort of language that can cause offence, isn't it? A. That was no designed to offend someone. Q. I'm putting to you it is the type of language that can offend people, isn't it? For example, if I put to you, Mr Kuczwal, you are ignorant of the disputes settlement procedure, you would not like that, would you? A. I would no offend. I would say it is your belief, you got the right to your beliefs. I wouldn't get offended by this. 110 Mr Kuczwal did not accept that others could find his words offensive. I disagree with him on this point. His accusation that the management team are ignorant and irresponsible is insulting to all members of the management team, any or all of who may be offended by the statement. In the same letter, Mr Kuczwal accused the Plate Mill management of "misuse of shareholders money". Further offence could readily be taken by the knowledge that the document was directed to "managers, OHS committee and all employees staff and wages of the Plate Mill" and copies were sent to the Board of Directors and the Chairman of BlueScope Steel. 111 Mr Kuczwal agreed that the OHS Committee resolved that he should not send the letter to the Board and the Chairman. The relevant extract from transcript of the current proceedings is as follows: Q. And following a further sequence, you then distributed that document, contrary to what the occupational health and safety committee had asked you to do? A. Yes, on the basis when I got the right to send as employee/shareholder the letter to my bosses, so the committee could not stop me to do that. 112 Again, Mr Kuczwal said one thing and then the opposite. He is fluent and articulate in English, although not grammatically correct at all times. On a number of occasions during cross-examination, he simply said what suited himself and then corrected it when challenged. On the basis of the evidence from him and his co-workers over the several days of evidence in these proceedings, I formed the view that Mr Kuczwal habitually said what suited himself, regardless of the truth of the matter. 113 Following Mr Kuczwal's two-day suspension for not following the Award procedures in regard to the letter to the Board and the Chairman, the matter went before Connor C who reduced the final warning to a warning on Mr Kuczwal's record, as stated above. It was clear from the Commissioner's decision that he did not accept that Mr Kuczwal was simply acting in his role as a Union delegate, despite Mr Kuczwal's claim in those proceedings of victimisation and harassment. 114 Mr Kuczwal's evidence was that he was following personal issues in this letter, and not making a personal attack on the managers Mr Guy or Mr Cugaly, or on anyone else. However, in Australian Workers Union v BlueScope Steel (AIS) Pty Limited [2006] NSWIRComm 1096, Connor C made the following comments: 52 Mr Kuczwal has been an AWU delegate for a very long period of time. Presumably he could only retain that position if he had the confidence and support of the employees he represents. I am satisfied that he does. He acts with zeal and enthusiasm to address any issue which he perceives as a problem. Also, as Mr Kuczwal indicated in his evidence, in a free society, he has the right, both as an employee or a trade union delegate, to make complaints through the appropriate channels - WorkCover or, for that matter, to the board of directors of BlueScope Steel - if he chooses to do so. 53 The question remains whether he has abused that right. Notwithstanding the evidence to the contrary from Mr Bessant, Mr Tubbs and Mr Kangas, and Mr Hancock's spirited support for him in the hearing, I am satisfied that much of Mr Kuczwal's actions as a trade union delegate (and occupational health and safety representative) are with respect to issues personal to him and him alone - as Mr Guy and Mr Cugaly suspect, a personal attack on them and the fact that they hold valid entry on site permits to drive their private vehicles onto the site. 54 The trade union delegate in the Newcastle Steel Works Case was described by the Full Bench (at p.67), viz: "…We are of the opinion that the story (the delegate) would have us believe that he was a mere mouthpiece of the men in his department, consistently urging them on to constitutional methods of settling a dispute, but bound in his capacity as delegate by their instructions to the contrary, is quite an unreal one… (He) is a man of forceful personality… Some of his admitted actions of the day indicate that the initiative in various moves was taken by (him) on his own account..."

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I see Mr Kuczwal in much the same light. The employees he represents have been prepared to allow him to continue his attack on BlueScope Steel management for their own reasons but, I suspect, that action has very little to do with advancing any real industrial or safety concerns on their part. What really was it to Mr Kuczwal or the employees he represented if Mr Guy and Mr Cugaly drove their private vehicles on site? Mr Kuczwal's concerns in that respect appear to me to be disingenuous. 55 Under S.18 of the Occupational Health and Safety Act occupational health and safety committees, and any member thereof, have some clearly defined functions to perform - investigating matters, obtaining information, attempting to resolve disputes over safety issues or calling in WorkCover inspectors if it is considered that they would be needed. But insofar as any issue raised safety concerns in Mr Kuczwal's mind, in my opinion he had properly discharged his responsibilities over the driving of private vehicles on site when he brought the matter to the attention of the occupational health and safety committee - and it was being addressed by the committee. Mr Kuczwal should not have pursued the matter with the BlueScope Steel board of directors, in direct contravention of the motion carried, almost unanimously, by the committee. He was bound by that committee's decision and he had no right to go off on his own like that. It suggests to me that, in the circumstances, Mr Kuczwal had nothing else on his mind than a personal vendetta against Mr Guy and Mr Cugaly. And, on the basis of the evidence before me in this hearing, any allegation that he was being harassed and intimidated by Mr Lopez is totally untenable. Employees who behave in a manner which invites criticism can hardly be surprised that the management criticises them. 115 Mr Kuczwal was asked about the Commission's comments in that decision. Q. Do you accept if Commissioner Connor finds that, you say - I think what you're saying is that's not right. A. No, I'm not saying that not right, I'm saying there was no personal attack. There was no personal attack. Q. If somebody else such as Commissioner Connor concludes there was, does it suggest to you that other people might view your actions differently than you think they might? A. Everybody has got their own point of view about all different things, but I wrote this letter and I know there is no personal attack on Mr Guy or Mr Cugaly. 116 The following exchange then ensued: Q. Because we were just dealing with this issue in September of 2005. If you look in paragraph 55 of the decision, in the second sentence Commissioner Connor says, "Insofar as any issue raised safety concerns in Mr Kuczwal's mind, in my opinion he had properly discharged his responsibilities over the driving of private vehicles on site when he brought the matter to the attention of the occupational health and safety committee and it was being addressed by the committee". Why then did you feel the need immediately after the committee meeting to still distribute a letter that you'd been asked not to? A. Committee didn't took any action about this matter, committee took action on that day against me. They didn't want to talk about issue, they wanted to talk about letter. I says, you are all offended, that's why I just tell them the truth, because they was breaching the rules, all committee except one, and they was attacking me. They didn't took the matter into consideration and that's why I sent this letter straight after meeting. 117 In my view, these comments are indicative of Mr Kuczwal's attitude generally. While his action at the time warranted a two-day suspension and a warning placed on his file, his evidence in the current proceedings indicate that he has not heeded the advice offered by Connor C, advice to give "a considerably more mature response to issues" and to exercise "considerably more restraint" in his dealings with BlueScope Steel management. 118 An incident in March 2006 resulted in a further warning being issued, as follows: In respect of the events for the week ending 10th of March 2006, the company's position is that:- 1. You did not follow the proper processes for resolving issues. 2. Your actions included inappropriate and unsubstantiated claims about the conduct and attitude of Plate Mill management. More generally in relation to your conduct, the companies position is that:- 1. As an elected delegate, you have certain legal rights and responsibilities. 2. Industrial relations issues must be pursued in accordance with the processes laid down in the award and OH&S regulations. 3. Issues, which are raised, must be genuine and not designed to simply disrupt. 4. You must not make statements, either verbally or in writing, which are unsubstantiated, or designed to mislead or disrupt. 5. Your behaviour is at time erratic and unpredictable, and in certain cases, seen by the company as designed to harm its business. This letter is a final warning that you:- a) Must at all times act within the limits of your position as an employee and where relevant as a delegate, and follow proper process when raising and pursuing employee issues. b) Not issue any further statements or raise issues, verbally or in writing, without proper foundation or which are designed to disrupt. c) Comply with all reasonable directions of managers or supervisors in respect of your employment. As part of this final warning, you will be suspended without pay for four days. You would have no doubt that any breach by you of the terms of this warning will result in your dismissal.

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Although Mr Hatcher protested the validity of this warning, Mr Kuczwal accepted it at the time. 119 This was subsequent to a previous matter before Deputy President Grayson (IRC 04/6946) in which Mr Kuczwal claimed victimisation by the respondent pursuant to s 213. This claim, in which Mr Kuczwal represented himself, as resolved by agreement between the parties. Mr Kuczwal produced transcript of the proceedings showing that he had made the commitment on record, on 9 December 2004, to conduct himself appropriately and reasonably consistent with his duties and obligations as an elected union delegate. 120 Mr Kuczwal accepted Mr Brotherson's suggestion that the company had been consistently putting to him a message that he should do or should not do certain things. Throughout his oral evidence, Mr Kuczwal demonstrated a thorough understanding of the disputes settlement procedures and other relevant company procedures. He also frankly admitted ignoring those procedures from time to time. In the context of his previous warnings and his appearances before the Industrial Relations Commission, including his commitment before Grayson DP and comments by Connor C, I find it extraordinary that he continued to follow personal issues well outside the procedures set down in the Award, and to blur the lines between his role as a delegate and his role in pursuing personal interests. 121 As an example of the lack of clarity, Mr Hancock, the Union organiser, gave evidence that he believed Mr Kuczwal had been acting as a delegate following safety concerns about the car park issue, where Mr Kuczwal said he was following an issue to determine a complaint procedure. I refer to my earlier comments regarding Mr Kuczwal's habit of saying what suited himself. It comes as no surprise that the Union organiser had a different view to the management about precisely what Mr Kuczwal was doing. I have no doubt that Mr Hancock would have believed that Mr Kuczwal was acting as a delegate following safety concerns, because Mr Kuczwal would have told him enough to give him that impression. 122 I am satisfied that Mr Kuczwal's practice of making statements that opposed each other would have added to the respondent's difficulties in dealing with him. The following exchange during cross-examination provides a succinct example. Q. So you don't have a lot of respect for Mr Cugaly, do you? A. It works both ways, he doesn't have respect for me. I respect him, yes. 123 The cross-examination continued: Q. Well, you just said a moment ago it works both ways and then you tried to cover it. It put to you you really don't have a lot of respect for Mr Cugaly, do you? A. I haven't got a lot of respect for Mr Cugaly, you said. Depends on issue, depends on situation. If he attacking me and he just - of course he will not get respect if someone throwing rocks at you, you give no respect to person like that. 124 A further example is Mr Kuczwal's allegation in his written evidence that the company was using listening devices, which he confirmed in oral evidence. He then said: "No, there was no allegation". These statements were clear and unambiguous, made only a few minutes apart during cross-examination. They cannot both be true. 125 When asked if he asked about a document before he acted on it, Mr Kuczwal said "of course I ask". When challenged, he admitted "No, I ask after." Again, I find that Mr Kuczwal gave his first answer to suit his circumstances without regard to the truth. 126 It is well-established that a union delegate may be required to firmly state a position on behalf of a union member or members, contrary to the views of management, and that this should not constitute any basis for disciplinary action: Hornsby Shire Council v Hunt (2002) 115 IR 461 at [39]. Equally, blame should not be attached to a union delegate for industrial action freely undertaken by employees collectively: O'Brien v Linfox Limited [2001] NSWIRComm 1048. In this case, there are aspects of Mr Kuczwal's past behaviour which are within his role as Union delegate, and other aspects which fall beyond it. 127 As Connor C said in Jovanovski v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 at [33]: Of course, employment is not a popularity test and it is not ground for dismissal of an employee that his relationship with other employees may be somewhat strained at times. 128 In that case, the applicant was unpopular. In the current case, the applicant is well thought of and very influential in the workplace. On the evidence, he is highly regarded by many of his work colleagues. But the same rule applies: "employment is not a popularity test". It follows that Mr Kuczwal's popularity cannot save him from dismissal where his performance or conduct warrants otherwise. 129 As a further example of his attitude, I quote the following exchange during cross-examination, commencing with a question from Mr Brotherson. Q. Can I take you to the second last paragraph, and in that you say, "In my opinion, persons like S Guy" - and I'll stop there, that's Steve Guy? A. Yes. Q. The manager of dispatch? A. Yes. Q. "Are unfit to carry out any responsibilities with dealing with any human beings and his actions are evidence of complete lack of intelligence." A. Yes. Q. That's a very abusive thing to put into a letter or to say about anybody, isn't it? A. I receive more abusive stuff from other side and I was - when I was-- COMMISSIONER: Q. Are you agreeing that this is abusive? A. Everybody has got right to say the truth. Q. Yes or no, are you agreeing this is abusive? A. Yes, I don't agree and I say that's not abusive, everybody's got the right to their opinion. Q. So you don't think this is abusive? A. I don't think this is abusive. Q. Do you think it's offensive to Mr Guy? A. Sometimes truth is offensive. Q. Do you think this is offensive? A. I don't think it's offensive. Mr Guy, if he feels this way.

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130 At the Plate Mill, the Union has delegates and co-delegates. According to Mr Jamieson's evidence, the co-delegate acts as the delegate in the absence of the delegate. However, there were issues that he had never handled because, as Mr Kuczwal put it: "I am 24 hours a day, seven days a week available to members. Even Christmas and New Year, every time." Again, this statement emphasises the amount of personal influence and control Mr Kuczwal seeks to influence in the workplace beyond that of his fellow delegates. Relationship Between Employer and Employee 131 BlueScope's reaction to the Seven Commandments document is to be compared to its response to the graffiti identified by Mr Kuczwal, which included racist comment and a death threat directed at him, said Mr Hatcher. It is unsurprising, in my view, that the evidence shows that no attempt was made to investigate who had done this because Mr Kuczwal had said that the graffiti was over a year old and no complaints had been received earlier. Once it was brought to management's attention, the graffiti referred to by Mr Kuczwal was removed, along with any other graffiti that was found. I accept that this was an appropriate response to the issue. An anonymous passive drawing on the wall of the kind demonstrated in evidence is not comparable with a document that is exhibited on a noticeboard and handed to people, as in the case of the Seven Commandments prepared and distributed by Mr Kuczwal. When Mr Lopez was given the document an immediate response was anticipated by the workers, unlike the circumstances of year-old graffiti. 132 Mr Brotherson cited Blyth Chemicals Limited v Bushnell (1993) 49 CLR 66 in which it was said (at 81): Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ( Boston Deep Sea Fishing and Ice Co. v. Ansell (1); English and Australian Copper Co. v. Johnson (1) ; Shepherd v. Felt and Textiles of Australia Ltd. 2)) . But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. 133 In this case it cannot be said, as it was in Blyth, that Mr Kuczwal's conduct was "capable of an innocent construction" or that he acted in "good faith". His intention was not simply one of humour, as the evidence shows that copies of The Inquirer, apart from the Wanted poster, were directed against others - usually his employer. The Seven Commandments document was distinctly different in that it was directed against Mr Kuczwal's co-workers, those appointed to the position of Senior Operator. Management had shown appropriate tolerance in not acting against the distribution of earlier documents. Management had an obligation to protect those on the shopfloor from the attitudes expressed in the Seven Commandments document. 134 The Full Bench in Re Dispute at Broken Hill Pty Co Ltd Steel Works, Newcastle (No 2) (1961 AR 48) at 66-67 said: Any case that comes before an industrial tribunal involving the dismissal of a union delegate requires anxious consideration by the tribunal with a view to ensuring that no man be unjustly penalised for his participation in legitimate activity as a representative of his union. It is basic to our system that employees should be organized in industrial unions and it is through such unions that approach must be made to the tribunals set up. Men who are willing to play a part in the affairs of an industrial union are entitled to expect that they will not be prejudiced in their employment because of any legitimate actions they take in any union office they assume. Indeed, it is an offence under s.95 of the Industrial Arbitration Act for an employer to dismiss an employee or injure him in his employment or alter his position to his prejudice by reason of the fact that the employee is an officer, delegate or member of a trade or industrial union. But, while this Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability for wrongful actions. The provisions of the award conferring rights on a delegate have been quoted earlier. The right to recognition and to be allowed time to interview the company or its representative in working hours is a valuable one, but it carries with it corresponding responsibilities. These have been referred to by the Commission on a number of occasions. An award confers rights on a delegate on the footing that the delegate will act in conformity with the responsibilities which his union has elected bear by virtue of obtaining registration as an industrial union. These responsibilities include the obligation to have industrial disputes settled by resort to constitutional processes and not be direct action or job control. The Commission has pointed out that a delegate becomes, on his appoi8ntment as such, not only a representative of the members appointing him but a representative of the union, and that it is his duty, if a stoppage of work takes place, forthwith to advise the principal officers of the union and to take all reasonable and proper steps to secure a speedy resumption of work (See In re Building Workers' Industrial Union of Australia, New South Wales Branch, 1954 A.R. 516 at p.524, and Bank Holiday Strike Cases, 1956 A.R. 629 at p.640). Thus it is a complete misconception of the position, that a delegate is no more than a mouth piece for the men whom he represents. It is plain that, like any other representative of a registered industrial union, a delegate has by virtue of his position, a duty to do all within his power to prevent the resort to direct action by the members of the union whom he represents. There is nothing new about these propositions and the essence of them was stated in a decision by Beattie J. to which the Amalgamated Engineering Union was a party given as recently as 21st September last (See re Strike at the Works of the Broken Hill Proprietary Company Limited by boilermakers and other tradesmen and assistants following suspension of boilermakers' delegates. 135 Mr Kuczwal appears to hold to the view that the delegate is the mouthpiece for those whom he represents. In fact, when discussing those appointed as Senior Operators, Mr Kuczwal claimed he had no conflict with anyone, but he knew that other workers did. He claimed he did not apply for the position because he was serving his fellow workers, "not telling them what to do". 136 Mr Kuczwal can readily fit the description given of the delegate in the abovementioned Newcastle Steel Works dispute of being "a man of forceful personality". In the present case the act of "counselling of defiance of authority" was not overt as in the Newcastle Steel Works dispute. Nevertheless, by posting the Seven Commandments document on the noticeboard at work and giving it to other workers (notwithstanding that Mr Kuczwal described them as friends), Mr Kuczwal was, in effect, counselling his fellow workers to undermine the authority of those appointed as Senior Operators.

[32]

137 Guidance was offered in June 2006 when Connor C suggested that Mr Kuczwal modify his behaviour. Although he varied the final warning given in September 2005 to a warning, Connor C determined that a two day suspension without pay should stand. 138 It could be said that the Commissioner also offered guidance to Mr Guy and Mr Cugaly who, he found, "were also similarly acting personally against Mr Kuczwal". Their actions in suspending Mr Kuczwal were followed by strike action and lost production. 139 There is no doubt that the relationship between Mr Kuczwal and the respondent had broken down. The duties of loyalty and mutual trust as set out in Blyth Chemicals no longer existed. When asked his reason for recording a conversation with Mr Guy and Mr Dam, Mr Kuczwal said: "I trust no one." The question is whether the breakdown is due to any personal animosity shown by those acting on behalf of the respondent or due to any actions by Mr Kuczwal. 140 Mr Kuczwal's conduct in insisting on recording a conversation between himself and his manager indicates a high level of distrust on his part. That he continued during these proceedings to say he was not satisfied that an earlier meeting had not been recorded by Mr Cugaly (despite Mr Cugaly's evidence in these proceedings) takes that distrust to a higher level. I note that the manager continued with the meeting despite his instruction being ignored. That is a show of good faith by the manager, given at a time that was not reciprocated by Mr Kuczwal. 141 Mr Kuczwal gave no reason for not trusting Mr Dam, the Despatch Supervisor of C crew, who had been on the same crew as Mr Kuczwal for almost 15 years. 142 In posting the Seven Commandments on the noticeboard, I am satisfied that Mr Kuczwal wanted to influence the Senior Operators not to "pull rank". He referred to a dispute where Leading Hands had pulled rank against an employee in the Plate Mill, and was concerned that it may happen again with the Senior Operators. Mr Kuczwal's credibility is stretched by the fact that the one example he cited had occurred some 12 years earlier. When pressed, he gave a second example from 10 years ago. The only recent example he could consider he described as having been settled by way of a friendly talk. This is not the sort of behaviour that warrants the distribution of the Seven Commandments. 143 The fact that Mr Kuczwal even contemplated distributing the Seven Commandments document is particularly extreme given the circumstances preceding it. I refer to two sets of circumstances in this respect: the proceedings before the Commission regarding the introduction of the restructuring which led to the creation of the position of Senior Operator, and the specific warning given to Mr Kuczwal not to distribute offensive material. 144 Mr Kuczwal was specific when he said that it was demeaning for him and others to have other employees called "senior". While he said he would not be offended if someone with less service than himself was called "senior", implying that he himself was junior, he would not be happy. Yet he chose not to apply for the position. Rather, he expressed his concern by producing and distributing a document, clearly intended to cause a disruption to the harmony in the workplace. He could not be surprised that others would find being referred to as "junior" as offensive as he found it. He agreed that people being offended or upset had the potential to harm their efficiency at work and to pose a safety risk. Further, he agreed that lowering efficiency, a safety risk or a relationship issue could cause disruption at work. In all, Mr Kuczwal produced a document with the intention of offending others in the same way as he had been offended, causing disruption in the workplace. 145 During the current proceedings: · Mr Kuczwal continued to raise vague and unsubstantiated issues, such as the workforce being terrorised from time to time; · He agreed that he took things to "the next level" within 24 hours of sending an email giving seven days to respond, although he could not remember the reason; · He stated his view that employees hate the management and that managers and HR officers have no respect for the company's policies; · He stated that management is corrupt to the extent of misusing shareholder funds; · He declined to say the names of co-workers in evidence because he said he feared victimisation - again unsubstantiated; and · When asked about his intention to pursue an issue that had already been investigated by the company, he responded, "Today it's not, tomorrow it could be." 146 I am satisfied that all of these statements display an attitude that is inconsistent with the faithful performance of his obligations, and is destructive of the necessary confidence between employer and employee. 147 During cross-examination, Mr Kuczwal acknowledged that harmony and respect for those giving directions were needed in the workplace, and without these two elements, disorder and confusion would result. 148 Mr Kuczwal continued to express negative attitudes towards his employer throughout the present proceedings. He had not been dismissed for issuing anti-respondent documents in the past, but a pattern of behaviour emerged about which he was warned. He agreed that the use of the word "junior" was offensive and that causing offence harmed efficiency with the resultant effect of disruption in the workplace. The Seven Commandments document was deliberately designed to cause harm to anyone appointed as Senior Operators and to disrupt employees and the business. Procedural fairness 149 Mr Kuczwal had been warned about inappropriate behaviour and about causing disruption to the workplace. He had been suspended previously, including suspension without pay which was upheld by the Commission. The processes for disciplinary procedures within the company were well documented including in the relevant Award, and it was not disputed that the respondent adhered to the proper processes. 150 Mr Kuczwal was given the opportunity to make out a defence of his behaviour. His interview formed part of the respondent's investigation. I am satisfied that the investigation was conducted appropriately. 151 The letter of termination showed that the respondent then took into account "the circumstances of your employment history". I am satisfied that it was appropriate to do so. 152 Mr Kuczwal sought reinstatement through the respondent's internal appeal process. It is noted that the appeal process was made available to Mr Kuczwal when it was necessary for the respondent to do so, given that he was not summarily dismissed.

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Conclusion 153 The referral agreement under which the claim for unfair dismissal was filed provides that the Commission has the functions provided for in Part 6, Chapter 2 of the Act. Part 6 - Unfair Dismissals incorporates the following at section 88: In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given - its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and (c) whether a warning of unsatisfactory performance was given before the dismissal, and (d) the nature of the duties of the applicant immediately before the dismissal and, if the applicant sought but was refused reinstatement or re-employment, the likely nature of those duties if the applicant were to be reinstated or re-employed, and (e) whether or not the applicant requested reinstatement or re-employment with the employer, and (f) such other matters as the Commission considers relevant. 154 Mr Kuczwal was given four reasons for his dismissal. The first of these was misconduct which offended other employees and caused disruption in the workplace. I am satisfied that misconduct occurred when Mr Kuczwal posted the Seven Commandments document on the noticeboard. 155 As for Mr Kuczwal's allegation that the document was not offensive, he seems to find nothing that he says or writes to be offensive. I note Mr Hatcher's submission that no witnesses were called to say they found the document offensive. I find it was not necessary to do so. The document is offensive, prima facie. 156 The allegation that he had failed to comply with a reasonable direction was also made out. Mr Kuczwal had previously been directed not to distribute inappropriate material. He did not comply with that direction. 157 The third reason given, continuing to issue a document after being instructed by management to refrain from doing so, was not made out. There was no evidence that the instruction to stop distributing the document after he had removed a copy of it from the noticeboard was given to Mr Kuczwal. 158 I am satisfied that the fourth reason, relying on past behaviour and continuing to engage in conduct which has the effect of disrupting employees and the business, was made out. Apart from showing no regret, Mr Kuczwal displayed defiance in maintaining his right to continue to behave in whatever way he saw fit.

Australian Workers' Union, New South Wales (on behalf of Marek Kuczwal) v BlueScope Steel

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Judgment (36 paragraphs)

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Cases Cited (10)