Homer Abarra v Toyota Motor Corporation Australia Ltd [2018] FWC 3761

Homer Abarra v Toyota Motor Corporation Australia Ltd [2018] FWC 3761 - FWC 2018 case summary — Zoe

[6]

[5] This matter was subject to a number of conciliations however remained unresolved. The matter was subsequently listed for arbitration.

[6] This application was heard together with matter number U2016/2952 and the evidence in the one was considered to be evidence in the other to the extent it was relevant. In addition to Mr Abarra twenty three witnesses gave evidence in relation to these matters. The following witnesses gave evidence on behalf of Mr Abarra;

Mr Adrian Tainsh, General Foreperson

Mr Steven Tran, Team Leader, Sealer Line

Ms Thu Thi Xuan Nguyen, Temporary Fixed Term (TFT) employee

Ms Jane Ngozi Iwunze, TFT employee

Ms Rebecca Szydlowski, TFT employee

Ms Chantelle Ngo, TFT employee

Ms Joanne Toos, TFT employee

Ms April De Leon (nee Aban), TFT employee

Mr Victor Jose, AMWU official

Ms Melek Icbudak, TFT employee

Mr Robert Nin, General Foreman

Mr Gebrekiros Abera, Group Leader

Mr Carlo Vadala, Production Manager

[7] The following witnesses gave evidence on behalf of TMCA;

Ms Heather Box, Divisional Manager, Human Resources

Mr Geoff Kershaw, Plant Manager Paint and Resin

Ms Clare Slattery, Diversity and Workplace Agreement Manager, Human Resources

Ms Kala Talevski, Permanent employee

Mr Anees Rehman, Permanent employee

Ms Anna Vasilije, Trainee TFT employee

Ms Sizen Haciomer, Trainee TFT Employee

Ms Viengsamai (Mai) Souliyavong, permanent employee

Ms Sudhaa Rajaram, Trainee TFT employee

Ms Francis O'Brien QC, Queens Counsel Victorian Bar

[8] There were a number of objections made during the hearing and I make some preliminary remarks about some of the evidence which was subject to objection in this matter. There was debate as to the admittance of the Confidential Disclosure Report[1] (Disclosure Report), Ms O'Brien QC's Investigation report[2] (Investigation Report) and the findings of Ms O'Brien QC[3] annexed to Mr Abarra's "show cause" letter of 12 April 2016,[4] as to what use the Commission should make of those documents.

[9] Mr Abarra objected to the Investigation Report on the grounds that the report was hearsay, however did not object to it being admitted for non-hearsay purposes of proving that the investigation was conducted by Ms O'Brien QC and the report was provided to TMCA who relied on the report's findings.[5] It is uncontroversial that TMCA relied on the O'Brien findings. TMCA submitted that the Commission is not bound by the rules of evidence and there is no unfairness to Mr Abarra by the admission into evidence of the Investigation Report and that it is open on the totality of the evidence before the Commission, even putting aside the Investigation Report, to essentially make its own findings as to the conduct of Mr Abarra.[6]

[10] Mr Abarra also objected to the use of the Disclosure Report on the grounds that it was hearsay evidence, primarily because the report is a record of a complaint made anonymously to the TMCA STOPLine. It was acknowledged that the Commission could have regard to the Disclosure Report if it was used to prove the complaint was made however the objection was pressed if it was being used to prove the truth of allegations set out in the report.[7]

[11] I accepted the Disclosure Report and indicted that I would give consideration to the parties' submissions as to the weight I should accord to it.

[12] Although the Evidence Act is not directly applicable to the Commission the rules of evidence are generally followed.[8] There is no automatic prohibition in proceedings before the Commission on the reliance of hearsay evidence.[9] It may be relied on if it is shown to be probative of a fact in issue, however it would not ordinarily be relied on if it was to result in judicial unfairness to the opposing party.[10]

[13] The task of the Commission is to satisfy itself of the validity of the reason relied upon for the dismissal and its factual underpinning. In matters relating to misconduct it is for the Commission to make findings on the evidence provided as to whether, on the balance of probabilities, the conduct occurred.

[14] I have had regard to the objections and have only relied on the evidence in Ms O'Brien QC's Investigation Report and findings and the Disclosure Report to a limited extent in making my factual findings. The Disclosure Report is only relevant in so far as it was the report that prompted TMCA's investigation into the alleged misconduct of Mr Tainsh and Mr Abarra. Ms O'Brien QC's Investigation Report and findings are only relevant to the extent in making my factual findings about TMCA's reliance on those findings in forming their decision to dismiss Mr Abarra.

[8]

[20] This application concerns Mr Abarra's dismissal for misconduct. In summarising the background I also make reference to the agreed facts as submitted in a joint statement by the parties.[11]

[21] There are five main divisions at TMCA's Altona site, being Manufacturing, Quality, Production Control, Purchasing and Production Engineering. The Manufacturing division is divided into six departments, being Powertrain, Press, Unit, Weld, Paint, and Resin and Assembly.[12] In the Paint Shop there are seven stages of production, and each stage is separated into groups with each group supervised by a Group Leader. Each Group Leader is responsible for approximately 20 team members and reports directly to the General Foreperson.[13]

[22] Mr Abarra had been employed by TMCA for over 20 years and at the time of his dismissal he was the Sealer Group Leader in the Paint Shop working the afternoon shift. As Group Leader Mr Abarra reported directly to Mr Tainsh, General Foreperson.[14]

[23] Group Leader responsibilities are outlined in the Workplace Agreement and are broadly stated as managing production schedules, quality assurance, cost reduction, maintenance, material management, standardised work, safety and setting team objectives.[15] According to the Workplace Agreement as a Group Leader Mr Abarra was responsible for implementing and promoting TMCA policies and procedures, maintaining attendance controls as per TMCA guidelines, developing constructive relationships with team members through regular effective communication and promoting fair treatment for all.[16]

[24] On 20 January 2016, Ms Slattery received an email notification through the TMCA STOPLine service that an anonymous whistle-blower complaint had been made raising a number of allegations regarding Mr Tainsh's conduct towards a TFT.[17] Ms Slattery subsequently held meetings with some of the employees in the Paint Shop during which allegations regarding Mr Abarra's conduct were made.[18]

[25] On 27 January 2016 Mr Abarra attended a meeting with Mr Kershaw and Ms Slattery. Mr Abarra did not have a support person present at this meeting. During the meeting Mr Abarra was advised TMCA had received a complaint regarding inappropriate behaviours and allegations had been made against him.[19] Mr Abarra was provided with two letters during this meeting. The first letter, titled 'Notice of Suspension With Pay', stated (amongst other things) the following;

[12]

[26] The second letter provided to Mr Abarra was a letter informing him that a complaint regarding inappropriate behaviours, sexual misconduct and sexual harassment in the workplace had been made against him as afternoon shift Group Leader in the Paint Shop and TMCA had engaged an independent investigator to conduct a confidential investigation into those allegations. The letter outlined the key requirements set down by TMCA to be applied to Mr Abarra's participation in the investigation being co-operation, confidentiality and no victimisation. [21]

[27] On 12 February 2016 the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) wrote to Ms Slattery on behalf of Mr Abarra raising some concerns about the processes engaged in by TMCA in conducting the investigation into the allegations against Mr Abarra. The AMWU claimed the investigation process was flawed and being undertaken contrary to the terms of the Workplace Agreement. TMCA were notified that the matters were in dispute in accordance with the Dispute Avoidance Clause in the Workplace Agreement.[22] Ms Slattery responded to Mr Dwyer's concern in writing on 15 February 2016.[23]

[28] On 17 February 2016 Mr Abarra was advised that he was to attend a meeting with Ms O'Brien QC. Mr Abarra attended that meeting with Mr Victor Jose, AMWU Official, as a support person. Mr Abarra submitted that Ms O'Brien QC conducted the interview in an aggressive, discourteous and dismissive manner. He further submitted he was threatened with termination if he refused to answer a question or left the interview early.[24]

[29] On 24 February 2016, AMWU filed a Form F10 Application for the Commission to deal with a dispute in relation to the investigation into the allegations against Mr Abarra. On 9 March 2016 a conciliation conference was held and the application was not resolved.[25]

[30] Mr Abarra received a letter via courier on 11 April 2016 requesting he attend a meeting on 12 April 2016. Mr Abarra attended the meeting with Mr Tony Hynds, AMWU Official, as his support person. Ms Slattery and Mr Kershaw conducted the meeting during which Mr Abarra was provided with a letter and an attachment setting out a series of findings made by Ms O'Brien QC during her investigation.[26] The findings in the attachment addressed the allegations contained within the letter and were as follows:

[41]

[51] In addition to the reasons for the dismissal set out in the termination letter TMCA state that they had placed a high level of trust in Mr Abarra as a Group Leader with significant authority and that he was expected to demonstrate competent supervisory abilities and leadership in relation to TMCA's workplace culture, workplace policies, the Workplace Agreement and the 'Toyota Way'. The letter states due to Mr Abarra's conduct TMCA had lost trust and confidence in his ability to perform his role as Group Leader and that Mr Abarra had unacceptably failed to meet the standards and behaviours expected of him.

[52] In their final submissions, Mr Abarra and TMCA each addressed the reasons for dismissal set out in the termination letter albeit in different ways. TMCA's approach was to address the alleged conduct in broad statements as particularised in the letter of termination and more generally as; favouritism of certain team members and inappropriate conduct in the workplace.[49]

[53] In Mr Abarra's submission he understood the reasons for his dismissal to be each of the allegations set out in the 'show cause' letter other than those matters found not to be substantiated.[50] Mr Abarra submitted in terminating his employment TMCA relied on each of the allegations from Ms O'Brien QC's findings and addressed each of those allegations as a separate matter.

[54] In order to understand in full some of the reasons TMCA relied on for the dismissal of Mr Abarra it is necessary to outline the operational settings in which the alleged conduct took place as well as Mr Abarra's management responsibilities and level of authority.

[55] There are two shifts worked on the sealer line, the day shift and the afternoon shift (also referred to as 'the PM shift'). The PM shift commences at 5:30pm and finishes at 2:00am. The General Foreperson is the most senior position on the PM shift after 10:00pm, which at the time of the alleged conduct was Mr Tainsh. There are 13 different stations at which employees perform their work, 7 on the left hand side of the production line and 6 on the right. All workers are required to rotate stations once every two hours. Not all employees are trained to work on all stations as there are various stages of competency before employees can be considered fully trained in a particular station however there are some employees who have been trained to work on all stations.

[56] The perception held by some of the witnesses was that in the workplace, at the very least, Mr Abarra and Mr Tainsh were "good friends" therefore inferring that if one was to complain about Mr Abarra to Mr Tainsh they would jeopardise their employment.[51] The evidence before me in these proceedings was that employees understood the hierarchy of management to be that Mr Tainsh managed Mr Abarra and that there was no authority beyond Mr Tainsh[52] or that as temporary fixed term contractors they risked losing their employment if they raised a complaint about Mr Abarra to Mr Tainsh or anyone else at TMCA.[53]

[57] Most of the allegations against Mr Abarra involve his conduct towards a group of young female employees working in the Sealer Group engaged on temporary fixed term contracts (young female TFTs). Therefore it is important to set out the role and responsibilities Mr Abarra has in the engagement and extension of each of the TFT employees' contracts.

[58] Mr Tran's evidence was that the renewal process for TFT contracts was by way of recommendation from Mr Abarra to Mr Tainsh. Mr Tainsh held the authority of either accepting or declining the proposed recommendations put forward by Mr Abarra. Mr Tran was unsure of the process after that.[54] Mr Tainsh disputes that he held the authority for approving the hiring of TFTs and submitted that it was ultimately the responsibility of HR.[55]

[59] I accept that HR provided assistance with the strategic planning for the purposes of manning numbers however the evidence before me on this matter is that their role in the decision making process for hiring of TFTs for identified vacant roles is purely administrative. The Group Leader is the person who makes the recommendation as to who gets their TFT contract renewed and ultimately the General Foreperson has the authority as to whether to accept that recommendation or not.

[60] During the term of Mr Abarra's role as Group Leader the composition of the Sealer Group changed quite considerably. When he commenced in his role as Group Leader in the Sealer Group in 2013 the group consisted of a ratio of approximately 70% male and 30% females.[56] At the time of the alleged conduct the Sealer Group PM shift was made up of approximately 4 permanent employees and 13 to 14 TFTs,[57] the majority of the group consisting of young female employees on TFT contracts. Each TFT engagement is for a term of approximately six months due to the impending closure of the Altona site. Mr Abarra held the responsibility of recommending to Mr Tainsh which of those employees would be rehired at the end of their contracts.[58] Mr Tainsh would then authorise whether or not to accept that recommendation, subject to TMCA manning requirements which were decided at a higher level than Mr Tainsh.[59]

[61] As previously stated Mr Abarra worked in the Sealer Group which includes a production area called the Sealer Line. My observation during a site visit at which time I attended the Sealer Line was that there is a group room containing Mr Abarra's desk, adjacent to the elevated platform upon which the sealer line is located, where employees go to eat their lunch whilst on break. In my opinion the line was not overly lengthy for a production line and employees were operating from both sides of the production line. A mirror was fixed at the top of the stairs, the stairs being the main entry from the group room to the production line. My observation was that the mirror was placed in such a way that it gave anyone sitting at the desk in the group room visibility of anyone approaching from the direction behind the desk external to the group room. The mirror gave an unimpeded view of the production line to the rear of the group room. The group room is clearly visible from most of the stations on the sealer line. Some stations afford a view directly into the group room through the window located adjacent to desk used by Mr Abarra. Some of the stations would have their view obstructed by the vehicles on the line however one could simply move their position to obtain a view of or into the group room.

[62] TMCA contended that Mr Abarra favoured a group of young female TFT employees on the PM shift in the Sealer Group and that his preferential treatment of these employees included providing favourable relief from rotations on the line without appropriate grounds, providing non-production overtime and filing work which they say was not appropriate to give employees during overtime hours, and providing additional lengthy toilet breaks of up to 14 minutes and outside of ordinary break times. TMCA further submitted that Mr Abarra condoned prohibited conduct by failing to appropriately monitor and enforce that team members not use mobile phones while working on the line, allowing employees to wear PPE other than in accordance with TMCA's safety requirements and allowing employees to leave the line without permission or go home without medical certificates. Finally, TMCA submitted that Mr Abarra had engaged in inappropriate comments and behaviour towards female employees.

[46]

[69] Mr Abarra was referring to Ms Icbudak and Ms Szydlowski as his "two favourites" however denied that he had given them preferential treatment. Mr Abarra, whilst explaining how he did, or rather did not, place employees on station 5 stated that he didn't place "the cute people" there.[70] Mr Abarra realised the inappropriateness of the reference he had used to describe those young female TFTs and proceeded quickly to justify by way of explanation why he had referred to those young female TFTs as cute people.[71] His justification was that he didn't put the short women on station 5 because they cannot reach the boot lid and therefore are unable to do the job. His evidence was that he called them 'cute' because he didn't want to discriminate by calling them short.[72]

[70] During my site visit I had the opportunity to observe station 5. I paid particular attention to the size and stature of the employees working at that station. My observation was that there would have been little height difference between an employee I observed working on station 5 and Ms Icbudak or Ms Szydlowski.

[71] Ms Talevski's evidence was that on a number of occasions she saw Mr Abarra tell Mr Tran not to place Ms Icbudak and Ms Szydlowski on the "hard stations".[73] Under cross-examination Ms Talevski submitted that she had approached the Group Leader a few times to ask why Ms Icbudak and Ms Szydlowski were placed on the easier stations and was told that their hands were sore.[74] Ms Haciomer gave evidence that Ms Icbudak and Ms Szydlowski did not work on station 4 even though they were trained to do so.[75] Mr Rehman gave evidence that he had witnessed Mr Abarra changing the rotations board at the request of Ms Szydlowski and Ms Icbudak.[76]

[72] Ms Talevski, Ms Haciomer and Mr Rehman each conceded that they had no knowledge as to whether or not the employees alleged to have been provided with relief from rotations had medical certificates.[77]

[73] Mr Rehman gave evidence that he had raised his concerns about Mr Abarra changing the rotations with Mr Tran. Mr Rehman says that Mr Tran had stated "I don't want to say anything against Homer because I want to stay Team Leader".[78] Mr Tran denies that he had ever made statements to that effect to Mr Rehman.[79] Mr Rehman also gave evidence that Ms Szydlowski was trained to work on station 4 and 5 and that Ms Icbudak was trained to work on stations 3 and 4.[80]

[74] Mr Tran's evidence was that Ms Icbudak had medical restrictions and therefore was unable to work on station 4.[81] He also gave evidence that Ms Szydlowski was still being trained on station 5 and she had a medical certificate preventing her from working on station 4 at the time.[82]

[75] Ms Icbudak's evidence was that she was trained to work on 5 of the 7 stations and that she had never been allowed to skip rotations.[83]

[76] Ms Szydlowski gave evidence that she had suffered from a back injury earlier in 2016 supported by a medical certificate and had since stopped working on stations 3 and 4 and could only work on 2, 6 and 7.[84]

[48]

[82] TMCA contend that Mr Abarra failed in his supervisory duty when he permitted young female TFTs to wear their PPE other than in accordance with TMCA's policies. Mr Abarra denied this allegation. His evidence was that if he saw employees not wearing their overalls correctly he would direct the Team Leaders to address the issue.[95]

[83] The allegation of Mr Abarra's failure to enforce the correct wearing of PPE involved some contention as to whether or not PPE had to be worn in the group room whilst employees were on a break. Mr Kershaw's evidence was that employees should not wear their overalls in the workroom whilst eating lunch in order to avoid any potential defects on the line.[96] Mr Abarra's evidence was he supported Mr Kershaw's view however there is no policy regarding this. Regardless it was his evidence that employees do not have to wear their uniforms in the group room whilst on lunch. Mr Abarra did however state that he is "more strict" on the line.[97]

[84] Mr Tran gave contradictory evidence that all employees are supposed to wear their PPE from the time they enter the paint shop, which includes wearing their PPE in the group room and whilst on their breaks.[98] Mr Tran's evidence was that on station 2 some employees were permitted to role the sleeves up a "tiny bit" to avoid getting the sealer on the car with their sleeves.[99] He also gave evidence that Mr Abarra had spoken to team members about PPE.[100]

[85] TMCA provided a photograph that had been taken at the plant in support of this allegation. The photograph, posted on Facebook with the caption "da big boss", shows Mr Abarra with his overalls removed to his waist, exposing his upper body, with Ms Icbudak and Ms Szydlowski flanked either side of him and Mr Abarra's head resting on Ms Szydlowski's head.[101] TMCA also relied on this photo as evidence of Mr Abarra's ongoing inappropriate conduct with the young female TFTs, however I will deal with this more detail below. It is uncontroversial that the photo was taken in the group room.[102]

[86] Ms Haciomer gave evidence that Ms Ngo had worn her zipper down on her overalls low enough that she could see her cleavage.[103] She also gave evidence that Mr Abarra would speak to the whole group about wearing their PPE properly however not everyone would comply. She stated that "he does his job by telling us, you know, and from there on it's up to us, whether we follow it or not".[104]

[87] Ms Rajaram's evidence was that Ms Icbudak, Ms Szydlowski and sometimes Ms Ngo would wear their zippers down low enough that you could see their bras underneath, torn overalls that would expose their midriff and nothing but their underwear underneath their overalls.[105]

[88] Mr Rehman gave evidence that Ms Icbudak and Ms Szydlowski would wear the zippers on their overalls down low enough that their cleavage was visible and he gave evidence that he could see that Ms Icbudak was only wearing underwear underneath her overalls. He gave evidence that on numerous occasions he tried to raise the issue with Mr Abarra, however Mr Abarra dismissed him by telling him to either ignore it or telling him that they were "looking good, let them do it" and "looking gorgeous, leave them alone".[106] Mr Abarra's evidence was that he had no recollection of Mr Rehman ever having raised with him any PPE concerns.[107]

[89] Mr Rehman gave further evidence that on one occasion Ms Icbudak flashed her underwear and bra at Mr Abarra.[108] Mr Abarra and Ms Icbudak both denied that this occurred and no other witness gave evidence that corroborated Mr Rehman's account of this incident. However Ms Icbudak did accept that she occasionally just wore a bra under her overalls when she forgot to wear something to work that she could wear under her overalls.[109]

[90] Ms Souliyavong gave evidence that she had also seen Ms Icbudak, Ms Szydlowski and Ms Toos wearing their overalls with the zips down and the sleeves up from the edge of their gloves. She also gave evidence that they wore low-cut tops beneath their overalls so that when they bent down you could see their breasts. Ms Souliyavong's evidence was that she did not see Mr Abarra telling them off for wearing their overalls in this fashion.[110]

[91] Mr Abarra during cross-examination gave evidence that he had complemented some of the female employees about the embroidery on their tops whilst they were wearing their overalls.[111] In order for Mr Abarra to be able to see the fabric of the garment being worn under the overalls the overalls would need to have been worn with the zips down low enough for him to see. Mr Abarra explained that during the hotter months some of the employees would partially unzip their overalls. His evidence was that this would occur at least once a month and on each occasion he either addressed the issue directly or through his Team Leader.[112]

[92] Mr Abarra's evidence was also that there had been on occasion employees just wearing their underwear under their overalls. His evidence was that he did not consider it to be his job to monitor what workers were wearing underneath their overalls and he was not aware of any policy that this is not allowed. His evidence was that when he noticed this to be the case he would offer the employee some tape so they could tape closed the slits where the underwear would be exposed. He submitted that sometimes they would take up his suggestion.[113]

[52]

[97] There was a perception amongst a proportion of the Sealer Group employees that overtime was being allocated unfairly. This issue was not a new issue and had been raised with Mr Abarra in the past. Mr Abarra's evidence that he had changed the way overtime was allocated due to complaints he had received was uncontested.[120]

[98] Overtime in the Sealer Group is allocated according to an overtime list. Mr Tran's evidence was that he was responsible for making sure the overtime list was followed unless an employee is requested to do overtime in another area.[121] It does not appear that Mr Tran had any say in who was put on the list or had any authority to alter the list[122] but rather he followed the list when allocating the overtime.[123]

[99] Ms Rajaram and Ms Talevski gave evidence that they observed Mr Abarra allocating filing and administrative work as overtime, rather than the standard non-production overtime of cleaning, to Ms Icbudak, Ms Szydlowski and Ms Toos.[124]

[100] Mr Abarra did not deny providing filing or computer work as overtime and submitted there was a need on at least maybe 2 or 3 occasions a year for assistance with filing and he would give that work to persons with the appropriate skills.[125]

[101] Mr Kershaw's evidence was that it was the responsibility of the Group Leaders to allocate overtime. He also gave evidence that filing work for team members in the Sealer Group was an unacceptable type of overtime. His evidence was that the Sealer Start-up/Shut Down Activity document outlines each type of overtime which is available at a Group Leader, Team Leader and Team Member level. This document does not list any administrative work as acceptable overtime for a Team Member and under no circumstances should a Team Member be staying back to complete tasks that would otherwise be part of the Group Leader's role.[126]

[102] In support of Mr Abarra's contention that he had not provided favourable treatment in the allocation of overtime Mr Tainsh submitted an overtime analysis.[127] Mr Tainsh had produced his analysis using the data obtained from the overtime reports[128] sourced from TMCA's SAP pay system and were purported to contain overtime hours worked and overtime hours paid.[129]

[103] Mr Tainsh's analysis produced from those reports contained a number of errors. Mr Tainsh produced a second analysis in an attempt to rectify the errors from the first overtime analysis.[130] TMCA objected to the accuracy of the documents and for those reasons they submit the documents have no probative value.

[104] Mr Kershaw produced his own analysis on behalf of TMCA.[131] Mr Kershaw's document separated out both unplanned overtime and non-production overtime. Mr Kershaw's analysis was of the data recording overtime that was worked from 2:00am onwards. Non-production overtime I understood to be the cleaning and special activities that are done after the shift has finished, whereas production overtime was where Mr Kershaw said there needed to be overtime given based on the right skill sets.[132]

[105] Mr Kershaw's evidence was that his analysis showed unexplained variations in Mr Tainsh's analysis and therefore Mr Tainsh's analysis should not be relied on. However, he gave evidence that he could not be certain without a deeper analysis of the data as to whether or not there had been favouritism. [133]

[56]

[109] According to Mr Abarra's evidence, his comments were selective and not just random. He submitted that he used flattering comments of a personal nature in an attempt to manage the female employees' perception of him as well as their behaviour. For those reasons Mr Abarra was of the view his conduct was justifiable and perfectly acceptable.

[110] In cross-examination Mr Abarra, referring to the young female TFTs, said he appreciated the "hard work they've done on their face" and he would tell them "you look great". Mr Abarra said sometimes when the young female TFTs were discussing their make-up he liked to join in and tell them "oh you look great, you look great, you know, just to make them feel happy or feel motivated".[143] Mr Abarra again did not think there was anything wrong with having discussions of this nature with the young female TFTs who reported to him, and sought to justify his comments in a way that portrayed this group of females as needing his compliments so that they didn't "think negatively" of themselves and "to lift their image up".[144]

[111] Ms Vasilije gave evidence that on a number of occasions Mr Abarra approached her on the production line or in the Group Room and made comments about her tongue piercings, such as "when can I feel them?" and "when can I kiss your lips?".[145] Mr Abarra confirmed that he asked Ms Vasilije about her tongue ring, however says that he had asked her "for educational purposes" and he gave her the option of either answering or not.[146]

[112] Ms Vasilije gave evidence about Mr Abarra asking her to socialise with him outside of work by hosting a barbecue. Mr Abarra's evidence was that he suggested Ms Vasilije could organise a social gathering herself and invite others as that way she could have a drink with the other team members. He submitted that he did so as Ms Vasilije had complained to him that she wished she could drink with her colleagues however because she was on her P-plates she couldn't go to the clubs and drink.[147] Mr Abarra made the point that he did not invite Ms Vasilije to have a beer and barbecue with him but rather recommended she have one and then it was up to her as to whether or not she invited him.[148]

[113] Ms Vasilije also gave evidence that on one occasion Mr Abarra approached her, looked at her chest and told her she was 'flat chested'. She submitted that Mr Abarra seemed to think the comment was a joke as he laughed when he said it, although she did not find this funny.[149] Mr Abarra denied making this comment. In cross-examination his evidence was "she's the one that said "Homer I got flat chest", and that he told Ms Vasilije not to worry because it's "not about the figure, it's about what's inside".[150]

[114] Regardless of which version of events is accepted Mr Abarra, a 50 year old Group Leader, did not think that engaging in discussions of this nature with a young female trainee TFT was in any way inappropriate. Mr Abarra's own evidence was that Ms Vasilije, from within the first week or two of her employment, started discussing her private life with him such as dating, sex and problems at home with her family.[151]

[115] Mr Tran gave evidence that he had been witness to Mr Abarra paying compliments such as "you are beautiful" and that he would say that "to any girl in there".[152] However, under further cross-examination Mr Tran's evidence was that he would only say these things to Ms Vasilije and Ms Toos.[153]

[116] Ms Toos and Ms Szydlowski supported Mr Abarra's evidence that he would often give compliments to members of the Sealer Group about their appearance. Ms Toos interpreted the comments from Mr Abarra as friendly and complimentary.[154] Ms Szydlowski's evidence was that she interpreted Mr Abarra as saying 'nice things' because he wanted to make people feel like they want to come to work.[155]

[117] Ms Iwunze gave evidence that Mr Abarra had paid compliments to "a lot of Sealer Group Workers" and that it did not occur to her that there could be any issue with anything Mr Abarra had said. Her evidence was that everyone would speak to everyone like this. [156] The allegation made by Ms Vasilije that Mr Abarra had told Ms Vasilije that she was flat chested was put to Ms Iwunze in cross-examination, and Ms Iwunze advised she didn't hear it that way, however the comment sounded familiar. On re-examination she said she didn't recall Mr Abarra saying this. [157]

[118] Ms Iwunze's also gave evidence that she herself had received a number of compliments from Mr Abarra regarding her appearance and that he had told her she was a princess. [158]

[119] Ms Nguyen gave similar evidence being that Mr Abarra would tell her she looked beautiful or he would complement her on her hair and that his comments made her feel happy.[159]

[120] Ms Talevski described Mr Abarra as being friendlier towards women at work than towards the men. Ms Talevski in cross-examination abandoned her earlier reference to Mr Abarra as sleazy, stating that it was not the word she had chosen to use, and instead her evidence was that he would approach women in a way that was not particularly proper.[160] Ms Talevski also gave evidence that the conduct of Mr Abarra and Ms Szydlowski was of no concern to her.[161] In context I took this to mean that Ms Talevski thought it was not her business, nor did she want to get involved.

[121] Mr Rehman gave evidence that was consistent with the evidence of Mr Abarra, Ms Iwunze, Ms Toos, Ms Vasilije and Ms Szydlowski, that he had heard Mr Abarra make comments to female employees about their appearance. This included comments to Ms Icbudak and Ms Szydlowski such as "how beautiful they were and how gorgeous they were"[162] He also gave evidence that Mr Abarra had made comments to him to the effect of "what do you think their size is?" when referring to Ms Madanu.[163] He explained during cross-examination because of the way Mr Abarra generally talks and the way he behaves he took this to mean that Mr Abarra was referring to Ms Madanu's breasts.[164] Mr Abarra denied this allegation and gave evidence that he could only imagine he was referring to the size of Ms Madanu's overalls.[165]

[122] Mr Rehman also gave evidence that Mr Abarra said words to the effect of "what do you think the size of her breasts are?" when referring to Ms Vasilije.[166] Mr Abarra denied this allegation. Mr Rehman's evidence on this matter was at times confusing however I did not find him to be inconsistent, Mr Rehman was trying to explain the reference to breast was an insinuation by Mr Abarra. Mr Rehman had drawn an inference from what he perceived to be the mind-set of Mr Abarra. However, in my view whilst the evidence does not establish that Mr Abarra used the term "breast" he provided no explanation for why he would be referring to either Ms Madanu's or Ms Vasilije's overalls.

[123] Ms Souliyavong had a friendly relationship with Mr Abarra and had contacted him shortly after he was dismissed to find out what had happened. Ms Souliyavong held no animosity towards Mr Abarra and she gave uncontrived and frank answers, including that she would have no problem with Mr Abarra returning to work if "he changed his behaviour".[167] Ms Souliyavong made a number of allegations against Mr Abarra which included asking her out after work, asking if she had good looking friends he could employ and asking questions about her sexual activities on days off.[168]

[124] Mr Abarra denied each of her allegations.[169] Ms Souliyavong made concessions during cross-examination about Mr Abarra asking her out and submitted that she could not be certain of the reasons that Mr Abarra was asking her to go out after work.[170] Ms Souliyavong stood firm on her allegation that Mr Abarra asked her if she had a good looking friend he could employ.[171] Mr Abarra's evidence on this matter was that it was possible he said such a thing however it would have been a joke.[172]

[125] Ms Souliyavong's evidence was that Mr Abarra had asked if she had "boom boom" on her day off and "did she do it on the weekend".[173] According to Mr Abarra it was Ms Souliyavong who used the term "boom boom" when he told her he was exhausted. His evidence was that they laughed at the time and he would accept those sorts of comments from her.[174]

[126] Ms Souliyavong described an incident in which she heard Ms Szydlowski say to Mr Abarra, whilst holding a banana, "the banana is bigger than your one" to which Mr Abarra responded "my one is bigger."[175] This was denied by Ms Szydlowski. However Mr Abarra recalled the exchange and his evidence was that it was Ms Ngo who made the comment and it was Ms Szydlowski who was holding the banana.[176] In cross-examination Mr Abarra's evidence was as follows;

[58]

[127] Ms Souliyavong also gave evidence that she saw Ms Ngo pretend to touch Mr Abarra's penis.[178] Mr Abarra did not deny that this had occurred and gave evidence that at the time he had said something to the effect of "eh! Stop it" and everyone around giggled and laughed about it.[179]

[128] Both Ms Souliyavong and Ms Haciomer gave evidence about Mr Abarra's behaviour. Ms Souliyavong described the environment created by Mr Abarra as "weird and dirty".[180] It was put to Ms Haciomer that there was nothing sleazy or sexual about the way in which Mr Abarra interacted with her and she refused to agree.[181]

[129] TMCA relied on the photograph discussed above in support of their contention that Mr Abarra's conduct was of an inappropriate and sexualised nature. Mr Abarra sought to provide an explanation as to why he had been photographed with his overalls down with two young female TFTs in the group room and said the young female TFTs had come to work with their sunglasses on because it was a hot day. He had his overalls a little undone due to the temperature. He submitted that they said "Homer, Homer, take a picture with us" which he first declined, however subsequently relented. Mr Abarra said that he took his overalls off because Ms Szydlowski's boyfriend goes to the gym, and if you are going to the gym you like to show off your body, so he opened his overalls to show off his body. He was aware the photo was going on social media to just their friends but submitted that no one mentioned Facebook.[182]

[130] Ms Vasilije's evidence was that after repeatedly saying no to Mr Abarra's advances for two to three months he backed off, however became quite cold to her at work and favoured the other TFTs. She submitted that when she asked him why he no longer spoke to her Mr Abarra said words to the effect of "the other girls get jealous".[183] Mr Abarra's evidence was that he recalled a conversation with Ms Vasilije in which she mentioned that he was spending less time with her and more time with the other women in the Sealer Group and that he had explained that he still spent time with her but that he was required to spend more time with newer workers while they were being trained.[184]

[73]

[152] Regrettably, I found Mr Abarra to be a witness of little credit. His evidence was self-serving and designed to deflect from his own unacceptable behaviour.

[153] The witnesses who were called to give evidence on Mr Abarra's behalf were clearly protective of Mr Abarra. They were also largely careful with their words and unwilling to make concessions even in circumstances where appropriate admissions had been made by other parties.

[154] For instance, Ms Szydlowski's evidence regarding the sharing of Mr Abarra's chair was carefully constructed and her answers displayed an improbable naivety regarding her 'misunderstanding' of whether the arm of a chair formed part of the chair or not.

[155] Conversely, I found many of the witnesses for the Respondent to be of credit. Ms Talevski and Ms Vasilije were credible and convincing witnesses who made appropriate concessions and answered questions in a direct and quite frank manner.

[156] Mr Rehman similarly did not seek to answer questions strategically, he responded spontaneously and sought to clarify some of his expressions where he was not being understood. Whilst Mr Rehman would occasionally go off track and have to be directed to answer the questions I found him to be honest and genuinely appalled by the conduct of Mr Abarra. I do not agree with Mr Abarra's submission that Mr Rehman changed his evidence on a number of occasions and gave self-serving evidence. I raised concerns during the hearing about Mr Rehman's spoken English, however it was not that Mr Rehman had an issue understanding or speaking English, it was rather an issue of sentence construction and nuances in the English language.

[157] Even though I consider many of the answers provided by Mr Abarra's witnesses to be unsatisfactory and unreliable this does not mean that I have necessarily rejected all of the evidence in respect of each of the allegations. Overall, where there is a contest between the evidence of Mr Abarra's and TMCA's witnesses, I have preferred the evidence of TMCA's witnesses except where stated otherwise.

[84]

[170] There appeared to be three main types of non-compliance with the TMCA PPE policy - rolling up of the sleeves, overalls being removed in the Group Room and the wearing of PPE in a fashion that was inappropriate in the workplace causing offence to others. In relation to the first two types, I do not consider that there has been a breach of TMCA's safety requirements.

[171] I accept the evidence that there are some occasions on which for quality control purposes, such as when applying the sealer on station 2, employees may have been required to roll up their sleeves. I also accept the evidence of Mr Abarra and Mr Kershaw that it was preferable for employees to remove their overalls whilst eating lunch in the Group Room to avoid oils and food being transferred to the production line causing contamination.

[172] However, I am also satisfied that certain employees would wear their PPE in a fashion that was inappropriate in the workplace causing offence to others, and that Mr Abarra permitted this. Whilst it is unclear as to whether there is a policy regarding what garments should be worn underneath the overalls, it was Mr Abarra's responsibility as Group Leader to ensure that PPE was worn in a way that did not cause either a safety concern or offence to others in the workplace. Mr Abarra's own evidence was that he had witnessed employees wearing PPE with their underwear clearly visible and took no steps to address this behaviour other than offering tape for employees to close the gaps.

[173] Numerous witnesses had observed similar inappropriate wearing of PPE and I accept Mr Rehman's evidence that he had made a complaint about this to Mr Abarra. I also accept his evidence of Mr Abarra's response to this complaint and attitude towards this conduct. Given my findings below as to Mr Abarra's other inappropriate conduct, I preferred the evidence of Mr Rehman in this regard.

[174] I am satisfied that Mr Abarra engaged in conduct permitting employees to wear their PPE in a manner that was offensive to others in the workplace and he did not exercise his management authority in a way that prevented those events from occurring. Accordingly, I am satisfied that the allegation that Mr Abarra permitted a group of TFTs to wear their PPE other than in accordance with TMCA's safety requirements is substantiated.

[86]

[175] Ms Souliyavong's evidence is that Mr Abarra had created a "weird and dirty atmosphere at work."[218] In my view the evidence supports such a finding. The evidence establishes Mr Abarra has a willingness to allow conversations of an intimate nature to occur in the workplace. By allowing behaviours of such a nature to take place it is evident that the working environment, although not hostile, was uncomfortable for some and at the very least was an unhealthy work environment. I am persuaded that it was not uncommon for Mr Abarra to make comments of either a personal nature or have discussion about the appearance of the young women under his leadership. The inappropriate comments Mr Abarra would make about the appearance of the female employees were frequent and had the effect of creating a workplace culture that did not fit with the Toyota Way.

[176] Mr Abarra sought to justify some of his comments by stating he was either joking, or that he was just a friendly person and that his comments were flattering to employees and they weren't just limited to Ms Icbudak or Ms Szydlowski.

[177] Mr Abarra also made submissions that because the young female TFTs didn't object to his comments then they were not offensive and therefore could not be a breach of the Behavioural Standards. I do not consider this to be a plausible argument. Mr Abarra's comments were largely directed towards a group of young female employees who were on temporary fixed term contracts who were reliant on Mr Abarra's approval to obtain further contracts. I do not consider the young TFTs were in a position to express any objection given the disproportionality between the role and authority of Mr Abarra and their own. Further, the mere absence of an objection does not provide a justifiable excuse for Mr Abarra's behaviour.

[178] It is clear from Mr Abarra's evidence he was amused by discussions of a sexual nature and did nothing to prevent them from taking place.[219] I am persuaded by the evidence that Mr Abarra made inappropriate comments towards young female employees. In addition to the evidence of Ms Icbudak, Ms Szydlowski, Mr Tran and Ms Iwunze, Mr Abarra's own evidence has led me to this conclusion. Mr Abarra used language during the hearing of a nature that showed he held an opinion that women could be described by using overly familiar language, such as when he chose to characterise women of a shorter stature as "cute people".

[179] Mr Abarra denied making some of the more sexually explicit comments, such as commenting on the size of his co-worker's breasts and his comments to Ms Vasilije about her piercings. Mr Abarra tried to explain away some of these comments as misunderstandings or by attributing blame for the nature of the discussions to the employees in question. I do not accept Mr Abarra's evidence in this regard and prefer the evidence of Mr Rehman and Ms Vasilije. Whilst I accept Mr Abarra did not use the word "breast" I accept that Mr Rehman had understood that this is what Mr Abarra was referring to. Mr Abarra's uncontested conduct of overly familiar compliments to female employees leads me to prefer the evidence of Mr Rehman on this matter. I consider Mr Abarra to have fostered an environment that permitted discussions of an overly personal and sexualised nature to take place and consider that he engaged in such discussions readily with his subordinates without regard to his position as Group Leader.

[180] Whilst I am of the view that it is acceptable behaviour to compliment or critique someone in the workplace on their work performance, compliments about someone's physical appearance need to be considered carefully in the context as a whole. I have considered the conduct of Mr Abarra in the context of his role as Group Leader and the authority that comes with that role and his stated reasons for making those comments. The comments made by Mr Abarra to the young female TFT employees in my view were in fact a rather blatant form of benevolent sexism which has no place in the workplace. Therefore Mr Abarra had not conducted himself in a manner that would be mutually respectful and breached his supervisory obligations to promote team harmony, TMCA's Workplace Relationships Policy and the Workplace Agreement including the Equal Opportunity Standards of Behaviour and the 'Toyota Way'.

[181] Accordingly, I am satisfied that the allegation that Mr Abarra's conduct towards female employees on the line was characterised by excessive sexual remarks, personal remarks, and remarks otherwise inconsistent with his position as a supervisor is substantiated.

[89]

[184] I am persuaded by the evidence before me that Mr Abarra inappropriately shared his chair with certain female employees whilst he was also occupying the chair. Whilst the evidence does not establish that Mr Abarra had specifically invited Ms Icbudak and Ms Szydlowski to sit directly on his lap, I am persuaded by the evidence that there has been occasion where at least Ms Szydlowski has attempted to do so and that this happened in the presence of other team members. There have also been on occasion circumstances where Mr Abarra would have young female TFTs, whilst not actually sitting on his lap, sitting on the seat of his chair with him. Consistent with the evidence before me, my observation was that in order for the young female TFTs to be sitting on the corner of the chair they would essentially be sitting partially on Mr Abarra. I found Mr Abarra's evidence on this issue to be implausible.

[185] I am also satisfied that there were occasions when Mr Abarra allowed young female TFTs to sit beside him on the arms of the chair whilst he was seated in the chair. My observation of the chair lead me to the conclusion that the presence of a young female TFT seated on the arm of the chair whilst Mr Abarra was seated on the chair would be conduct that would be and was found to be offensive to those who would be in the proximity to witness such conduct.

[186] It is not "mutually respectful" behaviour for a Group Leader to have young female TFTs sitting on his chair with him, neither is it "mutually respectful" behaviour for a Group Leader to have young female TFTs sitting on the arm of the chair or in front of him on the chair whilst he is occupying the chair. Furthermore it is simply inconceivable in a workplace in the current era that behaviour of this nature by a Group Leader, who has the responsibility of leading a group of influential young employees regardless of gender, would be condoned. It is not enough to say that the young female TFTs behaved in this manner and therefore Mr Abarra cannot be held responsible. Mr Abarra clearly did not exercise his management authority to stop the conduct from occurring, instead by his lack of action he condoned the behaviour and allowed it to continue to occur.

[187] By engaging in such conduct Mr Abarra has breached supervisory obligations to promote 'team harmony', TMCA's Workplace Relationships Policy and the Workplace Agreement including the 'Toyota Way', and had fostered an environment where overly familiar sexualised conduct was encouraged from the young female TFTs causing discomfort and offence to other employees in the Sealer Group.

[188] Accordingly, I am satisfied that this allegation is substantiated.

[114]

[209] Whether a dismissal is harsh, unjust or unreasonable is to be judged objectively, however relevant factors that can be taken into account in determining harshness clearly include matters personal to the employee. Further, the failure of any employee to comply with the policies and procedures of an employer (which may have been found to be a valid reason to dismiss) does not prevent the Commission from finding that the dismissal was harsh, unjust or unreasonable.

[210] Mr Abarra contends that the dismissal was unfair because it was harsh. He submits the circumstances in his case were harsh because of the impact of the dismissal on his personal circumstances, the long unblemished career that he had prior to the dismissal, and because it was disproportionate to the gravity of the misconduct of which he was accused.

[211] Mr Abarra submits that had he not been dismissed he would have been entitled to receive a substantial redundancy package, and accordingly the dismissal, aside from ending his employment, had a very serious financial consequence. In addition to this Mr Abarra would have been entitled to participate in the Drive Program, a unique program which is designed to assist employees by facilitating their career transition by the company promoting further education and providing career counselling. Mr Abarra had intended to use the program, however due to his dismissal he is unable do so.[233]

[212] Mr Abarra submits that missing out on his redundancy entitlements has meant that he has missed out on entitlements aimed at protecting employees from some of the harsh impacts of the automotive industry coming to an end.[234] I note that there is no submission that TMCA's investigation or the dismissal of Mr Abarra was triggered by an attempt to avoid his pending redundancy.

[213] Mr Abarra further submits that his wife, who contributes to the family income, is due to have an operation soon and thus he is unsure of the financial impact on the family this will have.[235]

[214] Further Mr Abarra submits that as a 50 year old man he is not likely to find comparable work in the future due to the death of the industry and that the above factors together render the dismissal unfair.[236]

[215] I have considered each of the above circumstances raised by Mr Abarra however I am not persuaded that the mitigating circumstances outweigh the seriousness of the conduct I have found to have been substantiated. Mr Abarra was responsible for a group of vulnerable young female employees whose future employment was reliant on his approval. He was responsible for developing and encouraging an environment in which inappropriate behaviour was expected and encouraged and even at the hearing demonstrated a complete lack of remorse or recognition of the seriousness of his conduct. I do not consider that his dismissal was harsh in those circumstances.

At a glance

Court

Decision date

Source

Judgment (161 paragraphs)

Homer Abarra v Toyota Motor Corporation Australia Ltd [2018] FWC 3761 (26 June 2018)

Parties

Legislation Cited (1)

Cases Cited (9)