Fair Work Act 2009

s.739 - Application to deal with a dispute

Application to deal with a dispute in accordance with a dispute settlement procedure - Valid reason for issuing a warning - Dispute as articulated not within scope of dispute settlement procedure - Status quo provisions do not operate other than in relation to disputes about how and when work is performed and work continuing and do not freeze in time all circumstances as they existed prior to dispute being raised.

[1] The Transport Workers' Union of Australia (TWU) applies under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure in the TWU/TNT Fair Work Agreement 2014-2017 (the Agreement). The dispute concerns the issuing of a written warning to Mr Gregory Delamotte - a TWU delegate for the Redbank Plains depot of TNT Australia - and related issues involving complaints by Mr Delamotte in relation to the investigation process which preceded the issuing of the warning.

[2] The background can be briefly stated. In January 2018, TNT initiated an investigation into a complaint by an employee, Mr Blake Muir-Stokes, about an interaction with Mr Delamotte on the loading dock on 20 December 2017. Mr Muir-Stokes alleged that during that altercation, Mr Delamotte bullied and verbally abused him. Mr Delamotte was provided with a letter of allegations on 17 January 2018, and following an investigation, TNT issued Mr Delamotte with a warning on 5 February 2018. The TWU contends that it was unreasonable for Mr Delamotte to be issued with a warning and that he did not engage in the conduct that was alleged.

[3] The TWU also asserts that Mr Delamotte put receipt of the allegations letter into dispute on or around 17 January 2018 and thereafter in the period up until 30 January 2018 Mr Delamotte raised further disputes in relation to the matter, including the process followed by TNT. The TWU contends that TNT refused to deal with the disputes raised by Mr Delamotte in accordance with the dispute settlement procedure in the Agreement and that TNT did not comply with the requirement in that procedure that the status quo be maintained until the disputes raised by Mr Delamotte were resolved.

[4] TNT contends that the evidence the Company relied on and placed before the Commission establishes that Mr Delamotte did engage in the conduct to which the warning letter related and that his conduct was in breach of TNT's Service Centre Minimum Standards. Accordingly, TNT had a valid reason to issue Mr Delamotte with a warning in respect of that conduct. TNT further contends that the issues raised by Mr Delamotte were not matters that the TWU was entitled to pursue under the dispute settlement procedure in the Agreement and that the status quo provision in the dispute settlement procedure does not operate with respect to such matters.

[5] The dispute was not resolved in conciliation and the parties agreed on three questions for arbitration as follows:

"1. Did TNT have a valid reason for issuing a written warning to Mr Delamotte over his interaction with Mr Muir-Stokes?

2. On a true interpretation of the Agreement, was it correct of TNT not to deal with;

(a) Mr Delamotte's matter challenging the disciplinary procedure he was being subjected to; and

(b) Mr Delamotte's matter concerning a comment made by Ms Hayley Kingdom,

3. On a true interpretation of the Agreement, did clause 12.8 of the Agreement operate so as to prevent TNT from proceeding with an investigation into Mr Delamotte's conduct once Mr Delamotte had raised a dispute in respect of the investigation?"

[6] A hearing was conducted over two days. Mr Delamotte gave evidence on his own behalf[1] and the following persons also gave evidence in support of his case:

• Mr Robert Fitzpatrick, TWU Organiser[2];

• Mr Darryl Gorman, Driver at TNT Redbank Plains[3];

• Mr Allen Shuttlewood, Dockhand at TNT Redbank Plains[4];

• Mr Eric Patterson, Pick-up and Delivery Driver at TNT Redbank Plains[5];

• Mr Mark Petch, Pick-up and Delivery Driver at TNT Redbank Plains[6].

[7] The following persons gave evidence on behalf of TNT:

• Mr Blake Muir-Stokes, Trailer Driver at TNT Redbank Plains[7];

• Mr Michael Spong, Specialist Service Driver at TNT Redbank Plains[8];

• Ms Hayley Kingdom, HR Business Partner at TNT Redbank Plains[9];

• Mr Lawson Berridge, HUB Operations Manager at TNT Redbank Plains[10];

• Mr Trent Hines, Pick-up and Delivery Manager at TNT Redbank Plains[11]; and

• Mr Dean Bright, Managing Director, Regional Operations for TNT NSW/ACT[12].

[8] All witnesses attended the hearing and were cross-examined. The evidence and submissions in relation to the questions for arbitration is summarised below.

[9] TNT sought permission under s.596 of the Fair Work Act 2009 to be legally represented at the hearing, and submitted that the dispute resolution procedure contained in the Agreement conferred a right to be represented at a conference under clause 12.5, and whilst clause 12.6 that deal with arbitration of a dispute did not contain the same express right for either party to be represented, it was consistent with the parties' intention that a party may be represented at an arbitration. Alternatively, TNT submitted permission should be granted as representation would allow the matter to be dealt with more efficiently given the complexity of the matter, Mr Delamotte was being represented by a legally qualified industrial advocate of the TWU, and given the specific circumstances TNT was unable to represent itself effectively.

[10] At the hearing Mr Lee Norris, Legal Officer appeared for the TWU, and TNT was represented by Mr Rayn Wade of Counsel, instructed by Mr James Hall and Ms Amanda Wu of Ashurst. The TWU did not object to TNT having representation, and I granted permission for TNT to have legal representation on the grounds that the matter did involve matters of sufficient complexity in that it involved the construction of the Agreement, and that representation would allow the matter to be dealt with more efficiently.

The approach to considering whether the warning was valid

[11] Question 1 concerns whether TNT had a valid reason for issuing a warning to Mr Delamotte about an interaction with Mr Muir-Stokes which occurred on 20 December 2017 (although there is a dispute about the exact nature of the interaction and the part that Mr Delamotte played in it). The parties have submitted that the approach which should be taken to answering this question is to consider the validity of the reason for the warning being given on a similar basis as the question of whether there is a valid reason for dismissal is considered under s. 387(a) of the Act. I accept that submission.

[12] Extrapolating the relevant principles to the present dispute, in considering whether there was a valid reason for the warning to be issued to Mr Delamotte, it is necessary for the Commission to determine whether the conduct on which the warning was based occurred rather than whether TNT had reasonable grounds to believe that it had occurred. Whether there is a valid reason is assessed from the perspective of the employer and by reference to the acts that constitute the alleged misconduct on which the employer relied.[13] A valid reason is one that is sound, defensible and well founded, and not a reason that is spiteful, fanciful or capricious.[14] To constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness such as to justify the warning being given as a sound, defensible or well-founded response to the conduct.[15] I also accept that it may be relevant in considering the validity of the warning, for the Commission to consider whether there is inconsistent treatment with respect to the manner in which other employees who have engaged in conduct similar to that alleged against Mr Delamotte have been dealt with.

[13] The TWU also submits that Question 1 should be considered on the basis of the principle in AFULE v State Rail Authority of NSW[16] where it was held that in dealing with disputes, the Commission should examine all of the facts and should not interfere with the right of an employer to manage its own business unless the employer was seeking from employees something that was unjust or unreasonable.

[14] I accept this submission and in my view this principle can be generally applied to disputes about whether the application of a disciplinary policy is reasonable. This approach is also consistent with the long established principle in unfair dismissal cases that the Commission does not stand in the shoes of the employer and determine whether the decision made by the employer was a decision that would be made by the Commission but rather, assesses whether the employer had a valid reason connected with the employee's capacity or conduct.[17] This principle is also relevant in the present case.

[15] TNT also submits that consistent with the principle established in Shepherd v Felt & Textiles of Australia Ltd[18] the valid reason need not be the reason given to Mr Delamotte at the time the warning was issued. I do not accept that submission. The principle established in that case is applied when the Commission is considering whether there was a valid reason for a dismissal where the reason relates to the capacity or conduct on an employee, as required by the Act. In the present case the Commission is answering a question for arbitration that was agreed by the parties for the purpose of resolving a dispute in accordance with a dispute settlement procedure in the Agreement. The agreed question relates to the validity of a particular warning given to Mr Delamotte for a particular reason and to consider whether there was another valid reason for Mr Delamotte to be given a warning would be to answer a different question. This would be inconsistent with the exercise of private arbitration power that the dispute procedure authorises. Accordingly, I do not consider it appropriate to determine whether there was another valid reason for Mr Delamotte to have been given a warning.

[16] The warning concerned allegations about an interaction between Mr Delamotte and Mr Muir-Stokes on 20 December 2017 as set out in an Allegations Letter dated 16 January 2016 in the following terms:

1. Inappropriate Conduct: on 21 December 2017 at approximately 6.45 pm, you made a comment that had a unique reference to Blair Muir-Stokes whilst walking along the debrief dock. Specifically you referred to a 'special contract'. This comment was made in the presence of Blair Muir-Stokes with the intention of provoking a reaction and humiliating him.
2. Breach of TNT Service Centre Minimum Standards, specifically:
   1. Respectful behaviour

      1. Behaviour towards each other, our Customers, our Suppliers and the Public while performing our duty demonstrates respect for the other person.

      2. Behaviour in breach of the law must be 'zero tolerance'.

[17] The warning was given to Mr Delamotte by letter dated 5 February 2018 in the following terms:

"At the meeting we showed you the CCTV footage that shows your interaction with Blake Muir-Stokes and you were invited to respond to the allegations in the context of the footage. You responded as follows:

• You admitted that you did make comments about a 'special contract' in the presence of Blake;
• You said it was common knowledge that other people knew about Blake's special contract and that it was an on-going joke that day
• You denied swearing at Blake

After carefully considering your responses and the information we have obtained from witnesses and the CCTV footage we are of the view that you have acted inappropriately because you referred to a 'special contract' in the presence of Mr Muir-Stokes with the intent of provoking a reaction and humiliating him. In doing so you have breached TNT Service Centre Minimum standards, specifically relating to Respectful Behaviour, as outlined in our allegations letter...This letter confirms the outcome to be a written warning and will be placed on your employee file."

[18] The background to the interaction between Mr Delamotte and Mr Muir-Stokes is that in or around late 2017, Mr Muir-Stokes had a discussion with Mr Shuttlewood about loading freight, during which Mr Muir-Stokes said that he had a "special contract" which did not state that he had to do fork-lift driving. Mr Muir-Stokes said that he made this comment as joke and Mr Shuttlewood told him that he was going to tell the Union about Mr Muir-Stokes' special contract. Mr Muir-Stokes states that he responded by saying: "Well why don't you tell them. I can show you my special contract." Mr Muir-Stokes does not have such a contract and it is common ground that there are no special contracts of this kind between TNT and any employee. Mr Muir-Stokes states that he did not think any more about the incident and the issue was not raised with him until 20 December 2017 when the incident with Mr Delamotte occurred.

[19] Mr Shuttlewood confirmed that there was a discussion with Mr Muir-Stokes in mid-December 2017 during which Mr Muir-Stokes said he had a special contract and that he had responded by stating that the Union would be interested to hear about a special contract. Mr Shuttlewood said that Mr Muir-Stokes became angry during this exchange and said he would bring the contract in. Mr Shuttlewood said that later that day he told three employees and Mr Delamotte (as the TWU Delegate) about the statement made by Mr Muir-Stokes. Mr Shuttlewood states that Mr Delamotte said that he wished he had a special contract too. About one week later Mr Shuttlewood had an interaction with Mr Muir-Stokes during which Mr Muir-Stokes was angry and yelled at Mr Shuttlewood stating that he felt as though Mr Shuttlewood had reported him to the Union. When Mr Shuttlewood reported the exchange to a supervisor, Mr Muir-Stokes told Mr Shuttlewood that he wanted an apology for Mr Shuttlewood yelling at him and that he had been joking about the special contract.

[20] Mr Muir-Stokes version of the incident on 20 December 2017, as set out in his witness statement, is that at around 6.45 pm he was walking down the PUD unload dock to a debrief area to hand in paperwork. Mr Delamotte was walking towards Mr Muir-stokes in the opposite direction. Mr Muir-Stokes said that he heard Mr Delamotte yell to Mr Gorman: "Hey Darryl, I wish I had a special contract like Blake, don't you Darryl?" in a voice loud enough for Mr Muir-Stokes and other persons in the area to hear. Mr Muir-Stokes also recalls that Mr Delamotte was facing him and directing the comment to him while smiling or smirking. This made Mr Muir Stokes feel that Mr-Delamotte wanted to upset him or make him feel embarrassed. Mr Muir-Stokes states that he asked Mr Delamotte what he was on about and thereafter Mr Delamotte (and to a lesser extent Mr Gorman) made comments to Mr Muir-Stokes referring to him as a "cocksucker" and a "fuckwit" or "fuckhead" and that Mr Muir-Stokes had "cocksucked his way up to his position". Further Mr Delamotte said words along the lines of: "Oh I've got to get me a special contract like Blake".

[21] Mr Muir-Stokes states that he was stunned by this interaction and reported it to a supervisor who suggested that if Mr Muir-Stokes wanted to complain about the incident he should do so in writing. Mr Muir-Stokes made a complaint by email at 10.21 am on 21 December 2017 alleging bullying and that the incident had been witnessed by another employee Mr Muir-Stokes named as Billy Dutton. Mr Muir-Stokes also stated in his written complaint that he felt belittled by the comments made by Mr Delamotte.[19]

[22] Under cross-examination Mr Muir Stokes agreed that he did not include references to being called a "fuckwit" or a "fuck head" in his email of complaint to his supervisor and that he did not complain in that email of Mr Delamotte saying "fuck you". Mr Muir-Stokes denied that these allegations were a recent invention. In re-examination Mr Muir-Stokes said that Mr Delamotte asked the question about the special contract just as Mr Muir-Stokes was turning to go into the de-brief area and that Mr Delamotte was walking backwards while directing abusive language towards Mr Muir-Stokes.

[23] Mr Delamotte said in his statement that he was leaving the depot in the company of Mr Gorman via the de-brief dock. Mr Delamotte had stopped to allow other workers to get past him in what is a confined walkway. Mr Gorman had gotten ahead of Mr Delamotte and turned and stated: "Do you have a special contract yet?" Mr Delamotte said that he "replied in a dreary manner" stating: "No Darryl, I don't have a special contract". According to Mr Delamotte, at this point Mr Muir-Stokes "went off" and started swearing calling Mr Delmotte and Mr Gorman "fucking idiots" and "fucking wankers". According to Mr Delamotte, in the days leading up to 20 December it was passed on to him that Mr Muir-Stokes was claiming that he did not have to load his own vehicle because he had a special contract. This information was making its way around the depot and had become the subject of discussion.

[24] In cross-examination, Mr Delamotte agreed that there were rumours on the shop floor about Mr Muir-Stokes' special contract but said that he dismissed them because he knew that there was no such thing.[20] In response to a question about whether there was ridicule on the shop floor Mr Delamotte maintained that he had not engaged in ridicule and told employees who raised it with him that they should not worry about it as there is no such thing as a special contract.[21] Mr Delamotte maintained that Mr Gorman asked the question about the special contract but agreed that both he and Mr Gorman knew that they were not on a special contract and that a serious response to the question could not have been expected. Mr Delamotte also maintained that when Mr Gorman asked the question about the special contract, Mr Gorman was walking ahead and turned around. In response to a question about why Mr Muir-Stokes would have attacked Mr Delamotte if he did not ask the question, Mr Delamotte said that Mr Muir-Stokes used the term "youse" which is plural.

[25] It was put to Mr Delamotte in cross-examination that contrary to what he put in his witness statement, the CCTV footage of the relevant period showed he never stopped or moved to the side of the loading area to allow anyone to pass and that he walked down the middle of the loading area confidently without hesitation. Mr Delamotte agreed that this was the case.[22] Mr Delamotte also said that Mr Gorman asked the question about the special contract while Mr Delamotte was walking towards Mr Gorman, who was standing in the middle of the loading dock possibly six to eight metres away from him while they were facing each other.[23] However, later in cross-examination, Mr Delamotte denied this and said that Mr Gorman was walking ahead and turned around to ask Mr Delamotte the question.[24]

[26] Mr Delamotte also agreed in cross-examination that Mr Muir-Stokes was walking towards him towards the debrief area and admits that Mr Muir-Stokes didn't walk past him until he moved into the debrief area.[25] Mr Delamotte conceded that both he and Mr Gorman knew that neither of them were on a "special contract" because, according to Mr Delamotte, they both knew that "special contracts" did not exist and that: "we all operate under the one EBA".[26] Mr Delamotte also admits that he did not consider Mr Gorman to be asking a genuine question.[27]

[27] Mr Gorman and Mr Patterson were called by the TWU to give evidence about the incident on 20 December 2017. Mr Gorman said that in the days leading up to 20 December 2017 he had been told that Mr Muir-Stokes had refused to assist in loading his truck because he claimed to have a special contract. According to Mr Gorman, talk of this was all over the Depot in the Bulk area. Mr Gorman and Mr Delamotte walked out of the Depot together at around 6.45 pm as was their usual practice. Mr Delamotte stopped for a few seconds to let other people past and as Mr Gorman was waiting for him to catch up, Mr Gorman states that he said to Mr Delamotte: "Hey Greg have you got your special contract yet?". Mr Gorman states that he said this at normal speaking volume. Mr Gorman further states that Mr Delamotte responded by saying: "No Darryl, I don't have a special contract as yet."

[28] Mr Gorman said that he did not know that Mr Muir Stokes was on the dock and noticed Mr Muir-Stokes when he began to abuse Mr Delamotte. Mr Gorman states that Mr Muir-Stokes was yelling the word "fuckwits" and "fuck head" at Mr Delamotte in an angry and aggressive manner. Mr Gorman further states that Mr Delamotte did not respond and did not swear or raise his voice to Mr Muir-Stokes and only engaged with Mr Muir-Stokes after he started yelling and swearing, telling Mr Muir-Stokes to stop swearing and keep it down as there were women on the dock.

[29] In cross-examination Mr Gorman was asked why he had asked Mr Delamotte about the special contract and had the following exchange with Counsel for the Respondent:

"All right. I am a little bit perplexed by that, but let me not bother you with that for the moment, Mr Gorman. Can I ask you this: why did you ask the question?--- Why?

"Are you on a special contract?" Why did you ask that question? --- Because we were having a private conversation, Greg and myself.

All right, but that doesn't answer my question. Why did you ask that question of Mr Delamotte? --- I just asked him has he got a special contract.

Yes, but you knew he didn't have one, so why ask the question? ---- Well, general talk, general talk.

Mr Gorman, that doesn't make sense. If you ask a question, you expect an answer. What answer did you expect from Mr Delamotte? --- Probably, "No, I haven't, Darryl." Then we would have had a laugh about it and kept walking.

Yes, but you knew that was going to be the answer because you knew he wasn't on a special contract? --- Yes, I know that.

So why ask the question? --- Why can't I ask a question?

Because what I'm putting to you and what I'm going to put to you, Mr Gorman, is the reason why you can't answer this question that I'm asking you is because you never did ask that question? --- I asked Greg Delamotte, "Greg, do you have a special contract?"

And I asked, "Why did you ask the question"? --- Why not?

That's your answer? --- Mate, we talk about a lot of stuff, you know, and I ask stupid questions all the time to Greg."[28]

[30] Mr Gorman also said that at the time he asked the question he did not know where Mr Muir-Stokes was and that he only knew that Mr Muir-Stokes was on the loading dock when he started yelling and swearing. Mr Gorman also maintained that when he asked the question he was walking with Mr Delamotte and that used a normal voice and Mr Delamotte responded in a normal voice. In response to the proposition that the CCTV footage did not show him walking with Mr Delamotte, Mr Gorman said that he had not seen the footage and could not answer the question.

[31] Mr Patterson said that he was on the dock on 20 December and noticed Mr Delamotte walking one way and Mr Muir-Stokes walking the other way. According to Mr Patterson, Mr Delamotte made a comment about a "special contract" after which Mr Muir-Stokes had an outburst at Mr Delamotte in which Mr Muir-Stokes used abusive language including the word "wanker".

[32] In cross-examination, Mr Patterson agreed that in the investigation he had stated that Mr Muir-Stokes and Mr Delamotte had an altercation on the dock and that Mr Muir-Stokes was raising his voice and swearing a little bit because he was upset about Mr Delamotte making a comment regarding special contracts. Mr Patterson agreed that Mr Delamotte's comment was directed at Mr Muir-Stokes. Further, Mr Patterson agreed that he did not state that Mr Gorman had made a similar comment or asked a question about a special contract. Mr Patterson also agreed that during the interaction between Mr Delamotte and Mr Muir-Stokes he was going in and out of his truck for the purpose of unloading it but maintained that Mr Delamotte was talking in a normal tone of voice.

[33] Mr Spong who was called to give evidence by TNT about the 20 December incident, said that he was walking behind Mr Muir-Stokes in the direction of the de-brief area and noted Mr Delamotte walking towards Mr Muir-Stokes. Mr Spong said that based on the direction that Mr Delamotte was walking it looked like Mr Delamotte had clocked off and was on his way to leaving the depot. Mr Spong states that he heard Mr Delamotte state something to the effect that: "I should get one of those special runs" and that Mr Delamotte let out a giggle after he said this. Mr Spong specifically remembers Mr Delamotte using the word "special" because Mr Spong is a specialist service driver and Mr Spong looked over to Mr Delamotte when he made the comment to see whether it was directed at Mr Spong. Mr Spong said that he observed Mr Delamotte turned in the general direction of Mr Muir-Stokes with a smirk on his face. Mr Spong also said that Mr Delamotte made the comment in a loud enough voice for it to be heard by Mr Spong and the people around. Mr Spong did not hear Mr Gorman make any comment about special contracts or a special run and heard only Mr Delamotte's comment.

[34] Under cross-examination, Mr Spong said that he was walking in the same direction to the de-brief area as was Mr Muir-Stokes and that they both walked past Mr Gorman. Mr Delamotte was on the other side of the de-brief area and Mr Spong heard Mr Delamotte make the comment about a special contract just before he and Mr Muir-Stokes turned into the debrief area. Mr Spong maintained that he recalled the word "special" because he thought it may have been directed at him and originally told Mr Berridge during the investigation that he thought Mr Delamotte may have said "special run" and then agreed with Mr Berridge's suggestion that the term used by Mr Delamotte was "special contract". Mr Spong also maintained that he did not hear Mr Muir-Stokes say anything in response to the comment. Further Mr Spong maintained that the comment was made loudly enough for it to be heard over a distance of several metres.

[35] The Commission and the parties viewed the CCTV footage in a conference room during the hearing. This part of the proceeding was transcribed. The representatives and Mr Delamotte were given an opportunity to comment on the footage as it was played. The footage was replayed at the request of both parties on a number of occasions. The Company also provided a document describing observations at various points in the footage.

[36] Mr Delamotte was asked to identify the point at which he alleged the question about the special contract was asked of Mr Muir-Stokes by Gorman and said that this occurred at the time stamp 6:46:44 in the footage. At that point the footage shows that Mr Delamotte and Mr Gorman are some distance apart facing each other and that Mr Muir-Stokes is close to the entrance to the de-brief area with Mr Spong close behind him. The footage shows Mr Muir-Stokes looking in Mr Delamotte's direction. According to Mr Delamotte, words were continually said and he did not react until Mr Muir-Stokes called Mr Delamotte a "fucking wanker". Mr Delamotte states that at his point he told Mr Muir-Stokes to stop swearing.

[37] The footage also shows that Mr Patterson enters his truck at 6:46:37 and stays in the truck until 6:46:50. During the viewing of the footage it was put to Mr Delamotte that his statement that he stopped to let other workers travelling in the opposite direction pass safely is not correct as he is shown in the footage walking down the middle of the walkway. It was also put to Mr Delamotte that his evidence that Mr Muir-Stokes walked past is wrong as Mr Muir-Stokes turned and entered the de-brief area before he reached Mr Delamotte. Mr Delamotte agreed that these statements were not accurate.

[38] Further, the footage shows Mr Delamotte turning towards the de-brief area after Mr Muir-Stokes entered that area. The footage also shows Mr Muir-Stokes and Mr Delamotte looking in each other's direction at 6:46:54 - 6:47:02. The footage does not show Mr Delamotte and Mr Gorman walking together in the manner described by Mr Gorman. In oral evidence during th viewing Mr Delamotte said that he was walking with Mr Gorman until someone stopped him for a discussion and that Mr Gorman then walked ahead before turning to ask Mr Delamotte the question about the special contract.

[39] On 21 December 2017 Ms Kingdom was informed about the incident on 20 December by Mr Hines the PUD Manager, who forwarded Mr Muir-Stokes' email to her. Upon receipt of the email Ms Kingdom commenced an investigation in accordance with TNT's standard practice. Ms Kingdom had a previously arranged meeting with Mr Delamotte to discuss an issue related to Mr Delamotte's attendance at work, which was to be held at 8.00 am on 22 December 2017. That meeting was to be conducted in Mr Berridge's office and attended by Mr Berridge and Ms Kingdom.

[40] Ms Kingdom and Mr Berridge agreed that they would inform Mr Delamotte at the end of the meeting that a complaint had been received against him and an investigation was going to take place. The reason for this course of action was that Mr Delamotte had scheduled leave. However, Ms Kingdom admits that in hindsight, it would have been best to wait until Mr Delamotte returned from leave before raising the issue.[29] Ms Kingdom and Mr Berridge both took notes of the meeting.

[41] Mr Delamotte attended the meeting with Mr Petch, who was his support person. The discussion about the other issue took place and then Ms Kingdom states that she told Mr Delamotte that: "We are just giving you a heads up that we have received a grievance regarding you." Ms Kingdom said that Mr Delamotte responded by stating: "It's Blake isn't it? It's not true, he's a liar. I never swore, never said any obscenities. I did not raise my voice." She says that Mr Delamotte also said: "Get Darryl up here now and we'll sort this out now." Ms Kingdom states that she told Mr Delamotte that they did not need to hear his version now but Mr Delamotte insisted that they get the matter over with. Ms Kingdom offered Mr Delamotte a few minutes to collect his thoughts, which he accepted and left the room, before returning.

[42] Ms Kingdom said that Mr Delamotte asked what the allegation was and she responded that "the complaint alluded to bullying". Ms Kingdom also said that she told Mr Delamotte that: "I don't have the email with me and haven't begun the investigation yet so we don't want to label it. But let's settle with 'inappropriate behaviour'". According to Ms Kingdom, Mr Delamotte stated to her and Mr Berridge that he was having a conversation with Mr Gorman while they were walking along the loading dock together during which Mr Delamotte said to Mr Gorman: "Do you have one of those special contracts?" and Mr Gorman replied: "No, I don't have one of those. I need to see Terry and get one". Mr Gorman was then interviewed as requested by Mr Delamotte. Ms Kingdom states that Mr Gorman confirmed that it was Mr Delamotte who had asked the question of Mr Gorman and that they had the conversation while walking down the dock together.

[43] Ms Kingdom says she left the office after the interview and typed detailed notes of the meeting. These notes were sent to Mr Berridge by email on 22 December 2017. In cross-examination, Ms Kingdom said that she kept written notes on the back of some reports with regards to Mr Delamotte's absenteeism during the interview because she: "wasn't expecting to do that meeting at that point". Ms Kingdom said that she went back to her office and typed up the notes because she was going on leave. Ms Kingdom did not keep a copy of her handwritten notes.[30] Ms Kingdom emailed her typed notes to Mr Berridge. That email was tendered by Ms Kingdom who maintained that the contents were correct except that she incorrectly stated that the meetings were held on 20 December 2017 when they were held on 22 December.

[44] Ms Kingdom's evidence about the meeting was confirmed by Mr Berridge, who tendered handwritten notes that he maintains were taken during the meeting. Those notes indicate that Mr Delamotte agreed that he asked the question of Mr Gorman about whether Mr Gorman had a special contract and that Mr Muir-Stokes overheard the conversation and swore at Mr Delamotte. Mr Berridge and Ms Kingdom agreed that Ms Kingdom stated to Mr Delamotte at the meeting that: "it is not nice when people make false allegations about you". Ms Kingdom said that she made this comment in an empathetic tone as Mr Delamotte had been upset and was asserting that Mr Muir-Stokes had made a false allegation. Mr Berridge also said that Mr Gorman stated that Mr Delamotte had made the comment and that his statement to the Commission was inconsistent with his statement at the meeting on 22 December. Mr Berridge's notes also incorrectly record the date of the meeting. Mr Berridge interviewed Mr Spong who confirmed that Mr Delamotte had made the comment about the special contract. Mr Berridge also gave evidence about a discussion with Mr Gorman on after the written warning was issued to Mr Delamotte in which Mr Gorman said that he wanted to stick up for Mr Delamotte.

[45] In cross-examination, Mr Berridge said that he edited his notes to include the correct date of the meeting with Mr Delamotte but denied that he had made any other changes to the notes and maintained that the notes were contemporaneous notes. Mr Berridge disagreed with the proposition that his notes of the meeting on 22 December 2017 were "dubious" and denied that the notes were concocted or made up.

[46] Mr Delamotte's version of the meeting is that Ms Kingdom told him there had been a formal complaint made about him by Mr Muir-Stokes. Mr Delamotte said that Ms Kingdom described the complaint in a number of ways stating that it involved bullying and harassment, victimisation or an inappropriate comment, and that he responded by stating: "you've had three goes, which one is it?"

[47] Mr Delamotte queried why Ms Kingdom would raise the complaint without having a copy of it with her and Ms Kingdom informed him that she was giving him a heads up about the matter. Mr Delamotte agreed that he stated that he wanted to deal with the complaint immediately so that it would not be hanging over his head during the Christmas period and insisted that this occur as all witnesses were at the Depot at the time. Ms Kingdom agreed stating that it was not normal practice but that Mr Delamotte could tell her and Mr Berridge his side of events if he wanted to. Mr Delamotte also said that Ms Kingdom told him that the complaint revolved around the words "special contract" and asked him whether he knew of a special contract involving Mr Muir-Stokes. In response, Mr Delamotte told Ms Kingdome that she should speak to Mr Shuttlewood and Ms Kingdom said that they did not need to speak to Mr Shuttlewood.

[48] Mr Delamotte said that he was then asked a series of questions by Ms Kingdom and Mr Berridge about whether he ever had any problems with Mr Muir-Stokes in the past, whether he got on well with Mr Muir-Stokes in the workplace and whether there was anything that might have caused the complaint. Mr Delamotte says he replied in the negative and pointed to the fact that he had represented Mr Muir-Stokes as a Union member five times previously. Mr Delamotte says he was then asked if any other people were present during the events leading up to the complaint and nominated Mr Gorman. Mr Delamotte states that he later saw Mr Gorman being called up to the office after the interview and that Mr Gorman confirmed to him he had been interviewed about the complaint.

[49] Mr Delamotte also said that during the meeting Ms Kingdom looked directly at him and said: "It's not very nice when people make false allegations against you

Greg, is it?" Mr Delamotte said that he took this comment to mean that there had been some rumours circulating at the Depot about Ms Kingdom and that Ms Kingdom made the remark to provoke him. Mr Delamotte said that he responded by stating to Ms Kingdom that he had refused to comment about this matter even when her boss Mr Bright had asked him to comment and that Ms Kingdom was unprofessional for making the comment. Mr

Delamotte further set out examples of other employees engaging in worse behaviour than that alleged against him where mediation or a file note have been the outcome. This can be contrasted with TNT's treatment of Mr Delmotte who has been investigated by TNT's security unit on two occasions in the last three years. Mr Delamotte asserts that this demonstrates that there are inconsistencies in the manner in which TNT deals with him and the present matter is an attempt to blow events out of all proportion.

[50] In cross-examination Mr Delamotte was asked whether he thought Ms Kingdom's email to Mr Berridge was an accurate summary of the meeting on 22 December 2017. Mr Delamotte said that there were "several parts that aren't correct".[31] In particular, Mr Delamotte maintained that it was Mr Gorman who asked Mr Muir-Stokes whether he had a special contract and that Mr Gorman had stated this at the meeting. In response to the proposition that he was effectively alleging that Ms Kingdom had fabricated her notes, Mr Delamotte said that he was not saying that Ms Kingdom made this up but that she may have been confused with the people that she was interviewing because he had not made such a statement. Mr Delamotte went on to confirm that the remainder of the email from Ms Kingdom was correct.[32]

[51] It was pointed out to Mr Delamotte that Mr Berridge had recorded the same things in his interview notes. Mr Delamotte was asked if Mr Berridge was also mistaken to the same extent. Mr Delamotte responded by stating: "as I said, could be getting confused with the interviews they conducted".[33] Mr Delamotte was later asked if he thought the contemporaneous notes taken after each interview were inaccurate, to which he replied "quite possibly".[34]

[52] Ms Kingdom was on leave from 23 December 2017 until 2 January 2018. Mr Berridge and Mr Hines met with other potential witnesses and Ms Kingdom did not play any further role in interviewing witnesses. When Ms Kingdom returned from leave Mr Berridge and Mr Hines gave her notes from interviews they had conducted. Mr Berridge interviewed Mr Wenston Loredo and Mr Michael Spong. Mr Hines interviewed a number of witnesses including Mr Patterson who said that Mr Delamotte and Mr Muir-Stokes had exchanged words but that he could not recall detail other than Mr Muir-Stokes appeared to be "pissed off".

[53] Ms Kingdom prepared an investigation report on 12 January 2018, which was based on the interview notes on 12 January 2018 and gave it to Mr HUB General Manager Mr Bright and Mr Operations Director Mr Gutsche. A copy of that report was tendered through Ms Kingdom. Ms Kingdom states that her involvement in the investigation ended upon delivery of the report to Mr Bright and Mr Gutsche. Ms Kingdom recommended in her Report that Mr Dealmotte be shown the CCTV footage and put on notice that inappropriate behaviour could potentially be viewed as antagonistic and that a note would be made if a pattern of this behaviour was reported. Ms Kingdom further recommended that Mr Muir-Stokes be advised that he should not engage in unprofessional behaviour and should report incidents to his team leader.

[54] In cross-examination, Ms Kingdom was asked whether every report of the kind she had prepared was provided to Mr Gutshce and said that Mr Gutsche is involved in most disciplinary actions or investigations and it is normal to make him aware of these matters. Ms Kingdom also said that the decision to issue Mr Delamotte with a warning was made by Mr Bright.

[55] Mr Bright said that he received the investigation Report on 12 January 2018 and read and considered its contents. Mr Bright formed the view that there was a sufficient basis to put allegations to Mr Delamotte that he had engaged in inappropriate conduct, and Mr Bright caused the allegations letter to be prepared. Mr Bright reviewed and signed that letter which required Mr Delamotte to attend a meeting to discuss the allegations. Mr Bright met Mr Delamotte in the presence of his Union representative and an Employee Relations Specialist of TNT, on 30 January 2018. Mr Bright subsequently formed the view that Mr Delamotte had referred to a "special contract" in the presence of Mr Muir-Stokes with the intent of provoking a reaction and humiliating him. Mr Bright considered that Mr Delamotte's conduct was serious because it was a breach of TNT's Service Centre Minimum Standards, in relation to respectful behaviour. Those Standards relevantly provide:

"...We acknowledge each others' commitments in support of TNT as being valuable and we ensure that in all our interactions with others, we maintain the other person's high sense of self worth.

• Behaviour towards each other, our Customers, our Suppliers and the Public while performing our duty demonstrates respect for the other person. ..."

[56] In response to questions from the Commission, Mr Bright said that his conclusion was that Mr Delamotte's version of events was inconsistent with the CCTV footage. Mr Delamotte stated that he made one comment in response to alleged abuse from Mr Muir-Stokes and Mr Gorman stated that no-one responded. Mr Bright's view was that the CCTV footage showed several instances where Mr Delamotte and Mr Muir-Stokes were conversing even to the point that Mr Delamotte was walking backwards while talking to Mr Muir-Stokes. Mr Bright also said that his conclusion was that Mr Gorman answered a question asked by Mr Delamotte and played a very small role in the situation.

[57] Mr Delamotte said that at the meeting on 30 January 2018 he was shown CCTV footage and asked a series of questions. Mr Norris requested copies of witness statements that Mr Bright was reading from while asking questions and that request was refused. Mr Norris also requested to speak to the witnesses and that request was refused.

[58] Mr Bright said that following the meeting on 30 January 2018 he decided that it was appropriate to issue Mr Delamotte with a written warning and caused a letter to be prepared in accordance with his conclusion. Under cross-examination, Mr Bright maintained that Mr Delamotte agreed that he had used the term "special contract" by asking a question about this matter of Mr Gorman. Mr Bright also maintained that there were two witnesses who also stated that Mr Delamotte instigated the discussion. In relation to the finding in Ms Kingdom's Report that no consistent dialogue or exchange of words between Mr Delamotte and Mr Muir-Stokes could be identified, Mr Bright said that this observation related to swearing and that the Report was inconclusive on this point. Mr Bright said that the investigation report was not shown to Mr Delamotte.

[59] Mr Bright agreed that the recommendation in Ms Kingdom's Report was not implemented and that he had moved forward with the allegation letter and warning on the basis that he had formed a view that Mr Delamotte had provoked the situation. Mr Bright denied the assetion that he had a single-minded determination to issue a warning to Mr Delamotte. Mr Delamotte said that when he was handed the warning letter, he stated that he had done nothing wrong and could not understand why he was being disciplined for answering a question.

[60] In relation to Question 1, the TWU submits that no employer acting reasonably would further concern themselves with the interaction between Mr Delamotte and Mr Muir-Stokes in light of the available evidence. According to the TWU, "moments of joking behaviour between employees" occur at any modern workplace without attracting sanctions and that to apply sanctions in such circumstances would result in over-regulation of relationships between employees.

[61] Mr Delamotte alternatively and additionally submits that the evidence, viewed objectively, disclosed that it was in fact he who was subjected to aggressive abuse by Mr Muir-Stokes, for making a benign statement about Mr Muir-Stokes being on a "special contract" and that Mr Delamotte being given a warning is a "strange twist". The TWU also outlines three other instances of "genuine workplace disrespect" that had occurred at the Redbank Plains depot without any repercussion "let alone an investigation and warning". In summary those incidents involve an operations manager telling a forklift driver to "fuck off"; on ongoing situation between two leading hands involving allegations of bullying and threats of physical violence; and a complaint that a leading hand was physical and verbally abusive. According to the TWU, these issues have resulted in attempts to mediate and in the third instance, a file note being placed on the personnel record of the leading hand.

[62] In oral submissions the TWU pointed to Mr Delamotte's 33 year record with TNT and that Mr Delamotte had not received any previous warnings during that period. This could be contrasted with the record of Mr Muir-Stokes who had a relatively brief period of employment with TNT. It was also contended that the fact that Mr Gorman did not get a warning indicated that the target was Mr Delamotte. Further, it was submitted that similar cases had been investigated and a decision made to refer them to mediation rather than to issue a warning.

[63] TNT submits that the Commission should be satisfied that Mr

Delamotte made a comment regarding a special contract with the intent of provoking a reaction and humiliating Mr Muir-Stokes and that the conduct was in breach of TNT's Service Centre Minimum Standards. In oral submissions, TNT contended that the factual dispute between Mr Delamotte and Mr Gorman on the one hand and Mr Muir-Stokes on the other, was only part of the contest and the more important part was the dispute between Mr Delamotte and Ms Kingdom, Mr Burridge and Mr Bright in relation to whether Mr Delmotte or Mr Gorman asked the question about the special contract. It was submitted that if it was found that the evidence of Ms Kingdom, Mr Burridge and Mr Bright should be accepted, then it followed that Mr Delamotte admitted that he had asked the question that sparked the fracas. It was also submitted that there was no credible explanation from Mr Delamotte about why the comment was made or to establish that it was an innocent comment. Further, it was submitted that the relative length of service of Mr Delamotte and Mr Stokes was irrelevant and that it was important to simply consider the evidence given by those persons to establish whether it was credible.

[64] In relation to submissions of inconsistency in the dealings with Mr Delamotte and Mr Gorman, it was submitted that until their witness statements were filed in the present proceedings, TNT managers who made decisions did not know that Mr Gorman admitted to asking the question and there is no evidence to suggest that Mr Gorman should have been disciplined. In this regard, it was submitted that Mr Gorman was unable to explain in his evidence to the Commission, his reason for asking the question, and that this was because he did not ask the question. Mr Gorman's evidence was that he did not even know that Mr Muir-Stokes was in the area until Mr Muir-Stokes reacted. Mr Gorman's evidence that he was walking alongside Mr Delamotte was also demonstrably wrong and Mr Gorman probably got that information from Mr Delamotte rather than his own recollection. Further, it was submitted that there is only one possible reason why the question about the special contract was asked - to elicit a reaction from Mr Muir-Stokes.

[65] According to TNT, the thoroughness of the investigation is evidenced by the list of persons interviewed and it should be noted that Mr Bill Dunstan (named by Mr Muir-Stokes as Billy Dutton) was interviewed and professed ignorance about the incident. It should also be noted that the Company did not intend to commence its investigation when it did, and only commenced it before the Christmas break at the insistence of Mr Delamotte. It was also submitted that Mr Delamotte had made serious allegations about the truthfulness of the evidence of TNT managers including that they had contrived meeting notes and emails, without establishing any basis for such allegations. Further if Mr Berridge and Ms Kingdom were found to be truthful, then Mr Gorman and Mr Delamotte had conspired to give false evidence. In relation to the assertions about Ms Kingdom, TNT pointed to the fact that Ms Kingdom had actually recommended a lesser penalty against Mr Delamotte than the penalty imposed by Mr Bright. This was inconsistent with Mr Delamotte's allegations about Ms Kingdom's role in the situation.

[66] In submissions in reply, Mr Norris for the TWU submitted that the Mr Berridge's contemporaneous notes were very neat and there was a factual basis to put to him that the notes had been written after the event. In response to a question from me, Mr Norris submitted that Ms Kingdom, Mr Berridge and Mr Bright may have been untruthful in their recollections about Mr Delamotte agreeing that he, and not Mr Gorman, had asked the question or they may have simply been mistaken.

[67] The answers to Questions 2 and 3 involve the proper construction of the dispute settlement procedure in clause 12 of the Agreement. The dispute settlement procedure in clause 12 of the Agreement is in the following terms:

Any dispute or grievance that arises at the workplace between;

(a) a Transport Worker/s and the Company, including but not limited to

a dispute about any condition of employment or the NES; and/or

(b) between the TWU and the Company about the interpretation or

application of this Agreement, including but not limited to a dispute

about any Transport Worker's conditions of employment or the Company's compliance with the NES in relation to one or more Transport Workers

with the exception of termination of employment, shall be dealt with in the following manner:

12.1. The matter must first be discussed by the aggrieved Transport Worker(s)

directly with his or her or their immediate supervisor.

12.2. If the matter remains in dispute, it must next be discussed with the supervisor's immediate superior or another representative of the Company appointed for the purpose of this procedure. The TWU delegate for the worksite has the right to attend and participate in this discussion as a representative of a Transport Worker provided that the TWU delegate is the representative of the Transport Worker's choice;

12.3. If the matter remains in dispute, it must next be discussed with the relevant manager of the Company. The TWU State Secretary (or his/her nominee) has the right to attend at and participate in this discussion as the representative of a Transport Worker provided that the relevant TWU State Secretary is the representative of the Transport Worker's choice;

12.4. If the matter in dispute remains unresolved, the Company's Employee Relations Manager (or nominee) will meet the State Secretary of the TWU (or nominee) and discuss the matter.

12.5. If the matter remains in dispute, it must next be submitted to the Fair

Work Commission (FWC) for conciliation. For this purpose, it is agreed that the action FWC may take includes arranging conferences of the Parties or their representatives at which FWC is present; and arranging for the Parties or their representatives to confer among themselves as conferences at which FWC is not present

12.6. If the matter is not resolved in conciliation conducted by the FWC, the Parties agree that the FWC shall proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the Parties to the dispute. In relation to such an arbitration, the Parties agree that:

(a) The FWC may give all such directions and do all such things as are necessary for the just resolution of the dispute, including but not limited to those things set out in Division 3 of Chapter 5 of the Fair Work Act 2009.

(b) Before making a determination the FWC will give the Parties an opportunity to be heard formally on the matter(s) in dispute.

(c) In making its determination the FWC will only have regard to the materials, including witness evidence and submissions, put before it at the hearing and will disregard any admissions, concessions, offers or claims made in conciliation.

12.7. The decision of the FWC will be binding on the Parties subject to the following agreed matters:

(a) There shall be a right of appeal to a Full Bench of FWC against the decision, which must be exercised within 21 days of the decision being issued or within such further time as the Full Bench may allow.

(b) The appeal will be conducted in accordance with the legal principles applying to an appeal in the strict sense.

(c) The Full Bench (or a nominated member of the Full Bench) shall have the power to stay the decision pending the hearing and determination of the appeal.

(d) The decision of the Full Bench in the appeal will be binding upon the Parties.

12.8. Until the matter is resolved by agreement, conciliation or arbitration, work will continue in accordance with the status quo. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.

12.9. The Parties to the dispute agree to be bound by any decision made by FWC in accordance with this term. The Parties undertake to resolve any disputes in a timely manner in accordance with the procedure set out in this clause and will co-operate to ensure that these procedures are carried out expeditiously.

[68] Question 2 concerns whether issues raised by Mr Delamotte related to the issuing of the warning and the steps taken by the Company prior to the warning being issued were "disputes" within the scope of the clause and should have been dealt with as such. It is therefore necessary to consider the issues raised by Mr Delamotte and the manner in which he raised them. The evidence relevant to questions 2 and 3 is intertwined and I have dealt with that evidence accordingly. It is also difficulty to disentangle the evidence about Mr Delamotte's disputes as the sequential order of correspondence between the Company and the TWU about particular issues overlaps. At the hearing that Mr Delamotte's issues were said to be:

• Whether he should have been given the allegations letter at all in the circumstances of the interaction with Mr Muir-Stokes;

• Allegations that Mr Delamotte was being victimised and harassed by virtue of allegations being investigated;

• The conduct of Ms Kingdom at the meeting on 22 December 2017; and

• Whether clause 12.8 of the Agreement operated so that TNT was required to cease the investigation into Mr Delamotte's alleged conduct and deal with his disputes.

[69] Mr Delamotte's evidence in relation to the allegations letter is that when he was handed that letter on 17 January 2018, he immediately contacted Mr Fitzpatrick, his TWU Organiser. Mr Fitzpatrick asked to speak to Mr Bright and Mr Delamotte found Mr Bright and handed his phone to Mr Bright so that he could speak to Mr Fitzpatrick. According to Mr Delamotte the conversation lasted for around 30 minutes and he did not hear it. Mr Bright returned Mr Delamotte's phone after his discussion with Mr Fitzpatrick, and Mr Fitzpatrick told Mr Delamotte that he would not be meeting with the Company until the following week when Mr Fitzpatrick was available and that the process had been put into dispute.

[70] Mr Fitzpatrick states that during the telephone conversation with Mr Bright on 17 January 2018, he made it clear to Mr Bright that the situation with Mr Delamotte was in dispute so that discussions could occur about the process. Mr Bright informed Mr Fitzpatrick that the matter was a "grievance" and not a "dispute" and according to Mr Fitzpatrick, Mr Bright appeared to believe that there was a difference between these terms. Mr Fitzpatrick states that he informed Mr Bright that there was no difference between a grievance and a dispute and that there will be no meetings until the process in the dispute settlement procedure was followed. Mr Bright responded by telling Mr Fitzpatrick that he did not need to tell him how to "suck eggs". Mr Fitzpatrick ended the conversation believing that the disputes process was going to be followed.

[71] Approximately one hour after the conversation with Mr Bright, Mr Fitzpatrick received an email from Mr Bright asserting the Company's right to continue with the process involving Mr Delamotte. The email exchange tendered by Mr Fitzpatrick[35] commences with an email from Mr Bright sent at 9.47 am on 17 January 2018 stating that the position of TNT is that the allegations letter and related meeting is not covered by the scope of the dispute resolution clause. Mr Fitzpatrick's response sent at 10.32 am on 17 January 2018 states that clause 12 of the Agreement does not specifically exclude the process of disputing allegation letters or disciplinary meetings. The email goes on to state that if there is an issue with the interpretation of the Agreement, the Company should raise a dispute and follow the process set out in the Agreement. The email goes on to state that the Union will meet with TNT to discuss the matter and follow clause 12.3 of the Agreement and that until that meeting takes place, the matter remains in dispute and clause 12.8 of the Agreement "will remain in effect until the time that the current dispute is resolved".

[72] That request was not complied with by TNT and on 24 January 2018, Mr Bright handed Mr Delamotte a letter stating:

"In my letter dated 16 January 2018 you were directed to attend a meeting on 18 January 2018 at 8.00 am to provide the Company with a response to the allegations raised concerning your conduct towards a fellow employee, Mr Muir-Stokes.

Your representative the TWU subsequently advised that it was putting in dispute the fact of the Company investigating the allegations and that you would not be attending the meeting on 18 January 2018. You then did not attend that meeting as scheduled.

TNT's view is that clause 12 of the TNT - TWU heads of agreement does not operate so as to prevent it proceeding with its investigation into the allegations raised concerning your conduct. The TWU has been advised of this view.

TNT wishes to meet with you in order to put the allegations to you and get your response to them before any decision may be made...

If you do not attend the meeting as scheduled in this letter then TNT will consider the allegations on the information available to it and advise you of the outcome of the investigation and its deliberations in due course...[36]

[73] Emails tendered in the proceedings also indicate that on 24 January 2018 Mr Bright corresponded with Mr Fitzpatrick in relation to two disputes raised by the TWU in the previous week, including disputes articulated in the email from Mr Bright as: "the disputes about PIE and allegations of inappropriate conduct against Hayley [Kingdom] to Greg [Delamotte] and TNT not providing Greg with the same work conditions free from harassment and victimisation as other TNT employees." That email went on to suggest a meeting time to discuss these matters on 1 February 2018. Mr Fitzpatrick responded to this email on 24 January 2018 agreeing to the meeting proposed for 1 February 2018 and stating that the disputes procedure in the Agreement required that the Branch Secretary attend such meeting given the level that the dispute had reached. The email also stated that all delegates of the Union would be required to attend and that the meeting should be held at the TWU office. [37]

[74] On 29 January 2018 Mr Bright sent an email to Mr Fitzpatrick in response to Mr Fitzpatrick's email of 17 January invoking clause 12.8 of the Agreement stating:

"TNT does not believe that clause 12 operates so as to prevent it from proceeding with the investigation into the allegations raised concerning Greg's conduct. At this stage the Company wishes to meet with Greg, put the allegations to him and get his response. He is entitled to have a support person with him. No decisions will be made at that meeting. If necessary a further meeting will be held with Greg after his responses have been considered and he will be advised of any findings and outcomes. The meeting previously scheduled for 18 January will be rescheduled for 8.30 am on 30 January 2018. I am sending Greg a letter requiring him to attend the meeting. If he does not attend the meeting then the Company will consider the matter on the information available to it. In terms of your dispute concerning the investigation more generally, TNT does not consider the investigation is a matter that falls within the scope of clause 12. I am willing to discuss TNT's views concerning this point at a time convenient to you."

[75] The email chain indicates that Mr Fitzpatrick forwarded the email from Mr Bright to Mr Norris of the TWU also on 29 January 2018. On 29 January 2018 Mr Norris corresponded with Mr Bright ahead of the meeting on 30 January 2018 setting out the TWU's position. In that correspondence the TWU asserted that allegations had been made about Mr Delamotte which he disputed through the disputes procedure and that the sequential steps in the procedure needed to be followed in respect of Mr Delamotte's dispute. The correspondence went on to state that clause 12.8 of the Agreement required that the status quo be maintained and that TNT was not permitted to take steps to progress the allegations letter until the steps in relation to Mr Delamotte's dispute had been exhausted. The correspondence concluded with the TWU putting the Company on notice that its participation in the meeting on 30 January 2018 would be strictly without prejudice to the Union's rights to seek the imposition of civil penalties and injunctions to force TNT to correctly observe the disputes procedure.

[76] The meeting that TNT required Mr Delamotte to attend and referred to in the Company's letter to Mr Delamotte dated 24 January 2018, proceeded on 30 January at 8.30 am. Evidence about the discussions at that meeting is set out above. Mr Fitzpatrick did not attend the meeting on 30 January 2018 but states that the TWU continued to protest the ongoing process in relation to Mr Delamotte.

[77] Also on 30 January 2018 (at 3.09 pm) Mr Bright responded to the email from Mr Fitzpatrick of 17 January in relation to the meeting proposed for 1 February 2018 stating that this meeting would be the first meeting in relation to the issues in dispute and that all delegates would not be required to attend. Mr Bright also stated that the meeting on 1 February would not address the issues in relation to Mr Delamotte as there had been no specifics provided and that a separate meeting with Mr Delamotte would be scheduled to better understand his concerns and allow the matter to be investigated. The email further stated that TNT was still investigating the issues relating to the incident on 20 December 2017 and had not made any decisions and that there was no dispute to discuss at that point.

[78] At 4.43 pm on 30 January 2018 Mr Fitzpatrick sent an email to Mr Bright in response setting out the disputes said to have been raised by the TWU at that point as follows:

The constant harassment of Greg [Delamotte] and TNT not providing Greg with the same rights as all other TNT employees

First aid kits not supplied in mobile work place (trucks) (codes of practice 2014)

Inappropriate behaviour from TNT HR Representative (Hayley Kingdom)

Not providing a clean work environment free of biohazard.

[79] The email goes on to assert that the matters in dispute have been raised verbally and that the next steps in accordance with clause 12 of the Agreement is that the Branch Secretary of the TWU is involved and invites Mr Bright to confirm attendance on 1 February 2018 with all Delegates involved.

[80] On 31 January 2018 at 9.11 am, Mr Bright responded to that email relevantly stating:

"Item 1 - as noted in our earlier email below, there is nothing in dispute here. The issues you have raised are grievances and the next step is for us to meet with Greg to understand the details so we can investigate.

[81] The email goes on to reiterate that the issues are still at the first meeting stage and that it would be appropriate to hold the meeting at TNT's premises. Further the email expresses concern about allegations of inappropriate behaviour by Ms Kingdom not being sufficiently particularised so that a response could be provided and that TNT Managers and Team Leaders who are not involved have been copied into the TWU's email in a manner that could negatively impact Ms Kingdom's reputation.

[82] Mr Fitzpatrick states that a meeting was held on 1 February 2018 to discuss the disputes raised by Mr Delamotte in relation to the process followed by TNT with respect to the allegations against him. The meeting was attended by Mr Gutsche, Director of Operations, Mr Bright and Mr Soo (Human Resources Advisor). The TWU attendees were Branch Secretary Mr Biagini, Mr Delamotte and Mr Fitzpatrick. Mr Fitzpatrick states that Mr Gutsche had an inflexible position that the process would go ahead and that Mr Delamotte's issues were grievances. According to Mr Fitzpatrick, nothing was resolved at the meeting. Mr Fitzpatrick tendered correspondence from Mr Gutsche sent on 9 February 2018 setting out the Company's position on each of the disputes (which included an additional matter referred to as dispute resolution procedure). Relevantly, that correspondence stated:

"1. Greg Delamotte's grievance alleging TNT is harassing and targeting him

2. Greg Delamotte's grievance regarding Hayley Kingdom's comment

With regard to item I above, we have reviewed the previous disciplinary matters that you raised during the meeting and we are of the view that each was treated consistently and fairly according to the facts of each case.

TNT therefore strongly rejects the TWU's claims that TNT has been targeting Greg Delamotte or has been inconsistent in our approach when investigating matters that relate to Greg Delamotte. As you are aware, in the present case, TNT was obliged to investigate a written complaint about Greg Delamotte's behaviour made by another employee.

Item 2 - Greg Delamotte's grievance against Hayley Kingdom's comment

TNT's position is that this matter is a grievance and should be raised by Greg Delamotte formally to TNT.

During the meeting Greg advised that he wished to give further consideration to the matter before making a decision of taking this matter further.

TNT does not consider that the investigation into the allegations made against Mr Delamotte is a matter which falls within the scope of clause 12 of the TNT- TWU Fair Work Agreement 2014- 2017 (Agreement) on a number of grounds, including that during the investigation process no dispute could exist, because TNT had not actually done anything other than undertake a fair investigation process in relation to allegations which another employee has made in respect of Mr Delamotte.

Farther, even if a dispute did exist, which we disagree with, then clause 12.8 (which is the "status quo" clause of the Agreement) does not operate so as to prevent TNT from proceeding with the investigation into the allegations. Rather, it provides that:

'Until the matter is resolved by agreement, conciliation or arbitration, work will continue in accordance with the status quo. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure.'

The words "work will continue in accordance with the status quo ... " do not 'freeze in time' all actions concerning a matter which might be put into dispute. They merely require that any work being undertaken be undertaken in accordance with the way in which the work had been performed before the dispute was raised..."[38]

[83] The TWU submits that it was not correct of TNT not to deal with Mr Delamotte's matters as disputes under clause 12 of the Agreement. It is also submitted that whilst Mr Delamotte did not have to provide particulars about why he was disputing the process at the time he raised the dispute, Mr Delamotte had several instances of inconsistent treatment of other employees in mind when raising the dispute and it was not a dispute without substance. The TWU argues that clause 12 of the Agreement begins with the phrase: "any dispute or grievance that arises at the workplace..." and that this will, subject to other matters, activate clause 12. It is submitted that TNT's characterisation of the issues raised by Mr Delamotte as "grievances" was sufficient to engage the provisions of clause 12.

[84] The TWU further submits further that, consistent with the Decision of a Bull Bench of the Commission in AMWU v Berri Pty Ltd[39] the words "grievance" and "dispute" are to be given their ordinary meaning as there is no ambiguity in the words warranting the consulting of extrinsic material. It is submitted that the Cambridge Online Dictionary definitions of "grievance" and "dispute" were appropriate. As a result, it is submitted that the matters were clearly "disputes" because Mr Delamotte was disputing being subjected to a formal disciplinary process when it is alleged there was no need for such a process and that other employees had committed far more serious acts of verbal abuse and mediation had been used to resolve those matters.

[85] Regarding the comments of Ms Kingdom, the TWU submits that Mr Delamotte had reported her comment as offensive to TNT. It is submitted that TNT did not agree with Mr Delamotte's characterisation of the comment as offensive, which meant that the parties were in dispute over the matter. According to the TWU there is a low threshold to activate clause 12 of the Agreement and the terms "dispute" or "grievance" used in clause 12 should be given their ordinary meaning. As defined in the Cambridge On-line Dictionary, a grievance is a complaint or strong feeling that you have been treated unfairly. A dispute is an argument or disagreement, especially an official one between, for example, workers and employers. Accordingly, the answer to question 2 is "No" on the basis that it was not correct for TNT not to deal with Mr Delamotte's matters as disputes under clause 12 of the Agreement.

[86] In oral submissions the TWU confirmed that the basis of Mr Delamotte's contention that he had been treated differently from other employees was that other employees who had engaged in worse conduct had been sent to mediation while Mr Delamotte had been disciplined. The TWU also maintained that Mr Muir-Stokes' complaint should have been dealt with under the dispute settlement procedure and that the matter should have been mediated rather than being dealt with by way of a letter of allegations being put to Mr Delamotte.

[87] In relation to Question 2, TNT submits that it reasonably adopted the position that the issues concerning the disciplinary procedure Mr Delamotte was subjected to had been raised by the TWU. However, if those issues were a "grievance or dispute", they were not a grievance or dispute that the TWU was entitled to pursue under the Agreement.

[88] TNT submits that the words of the Agreement provide that clause 12 applies only to a dispute "between the TWU and the Company about the interpretation or application of this Agreement". TNT also points to the wording of clause 12 and submits that the use of the word "including" after this phrase makes clear that the subsequent words - "a dispute about any transport worker's conditions of employment..." are examples of disputes about the interpretation or application of the Agreement and are not words of extension that allow the Commission to consider other types of disputes.

[89] TNT submits that Mr Delamotte's disputes as notified to the Commission are not about the "interpretation or application" of the Agreement or any part of it. Rather, the dispute - if there is one - concerns the preservation of the status quo in relation to TNT's investigation into allegations of misconduct. TNT further submits that the real issue between the Company and the TWU centres on the Union's allegation that TNT was bound to observe the status quo, meaning (according to the TWU) that TNT could not progress the investigation into the allegations. In this sense, TNT contends that the second question is a "red herring". In any event, whatever occurred prior to Mr Delamotte raising the disputes, Mr Delamotte has not articulated the nature of either of his grievances to TNT and has not personally taken the steps required by clause 12.1 or clause 12.2 of the Agreement. Accordingly, TNT submits that the second question should be answered "No".

[90] In relation to Question 3, the TWU submits that TNT placed an unduly narrow construction on Clause 12.8 of the Agreement as evidenced in the email from the Company to the Union on 9 February 2018.[40] The TWU submits that, used in its ordinary sense, the phrase "status quo" should be read to mean the state of affairs existing before the dispute arose. It is submitted that support for such a construction could be found in United Voice v Foster's Australia Limited T/A Carlton and United Breweries Limited.[41] The TWU submits that even if TNT's submission that the dispute settlement procedure does not freeze in time all actions in relation to a matter in dispute is accepted, before Mr Delamotte's disputes were raised, work was being performed in a certain way, which did not include an ongoing investigation into a "petty incident" involving Mr Delamotte and Mr Muir-Stokes.

[91] In Mr Delamotte's case, the state of affairs before the dispute arose is that he was not confronted with an allegations letter or an investigation. As this is the status quo, then the conduct of TNT in continuing the process associated with the allegations letter was in breach of the disputes procedure in clause 12.8.

[92] In relation to Question 3, TNT submits that a clause in materially identical terms to clause 12.8 of the Agreement was considered in Transport Workers' Union of Australia v Linfox Australia Pty Ltd.[42] TNT submits that in that case, the Commission found that the words of the clause did not create a "freeze in time" and that only work was required to continue in accordance with the status quo. TNT further submits that narrow or pedantic approaches to an interpretation of an award are misplaced, and that the search is for the meaning intended by the framers of the document: Kucks v CSR Ltd (1996) 66 IR 182 at 184.

[93] TNT argues that clause 12.8 of the Agreement is therefore directed at maintaining the status quo in the context of disputes which centre on how or when "work" is to be performed. Clause 12.8 is directed at removing a party's ability to implement change in circumstances where the changed work circumstances, once worked by the other party, cannot be redressed in any subsequent award that the Commission may make in connection with the dispute.

[94] TNT finally submits that the TWU's interpretation of clause 12.8 of the Agreement results in absurd consequences giving as an example that the TWU could dispute the commencement of an investigation into serious allegations of assault or theft by an employee by delaying TNT's ability to impose a disciplinary process. Accordingly, clause 12.8 of the Agreement did not operate to so as to impede TNT's ability to investigate Mr Muir-Stokes' complaint against Mr Delamotte.

[95] In relation to Question 1, I am satisfied and find that TNT had a valid reason for issuing a warning to Mr Delamotte. I am satisfied that Mr Delamotte engaged in the conduct recorded in the written warning issued to him on 16 January 2018 and referred to a "special contract" in the presence of Mr Muir-Stokes. I am also satisfied that Mr Delamotte did this for the purpose of provoking a reaction and humiliating Mr Muir-Stokes. I have reached this conclusion for the following reasons. Mr Delamotte and Mr Gorman do not dispute that they were having a conversation in which reference to having a "special contract" was made. Leaving aside for the moment the issue of who asked a question or made a comment, the discussion between Mr Gorman and Mr Delamotte took place in in the context of Mr Delamotte knowing that Mr Muir-Stokes had been involved in an interaction with Mr Shuttlewood before 20 December 2017 in which Mr Muir-Stokes had referred to having a special contract. That discussion had been reported to Mr Delamotte by TNT employees in the context of his role as a TWU Delegate. Further, Mr Delamotte and Mr Gorman knew that this comment had been the subject of discussion in the Depot in the context of workers ridiculing Mr Muir-Stokes. While Mr Delamotte maintained that he had not been involved in such ridicule, he did not deny that it was occurring.

[96] On his own evidence, Mr Delamotte knew there was no such contract applicable to Mr Muir-Stokes' employment and told other employees who asked him about the comment, including Mr Shuttlewood, that this was the case. Mr Delamotte also agreed that he did not expect a serious answer to the question about the special contract given that no such contract existed within TNT. In asserting that Mr Gorman asked the question as to whether Mr Delamotte was on a special contract, Mr Delamotte said that he answered in a "dreary manner" and stated that he did not have such a contract. The fact that Mr Delamotte answered in a "dreary manner", indicates that he was speaking other than in a normal tone of voice. The probability that Mr Delamotte was speaking in a voice that could be heard by a number of persons on the loading dock including Mr Muir-Stokes, is increased by the fact that the CCTV footage shows that Mr Delamotte and Mr Gorman were not walking together when they were having the discussion but rather were facing each other some distance apart, at the point that Mr Delamotte identified the comment being made.

[97] Given that Mr Delamotte knew that there was no such thing as a special contract, he can only have been discussing the issue with Mr Gorman with the intention that Mr Muir-Stokes would hear the discussion. It is more probable than not that Mr Delamotte intended to provoke a reaction from Mr Muir-Stokes and to humiliate him in front of other employees who were also on the loading dock. I do not accept that Mr Gorman initiated the discussion by asking the question about the special contract. Mr Gorman states that he did not know where Mr Muir-Stokes was at the time he alleges that he asked the question of Mr Delamotte about the special contract. Furthermore, Mr Gorman could not satisfactorily explain why he asked the question at all and his evidence on this point was unconvincing. In short, Mr Gorman knew that Mr Delamotte did not have a special contract and that the answer to the question would indicate this. In my view, Mr Gorman's inability to explain why he asked the question of Mr Delamotte, is because he did not ask the question.

[98] I also accept the evidence of Mr Spong that it was Mr Delamotte who made the comment about the special contract. I found Mr Spong to be a credible witness who was certain in his recollection, and explained his certainty on the basis that he believed the comment was directed to him as Mr Spong is a specialist service driver. Further, I accept Mr Spong's evidence that the comment was made by Mr Delamotte in a loud enough voice for people around to hear it and that Mr Delamotte was looking at Mr Muir-Stokes when he made the comment and had a smirk on his face. This is consistent with the evidence of Mr Muir-Stokes. Mr Patterson also said that Mr Delamotte made a comment about a special contract to Mr Muir-Stokes and that this caused Mr Muir-Stokes to react. It is improbable that Mr Patterson would have heard the comment if Mr Delamotte had spoken in a normal voice when he made the comment, given that Mr Patterson was moving in and out of his truck at the relevant time.

[99] That Mr Delamotte made the comment or asked the question about the special contract is also apparent from the CCTV footage which shows that at the point Mr Delamotte states that the question was asked (albeit that Mr Delamotte states that Mr Gorman asked the question) Mr Muir-Stokes is looking at Mr Delamotte and not Mr Gorman. Finally, I am of the view that it is improbable that three managers of TNT could make an error to the extent that they noted that Mr Delamotte conceded in meetings to having made the comment if Mr Delamotte did not make such a concession. Further, Mr Berridge produced contemporaneous notes recording Mr Delamotte's concession in this regard, and I do not accept that these notes are not accurate or that they have been manufactured, simply because they are neat and I reject the TWU's assertion on this point.

[100] It is possible that there was some degree of confusion on the part of Ms Kingdom, Mr Berridge and Mr Bright, about whether Mr Delamotte asked a question about a "special contract" or made a comment. The allegations letter and the warning state that Mr Delamotte made a comment that had a unique reference to Mr Muir-Stokes in that Mr Delamotte referred to a "special contract". Whether he asked a question or made a comment, it is clear from the evidence that Mr Delamotte used the term "special contract" in the presence of Mr Muir-Stokes in circumstances where he knew that there was no such contract in operation at TNT with respect to Mr Muir-Stokes' employment and that neither he nor Mr Gorman had such a contract and where the purpose of the discussion was not to elicit information about the subject matter. The discussion - or at least Mr Delamotte's part in it - was loud enough to be overheard by Mr Muir-Stokes and other employees on the loading dock. It is improbable that the comment was made for any reason other than an intention to provoke or humiliate Mr Muir-Stokes and I am satisfied that this is the case.

[101] I do not accept that the comment was idle banter of the kind that occurs in any workplace. That submission is inconsistent with the evidence of Mr Delamotte and Mr Gorman about Mr Muir-Stokes' reaction to the comment. On their evidence, Mr Muir-Stokes reacted with hostility and directed abusive language towards them (although there is evidence to the contrary that Mr Muir-Stokes did not react by swearing and abusing Mr Gorman and Mr Delamotte). In any event, idle banter is not trivial where a person subjected to it is offended or upset or where it is directed to a particular person or persons so that it is likely to cause humiliation or embarrassment. Mr Muir-Stokes states that he was belittled by the comment and that he considered it harassment and bullying to the extent that he raised his concern verbally with a supervisor and then made a formal complaint. Such allegations are serious and TNT was entitled to treat them as such. When the verbal complaint was made by Mr Muir-Stokes it was entirely appropriate for the supervisor to inform him that if he wished to pursue the matter he was entitled to make a formal complaint and that this should be in writing. When the formal complaint was received, it was entirely appropriate for TNT to treat it seriously and conduct an investigation.

[102] I am satisfied that TNT had a sound, defensible and well-founded basis for concluding that Mr Delamotte made the comment about which Mr Muir-Stokes took issue. A thorough investigation was conducted in which Mr Delamotte was interviewed and shown CCTV footage. Other witnesses were interviewed. This was notwithstanding that the start of the investigation was brought forward at the request of Mr Delamotte. Having established that Mr Delamotte made the comment, TNT had a valid reason to issue Mr Delamotte with a warning. The interaction with Mr Muir-Stokes was a breach of TNT's Service Centre Minimum Standards in relation to Respectful Behaviour. I note that TNT did not issue a warning in relation to the language used by any of the parties involved in the incident on the basis that this could not be established. Mr Gorman was not issued with a warning because prior to the hearing of this application, there was no indication that Mr Gorman played any real part in instigating the events on the loading dock.

[103] In my view, the warning issued to Mr Delamotte in relation to the incident was a valid, sound and defensible response to the conduct that Mr Delamotte engaged in and it would not be appropriate for the Commission to intervene in the matter. The TWU has not established that there was any ulterior motive on the part of Ms Kingdom or any of TNT's managers in issuing the warning. To the contrary, Ms Kingdom recommended a lesser penalty than a warning. There is no evidence to suggest that Mr Delamotte's role as a Union Delegate played any part in the decision to investigate the complaint by Mr Muir-Stokes or to issue a warning. As a Union Delegate Mr Delamotte knew that there was no special contract and if he had a concern about Mr Muir-Stokes disseminating such information throughout the Depot, Mr Delamotte could and should have raised his concern with TNT management and sought clarification. Rather, Mr Delamotte took it upon himself to raise the issue with Mr Muir-Stokes by making a comment calculated to provoke Mr Muir-Stokes and to ridicule him in front of his co-workers. I also note that the issuing a warning was consistent with TNT's Discipline Policy and was in the mid-range of appropriate responses to the conduct of Mr Delamotte.

[104] For reasons previously stated, I do not accept the submission advanced for TNT that in the present dispute, it is open to the Commission to find that there was a valid reason for the warning being given on an alternative basis. It is not appropriate for the Commission to embark on an exercise to determine whether there is some alternative basis for the warning such as Mr Delamotte's conduct in the hearing whereby his version of events appears to have been altered so that it was asserted that Mr Gorman rather than Mr Delamotte made the offending comment. I make no finding in relation to this matter, and simply note that the reason for issuing the written warning, as set out in the letter to Mr Delamotte dated 16 January 2018 was that Mr Delamotte referred to a special contract in the presence of Mr Muir Stokes. The warning says nothing about whether Mr Delamotte initiated the discussion or whether he was a participant in a discussion initiated by Mr Gorman. Regardless of who initiated the discussion, Mr Delamotte's part in it was deserving of sanction. There is also a reasonable basis for the fact that Mr Gorman was not sanctioned for his part in the interaction given that TNT believed (in my view on reasonable grounds) that Mr Gorman initiated the interaction, until the filing of material in these proceedings.

[105] In relation to the second question for arbitration, I do not accept the submission of TNT that clause 12 of the Agreement applies only to a dispute between the TWU and the Company about the interpretation or application of the Agreement or that the use of the term "including" after those words limits the operation of clause 12. By virtue of clause 12.1(a) of the Agreement the dispute settlement procedure in clause 12 applies to disputes between a transport worker and the Company about any condition of employment. That provision is not limited by clause 12(1)(b) of the Agreement. The fact that a transport worker is represented by the TWU from the outset does not mean that the clause should be limited to disputes about the interpretation or application of the Agreement. The clause should be construed so that an individual dispute about any condition of employment can be dealt with in relation to a transport worker. This is apparent from the only exception which relates to termination of employment.

[106] Accordingly, a dispute about whether the process followed by TNT in determining to issue an allegations letter, the manner in which allegations are investigated or the basis upon which an allegations letter is issued are matters that are capable of being a dispute about a condition of employment of a transport worker. I also accept that the transport worker may raise the dispute directly or it may be raised by the TWU on behalf of the affected transport worker. However, I do not accept that the TWU or a transport worker can raise a dispute about whether a complaint made against the transport worker by another transport worker should be investigated by TNT or a decision by TNT to conduct such an investigation. A decision to investigate a complaint is a matter for TNT. The Company has a duty to a complainant to investigate a complaint.

[107] Unless and until the complaint is investigated and a decision made that the person against whom the complaint is made should be required to respond to the complaint, there is no dispute about any condition of employment within the scope of the procedure in clause 12 of the Agreement. It is also probable that most disputes about a decision to issue an allegations letter will be subsumed into a dispute about whether or not the allegations have substance. This is particularly so given my views about the manner in which clause 12.8 operates with respect to such disputes.

[108] In the present case, Mr Muir-Stokes made a complaint that he had been bullied and harassed and TNT was obligated to investigate that complaint. The decision of TNT to investigate Mr Muir-Stokes' complaint was not a matter that could be disputed by either the TWU or Mr Delamotte. Even if the TWU was entitled to raise a dispute on the basis that TNT had resolved complaints of other employees who had engaged in the same or similar conduct to that alleged in Mr Muir-Stokes' complaint by mediation between the complainant and the alleged perpetrator, such a dispute was not clearly articulated in the present case. Rather, the TWU simply asserted that TNT was harassing Mr Delamotte and not affording him the same rights as other employees. There is no evidence that the TWU raised particular instances of inconsistent treatment of other employees at the time it purported to put Mr Delamotte's treatment by TNT into dispute or that the particular rights that it asserted were being denied to Mr Delamotte were identified so that TNT could respond. In any event, such a dispute could not crystalise for the purposes of clause 12 of the Agreement until a decision to issue an allegations letter or an equivalent step was taken by TNT.

[109] It is also the case that the TWU has not identified a similar case where mediation was undertaken at the behest of TNT in lieu of a complaint being investigated. To the contrary. The evidence of witnesses for TNT is that mediation was entered into after a particular matter was investigated and it had been determined that it was an appropriate case for this course of action to be taken. In my view where an employee raises a complaint, it is not appropriate to refer the employee to mediation with the person against whom the complaint has been made before the complaint is investigated and findings about the complaint are made.

[110] I do not accept the submission advanced by the TWU that TNT should have arranged mediation between Mr Delamotte and Mr Muir Stokes as a matter of course rather than commencing an investigation into the complaint made by Mr Muir-Stokes. The fact that the dispute settlement procedure in clause 12 of the Agreement does not preclude such a step does not make this a matter that can be put into dispute under clause 12 of the Agreement. In relation to the dispute raised by Mr Delamotte about a comment made by Ms Kingdom in the meeting on 21 December 2017, I do not accept that this matter was put into dispute in circumstances where as late as 1 February 2018, Mr Delamotte was still considering his position in relation to this matter, as recorded in Mr Gutsche's letter to the TWU of 9 February 2018 documenting the outcome of the meeting on 1 February to discuss Mr Delamotte's issues. I am also of the view that the real issue in dispute centred on the allegation that TNT was bound to observe the status quo, meaning (according to the TWU) that TNT could not progress the investigation into the allegations.

[111] In relation to the Question 3, I am unable to accept the construction of clause 12.8 of the dispute settlement procedure advanced by the TWU. As a Full Bench of the Commission observed in AMWU v Berri Pty Ltd[43] the construction of an enterprise agreement begins with the ordinary meaning of the relevant words. Clause 12.8 of the Agreement provides that while the dispute resolution procedure is being followed "work will continue in accordance with the status quo" and that "No party is to be prejudiced by the continuation of work...". The term "status quo" is limited to work continuing as normal. Thus where a dispute is in relation to a matter such as the manner in which work is performed or a change that affects the manner in which work is performed, where the change is disputed, the status quo applies while the dispute is resolved using the procedure. The status quo is that work continues as it did prior to the change.

[112] In TWU v Linfox Pty Ltd[44] Senior Deputy President Harrison considered a clause in an enterprise agreement which provided as follows:

"Until the matter is resolved by agreement, conciliation or arbitration, work will continue in accordance with the status quo. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure."

[113] In that case, the issue in dispute related to the method of calculation of payment for overtime rest breaks and the applicant union sought an order to the effect that the payment method prior to the change be maintained and reimbursement of employees be made, pending the final determination of the dispute. In determining to refuse the application, her Honour made a general observation about the absence in the clause of words that expressly provided for a freeze in time as contended for by the applicant union and contrasted this with wording in other agreements which defined "status quo" in a more general way as the circumstances which existed prior to the change or action which had caused the dispute. Her Honour went on to hold that in the context of a dispute settlement procedure with a broad scope, agreement had been reached that only "work" would continue in accordance with the status quo and that the reference to "work" was significant. Accordingly, it was concluded that the clause in that case did not provide that everything that existed prior to the dispute arising was to remain in place.

[114] The clause in the present case is substantially the same clause as that considered in Linfox. The dispute settlement procedure has a similarly broad application. There is no indication in the plain words of clause 12.8 of the Agreement that the status quo relates to anything other than work. Certainly, if the term "work" in Linfox excluded the manner of payment for work, it excludes the situation of Mr Delamotte prior to a decision to commence an investigation into allegations against him. A requirement to observe the status quo in relation to work cannot be extended to require that an investigation be ceased while Mr Delamotte disputes whether it should have been started at all, without straining the words of clause 12.8. On the facts in the present case, whether or not Mr Delamotte was subject to an investigation has no relationship to the continuation of work in the context of clause 12.8 of the Agreement.

[115] The Full Bench Decision in _United Voice v Foster's Australia Limited[45]_does not support the TWU's submission in the present case. In the Foster's case, the relevant provision in relation to the status quo was to the effect that: "Whilst the parties are attempting to resolve the matter the status quo will prevail." The issue for determination for the Full Bench was whether the status quo provision authorised non-participation by employees in a work trial in relation to roster changes, so that they were not taking industrial action. In that case, the Full Bench observed that applying ordinary meaning to the term "status quo" would, when read in isolation, operate to stay the implementation of any workplace change, but went on to hold that this was overridden by other terms of the agreement that provided for the trial to proceed. The Foster's Decision deals with a status quo provision that contains no limitation with respect to work continuing and that case dealt with a workplace change rather than an individual dispute of the kind advanced by Mr Delamotte.

[116] There is nothing in the context of clause 12 or the Agreement as a whole, in which the words "work will continue in accordance with the status quo" could be extended in the circumstances advocated by the TWU. I accept the submission advanced by TNT that clause 12.8 is manifestly only directed at maintaining the status quo in the context of disputes which centre on how or when work is to be performed. I would not go as far as to accept the proposition that the clause only operates when changed work circumstances cannot be redressed in any subsequent decision. That requirement would limit the clause in a manner that is not warranted. However it is not necessary to determine this point. Clause 12.8 does not freeze in time the circumstances as they existed prior to any dispute being raised.

[117] For these reasons, I answer the questions for arbitration as follows:

Did TNT have a valid reason for issuing a written warning to Mr Delamotte over his interaction with Mr Muir-Stokes?

On a true interpretation of the Agreement, was it correct of TNT not to deal with;

(a) Mr Delamotte's matter challenging the disciplinary procedure he was being subjected to; and

(b) Mr Delamotte's matter concerning a comment made by Ms Hayley Kingdom,

On a true interpretation of the Agreement, did clause 12.8 of the Agreement operate so as to prevent TNT from proceeding with an investigation into Mr Delamotte's conduct once Mr Delamotte had raised a dispute in respect of the investigation?"

Mr R Wade of Counsel instructed by Mr J Hall and Ms A Wu of Ashurst for TNT.

[1] Exhibit A1 Statement of Gregory Wayne Delamotte.

[2] Exhibit A 6 Witness Statement of Robert Fitzpatrick.

[3] Exhibit A2 Witness Statement of Darryl John Gorman.

[4] Exhibit A5 Witness Statement of Allen Shuttlewood.

[5] Exhibit A4 Witness Statement of Eric Patterson.

[6] Exhibit A3 Witness Statement of Mark Anthony Petch.

[7] Exhibit R7 Witness Statement of Blake James Muir-Stokes.

[8] Exhibit R8 Witness Statement of Michael Spong.

[9] Exhibit R3 Witness Statement of Hayley Kingdom.

[10] Exhibit R4 Witness Statement of Lawson Richard Berridge.

[11] Exhibit R6 Witness Statement of Trent Edward Hines.

[12] Exhibit R7 Witness Statement of Dean Bright.

[13] Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [25] affirming the Full Bench Decision in B, C and D v Australia Postal Corporation T/as Australia Post [2013] FWCFB 6191.

[14] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371

[15] Bista v Glad Group Pty Ltd [2016] FWC 3009.

[16] [1984] CthArbRp 432; (1984) 295 CAR 188.

[17] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at [685].

[18] [1931] HCA 21; (1931) 45 CLR 359 at 377-8.

[19] Exhibit R7 Witness Statement of Blake Muir-Stokes Annexure "BMS-1".

[21] Transcript 9 July 2018 PN130, 133,135, 136.

[22] Transcript 9 July 2018 at PN256, PN271.

[25] Transcript 9 July 2018 at PN159, PN503-PN504.

[26] Transcript 9 July 2018 at PN123, PN143.

[28] Transcript 9 July 2018 at PN642 - PN651.

[32] Transcript 9 July 2018 at PN225 - PN228.

[37] Item 16 in bundle of documents tendered by TNT.

[38] Exhibit 6 Statement of Robert Fitzpatrick dated 9 May 2018, exhibit RJF 2.

[39] [2017] FWCFB 3005.

[40] Exhibit 6 Statement of Robert Fitzpatrick dated 9 May 2018, exhibit RJF 2.

[41] [2014] FWCFB 4104 at [29].

[42] [2012] FWA 2045.

[43] [2017] FWCFB 3005.

[44] [2012] FWA 2045.

[45] [2014] FWCFB 4104

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