THE QUESTION OF FAIRNESS
119The principal task before me in this hearing is to to identify whether or not the termination of Mr Thomson's services was unfair, ie whether, using the actual language of s.84(1), Boral Cement had acted in a manner which was either harsh, unreasonable or unjust [ Busways v Johnson (1994) 55 IR 255 at p.261]. I f I conclude that the termination of Mr Thomson's services by Boral Cement was unfair in that context, I am required to determine the appropriate remedy to apply to him, with preference being given to reinstatement under s.89(1) or re-employment under s.89(2) over monetary compensation under s.89(5) [ Burge v BHP Steel Pty Limited (2001) 105 IR 325 at p.345 and Plummer v Stannard Brothers Launch Service (2005) 143 IR 111 at p.115]
120Firstly, there is the question of the .03 reading of the breath testing for alcohol. As Mr Hatcher noted in his submissions, that is not specifically referred to in the letter Mr Longhurst wrote to Mr Thomson on Wednesday, 20 April, 2011 as a reason for his dismissal. In his evidence in this hearing, Mr Longhurst indicated that his letter was not "...all inclusive in all of (his) thought processes......" but, as Cahill J - Vice President of the former State Industrial Commission indicated in Public Service Professional Officers' Association of New South Wales v Forestry Commission of New South Wales (1990) 39 IR 46 at p.52 , if an employee has been dismissed for specific allegations - and in this case it is the letter of termination which provides the basis for those specific allegations - to my mind, those allegations, and no other, properly form the point of inquiry.
121Moreover, as Ms Moroney conceded in her evidence, since there was no follow up of that single reading on the breath test with a further breath test fifteen minutes later, it cannot be established conclusively that Mr Thomson actually failed the breath test at all, as has been asserted against him. Mr Thomson was prepared to give a breath test and did so, notwithstanding the fact that the breath test, like the urinalysis, was actually beyond the scope of the medical examination. I would assume that he would not have done so if he believed he might not pass it. Therefore, any suspicions that Mr Thomson had actually deduced that he had failed the initial breath test and subsequently stopped the medical examination, not only for himself but his work colleagues, simply to create a smokescreen around his own concerns is without any foundation, to my mind.
122Ultimately, this matter turns on Mr Thomson's conduct in the clinic on Tuesday, 22 March, 2011. Frankly, the highly sanitised version advanced by Mr Thomson, Mr Roberts, Mr Chandler and Mr Gorman of Mr Thomson's conduct at the clinic on Tuesday, 22 March, 2011 is simply not credible, in my opinion, particularly when considered in the light of conduct which has been described in this hearing of another occasion when Mr Thomson has displayed similarly aggressive behaviour.
123Ms Bronwyn Darlington, formerly employed as a human resources manager for Boral Cement, who was called to give evidence in the hearing by Mr Warren , recounted an occasions when she was also involved in a consultative committee meeting in the middle of 2004 which included Mr Thomson concerning, she claimed, the Boral Cement drug and alcohol policy. The incident involving Ms Darlington apparently came before the Commission (Kavanagh J) following notification of the matter by the AWU. An agreement was reached at that time which included, among other things, Boral Cement providing Mr Thomson with anger management training. That has not apparently occurred, however. It is a pity that anger management training was not taken up by him.
124According to Ms Darlington, Mr Thomson became aggressive at the meeting, got out of his chair, leaned forward, slammed on the desk, pushing papers forward and swore - "...this is fucking bullshit..." and "...you can stick your corporate values up your fucking arse...". Mr Thomson denies that he directed those comments at Ms Darlington but that certainly is not Mr Darlington's recollection and she told him to calm down or she would not continue the conversation with him. Mr Thomson's evidence on that incident was as follows:
Mr Warren: And you recall, don't you, that you had an argument with Ms Darlington?
Mr Thomson: We were having a debate about a pay issue.
Mr Warren: And you said: "They can shove it up their arse" with respect to company protocols.
Mr Thomson: Yes, I was talking to my other union delegates and I definitely said that.
Mr Warren: I suggest to you that at the time you said it, you stood up, you put your hands on the table, you looked directly at Ms Darlington and you said those words: They can shove it up their arse"?
Mr Thomson: That is a total lie.
Mr Warren: I see.
Mr Thomson: I looked at my fellow delegates. I was seated at the time and I said it in a calm and quiet manner: "They can shove that up their arse" to what she had been suggesting. It was never directed at her. There was a full investigation and it went to Kavanagh J because we were worried that I was going to get terminated by it. And out of all them findings and having detectives involved or ex detectives that done the investigation, it was never proven that - because she accused me of - directly to her and telling - I was told that she told everyone that I said: "You can stick it up your arse" and that's what she said.
125And that is what Ms Darlington again states emphatically in her evidence before me. I have to say that I regard Mr Thomson's version of that incident as not particularly plausible. The words Mr Thomson chose to use are not words which would customarily be uttered in the calm and quiet manner in which Mr Thomson claims he used them.
126Mr Hatcher challenges the relevance of the evidence of Ms Darlington in these proceedings, noting particularly that the incident occurred over seven years ago. But, to my mind, past conduct always remains a relevant consideration in issues of this nature [ Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 at p.27]. As Sheppard J of the former Commission in John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517, a past act of misconduct:
"...does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be relevant to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about a dismissal..."
127Apart from that one incident in 2004, however, there are apparently no other incidents recorded on Mr Thomson's personnel records. A single act of bad temper, accompanied as it may be with regrettable and offensive language, does not necessarily warrant disciplinary action against any employee. The matter must be assessed according to the standards of men, not angels [ Jupiter General Insurance Company Limited v Andeshir Bomanji Shroff (1937) 3 All ER 67 at pp. 73 and 74]. But Ms Darlington's evidence does support the view that Mr Thomson has in the past adopted behaviour involving a particularly aggressive stance in his dealings with Boral Cement management, especially when he was acting in what he understood to be legitimate AWU business.
128That having been said, whilst swearing may constitute grounds for disciplinary action against an employee, and in certain serious cases the dismissal of the employee on its own, it is the context in which the allegedly offensive comments were actually made which provides the appropriate clue. As I indicated in my decision of Thursday, 13 July, 2000 in Gorman v Broken Hill Proprietary Company Limited [2000] NSWIRComm 1079 at p.19]:
"...It is hardly surprising that the conversations of groups of men working together would involve colourful language which in another context may be offensive. BHP is running a steelworks and not a monastery. What may at one time have been regarded as offensive language seems in more modern times to be accepted as part of normal speech... Such language would not, to my mind, be grounds for dismissal unless it was the expression of an hostile or belligerent attitude to fellow employees and, more particularly, supervisory staff [ South Sydney City Council v Federated Municipal and Shire Council Employees Union (1989) 28 IR 363 at pp.365 and 366]..."
129And in my unreported decision of Wednesday, 31 July, 1996 in Seychelles v Linfox Distribution Group [Matter No.IRC 511 of 1996] I expressed similar views (at p.32), viz:
"....I am prepared to accept that the conversations of groups of men working together in the trucking of goods will often contain colourful language, which may be regarded as offensive in another context. The transport industry is not conducted like a tea party. The evidence before me in this hearing establishes clearly that most...employees, both supervisors and drivers, use language of that type without meaning offence..."
130But the confrontation on this occasion occurred not between groups of men working together but with female nursing staff in the clinic and presumably other patients awaiting medical examinations - not particularly edifying conduct on Mr Thomson's part in a public place. Mr Thomson conceded in his evidence that at the clinic he "...might have come across as being strong and standing on his (digs) but at no stage was it crankiness or threatening...". Nor did he demean any person in any way. That is not the views of the nursing staff at the clinic, however.
131Mr Hatcher drew my attention to the decision of the Full Bench of the Commission (Walton J - Vice President, Schmidt J and Ritchie C) in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Corrective Services (2006) 153 IR 125 and, in particular, the following comments by the Full Bench (at p.137):
"....People do not, however, always behave entirely rationally when confronted with new and unexpected circumstances. On her unchallenged evidence, (the dismissed employee) was shocked and emotionally distressed when confronted with the requirement to submit to a targeted testing for drug use. She had this reaction, having herself recently alerted the Governor of the centre to the threat made by a former inmate that an allegation would be made that she was a drug dealer. All she could think about was the allegation that had been made that she was involved in criminal conduct: that she needed to clear her name and that submitting to the test at the centre would make the allegation public. Plainly, as was submitted, (her) response was not entirely rational, but her explanation of her conduct was a matter to which the decision-maker had to pay regard, in determining the appropriate penalty for her misconduct..."
132Mr Thomson asserted in his evidence that he was "shocked" that he was being requested to provide a urine sample in the medical examination. And, as Mr Hatcher submitted, strictly speaking he was under no obligation to provide a urine sample and may therefore have been within his rights to refuse to provide one (although I am satisfied that his work colleagues had no such difficulties in doing so until he stopped them). And, in my opinion, that still provides no excuse for his conduct which was far from acceptable. He did not just decline to give a urine sample. I am satisfied that in the process he abused the nursing staff at the clinic when they attempted to direct him and the other employees to provide one.
133Nevertheless, Mr Thomson's conduct has to also be seen in the context of his role as AWU delegate at the Marulan site of Boral Cement and his vociferous support for Boral Cement to move its drug testing regime from urine testing to oral swabs, which I accept was, generally speaking, AWU policy. In his evidence Mr Gorman conceded that Mr Thomson was "...very staunch on union matters..." and that he "...gets wound up about the union..." and gets emotional about it. The position of a trade union delegate is so often a thankless job - an intermediary between workers and management with the individual taking the heat from both sides. Mr Thomson described his role as AWU delegate as "...the meat in the sandwich..." and "...the voice of the people...", ie the employees whom he represents, a fairly accurate description in my opinion.
134Commissioner McCreadie of the former Australian Conciliation and Arbitration Commission in the Garden Island Dockyard Case (1964) 107 CAR 806 outlined what he believed to be the legitimate role of a trade union delegate (at pp.810 and 811), viz:
"....The true function of a union delegate or shop steward is, of course a very important one in which he looks after the interests of his fellow members, mostly on minor matters which, if not dealt with satisfactorily, can lead to serious events. But, refusal of duty or other serious matters are not the prerogative of a delegate. The job delegate or shop steward is not a union official; he therefore should refer important matters, or those which he considers are likely to develop into serious matters to his union for attention. Such matters are properly dealt with by union officials with their wider experience, knowledge and understanding of union policy. A shop steward or delegate who understands his function and their limitations can, and most do, perform very useful work on behalf of his union and its members, and make a valuable contribution to good industrial relations in an establishment..."
135I conclude that if Mr Thomson had raised the matter with Mr Gillespie himself - as he should have done - the outcome of this incident may have been entirely different. Instead, he took the initiative himself. He was unwise to do so and in doing so he exceeded his authority as trade union delegate, in my opinion.
136The role of trade union delegate also comes with some protection to the occupant of the position to match the responsibilities of the position. For instance, in terms of s.210 of the State IR Act, it is an offence for an employer to prejudice an employee, including dismissing him, because, among other things, he is an elected representative of employees. Boral Cement management is navigating dangerous waters if Mr Thomson's dismissal flowed entirely from his conduct as an AWU delegate, no matter how unhelpful and obstructive Boral Cement management may have viewed him acting in that capacity [ Transport Workers' Union of Australia v CWS Transport Services Pty Limited (1990) 39 IR 8].
137But, equally, Mr Thomson, as AWU delegate, will not be excused for conduct which for any other employee would be grounds for dismissal [the Homebush Abattoir Dispute Case (1966) AR 371 at pp. 385 and 386 and Public Service Association of New South Wales v Macquarie Generation (2004) 136 IR 8 at para.122]. In the Newcastle Steel Works Case (1961) AR 48 the Full Bench of the former Commission (Richards, Beattie and Kelleher JJ) commented in that respect (at p.66) as follows:
"...While the 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..."
138These are all issues I have explored on a number of occasions in the past and the comments I have made, and the authorities I have referred to above have been frequently cited by me in earlier decisions I have made. In particular, in my decision of Friday, 25 July, 2001 in O'Brien v Linfox Limited [2001] NSWIRComm 1048 to which Mr Hatcher referred in his submissions, I commented (at p.35) that the fact that the dismissed employee was a trade union delegate, who had been involved in industrial action, was an ingredient in the dismissal and it was, to that extent, unfair for the employer to be influenced by that fact in deciding to terminate his services. I commented further (at p.17) that:
"....I have no evidence before me to intimate that (the trade union delegate) incited (other employees)..into any industrial action...or that his conduct was anything other than that of a legitimate trade union delegate. If a trade union delegate is to be blamed for industrial action of the employees he represents, there must be something in the evidence to suggest that he personally caused that industrial action. The role of a trade union delegate is difficult enough without being used as a scapegoat for the actions of the employees he has been elected to represent..."
139And (at p.18) I had this to say:
"...True it is that (the dismissed trade union delegate) should have acted more diplomatically, and with less of a temper than he invariably did. A cooler response to the problems which arose from time to time may have avoided some of the unnecessary industrial disruption that occurred. No doubt he presented some difficulties for... management in the performance of his role as...delegate. But...his dismissal on that basis must be regarded as harsh, unreasonable or unjust...
Moreover, a dispassionate evaluation of the evidence before me would suggest that, whilst (the dismissed trade union delegate) has a volatile personality and loses his temper more than is appropriate, his conduct was not such as to justify his dismissal. For the most part, (his) conduct was directed to legitimate trade union business and he was not advancing a personal position..."
140Nevertheless, it seems to me that Mr Thomson may very well have crossed the line from legitimate trade union business to simply bullying and harassment of his own colleagues and, even more importantly, the nursing staff in the clinic. It is open to me to conclude from the evidence before me that Mr Thomson actually coerced those other employees to leave the clinic. I share the view expressed by Mr Warren in his submissions, that there actually was no democratic decision taken collectively by the employees on this occasion and that Mr Thomson clearly influenced the employees at the clinic in the decision they took to abandon the medical examination, leave the clinic and return to work.
141Mr Thomson's actions were without justification and he showed considerably less courtesy to the nursing staff at the clinic than I believe was required of him in the circumstances. But his conduct - misconduct, to my mind - was nevertheless the implementation of what he genuinely believed to be AWU policy and which no doubt remains AWU policy at this point of time.
142I note in that respect the decision of the Full Bench of the Commission (Boland J - President, Walton J - Vice President and Sams DP) in Sydney Ferries Corporation v Seamen's Union of Australia (2009) 186 IR 99. That case concerned, in part, a trade union delegate's conduct (directing other employees to refrain from selling tickets and "...to open the gates..." to a wharf area to allow passenger onto ferries and travel free of charge) as one of the reasons for his dismissal. That conduct was considered at first instance and on appeal as a reflection of a direction by a trade union. At first instance the dismissal was found to be harsh and the employee was reinstated in employment. That decision was essentially upheld on appeal.
143The Full Bench in Sydney Ferries Corporation v Seamen's Union of Australia commented in that respect (at para.68) that the trade union delegate was acting "...entirely under the direction and authority of his union to bring about a short stoppage of work..." and that he "...brought it to an end based on the same authority...". The Full Bench went on to say (at para.68):
"....This is not to excuse the actions of the delegate who was bound to maintain industrial order in the manner described in the judgments of the predecessors of this Commission. But it plainly puts the conduct in context and perspective. The union delegate had responsibilities as an employee of the appellant, no doubt, but he has received advice as to a course of conduct from the very organization he is said, on these aforementioned authorities, to represent. To that may be added the inequity in the approach of the appellant in taking action against a single delegate and not against the organization that orchestrated the conduct or any other employee of the appellant..."
144To my mind, there are some fundamental differences between the situation described in Sydney Ferries Corporation v Seamen's Union of Australia and the current proceedings. It appears to me that Mr Thomson was acting as much on his own initiative - and in doing so he was clearly exceeding his authority as AWU delegate and the policy of the AWU, in my opinion. There was no clear direction from the AWU for his decision taken on Tuesday, 22 March, 2011 to not only cease his medical examination himself but to direct other employees to also do so.
145Indeed, if he had raised the matter with Mr Gillespie in the first place, as he should have done, rather than going off on his own, he would have been advised to provide a urine sample (albeit that such advice may not have strictly been correct). But equally it was clear that he was carrying out what he perceived to have been a general and longstanding policy of the combined trade unions to support oral swabs over urine samples for drug testing, albeit that there were obvious unresolved differences between the AWU and Boral Cement over that issue.
146But did Mr Thomson's conduct justify his dismissal or would a lesser penalty have been more appropriate for him. It is always open to an employer to chose a lesser penalty to dismissal, eg counselling, warning or a longer period of suspension without pay and it is also a legitimate function of industrial tribunals in this country to examine the severity of a particular penalty to an employee and to determine if, in all the circumstances, it is excessive: such an approach is, in fact, suggested by the word "harsh" in s.84(1). The Full Bench of the Commission (Fisher J - President, Hungerford J and Connor CC) in Pacific Power v Crump (1993) 48 IR 296 commented in that connection (at p.302) that the test was whether or not:
"...the ultimate sanction of termination of employment was too severe a penalty..."
147And Watson J of the former Commission in Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 commented (at p.233) that:
"...in some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence..."
148I conclude, having regard to all of the circumstances described to me in this hearing, that Mr Thomson's dismissal was too harsh a penalty for him in terms of s.84(1). However, my decision has been made with some misgivings. It is not my role in these proceedings to teach any person what I would regard as common courtesy when they are communicating with other persons, especially when he is outside the group of men with whom he customarily works, and particularly when speaking to females, but Mr Thomson would be wise to curb his temper in future and act with considerably more restraint and courtesy than I believe he showed in the clinic on Tuesday, 22 March, 2011. I am satisfied that Mr Thomson's conduct in the clinic on that day was entirely inappropriate by anybody's standards. And I would not wish the parties to believe from my decision to reinstate him in employment, that I condone his conduct: I do not.
149And if Mr Thomson is to remain in his role as AWU delegate at the site, I believe Boral Cement is entitled to expect that he will conduct his work and trade union business with considerably less aggression and more restraint than was evident in his attitude at the clinic on Tuesday, 22 March, 2011. It is not, of course, the role of the Commission to intrude into the internal workings of any trade union, but if Mr Thomson is unable to reach a higher standard in his conduct than he displayed on Tuesday, 22 March, 2011, he would be wise to consider in his own interests whether or not to relinquish his role as AWU delegate at the site.