Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union v Australian Health & Nutrition Association Limited

REASONS FOR JUDGMENT 1 The applicant, Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union ("the Union") brings this proceeding against the respondent, Australian Health & Nutrition Association Limited ("Sanitarium") for breach of s 298K(1) of the Workplace Relations Act 1996 (Cth) ("the Act") arising out of the dismissal by Sanitarium of an employee, namely, Mr John Draper ("Draper") on 8 November 2002. It is alleged that the dismissal was for a prohibited reason or for reasons which included a prohibited reason, within the meaning of s 298L(1) of the Act. The prohibited reasons which are particularised in the statement of claim in the alternative are that, at the material time, Draper was: (a) a member of the Union; (b) a delegate of the Union; and (c) as an employee, dissatisfied with his conditions. 2 The first argument for Sanitarium is that Draper was not a lawful member of the Union, nor a lawful delegate of the Union, as the Union did not have what is called, in industrial parlance, constitutional coverage of the work being done by Draper or, more precisely, that the Union has not established those facts to the requisite standard of proof, which is accepted by counsel for the Union to be the Briginshaw standard because of the nature of the proceeding. There is no challenge to the contention that Draper was regarded as in fact both a member of the Union and a delegate of the Union subject to the question of constitutional coverage. That question of constitutional coverage has been a bone of contention between the Union and Sanitarium for some years, but neither side has taken any opportunity to have the issue definitively settled. In view of my other conclusions, it is not necessary to resolve that important question in this proceeding. I shall, for the purposes of these reasons, describe Draper as a member of the Union and as a delegate of the Union, as he undoubtedly acted as such to the knowledge of all relevant Sanitarium personnel. 3 The provisions of the Act which deal with victimisation, s 298K and s 298L, together with the onus provision, s 298V, have a long history, as noted in General Motors-Holdens Pty Ltd v Bowling (1977) 51 ALJR 235 at 240-241, 12 ALR 605 at 616. This case again illustrates the practical difficulties confronting both employer and employee where the employee is an active union delegate and where there are, or have been, contentious industrial issues in which that delegate has been involved in acting contrary to what management sees as the best interests of the employer. The difficulties are compounded because an active delegate is unlikely to be a shrinking violet. On the one hand, victimisation of union officials is not to be tolerated. On the other hand, a union official is given no immunity from normal constraints of behaviour, nor any licence to act in a manner which would not be tolerated in another employee. (See Smithers and Evatt JJ in Cuevas v Freeman Motors Ltd (1975) 25 FLR 67 at 78.) 4 It is the task of Sanitarium to "prove otherwise" than that the dismissal was for the alleged prohibited reasons on the balance of probabilities. In dealing with an earlier section, Gibbs J in Bowling said (at ALJR 239; ALR 612): 'However, it would in my opinion be wrong to think that there is any special difficulty in the way of an employer who seeks to prove that in dismissing an employee he was not actuated by the fact that the employee was a shop steward or other delegate of an organization. The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.' 5 The critical events occurred between 5 and 8 November 2002. Those events occurred against a background of previous relevant circumstances. It is unnecessary for me to endeavour to set out all of the circumstances encompassed by the evidence. Much is undisputed. So far as the disputed facts are concerned, most of the fine detail is inessential to resolution of the present issue. In my view, the previous relevant circumstances principally relate to two issues - the first is the role which Draper had played as a Union delegate prior to his dismissal, which can be taken to have been known to the management of Sanitarium, and, secondly, prior alleged misconduct by Draper as an employee, which can also be taken to have been known to the management of Sanitarium. 6 Sanitarium commenced business in Australia in 1898, being connected with the Seventh Day Adventist Church. By 1992, it conducted various manufacturing plants in Australia, and in that year the Berkeley Vale site commenced operation. Draper commenced employment with Sanitarium at that site on 5 May 1997. Up until that time, Berkeley Vale (and other Sanitarium plants in Australia) had effectively been non-union shops. Draper joined the Union on 30 September 1999. He was elected a site delegate in March 2001. In the first part of 2001 an issue arose at the manufacturing plant conducted by Sanitarium at Cooranbong in New South Wales as to underpayment of penalty rates under the relevant New South Wales State award (the Grocery Products Manufacturing (State) Award), in accordance with which Sanitarium claimed to be operating, which led to a concession that there had been underpayment. The Union claimed that it had been responsible for that victory. Sanitarium claimed to have initiated that correction of its own volition. 7 In the second half of 2001, Draper became involved in representations by the Union to Sanitarium that the correct award coverage for Berkeley Vale was the relevant Federal award (known as the Food Preservers Award). 8 In November 2001 Sanitarium commenced conducting meetings with staff for the purposes of negotiating an agreement pursuant to s 170LK of the Act. In December 2001 members of the Union met to vote on a log of claims, and on 5 December 2001 the Union notified Sanitarium of the commencement of a bargaining period pursuant to Div 8 of Pt VIB of the Act. 9 On 14 February 2002 the Union members employed by Sanitarium at the Berkeley Vale site held a two-hour stop work meeting. This was the first such stop work meeting by Sanitarium employees. Sanitarium took quite elaborate security precautions. 10 Between February 2002 and October 2002 there was a considerable history of discord between Sanitarium and the Union, including various proceedings in the Australian Industrial Relations Commission. Although there is some debate about it, I am satisfied that Sanitarium did not welcome involvement by the Union as such in the negotiations with the employees about that agreement. It was generally not welcoming of Union involvement at the plant. I am also satisfied that Draper played a significant role in opposing the agreement, and generally in agitating in the interests of the Union as he saw them. Although the submissions on behalf of the Union may have somewhat exaggerated his role, I accept that he would have been perceived by Sanitarium management to be a Union activist and, at least, a persistent irritant. On 23 October 2002 a vote of employees was held as to the proposed s 170LK agreement at the Berkeley Vale site, and the vote was in the negative. I accept that the endeavour to obtain the assent of the employees to an agreement pursuant to s 170LK had consumed considerable management resources and that the failure to obtain that assent was seen as a significant blow by management. 11 On 1 May 2002 an incident occurred between Draper and Ms Sharleen Tasker during the operation of the manufacturing plant. He objected to her temporarily looking after the machines on two lines. On 9 May 2002 there was a further incident, when Draper complained about Tasker failing to put through a telephone call from his daughter the previous evening. These incidents led to Tasker making a formal complaint of harassment by Draper on 15 May 2002. 12 On 2 May 2002 there was an incident between Draper and Ms Kristin Esau, who was the Human Resources Manager at the Berkeley Vale site, arising out of a failure by Draper to be appointed to a position for which he had applied. This led to Esau making a formal complaint of harassment by Draper on 10 May 2002. 13 On 15 May 2002 a meeting was held between Draper, Mr Terry Gordon, a delegate of the Union, who was present as Draper's witness, Mr Herbert Hill, the General Manager, Human Resources of Sanitarium, and a Mr Graeme Pearson, a consultant to Sanitarium, concerning the complaints by Tasker and Esau. There was a further meeting on this topic on 27 May 2002 between Draper, Mr Richard Stock, the Manager - Meals and Beverages at Berkeley Vale, and Mr Adam Burton, the Production Manager - Meals and Beverages, and Draper was issued with a written first and final warning. On 20 June 2002 there was another meeting between Draper and Ms Michelle Burgess, the New South Wales Secretary of the Food and Confectionery Division of the Union, Pearson and Stock, when Draper objected to a warning without a six-month time limit. Stock endorsed such a time limit upon the warning, but told Draper that any further intimidation after that period would not be tolerated. 14 Evidence was also called as to an incident between Draper and another employee, Ms Adele Turner, in the presence of Gordon, in which Turner claimed that Draper harassed and threatened her. No complaint was made at the time. On 17 May 2002 Turner told Esau about that incident and provided her with a written account of it. 15 Draper contests the detail of the versions given by Tasker and Esau, although acknowledging incidents of the general nature alleged, but he disputes the essence of the complaint by Turner. Whatever may be the whole truth of these incidents, having seen each of Tasker, Esau and Turner give evidence, I am satisfied that each of them felt intimidated by what had passed between each of them and Draper, and that, in each case, neither the incidents themselves nor the complaints were manufactured by or at the instigation of management. 16 Another relevant piece of background is that I am satisfied that Sanitarium had instituted and was seriously implementing an anti-harassment policy. Indeed, Draper had earlier made a complaint of harassment against another employee which had been upheld. 17 On 5 November 2002, Mr Antonio Celic was rostered to have a break at 7pm. He was to be relieved by Mr Stephen Jones. Jones did not turn up when required, and when he did, Celic abused him. The supervisor on duty was Mr David Newman. Another employee, Mr Peter Fraser, was with Newman when Newman was approached by Jones and Draper. Draper claims to have become involved in endeavouring to settle down the dispute between Celic and Jones. He has some support from Jones as to this. In a broad sense that might be right, although Jones does not indicate that he (Jones) entered into the fray, but, rather, let Celic vent his spleen. On any view of the evidence, Draper accused Newman of incompetence in failing to have sufficient relief staff available, and indicated that the co-operation which staff were extending by flexible work practices would cease if more relief were not made available. There is sharp disagreement as to the manner in which this was done. Newman says that it was done very aggressively, in a loud voice in close proximity to him, with arms being waved in a threatening fashion, with abusive language being used in the hearing of other employees, and with the reference to changing work practices being a clear threat of fomenting industrial action. He said that, although he endeavoured to maintain an untroubled demeanour, he felt threatened and intimidated and even felt tears forming in the corner of his eyes. His evidence is corroborated by Fraser. Fraser's evidence was that Newman did not succeed in masking his reaction to the abuse by Draper and was visibly shaken. 18 Counsel for the Union made much of the fact that Newman is a good deal taller and larger than Draper and would have been unlikely to have feared him, particularly as Newman had received training in security work. This misunderstands the psychology of the situation. Having seen both Draper and Newman in the witness box, Draper comes across as a positive and aggressive personality and of strong physique compared with Newman. I do not suggest that it was likely that Draper would have physically attacked Newman, or that Newman would have been cowardly or not able to adequately defend himself if that had occurred. However, notwithstanding the difference in size, I accept that Newman was shocked and nonplussed by the apparent ferocity of the abuse he received, out of the blue, particularly taking place in public and in front of other employees. I do not doubt he saw it as an attack upon himself and his authority. Another factor to be considered is that Newman was working very long hours at the time. Jones suggested at the time that Newman's mental state may have been affected by those long hours. I would not discount the possibility that Newman was more sensitive on this occasion than he might otherwise have been. 19 Later that night Newman and Mr Justin Walker, a supervisor, gave an official warning to Draper about incorrect paperwork on a previous occasion, in the presence of a witness who accompanied Draper. A similar warning was also given to Celic. I am satisfied with Newman's explanation that this was issued in the ordinary course, as had been planned prior to the incident earlier in the evening. 20 Counsel for the Union also relied upon the fact that Newman took no immediate disciplinary action, such as sending Draper home or otherwise suspending him from duty. He had the authority to do that, and if in doubt, could have reached his superior by telephone. He did take disciplinary action in relation to the paperwork issue. He did not mention the incident to more senior management until a routine meeting the following day. I accept Newman's explanation that he was unsettled for the balance of that evening and, indeed, into the following day, by what had occurred. 21 On 6 November Newman reported the incident to his immediate superior, Mr Brian Lowe, the Production Manager - Beverages. During that afternoon, Newman had a meeting with Lowe and Hill about the incident. Hill became involved as the senior human resources person because of the complaint which Esau had previously made against Draper. At the conclusion of that meeting, Newman filled out and lodged a complaint form. On the same day Lowe met with Fraser in the presence of his personal assistant. A note of the interview was prepared. Fraser corroborated Newman. He gave evidence consistently with what he then told Lowe. Lowe contacted Draper on that afternoon, advised him of the complaint and asked that he not come in to work for his shift that day. 22 On 7 November Hill and Esau interviewed Jones (although Jones puts the interview on 6 November). There is an issue as to precisely what was said. Hill's version is: 'Me: "What did you see happen last night between David Newman and John Draper?" Mr Jones: "I was late coming back from my break and Antonio had been relieving me. Antonio was pretty upset by me being late. We started to argue with each other. I said that I wouldn't put up with it and would go and see David Newman. John [Draper] must have seen what was going on because he then became involved. When I went off to see David Newman, John followed me. John then started yelling at David Newman." Me: "What did John say?" Mr Jones: "That Dave was stuffing up the process and that he was sick of it." Me: "Do you think John's behaviour was harassing or intimidating?" Mr Jones: "I don't think John's behaviour was necessarily harassing but there was a lot of loud shouting going on. I don't want to get involved. I have a family to think about. I want to look after their safety. David has been working long hours and I think it may be affecting his emotional state."' Esau's version is similar. Her contemporaneous notes were as follows: '7/Nov/02 Steve Jonnes, Herb Hill, Kristin Esau Comments from Steve Jones → This is the way John is → I don't think John harassed or intimidated David → Steve indicated that he had a family + had concerns for his families safety → Believed David Newman was working too long hrs affecting his emotional state.' Jones said the following: '23. The following day I was required to attend a meeting with Kristin Esau of Human Resources and Herb Hill. During the meeting I was asked questions both by Kristin Esau and Herb Hill. I do not remember who asked what question but I remember the questions being: "Did John swear at David?", "Do you think John was speaking too loudly?" and "Was John speaking in an offensive manner to David?" I replied: "No" to all of these questions. 24. In addition, I said to Kristin Esau and Herb Hill: "If someone gets sacked over this it will be a joke because no one would know how to talk to anyone else. You would think you were talking normally but someone would accuse you of being offensive."' … '11. I deny that I ever said to Herbert Hill or Kristin Esau that John Draper had started yelling at David Newman. I generally repeat my comment in response in Kristin Esau's affidavit. During my interview with Herbert Hill, I was asked at least 10-20 questions however Herb Hill only recounts three questions. 12. I do not agree with Herbert Hill's account of my response to his question "Do you think John's behaviour was harassing or intimidating?" I said in response to this question words to the effect of "Not in my opinion. If you can get sacked by talking to a boss about a problem we are all in trouble". 13. The only mention I made to Herbert Hill about my family was at the beginning of the interview when he asked about myself. I told him that I was married with three children and I liked my job with Sanitarium.' 23 Later in the morning a meeting took place between Lowe, Hill and Draper concerning the complaint. Draper brought a witness with him by the name of Mr Kevin Kernaghan. Draper was given a written summary of the complaint. Draper denied being aggressive or intimidating. There is an issue as to whether Draper's union membership was mentioned and, if so, by whom. He said that he wished to make a harassment complaint against Newman. That was confirmed by an email from Draper to Lowe that day. He remained suspended from duties. 24 After receipt of the complaint by Newman, there were discussions between Lowe, Hill and Mr Brian Mason, the Manufacturing Manager of Berkeley Vale and Tuggerah. Hill had briefed Mason as to the incident prior to the investigation of it. He was also briefed by Hill on 7 November prior to the interview with Draper. Later on that day there was a teleconference between Hill, Lowe and Mason in which the investigation was reviewed and the previous complaints of harassment against Draper and the final warning given to him discussed. Mason was the decision-maker. He formed the view that Draper's employment should be terminated. However, he was aware that it was likely that the Union would be involved if that took place, and he therefore thought it was appropriate to contact Mr Darryn Woolley, the Manufacturing Operations Manager for Australia and New Zealand for Sanitarium, before acting on that decision. Mason recommended termination. The evidence given by Mason as to his ultimate recommendation was as follows: 'Well, John Draper has had similar complaints of harassment made against him in the past. He was given a final warning less than 6 months ago for similar conduct. Based on this and our investigations, I think our only option is to terminate his employment. I wanted to run it by you first though because if we terminate him, he is likely to get the union involved. It's likely to cause problems on-site but if we don't take this action, it will set a bad precedent for other employees. It's important that we treat everyone consistently.' Woolley said that he would get back to him. Shortly after, Woolley called Mason again, having spoken to Hill in the meantime. Woolley said that he supported his recommendation to terminate Draper's employment. 25 Mason then had a further discussion with Hill and Lowe, and he advised that the decision to terminate was supported by Woolley and should be implemented. Hill drafted a letter of termination which Mason settled and sent it back to Hill. The letter of termination was signed by Lowe. It was handed to Draper at a meeting between Lowe, Hill, Draper and a Mr Craig Windred, a witness brought by Draper. The letter of termination was in the following terms (omitting formal parts): 'Re: Complaint of harassment This letter is as a result of the meeting held on 7 November 2002 at 11.00 am in the factory board room with regard to a formal complaint of harassment that was lodged against you with respect to your conduct on November 05, 2002 in the Beverages department. The basis for this complaint was your interaction with your supervisor, David Newman, over a meal break situation involving two other Beverage department staff. The outcome of our investigation is that on this occasion, we have concluded that your action towards David Newman constituted harassing and intimidating behaviour, and was undermining of your supervisor's authority, amounting to misconduct. You received a First and Final written warning on 27 May 2002 and were warned that any further repetition of this type of behaviour would result in further discipline action including termination of employment. Therefore, having listened to your explanation of these events, and given due consideration to that explanation, we have concluded on the balance of probabilities that your actions towards David Newman constituted misconduct. Sanitarium has decided to terminate your employment from today. You will be paid full Sanitarium [sic] immediately." There is some dispute as to the detail of the conversation which occurred. 26 Each of the participants in the decision-making process gave evidence that the termination of the services of Draper was not for any reason related to his Union membership, his status as a delegate of the Union, his activities on behalf of the Union or any activities related to the terms and conditions of employment at Sanitarium. Indeed, the evidence, rather, was that the termination was in spite of his Union status, as it was understood that it would be more than likely to provoke Union involvement. 27 Each participant was cross-examined to suggest that this evidence was not correct. No relevant concessions or admissions were made. Counsel for the Union has analysed that cross-examination in some detail, and has submitted that the evidence of the witnesses should not be accepted. There was nothing in the manner in which these witnesses gave evidence which cast doubt upon the general veracity of their evidence. The objective circumstances are consistent with that conclusion, and certainly do not invite the contrary conclusion. There is no suggestion that the incident involving Draper and Newman did not occur, or that it was created or encouraged by management as a pretext to get rid of Draper. On any view, Draper approached Newman without provocation by him or any member of management. The complaint (if accepted) indicated conduct which could legitimately be regarded as a basis for dismissal. It was intimidatory of another employee, it was a direct challenge to the authority of a supervisor, and did involve a statement which could have been regarded as an unwarranted threat of industrial action. There is no doubt that Fraser corroborated Newman's complaint to management at the time. It is not suggested that there was any reason which appeared to the decision-makers then to regard his corroboration as unreliable, or that he was or is to be regarded as a tool or stooge of management. There is no doubt that there had been an earlier official warning to Draper for other harassing or intimidatory conduct in relation to other employees - one of whom was in authority - which I have found was the result of genuine complaints. There was an active company policy against harassment of employees. 28 Counsel for the Union criticised the investigation which was carried out, particularly in relation to the version given by Jones. It is suggested that there was a conflict between the version of Jones, on the one hand, and Newman and Fraser on the other, which was not properly investigated or resolved. Furthermore, it is put that there was a misunderstanding or a misreporting of what Jones was claimed to have said about his family, and this was a factor in the decision-making. It was submitted that what was said to have been an unwarranted industrial threat by Draper was merely pointing out that it could not be expected that employees would be flexible if management did not provide enough staff. What Draper did was said to be a legitimate action by a union delegate in making representations to management. It was submitted that the complaint was seized upon to get rid of an irritant. 29 These arguments are not without merit. On one view of the events of the evening of 5 November, Draper did intervene on what might be seen, in a broad sense, as an industrial issue, in a manner which was forceful and direct, but consistent with his personality, which was met by an over-sensitive reaction. However, the role of the Court in this proceeding is not to decide precisely what happened on the evening in question, in the earlier incidents which led to the warning or in the various meetings which occurred. Neither is it to judge the rights and wrongs of the dismissal. Rather, it is to decide whether the dismissal was the result of what can loosely be called victimisation. In the present case, all of the persons involved in the decision-making have been called to satisfy the onus lying on Sanitarium, and the issue is whether they should be accepted when they gave evidence that the dismissal was not for a prohibited reason. As explained in Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804, [2002] ACL Rep 165 FC 3, it is not possible to judge that issue by concentrating upon the evidence of those witnesses alone. Their evidence must be considered against the whole matrix of relevant facts, and cannot be divorced from the underlying circumstances. It would make a significant difference in the present case, for example, if Draper had been goaded into action by someone at the behest of management. It is for that reason that I have thought it appropriate to consider the essential facts relating to the incidents in question and of the meetings relating to them. I have not, in doing this, sought to make definitive findings as to all that occurred in a way that would be appropriate if the action was for wrongful dismissal. 30 It is not enough to point to some deficiencies in the investigation or in the knowledge which was received by the decision-maker to cause the evidence of the decision-maker to be disbelieved. It may be different if the deficiencies were so glaring and obvious as to reflect upon the bona fides of the decision-maker. In my opinion, the criticisms which are made here do not approach that level. The fact that Jones may have supported Draper, to a greater or lesser extent, and that what he said about his family may have been misunderstood (if that were the case) does not lead to the conclusion that Mason was given deliberately slanted information or that he did not give the issue genuine consideration. The practical day-to-day consideration of an issue between employer and employee is not approached as a court hearing or judicial inquiry might be. I am satisfied that the investigation of the complaint against Draper and the decision to terminate his services were bona fide in the relevant sense. 31 In my opinion, Sanitarium has satisfied the onus cast upon it by s 298V of the Act. The application is dismissed. There will be no order for costs by reason of ss 170CS and 347 of the Act. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.