Mr Hasemann
9 Graham Hasemann was the Operations Supervisor at Acacia Ridge. He supervised the operation of all four mills at that site. A mill is a manufacturing line for tubular steel products. He supervised 114 staff members over three shifts. Employees' work was heavy and could be both demanding and dangerous. As a result One Steel had strict safety policies and procedures. There were two mills in each of two bays on the shop floor. The mills were operated by three operations crews on each shift. Each shift had about 37 operators. There were also maintenance and trades people on the floor and, from time to time, administrative staff. Mr Hasemann was a member of the Electrical Trades Union from 1986 to 1995. He said that he accepted that unions had a role to play on site and claimed to have been more than willing to deal with the union in his role as Operations Supervisor.
10 One Steel communicated with its employees in numerous ways. There were monthly meetings of the Staff Advisory Board on which there were elected employee representatives. There were also tool box meetings once every three weeks. Shift supervisors held pre-shift meetings with crews before the start of each shift. Issues such as safety were discussed. There were also notice boards. A television set in the lunch-room screened general announcements. Major changes on site were implemented only after consultation with staff.
11 Early in 2007 Mr Harrison became active in union affairs. At some stage in that year Mr Harrison and two other employees, Mr Butler and Mr Wharton, commenced to wear AMWU stickers on their helmets, to distribute AMWU stickers and pamphlets in the lunch-room and to place AMWU stickers about the site. Stickers appeared on cups and notice boards in the lunch-room, on toilets and in the locker rooms. On a few occasions pamphlets were distributed at the front gate. On one occasion they held a sausage sizzle. The three men frequently spoke to employees about the benefits of joining the union. This occurred in the lunch-room and, whilst employees were working, in the maintenance and mill areas. Mr Hasemann stopped the practice of speaking to employees whilst they were working. He had received complaints from "quite a few employees on site" to the effect that Mr Harrison was heavy-handed in his methods of promoting the union. The complaints had a common thread. Such employees considered that Mr Harrison had gone about things in the wrong way. They felt "bombarded" by his campaign of union propaganda, and that there was too much of it in the lunch-room and around the site. Three people who complained were Ray Tavita, Rob Lawson and Steve Booth.
12 In May 2007 about 20 employees started wearing "Say No" stickers on their helmets. They included Graham McDonald, Richard Murphy and Ray Tavita. Mr Harrison complained about the "Say No" stickers, asking that they be removed. Other evidence suggests that he thought that the stickers demonstrated opposition to the union. Mr Hasemann said to Mr Harrison, "Shane they could be saying 'no' to anything". He also said, "It's a two-way road mate, you have your stickers, they have theirs, they're harmless". He also invited Mr Harrison to raise the matter at the Staff Advisory Board meeting. On another occasion Mr Harrison said that he considered that the "Say No" stickers on helmets raised a safety issue. He suggested that the glue might attack the plastic of the helmets. Again he was told to raise the matter at the Staff Advisory Board meeting.
13 On 1 June 2007 Mr Hasemann learned that Mr Tavita had made an oral complaint to Ms Rankin, contact officer for discrimination and bullying complaints, concerning harassment by Mr Harrison. Mr Tavita subsequently told Mr Hasemann and Ms Rankin that "Shane had walked in, looked at the 'Say No' sticker on Ray's helmet; and then (after a short exchange of words) said twice: 'I'm going to fuck you up the arse'." Mr Hasemann spoke to three other employees who had been identified as witnesses, Philip Nipress, Michael Wilson and Solomon Tauo. He told Mr Harrison that he expected him to apologize to Mr Tavita. He told both men that he wanted them to work professionally together despite their differences. On one or two occasions Mr Harrison complained that Mr Tavita was favoured by Steven Booth. He regularly complained that the wrong people were promoted at Acacia Ridge and expressed vocal opinions about nepotism. Mr Booth is related to one of the managers.
14 On 1 June 2007 Mr Warren Vine complained to Mr Hasemann that Mr Harrison had harassed him whilst he was oxy-cutting. He had talked about joining the union and the benefits of so doing. Mr Vine said that Mr Harrison would not listen when he said that he was not interested. He eventually told him to "Piss Off" and walked away. Mr Vine said he was sick of seeing Mr Harrison's union propaganda, and that there was so much of it about the site that it had become ridiculous. Mr Vine swore an affidavit in this matter but, in the end, it was not read. I therefore proceed upon the basis that he made a complaint to Mr Hasemann, but I make no finding as to its content or factual correctness. On 4 June 2007 Mr Hasemann and Mr Newbegin (from One Steel management) met with Mr Harrison, Mr Newbegin and Mr Antal to discuss complaints about Mr Harrison visiting workers on the floor and distributing union propaganda. Mr Antal seems to have been a friend or ally of Mr Harrison. He frequently accompanied him to meetings with management. Mr Hasemann told Mr Harrison that he was not to be on the shop floor unless he was working a shift. Otherwise he was to respect the fact that employees had jobs to do and were not to be distracted. There were good safety reasons why people should not be distracted in the mill and maintenance areas.
15 On 5 June 2007 there was another meeting between Mr Patterson, Mr Allard, Mr McGuire, Mr Antal, Mr Harrison and Mr Hasemann. All but Messrs Harrison and Antal were supervising or managerial staff members. Mr Hasemann said that he had suggested the meeting because he understood that Mr Harrison was telling employees that management did not listen enough and did not do enough. He wanted to give Mr Harrison an opportunity to air any concerns.
16 On 26 June 2007 there was a meeting of the Staff Advisory Board at which Mr Harrison demanded that the "Say No" stickers be removed. Two other employee representatives complained about Mr Harrison's conduct. The meeting became heated. After the meeting Mr Hasemann discussed the question of stickers with Mr Patterson, One Steel's Executive Manager - Operations. They agreed that there was too much tension on the site concerning stickers, and that the only solution was to ban all stickers on helmets (where they seemed to be most prominently displayed). Mr Patterson and Mr Hasemann addressed all crews on the site, informing them that stickers on helmets were banned and were to be removed. Many men had worn stickers other than "Say No" or AMWU stickers. There was substantial compliance with the direction. Shortly after the direction Mr Harrison complained to Mr Hasemann that Mr Tavita still had a sticker on his helmet. Mr Hasemann's recollection is that it was a "Say No" sticker. Mr Hasemann spoke to Mr Tavita's supervisor. The sticker was removed.
17 On 12 July 2007 Mr Patterson gave a presentation to staff in the training room concerning a proposed merger of the employer with another company. Other evidence suggests that some employees had expressed concern that the merger might lead to their being forced to join the union. Mr Patterson said that being in a union was like a religion and sport. It was the right of the individual to decide and keep their opinions to themselves. Over the next few weeks some of the men started wearing stickers on their ear muffs. They said that the earlier direction related only to helmets. Mr Hasemann then issued a direction banning stickers on ear muffs.
18 In the lead up to the federal election in November 2007 an increasing number of stickers and other union material appeared in the lunch-room. There was union literature on every table and union posters on the wall and on the notice board. A number of people complained about the quantity of such material. Those complaining included Warren Vine, Rob Lawson and Steve Booth. Mr Vine was particularly vocal and made derogatory remarks, apparently about Mr Harrison.
19 On 29 October 2007 Mr Hasemann learned that Mr Harrison had made a complaint concerning Mr Tavita. In effect, it was that Mr Harrison had asked Mr Tavita not to swear in the lunch-room. Mr Tavita had then allegedly threatened Mr Harrison on two occasions. Mr Hasemann and Mr Croxford interviewed the relevant witnesses, including Mr Harrison, Mr Tavita, Rob Lawson, Craig Frahm, Steven Booth and Ray Whalley. Subsequently, Mr Hasemann spoke to Mr Allard. They agreed that there had been childish behaviour by both men, and that they had probably contributed equally to the incident, given their history of conflict. Mr Allard decided to give both men final written warnings. On the same day Mr Harrison contacted Ms Rankin, handing her a written complaint of harassment against Mr Tavita arising out of the incident. Ms Rankin gave the complaint to Mr Hasemann. Later that afternoon Mr Hasemann was in the lunch-room talking to Mr Harrison and heard a few men swearing. Mr Harrison did not complain about the language.
20 On 1 November 2007 Mr Harrison advised Mr Hasemann by telephone that he was ill and not coming to work. He said that he had a medical certificate for "work stress", excusing him from work until 6 November. He claimed that his condition was related to the incident with Mr Tavita. He was absent from work until about 16 December 2007. The medical certificate stated that his stress was due to "bullying by his '2IC' ". Mr Tavita was not Mr Harrison's "2IC". He was the leader of a different team, having no supervisory authority over Mr Harrison.
21 On 9 November 2007 Mr Croxford, Mr Allard and Mr Hasemann met with Mr Tavita to give him his final written warning for unacceptable workplace behaviour. Mr Hasemann told him that both he and Mr Harrison had behaved childishly, and that this was unacceptable. Mr Tavita said that he would change his behaviour and signed the record of interview. His behaviour had subsequently been exemplary. At about that time One Steel proposed to give employees a bottle of wine or spirits. On 16 November 2007 Mr Hasemann rang Mr Harrison at home to ask him about his choice of liquor. His wife said that he drank rum.
22 On 28 November 2007 there was a meeting in Mr Allard's office, attended by Mr McGuire, Mr Croxford, Mr Harrison, Mr Antal and Mr Hasemann. The purpose of the meeting was to give Mr Harrison his final written warning for unacceptable workplace behaviour. He was told that the substance of his complaint had not been substantiated, that both he and Mr Tavita had behaved childishly, and that this was unacceptable. Mr Harrison refused to sign the "record of interview". That afternoon, Mr Croxford spoke to Mr Bradley from the union. As a result the final written warning was amended by removing any reference to childish behaviour. A copy of the amended final written warning was later faxed to the union. The union notified the Australian Industrial Relations Commission (the "AIRC") of a dispute. On 20 December 2007 a conciliation conference was held in the AIRC. At the conference Mr Hasemann raised other aspects of Mr Harrison's behaviour which had not formed part of the final written warning. They included ignoring directions as to the parking of his motor cycle, continually putting his cap on mugs in the lunch-room or inside the refrigerator and chanting union slogans in the lunch-room or on the shop floor in a manner that other employees found annoying. It was agreed that there would be a further meeting in the new year to discuss Mr Harrison's behaviour.
23 On or about 24 January 2008 Mr Newbegin, Mr Allard, Mr Harrison, Mr Bradley and Mr Hasemann met on site to discuss the issues raised at the conciliation conference on 20 December 2007. Mr Harrison agreed to stop putting his cap on the mug rack in the lunch-room or in the lunch-room refrigerator, to stop singing "loud" union chants in the lunch-room or on the shop floor and to stop parking his motor cycle in the shift workers' car park. Mr Allard and Mr Hasemann agreed to look into the possibility of providing Mr Harrison with a notice board in the lunch-room.
24 In late 2007 or early 2008 Mr Harrison, Mr Butler and Mr Wharton started wearing AMWU stickers on their clothes. On a few occasions they did not remove them before putting them into the site washing machine. The stickers clogged the washing machine. Mr Hasemann had to unclog it. He raised the matter in tool box meetings, asking that stickers be removed from shirts before they were put in the wash. On one occasion Mr Hasemann asked Mr Harrison why he was wearing stickers on his shirt. He said words to the effect that, "Well, you know, you can't wear them on your helmet". At around this time stickers on lockers started to be a problem. Some lockers were plastered with stickers. Complaints became more frequent. It seemed that stickers had become a real point of contention amongst the staff. Mr Wharton complained several times that stickers were being taken off other lockers and put on his. Mr Harrison also complained that stickers which he had placed around the site, and material which he had placed around the lunch-room, were missing. He said that this was stealing. He wanted Mr Hasemann to dismiss the person responsible. On one occasion he said that he thought Mr Tavita was responsible. He had no proof. Mr Harrison made similar complaints at a tool box meeting and at a pre-shift meeting.
25 In January and February 2008 Mr Patterson called a series of staff meetings involving all crews. Mr Hasemann was present at all meetings. Mr Patterson and Mr Hasemann gave a ten or fifteen minute presentation, asking staff to respect each other's property, not to put stickers on other people's lockers and not to remove other people's stickers. Mr Patterson said words to the effect of, "Guys, I do not care if you are in the union or not in the union. I treat it the same as religion or sport. You should keep your opinions to yourself. We are here about making tube and keeping the harmony." A few months later Mr Hasemann had to address the crew again on the same issue.
26 In or about March 2008 Mr Hasemann saw Mr Wharton carrying a very large union sign upstairs. Mr Wharton asked if it could be hung in the lunch-room. This may not have been a serious suggestion. Mr Hasemann said, "I doubt it very much. You'd probably have to ask Jason [Mr Allard]." He next saw the sign in a supervisor's office.
27 In or around February or March 2008 a meeting was held in Mr Allard's office to discuss with Mr Harrison and Mr Wharton their proposal to put AMWU signs on notice boards. As a result of the meeting permission was refused for the hanging of large AMWU notice boards and signs, including a sign at the gate saying "AMWU Site". However One Steel agreed to erect an additional cork board in the lunch-room for Mr Harrison's use.
28 In or about April 2008 Mr Hasemann heard that Mr Harrison was telling employees on the shop floor that One Steel was going to adopt an eight hour shift roster. Mr Hasemann received numerous enquiries about the matter. He was unaware of any such proposal. One employee said that he had joined the union because of the threat. Mr Hasemann inquired of various persons as to the source of the rumour and was told by two men that they had heard it from Mr Harrison who said he had got it from "high authority". Mr Hasemann was concerned that the matter was upsetting both employees and their families and so spoke to Mr Harrison on 15 April 2008. Mr Harrison attended the meeting with Mr Antal. Mr McGuire was also present. Mr Harrison said that he had heard a rumour about the matter. Mr Hasemann said that two people had alleged that he had told them about it. In the course of the interview Mr Hasemann formed the view that Mr Harrison was yawning in an exaggerated manner. He terminated the meeting and Mr Harrison said, "I'll just write in my diary, 'Graham is exiting the room during an interview' ". Mr Hasemann then called a meeting of the three crews and said that he was distressed and disappointed about the rumour. He said that no change to the roster was planned.
29 By later April 2008 stickers were still creating friction amongst employees. In particular Mr Hasemann received complaints from Robert Moreton, Matty Parr, Chris Durham and James Patterson. At a supervisors' meeting on 23 April 2008, (Mr Allard and Mr Newbegin also attending) one of the supervisors said that the issue was out of control. The others agreed. It was said that the crews were constantly bickering about it. Mr Allard said that he would issue a memorandum regarding the matter. On the afternoon of 23 April 2008, at a tool box meeting attended by Mr Hasemann, both Mr Harrison and Mr Antal complained about AMWU stickers being stolen or vandalized. Mr Antal said that the matter was getting personal and that something had to be done about it. Mr Harrison and Mr Antal criticized Mr Hasemann for not having identified the culprit. Mr Hasemann said, "You're right, I haven't caught the person, and it's obvious I'm going to have to do something about this to bring it to a halt." He again discussed the matter with Mr Allard and Mr Newbegin and suggested that they ban all stickers on site. As a result Mr Allard issued a memorandum dated 24 April 2008. It provided as follows:
It has been brought to my attention by a number of unhappy employees that stickers are being used in a way to target certain individuals by placing them on their lockers and some employees are retaliating by removing stickers from other people's lockers.
In view of this behaviour and in line with maintaining workplace harmony, effective the 30th April 2008, all stickers will be removed from lockers and company issued clothing and the use of stickers will need to be approved by management.
Your support in the removal of these stickers is appreciated.
Thanks.
Jason Allard
Site Operations Manager
30 The words "and the use of stickers will need to be approved by management" probably meant that the use of all stickers was banned unless so approved. However it may be arguable that it only applied to the use of stickers on clothing and lockers. On 29 April 2008 Mr Hasemann sent a memorandum to all supervisors, asking them to enforce the memorandum from 30 April 2008.
31 Mr Harrison's next day shift after publication of the memorandum was on 2 May 2008. On that day there was a barbeque for staff. At the barbeque Mr Hasemann saw Mr Harrison showing other workers something on his neck. It was an AMWU sticker. Later, Mr Hasemann spoke to Mr Allard about the sticker. Mr Allard said that he had asked Mr Harrison to remove it. At about 10.15 am Mr Hasemann saw Mr Harrison in the office area. He spoke to him. Mr Gerry Witt was standing nearby. Mr Hasemann referred to the fact that Mr Allard had asked him to remove the sticker. Mr Harrison replied, "I'm not removing the sticker and I won't remove the sticker until I get it in writing." Mr Hasemann said, "He's given you an instruction to remove the sticker". Mr Harrison again said, "When I get it in writing I'll do that. I have all the information in my diary." Mr Hasemann said, "Well if that's the case I'll organize a meeting with Jason Allard to discuss it." Mr Harrison said, "I'm just here to keep everyone happy and make [tons]." At 1.00 pm there was a birthday cake for employees in the lunch-room. Mr Hasemann asked Mr Harrison to "Come and have a chat in Jason's office". He invited Mr Harrison to bring someone with him if he wished. Mr Harrison said, "That's fine. I'll just finish my cake."
32 At 1.15 pm the meeting convened. Mr Newbegin, Mr Harrison, Mr Antal, Mr Hasemann and Mr Allard attended. The sticker was still on Mr Harrison's neck. Mr Hasemann asked why he had not obeyed Mr Allard's direction to remove it. Mr Allard asked the same question and referred to the memorandum. Mr Harrison said, "If management want to be childish about stickers I'll be childish as well. Give me the instruction in writing and I'll take it to the union. They'll reply within 7 days." Mr Allard said, "I have given you the instruction to remove it. I do not have to give every instruction in writing and we don't usually give every instruction in writing. We couldn't possibly run a business that way." Mr Harrison leaned back and yawned, allegedly in an exaggerated way. Mr Allard then outlined the disciplinary procedures which would be followed. He referred to possible outcomes, including summary dismissal for serious misconduct. He said this on two or three occasions. Mr Allard said, "This is serious, you are disobeying a reasonable instruction from the site manager." Mr Harrison said, "The meeting is over. I am being victimised." Mr Allard said, "The meeting is not over. Am I clear as to how serious the issue is?" Mr Harrison again leaned back and yawned in an exaggerated style and said, "Well, Jason, do what you need to do." At this point Mr Allard suspended Mr Harrison. Mr Hasemann followed Mr Harrison out of the office and heard him telling employees in the lunch-room that, "I've been suspended for wearing a sticker." He said to Mr Harrison, "Shane, you've been asked to leave the site." Mr Harrison said, "I've come to get my helmet." Mr Hasemann said, "Mate, you do not need your helmet, your helmet doesn't leave site." He then told the other employees in the lunch-room that, "Shane has been suspended for disobeying a reasonable work instruction from Jason Allard three times. This has nothing to do with the sticker."
33 On 6 May 2008 there was a further meeting attended by Mr Hasemann, Mr Allard and Mr Newbegin (from One Steel), Mr Bradley (from the union) and Mr Harrison. Mr Newbegin took notes of the meeting which Mr Hasemann inspected after the meeting and found to be accurate. Mr Allard said to Mr Harrison, "This is an opportunity to respond to your failure to follow a lawful and reasonable instruction". Mr Allard said that the purpose of the meeting was:
· to discuss events leading up to the meeting, including Mr Harrison's suspension;
· to give Mr Harrison the opportunity to comment on the detail and respond to the allegations;
· to discuss the issues as One Steel saw them;
· to allow Mr Harrison to add anything further;
· to then break to discuss the situation and come back with a decision; and
· to give Mr Harrison a final opportunity to respond to One Steel's decision.
34 Mr Harrison did not say very much at the meeting. Mr Bradley used the words "freedom of expression" and said, "you should be able to wear what you want on your body". He discussed turbans and tattoos, saying, "It's unlawful to request the removal of a sticker".
35 Mr Harrison said in his own defence that, "If management are being childish I'll be childish as well". Mr Allard said that, "It is a serious breach of the disciplinary policy and Shane could face dismissal". Mr Harrison was invited to add any further comments. The meeting was then adjourned. Mr Allard had a telephone conversation with Mr Clement, the National Operations Business Manager. The meeting was resumed, and Mr Allard said to Mr Harrison, "I have found your response inadequate. I have followed our disciplinary process and I am summarily dismissing you". There was then a discussion concerning Mr Harrison's entitlements. Mr Bradley also said, "This won't be the end of it". Mr Hasemann escorted Mr Harrison to his locker and said to him, "I'm sorry it has come to this. I don't understand why you pushed the issue." Mr Harrison looked teary and said words to the effect that, "I did what I believed in." "You've got to start giving the jobs to the right people." "There's heaps of work out there I'll find a job pretty quick." "Unemployment is low. It will be no drama to get a job." Mr Hasemann then escorted Mr Harrison to the front of the site where they met Mr Bradley. As Mr Harrison reached the maintenance area he called out "Workers united will never be defeated".
36 Mr Hasemann gave evidence concerning a number of incidents at the site between mid-2007 and January 2008 involving Mr Harrison, being the incidents referred to in the AIRC proceedings and associated meetings. Car parking on the site was limited. The front car park was generally reserved for shift workers. However, during 2007, Mr Harrison frequently parked his motor cycle in the car park rather than in a designated motor cycle parking space. Some staff, particularly those who started after 7.00 am, complained about this. On a number of occasions Mr Hasemann asked Mr Harrison to park his motor cycle in the motor cycle park. Mr Harrison's initial response was to argue that One Steel was discriminating between motor cycles and cars. Mr Hasemann replied on those occasions, "Are you refusing to move your bike?" Mr Harrison would generally reply with words to the effect of, "I'm just here to make [tons]. I want to keep everyone happy". He would then move his motor cycle. Such conduct occurred frequently, particularly when Mr Harrison was on day shift for a period of weeks. On one occasion he moved his motor cycle but parked it in front of the door to the first aid hut in the maintenance department. Mr Hasemann told him, "That's a safety hazard, you know people can't get in there". He then moved it. The issue was raised at a Staff Advisory Board meeting on 26 June 2007. Mr Harrison continued to park his motor cycle in the car park. He said that the motor cycle park did not have 24 hour security.
37 On a number of occasions Mr Hasemann heard Mr Harrison chanting in the lunch-room, sometimes after tool box meetings. He frequently used the well-known chant "Workers united will never be defeated". Some non-union members took offence at this. Mr Hasemann raised the matter with Mr Harrison, asking him to desist from the practice because it was offending other workers. Mr Harrison said, "I'm just trying to make the place better for everyone", or "I just want to make [tons]," or, "I just want to keep everyone happy." Such responses were usually accompanied by laughter. Mr Hasemann also received complaints from other employees that Mr Harrison was leaving his AMWU hat on the coffee cup rack. The unhygienic nature of this practice was pointed out to him, and he was asked to stop. He then put his hat in the refrigerator. He would remove it from the refrigerator when asked to do so, but it would be back the next day. After a meeting on 21 January 2008 Mr Harrison relocated his hat to the top of the coke machine where it remained until he left the site.
38 Another matter of complaint was that Mr Harrison was talking loudly on the two-way radio about union issues so that everybody could hear him. Mr Hasemann was told that other employees had become annoyed. He asked Mr Harrison to stop doing so. It was in response to this incident that Mr Patterson said that opinions about things such as sport, religion and union membership should be kept "to yourselves". Other evidence indicates that Mr Harrison used the two-way radio for union purposes on only one occasion. He said that he had used it only to say that he could not discuss union business.
39 In cross-examination it was put to Mr Hasemann that the union stickers had appeared after the "Say No" stickers. He considered that they had appeared at about the same time. Concerning Mr Harrison's complaint against Mr Tavita, Mr Hasemann agreed that there had been a difference in their versions of the incident. Mr Harrison claimed to have said, "Do you mean say no to being fucked up the arse". He was cross-examined about the decision that Mr Harrison should apologize to Mr Tavita. He said that the decision was taken by anti-harassment personnel, and not by him.
40 Mr Hasemann was cross-examined about his instruction that Mr Harrison not go on to the shop floor before his shift commenced. He said that Mr Harrison was regularly early to work. He agreed that it was not unusual for him to go to the shop floor prior to the shift meeting. He agreed that employees were permitted to sell raffle tickets on site. He did not agree that Mr Harrison had sold them on the shop floor. Mr Harrison's own evidence suggests that he sold raffle tickets on one occasion. Mr Hasemann also said that Mr Harrison would go to the shop floor 10 or 15 minutes before his shift to "do a changeover with his shift partner". When Mr Hasemann gave Mr Harrison his final written warning he said that it was for childish behaviour between him and Mr Tavita. The relevant conduct was the continual bickering between Mr Tavita and Mr Harrison. Prior to 27 October 2007 Mr Hasemann had spoken to both men "one on one in different times throughout that period where one complained about the other about what I call trivial things". Mr Harrison had complained about stickers on Mr Tavita's helmet. Mr Tavita had complained about Mr Harrison hanging his hat on a cup handle. Mr Harrison had also complained about Mr Tavita removing union literature. However Mr Harrison had no proof that he had done so. Mr Hasemann said that such conduct was occurring every two weeks over a period of about six months.
41 Mr Hasemann was aware of an allegation that Mr Tavita had assaulted Ben Wharton. He did not consider Mr Tavita to be aggressive towards other employees. He had heard a rumour that there had been trouble and had inquired of Mr Wharton. Mr Wharton said that an incident had occurred, but that it was finished with, and that there was no ongoing problem. They had got into a fight. Both had been drinking. Mr Hasemann accepted that Mr Harrison genuinely believed that Mr Tavita had threatened him. However there were inconsistencies in the statements and a "history" between the two men. Mr Hasemann agreed that he and other managers believed that people should keep views about unions to themselves. He did not regard Mr Harrison as a trouble maker simply because he spoke about unionism.
42 Mr Hasemann had asked a Mr Edwards about his reasons for joining the union. He was cross-examined as to why he had done so. Mr Hasemann said that he thought it was unharmonious and wanted to know what had occurred to cause Mr Edwards to make that decision. He considered that such information would provide "feedback" about his own performance. He said that he had never had a bad relationship with Mr Harrison. He was not aware of any suggestion that the "Say No" stickers had been produced by One Steel.
Mr Allard
43 Jason David Allard, the Site Operations Manager at Acacia Ridge, had been employed by One Steel since 1994. He was first employed as an operator. Acacia Ridge had not been a union site during the time he worked there, although there had always been a fair proportion of union members on the site comprising approximately 20-25% of the workforce. Union membership was concentrated in the maintenance area which employed about 42 workers. In the mill area, where about 115 workers were employed, the level of union membership was lower. About a year prior to May 2008 the union increased its activity at the site. Organizers attended at the site about once every two months and, sometimes, twice a week. Mr Allard considered that the relationship between the "site" and the union was not "great" but was improving. There was some friction between a number of workers who were "anti-union" and others who were vocally "pro-union". The level of agitation increased, particularly in the mill area. It was not a significant problem as the workforce generally appeared to be fairly happy with the terms and conditions of their employment. The union delegates on site were Shane Harrison and Ben Wharton.
44 In the months leading up to the 2007 federal election a number of anti-union workers began wearing "Say No" stickers on their helmets. Mr Allard understood the reference to be to union membership. The stickers were causing friction on the shop floor. Mr Harrison complained to Mr Hasemann about them. Mr Vic Patterson, the National Operations Manager of One Steel, issued a directive that all stickers be removed from helmets. Mr Harrison complained thereafter that another employee, Ray Tavita, had a sticker on his helmet. According to Mr Allard it was not a "Say No" sticker. Mr Tavita was a prominent "anti-union" employee. He was directed to remove the sticker. He complied with that direction. In early 2008 Mr Allard became aware that some mill workers on the shop floor were wearing union stickers on their uniforms. Mr Allard was not greatly concerned about this, although he understood that some employees were unhappy about it.
45 Over the twelve months prior to May 2008, Mr Harrison had become more vocal regarding the union and the benefits which, as he perceived it, employees would derive from membership. Mr Allard did not consider this to be a problem from management's point of view. At some time prior to November 2007, Mr Harrison began to have issues with Mr Tavita. Although there is some ambiguity in Mr Allard's affidavit, it seems that Mr Tavita worked on a different shift from Mr Harrison, so that contact was minimal. In any event, there was a personality clash between them, involving threats of physical violence. At this stage Mr Allard intervened, issuing a final written warning to each of them regarding their conduct. The union filed a notice of dispute in the AIRC, challenging the final written warning to Mr Harrison. Following a conciliation conference, both final written warnings were downgraded to first written warnings.
46 The union distributed promotional material such as cups, posters and the like on the site. Management had no issue with this, but some of the "anti-union" employees were unhappy about it and began to remove or damage such material. Mr Harrison and Mr Wharton approached Mr Allard and Mr Hasemann, saying that people were disposing of union literature left in the lunch-room. They asked that a notice board be erected for union literature. This was done. Mr Allard was not aware of any interference by employees with material which was posted on the board.
47 In early April 2008 Mr Hasemann drew to Mr Allard's attention the fact that union members were wearing union stickers on their uniforms and were placing them on lockers, to which conduct some workers had taken objection. Union stickers were being placed on the lockers of both union members and non-members. Mr Allard told Mr Hasemann to, "let it go", in the hope that it would resolve itself. On 23 April 2008 Mr Hasemann reported to Mr Allard that he had received complaints from some employees at tool box meetings. Both union and non-union employees had complained to him about the stickers. He considered that the stickers were causing significant disharmony and agitation on the shop floor, and that something should be done about it. On 24 April 2008 Mr Allard issued the memorandum to which I have previously referred.
48 Mr Allard said that the shop floor was a potentially dangerous place. Employees worked with very heavy loads and were exposed to a range of potential workplace health and safety hazards including sudden recoil, hot material, falling loads, swinging loads and exposed electrical wiring. All of this led him to conclude that disharmony on the shop floor should be minimized. Following his directive Mr Allard received no representations from employees or the union as to his decision. He was aware that the union had other material on site which displayed union affiliation including mugs, caps, posters and the like but had no problem with those things. He had no problems with the stickers until they started to cause trouble.
49 On 2 May 2008, which was Mr Harrison's first day shift following the memorandum, Mr Allard observed that he was wearing an AMWU sticker on his neck. Mr Allard directed him to remove it. Subsequently, there was a meeting between Mr Allard, Mr Hasemann, Mr Newbegin and Mr Harrison (who was accompanied by Mr Antal). Mr Harrison was still wearing the sticker on his neck. Mr Allard asked him why he had failed to follow the direction to remove the sticker. Mr Harrison said that he wanted the direction in writing, that he would send it to the union, and that they would reply in seven days. Mr Allard said that he could not run the site in that way, that management could not put every instruction in writing, that Mr Harrison had been given a direct instruction and that he expected him to follow it. Mr Harrison yawned at this point. Mr Allard considered that this action was "intentional, pre-meditated and designed to display Shane's contempt for my position".
50 Mr Allard emphasized the seriousness of the situation and said that Mr Harrison could be dismissed for his failure to follow a direct instruction. He asked if Mr Harrison understood the seriousness of the situation. Mr Harrison said that the meeting was over and complained that he was being victimized. Mr Allard said that the meeting was not over and asked him again if he understood that the matter was serious. Mr Harrison yawned again and said, "Do what you need to do". Mr Allard then told him that he was suspended from duty until 6 May 2009, and that the matter would be discussed further at 10.00 am on that date. Mr Harrison said, "Well, that's it then", and left.
51 Subsequently, Mr Allard spoke to Mr Loggie from the union explaining that:
· the reason for banning the stickers had nothing to do with the union and everything to do with the fact that it was causing friction in the workplace;
· the decision to suspend Mr Harrison was taken because, on three separate occasions on that day, he had refused to follow a reasonable direction relating to the removal of the sticker;
· Mr Allard did not care that it was a union sticker; it could have been a Brisbane Broncos sticker, a motorcycle sticker or a fishing sticker; he and Mr Hasemann had given a reasonable direction to removal all stickers, not just union stickers from lockers and clothing, unless the sticker was authorized by management; and
· Mr Harrison had not only disobeyed the direction but, in a clear act of defiance, had attached a sticker to his person, clearly designed to be defiant and to make management look ineffective.
52 On 6 May 2008 Mr Allard, Mr Newbegin and Mr Hasemann (from One Steel) and Mr Harrison and Mr Bradley (from the union) met. Mr Bradley said that he was not taking any minutes and asked if One Steel personnel would be doing so. Mr Newbegin indicated that he intended to take notes. Mr Bradley said that he might want a copy. Mr Allard said that the meeting was to discuss prior events, including the suspension of Mr Harrison; to give him an opportunity to comment on the detail and respond to the allegations; to discuss the issues as One Steel saw them; to allow Mr Harrison to add anything further; to break in order that One Steel could discuss the situation and return with a decision; and to give Mr Harrison a final opportunity to respond to that decision.
53 Mr Allard then gave an account of his instruction to Mr Harrison. Mr Harrison nodded in apparent agreement. He was asked if he agreed with Mr Allard's version of events and said that it was spot on and about 99% accurate. He said, however, that he had not said that he would not remove the sticker, but that he would remove it if he got the instruction in writing. He said that he had not heard Mr Hasemann say that he had arranged to get together with "Jason" to sort the matter out (referring to the conversation at the birthday function).
54 Mr Allard then said that Mr Harrison had yawned twice during the meeting on 2 May 2008. Mr Harrison said, "Well you guys had the witnesses, so you should know". Mr Allard said that the meeting on 2 May was for the purpose of giving him a chance to respond and he had not done so. Mr Allard said that it was disappointing that, at the meeting, he still had the sticker on his neck and did not remove it, although he had been told to do so. He asked Mr Harrison if he realized that he was not following an instruction from him as site manager. Mr Harrison agreed and said that he wanted the instruction in writing. He said that he had seen the memorandum, thought that it was childish and had told others that he could be just as childish.
55 Mr Bradley said that the sticker was on Mr Harrison's person, and that it was unlawful for One Steel to request that he remove it. He said that the sticker was much like a tattoo or a ring, and that a person could not be asked to remove such a thing. Mr Allard said that the issue did not relate to the sticker but to the fact that Mr Harrison had failed to follow a direction. Mr Bradley said that he had discussed the issue with union members at the May Day march. Many were vocal about Mr Harrison being entitled to ask for the direction in writing. Mr Allard said that the request to remove the sticker was not unreasonable, and that it and the original memorandum were clear about what was required. He reiterated the position communicated in the memorandum: that any further use of stickers had to be authorized by management. He again said that the matter was not about stickers but about Mr Harrison's blatant disregard for instructions given by him, by Mr Hasemann and at the meeting on 2 May 2008. He said that his instructions were reasonable and that he was concerned about other instructions which Mr Harrison might ignore such as safety instructions. Mr Bradley said that safety instructions were lawful, and that Mr Harrison would follow them. The instruction to remove the sticker was not lawful. Mr Allard again asserted that Mr Harrison had ignored instructions and wilfully disobeyed them.
56 Mr Bradley again said that Mr Allard had no right to ask Mr Harrison to remove anything from his body. Mr Allard again said that his instruction was reasonable and lawful, and that the issue was Mr Harrison's refusal to follow his direction. Mr Allard then said that it was impossible to run the business and the floor safely and effectively if an employee refused to follow a reasonable and lawful direction. He then asked Mr Harrison if he had anything further to say about the matter. Mr Harrison said that there were plenty of stickers in the workplace, on walls and cups, and that management was not addressing them. Mr Allard asked Mr Hasemann if stickers had been removed since he issued the memorandum. Mr Hasemann said that the majority had been removed, but that some had been hard to remove. The supervisors were still addressing the matters. Mr Harrison said that the AMWU stickers had probably gone first. Mr Hasemann said that, in fact, company stickers such as "Be Smart" safety stickers were removed first.
57 Mr Allard again asked Mr Harrison if he understood how serious the situation was. He made no response. He was asked if he had anything further to add and said that he had nothing to say. Mr Allard then told Mr Harrison and Mr Bradley that they would adjourn for 15 minutes whilst the One Steel representatives considered the matter. Mr Harrison asked if he could have a drink of water. Mr Allard said, "Of course mate". Mr Harrison said, "Okay, good, as long as I follow a directive".
58 Following that meeting Mr Allard considered the matter and consulted with One Steel's solicitors and senior management. He then decided that Mr Harrison's behaviour constituted misconduct justifying his termination. In so doing he took account of the fact that the direction had not specifically targeted union stickers, but had applied to all stickers; that Mr Harrison had provided no reasonable excuse for his decision wilfully and unreasonably to disobey an instruction; that he appeared to have no insight into the seriousness of his actions; and that he had shown no remorse, despite it being clear that management viewed the matter very seriously. Mr Allard was mindful of the fact that Mr Harrison was a union delegate, and that his decision was likely to result in trouble with the union. However he felt that he had no reasonable alternative.
59 The meeting then resumed. Mr Harrison was asked if he wanted to say anything further. He made no response. Mr Allard apologized for the delay. He said that he had taken legal and corporate advice, and that he had decided to dismiss Mr Harrison, effective immediately, for wilful disobedience of a work instruction. Mr Harrison said that he knew it was coming and was not surprised. He said that he was lucky that there were plenty of jobs out there, and that he would have no trouble finding something else. He also asked about his entitlements. He was told that as he had been summarily dismissed he was only entitled to annual leave and long-service leave. He was not entitled to payment in lieu of notice. There was a discussion about his age. Mr Bradley said that there were levels of summary dismissal. Mr Allard then agreed to pay Mr Harrison five weeks' wages in lieu of notice. Mr Harrison said that union membership would double on site because of the incident and said something to Mr Bradley about getting flyers made up with his face on them, stating that he had been terminated for wearing a sticker.
60 With regard to other matters which Mr Harrison raised in his affidavit, Mr Allard said that overtime had been available on site for Mr Harrison if he chose to work it. One Steel had been supportive of Mr Harrison's education as a union delegate. He had been provided with time off to attend to union issues. One Steel had, on occasions, asked him for suggestions as to improved productivity.
61 In a second affidavit Mr Allard elaborated upon certain aspects of his earlier affidavit. When he first told Mr Harrison to remove the sticker, he asked that the instruction be given in writing. At the meeting on 6 May 2008, after he had advised Mr Harrison that his employment would be terminated, there had been a discussion with Mr Bradley concerning entitlements. Mr Bradley suggested that Mr Harrison was entitled to four or five weeks pay. Mr Allard eventually agreed, after discussions with the payroll section, that he should have five weeks' pay in lieu of notice. Mr Allard said that his decision to dismiss Mr Harrison had nothing to do with his union membership or position as a delegate.
62 In cross-examination Mr Allard was asked about an email from Mr Newbegin dated 2 May 2008 which read as follows:
Got the full story from Graham about Shane and his neglect to follow orders over the sticker issue on his neck.
My current thoughts are that we could capitalise on this situation and in line with what we were told at the last conciliation regarding his behaviour give him a final written warning. When he arcs up, we'll tell him we'll see him at arbitration with the same judges that presided. She won't take to him lightly.
We should probably inform Doug Loggie of our intent should we go this way.
Call me when you are finished with Bill Gately and we'll talk.
63 Mr Newbegin is the National Training and Human Relations Manager for One Steel. Mr Allard said that he did not know what was meant by the statement "we could capitalise on the situation". He agreed that Mr Newbegin's email suggested that Mr Harrison was a problem. He had not previously realized that Mr Newbegin had that opinion. Mr Allard did not consider Mr Harrison to have been a problem. He was generally a good worker.
64 Mr Allard was then asked about a letter dated 7 May 2008 from One Steel's solicitors to Mr Harrison's solicitors in which the "key factors" in the decision to terminate were said to have been:
1. The failure of your client to obey a reasonable and lawful direction on repeated occasions;
2. The significant disruption to the normal commercial operations of the site due to your client's deliberate and wilful conduct over a period of time and which conduct was calculated by your client to cause maximum disruption;
3. The potentially adverse health and safety consequences that may have followed if the deliberate disruption were allowed to continue.
65 Mr Allard said that he thought point 1 was the most important of the grounds, and that Mr Harrison's previous disruptive conduct had not been a key factor in his decision. He did not agree that Mr Harrison had been significantly disruptive in his conduct. He was asked about the matters referred to in point 2 and said:
It's probably the - again, the issues that were raised at the AIRC, including, I suppose, petty things like not parking your motor bike in the designated area, putting your union hat in the fridge and hanging it on cups in the smoko room.
66 He was then asked:
Just staying with those matters; do you say those matters caused a significant disruption to the normal commercial operation of the site?
67 He replied:
Yes, unfortunately they did because there is such a strong - I suppose there'[s] a few people that are very strong in my work force, of - I'd probably say pro-union, very for the union, and there's a few that really don't want the union to represent them.
68 Mr Allard also said that time had been taken up in meetings concerning aspects of Mr Harrison's conduct and in connection with the AIRC proceedings. Mr Allard said that stickers first appeared in about May 2007, and that the "Say No" stickers were first in time, ahead of the union stickers. He said that the "Say No" stickers appeared to have been printed on a label printer. He did not know whether One Steel's resources had been used to print them. He had not heard anything about that subject. However he knew that at some stage it had been alleged that they were so produced. He said that the stickers looked as if they might have been made on the label printers at One Steel. There had been complaints about the "Say No" stickers. As to the question of threats of violence between Mr Harrison and Mr Tavita, he said that in October (presumably 2007) Mr Harrison complained that Mr Tavita had said something about taking him outside the gate. Mr Hasemann and Mr Croxford investigated the matter. He said he did not really believe that there were any threats, but he accepted that Mr Harrison thought that there had been. Earlier in the year Mr Tavita had made a complaint about Mr Harrison. There was a certain degree of "tit-for-tat" about their relationship.
69 Mr Allard was referred to the company's disciplinary policy which provided:
When disciplinary measures are called for the standard practice for PTM is to be on the following sequence:
Step 1 A formal counselling session; …
Step 2 The first written warning; …
Step 3 The final written warning, …
Step 4 Termination …
70 He was asked about the warnings issued to Mr Tavita and Mr Harrison and if it was his decision to "leap frog over steps 1 and 2 and go straight to step 3". He agreed that it was. He said that the reason for the final warning was the "niggling between both Shane and Ray, that had occurred over the … months leading up to this incident and some of the other … issues that were causing disharmony on site that were also raised at the AIRC".
71 Mr Allard agreed that in June 2007 Mr Harrison was told not to go to the shop floor outside of his shift hours. He agreed that he had, for some years, visited the shop floor when he arrived early for work. Mr Allard was asked if he agreed that Mr Harrison had been told to stop this practice at about the time he was appointed a delegate. Mr Allard agreed that the times seemed to match, but said that the reason for the ban was that there had been complaints about his hassling people over joining the union. It was suggested that the final written warning in 2007 was given because of Mr Harrison's position as a union delegate. Mr Allard denied this.
72 I should refer to two particular aspects of Mr Allard's evidence. Firstly, he obviously considered that Mr Harrison and Mr Tavita had been in conflict on an ongoing basis over an extended period of time. Although he was not able to give particulars of the conduct it was, in my view, his honest perception of the relationship between the two men. Secondly, in his email Mr Newbegin seems not to have contemplated Mr Harrison's dismissal, although he seems to have contemplated his reacting to a final written warning. The email certainly suggests that as far as Mr Newbegin was concerned, Mr Harrison's behaviour had been a significant issue at the last conciliation conference in the AIRC. Mr Allard appears to have been less concerned by Mr Harrison's previous conduct.