Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (S. Guley) v Queensland Rail [2002] QIRC 94 (2002) 170 QGIG 257

28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 257 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (S. Guley) AND Queensland Rail (No. B2154 of 2001) COMMISSIONER THOMPSON 18 June 2002 Application for reinstatement – Extensive witness evidence – Long-term employee – Grievance lodged – Attitude and behaviour – Previous industrial dispute and recommendations made – Eves and Carmody report – Briton report – Witness credibility – Termination harsh, unjust and unreasonable – Reinstatement or re-employment impracticable – Compensation awarded. DECISION Background An application was lodged with the Industrial Registry on 3 December 2001 by the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (AMEPKU) (applicant) seeking the reinstatement of a member, Mr Shane Guley, whose employment with Queensland Rail (QR) (respondent) had been terminated effective from 28 September 2001. The application provided a deal of information of events leading up to the dismissal in addition to an outline of the processes utilised by the respondent. Prior to the substantive hearing, the matter had been before Commissioner Asbury (in D298 of 2001), and a preliminary hearing had been held before the Commission as constituted (decision released on 28 March 2001). Applicant The applicant was represented by Ms Bernadette Callaghan, of Counsel, and relied upon evidence called from Mr Guley, Mr Bernard Misztal, Mr Stephen Williams, Mr David Hawkswell, Mr Brendan Kneen, Mr Steve Ceisiolka, Mr Ian Saunders and Mr Gavin Challinor. Evidence of Mr Guley Mr Guley, a Fitter and Turner by trade, commenced employment with the respondent in September 1985, and was employed in a number of different classifications until promoted to the position of Master Scheduler in or around January 1998. According to Mr Guley, the job itself was of an extremely stressful nature with a fair degree of responsibility, with him reporting directly to Mr Syd O’Sing, the Operations Manager. During the course of his employment, Mr Guley was an active participant in Union matters within the workplace, holding a number of positions throughout his years of employment. His evidence was that, apart from an incident in or around October 1999 in which a Mr Les Moore filed a complaint in respect of his behaviour, he had no knowledge of other concerns relating to his conduct. In relation to the incident involving Mr Moore, it was settled in an amicable way between the parties without the need for the matter to be formally processed. Mr Guley, sometime around June 2001, became aware that a complaint had been laid by Mr Shannon Connolly against him over an incident in which it was alleged that he had threatened Mr Connolly over his actions in lodging a grievance against the AMEPKU convenor (Mr Misztal) and Shop Steward – Motor Shop (Mr Kneen). On 14 June 2001, Mr Guley was interviewed by QR Investigators, Ms Rayleen Eves and Mr Keith Carmody over the Connolly allegations and his evidence reflected his recollection of that interview, including comments to Ms Eves over her failure to wear footwear that was of an approved standard as required by the Workplace Health and Safety Act 1995. Whilst being interviewed, he raised with the investigators, a number of concerns he had about particular matters and was advised to lodge his own grievances if he felt so inclined. The findings of the investigators (Eves and Carmody) were that the allegations against Mr Guley, made by Mr Connolly, were substantiated. Mr Guley’s evidence was that he then lodged grievances against a number of persons, which were investigated by Mr John Briton, a consultant hired by the respondent. -- 1 of 19 -- 258 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 As part of that process, he was interviewed by Mr Briton and, at paragraph 20 of his affidavit of evidence, in recalling that discussion, stated: “Following this investigation Britain [Briton] had an interview with me advising me in general terms that a number of people had made comments concerning my behaviour. Britain [Briton] never advised me who these complainants were nor did he advise me of the specifics of the complaints. He did mention that people made comments that they were intimidated by my physical appearance, he also mentioned that people had made complaints that they had to do my work when I was doing my trade union work. He also said that whilst they made comments that they feared me they also said that I was a good bloke and the sort of bloke that would do anything for them and that they could ring me at anytime of the day or night and I would do what I could do for them.”. He also recalled Mr Briton making comments about Mr Lindsay Cooper – the General Manager of the Rockhampton workshops, being on a “hit list” compiled by Mr Guley, and of his belief that the managers of the workshop were not competent at their jobs. According to Mr Guley, a report was produced by Mr Briton, after which on 26 September 2001 he received a show cause letter from QR under the signature of Mr Brian Bock, Group General Manager Workshops, which stated in full: “Dear Mr Guley, I refer to matters arising from your formal disciplinary interview conducted on 26 September 2001. The formal disciplinary interview was initiated after receiving the investigation findings of your grievance and the findings of the grievance of Mr Shannon Connolly. At your formal disciplinary interview you were advised that you had breached a number of QR Policies including QR’s Code of Conduct under section 5.2.2 Role of Employees, QR’s Workplace Harassment, Bullying and Violence in the Workplace Policy and QR’s Grievance Management Policy under section 5.2.1 Aggrieved Employee. You were given a record of disciplinary interview detailing the issues raised with you during that process. You were given the opportunity to comment on the allegations made against you. These allegations included your display of unwelcome behaviour towards Shannon Connolly that was intended to offend, humiliate and intimidate him. During the course of the investigation you also attempted to intimidate Mr Carmody and Ms Eves who were conducting the investigation. With regard to your lodging of a number of grievances against individuals, it was found by an independent investigator that none could be substantiated. QR considers that the lodging of these grievances by yourself was intended only to provoke those to who the grievances were directed. QR view your breach of these Policies and your associated behaviour most seriously and consequently requests that you show cause as to why your employment should not be terminated. Please provide a written response to this show cause letter marked attention to myself to the reception desk at the Rockhampton Administration Building (320 Murray Street) by 1500hrs, Friday 28 September 2001. If you do not respond, I will presume that you have no explanation or reason why your employment should not be terminated, in which case QR may proceed to terminate your employment. Meanwhile, you are excluded with pay from the workplace until further notice commencing upon the receipt of this letter. [Signature] Brian Bock Group General Manager Workshops.”. In correspondence dated 28 September 2001, Mr Guley responded to the show cause letter, in which he refuted the allegations that had been levelled against him, and clearly stated that he had not been treated fairly throughout the process. He believed that the decision of QR to exclude him (on full pay) from the workshop and to issue the show cause letter was “overly excessive”. On 28 September 2001, a notice of termination was delivered to Mr Guley’s home by courier which, at paragraphs 3 and 4, stated: “Your response has been received but does not satisfy QR, particularly as you did not provide any extenuating circumstances that demonstrate to QR that your services should not be terminated. You have used the opportunity in your ‘Show Cause’ response to refute the allegations made against you. As indicated to you at your formal disciplinary interview, the findings form the investigations into the grievances lodged have substantiated breaches of the above mentioned policies. These findings are reflected in the record of disciplinary interview which you have refused to sign. Your failure to provide any further information or evidence that could sway QR otherwise, has left QR no choice but to terminate your employment – effective immediately.”. Following the termination, a Notice of Industrial Dispute was filed in the Commission, which led to a conference before Commissioner Asbury, after which a further show cause letter was issued to Mr Guley on 12 October 2001. The second show cause letter went into significant more detail in terms of the investigation and in following the recommendation of Commissioner Asbury, at paragraph 4.3 of the show cause letter: “Consistent with the Commission’s recommendation I confirm that: (a) You are currently excluded from the workplace and will continue to be excluded; and (b) The termination of your employment is suspended pending the show case process being completed; and (c) You are deemed to be on leave and will remain on leave until the show cause process is completed; and (d) You are not to have contact with any person who has made a statement in either investigation. The exception is, that you may have contact with union officials who have made statements in either investigation, but you are not to have contact with any employee, manager or other person who has made a statement in either investigation.”. -- 2 of 19 -- 28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 259 The Union, under the hand of Mr Andrew Dettmer, Assistant State Secretary, in correspondence dated 25 October 2001, responded to the show cause letter on behalf of Mr Guley, making the point at paragraph 2, of concerns in respect of the process: “I make the preliminary observation that your letter demonstrates complete pre-judgement of the case. The proper function of a show cause letter is to indicate that there are allegations and evidence of sufficient substance to require our member to show cause. Your letter goes beyond that and clearly indicates, even should we be able to show cause on our member’s part, a response may be pointless, given your pre-judgement.”. Mr Dettmer went on to further question QR’s handling of the matter and sought clarification on a range of issues. Whilst further correspondence was generated between the parties, QR’s decision to terminate Mr Guley remained unchanged. Mr Guley provided an affidavit in response to the affidavits relied upon by the respondent, and much of what was contained within the 102 paragraphs of this document could be simply summed up as denials to all of the allegations levelled against him. Cross-examination of Guley Counsel representing QR, Mr Richard Perry, cross-examined Mr Guley, at length (108 pages of transcript) across a range of issues including: • Briton Investigation • Interview between Guley and Briton • Briton raising concerns expressed by a number of persons over Guley’s behaviour (page 70, line 40 of transcript): “Perry: Can you now then give any reason why it would be the case that so many people with whom you work have made allegations of the very serious kind which are set out in these statements? Guley: I believe they just don’t like me and they did not like me being a trade unionist. Perry: All right. All of them? Guley: All of them. Perry: A number of them are also trade unionists, are they not? Guley: They’re members of unions, yeah. Perry: Yes. So is your explanation, to the best of your ability, for what appears in these statements that they don’t like you or don’t like you because you’re a trade unionist? Guley: I don’t – do not believe they like my trade – such a strong trade union activist. . . . . . “Perry: But, from your position, these people are prepared, quite falsely, to make serious allegations of misconduct against you for no other reason than they don’t like you? Guley: Yes.”. • Specifics of complaints against Guley • Treatment of managerial personnel • Use of language in the workplace (page 75, line 15 of transcript): “Perry: Have you ever then used obscene language of any kind in talking to managers above you or to those whom you work with? Guley: I may have let some swear words slip out occasionally, yes. Perry: But no more than perhaps all of us might in – – ? Guley: That’s – – Perry: – – ordinary circumstances? Guley: That’s correct.”. • Reinstatement (page 76, line 15 of transcript): “Perry: And that were in deed you ever to be reinstated you would consider that it would be appropriate for you to conduct your relations with those with whom you work and the managers in the same way in the future as you have in the past? Guley: Yes, I’d just continue how I do my work. Perry: And continue in treating them the same way as you have in the past? Guley: Yes.”. -- 3 of 19 -- 260 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 • Incident involving Connolly over his lodgement of a grievance against Misztal and Kneen (page 85, line 38 of transcript): “Perry: What is it that you say you said to Connolly when you went up into his office? Guley: He – when I walked in I said, ‘What’s – something – what’s this – what’s this about Shannon?’ He immediately raised his hands in the air and said that I was threatening him by just being there – – Perry: Right? Guley: – – and I said something about what are you on about and, yes, I did raise my voice because his voice was raised and I said to him, ‘After all I’ve done for you,’ and I said, ‘You’re only going to cause industrial problems.’ Perry: Mmm? Guley: And, ah, because we were all sick of all this sort of stuff, there was a number of shop stewards complaining about, ah, we couldn’t talk to people any more unless, ah, they were saying we were threatening them and offending them and all this. So, yes, I said, well – well – well, – probably get a visit from the Minister and as I walked out he said to me, ‘You’re threatening me.’ I said, ‘No, I’m telling you the facts.’ Perry: Right. Thank you. So as I understand it you went up to Connolly’s office to talk to him about what, the grievance that he had lodged? Guley: Well I knew there was grievances, yes.”. • Workplace Health and Safety –Eves’ (footwear) • Allegations of abusive behaviour (in general terms) • Incident with Cooper – Christmas 1997 • Allegations of disrespect towards O’Sing (page 113, line 20 of transcript): “Perry: He’s also lying, what, when he says that you berated O’Sing for singling out your members? Guley: No, we had a pretty heated discussion. Perry: All right. Did you call O’Sing an idiot and mad? Guley: I don’t recall calling him mad. I did call him an idiot.”. • Abusive phone call to O’Sing (at home) • Eves and Connolly investigation/report • Allegations of threats and intimidation • Altercation with Ms Michelle Codd • Refusal to wear corporate clothing • Argument with Mr Paul Langley • FC order • Show cause notice. The evidence from Mr Misztal, the Deputy Convenor for the Union, related to his close working relationship with Mr Guley, during which time he stated that he had never witnessed any acts of bullying as alleged against Mr Guley. He recalled being involved in a meeting with Mr O’Sing and Mr Guley, at which comments were made in respect of Mr Guley’s dress standards. Mr Misztal also provided an affidavit in response, which refuted some of the evidence contained in the affidavits of Cooper, Evans, Eves and Codd. In cross-examination, the matter of numerous complaints against Mr Guley, raised by Mr Cooper at the meeting, were subject to an exchange (page 214, line 36 of transcript): “Perry: Right. The general manager discusses with two AMWU officials complaints by a number of staff concerning the behaviour of your deputy convenor; is that right? Misztal: That’s correct. Perry: And you would’ve taken that, I assume, to be a serious matter? Misztal: Ah, coming from Lindsay Cooper I didn’t. Perry: Right. So when he relates to you that a number of staff have made complaints to him about Guley you didn’t discuss it with Guley simply because it was Cooper who was saying this? Misztal: Well, it’s like this. He didn’t tell us who were the complainees.”. -- 4 of 19 -- 28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 261 The evidence from witnesses Williams, Hawkswell, Kneen, Saunders and Challinor was of a similar nature, in that none of these witnesses had ever observed any behaviour from Mr Guley that could be classed as intimidatory or bullying. Generally, their evidence reflected strong support for the way in which Mr Guley had conducted himself in the workplace. In the case of the evidence provided by Ceisiolka, it was simply disregarded, for the reason that he had sworn an affidavit for the respondent as well as the applicant, with sufficient areas of conflict in the two affidavits to remove any level of credibility that may be attached to a witness in this type of proceeding. Respondent Evidence for the respondent was presented to the Commission from nineteen (19) witnesses. Mr Bock, the Group General Manager – Workshops, whilst giving his evidence in re-examination, stated that the decision to terminate Mr Guley was made without reliance upon the Briton Report (page 456, line 23 of transcript): “Perry: You also said to Miss Callaghan that you had concerns about other employees of QR; can you tell me then in that context why it was that the Briton report was not discussed with Guley on the first occasion you interviewed him and the Carmody Eves report alone was relied upon? Bock: It was specifically – ah, people who had provided information to Mr Briton had requested that that information be kept confidential. Um, the nature of that information was such that ah, my responsibilities for all of the employees involved, I judged to be such that that information should be kept confidential. Perry: And as it was kept confidential, did it play any part in your determination to terminate Mr Guley after the disciplinary interview process and the show cause letter process? Bock: As much as – as I could humanly not have it in my mind, it did not play a part.”. On the basis of Mr Bock’s testimony, the respondent’s evidence is documented in two distinct groupings, firstly being evidence relating to the matters subject of the Eves and Carmody investigation and, secondly, evidence relating to the alleged behaviour of Mr Guley as highlighted in the investigation and the report of Mr Briton. The witnesses giving evidence in respect of Mr Connolly’s grievance, that was subsequently investigated by Eves and Carmody, were Connolly, Cooper, Mr Gary Ashton, Bock, Carmody, Mr David Dawes and Eves. Mr Connolly, who holds the position as SAP Project Leader, believed that once he had attained this position, his relationship with Mr Guley changed due to the latter’s view of members of management. On 29 May 2001, he lodged, in accordance with QR policy, a grievance against Mr Kneen and Mr Misztal, over a range of issues. Contact was made by Ms Eves on 8 June 2001 for the purpose of arranging an interview to further discuss his grievance. At approximately 6.55 a.m. on 12 June 2001, Mr Connolly claimed that Mr Guley burst through the door of his office and, in a loud voice, said words to the effect of “I hope you’re happy that you have caused the biggest shit stir.”. On questioning from Mr Connolly as to what he meant, Mr Guley allegedly referred to the grievances that had been lodged by Mr Connolly. At paragraph 19 of his affidavit of evidence, he recalled what next occurred: “I informed Mr Guley that I found his behaviour threatening and asked him to leave. Mr Guley started to leave the room then turned back and said ‘we’re not going to take this shit, we’re out the gate’. He also said that I would be getting a visit from the Transport Minister. I told Mr Guley that I perceived this as a threat and Mr Guley replied that this was not a threat. He then left the office.”. Mr Connolly contacted Ms Eves, expressing concerns at the confidentiality of his grievance being breached and of Mr Guley’s reaction. Later in the month, Mr Connolly was interviewed by Eves and Carmody, and gave evidence of Mr Guley following Ms Eves and himself around the workshops at the time of the interview. On 24 June 2001, he was interviewed by Mr Briton as a result of Mr Guley lodging a number of grievances against persons including himself. He gave further evidence in relation to observations on the personal behaviour of Mr Guley, and of feeling intimidated by such behaviour. Cross-examination of Connolly Cross-examination of Mr Connolly included references to: • Resignation from the Union • Appointment to SAP Position • Union investigation of the appointment • Change in relationship with Guley • Interview with Briton • Lodging of grievance against Kneen and Misztal and subsequent investigation -- 5 of 19 -- 262 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 • Incident involving Guley on 12 June 2001 (page 287, line 42, of transcript): “Callaghan: Right. And he confronted you? Connolly: Yes, he did. Callaghan: Yes. And he never threatened you, did he? Connolly: Yes, he did. Callaghan: Well I put it to you, Mr Connolly, that none of what you report in your hand – written report could be construed as a threat? Connolly: I construe you’re going to get a visit from the minister as a threat. Callaghan: Well, okay, is that the part that’s threatening? Connolly: The behaviour and attitude was also threatening but that’s the words that were said that I found most threatening. Callaghan: The – the comment that you’re going to get a – that you’re going to get a visit from the minister? Connolly: Yes.”. • Guley’s behaviour toward Connolly (page 292, line 40 of transcript): “Callaghan: So there’s never been any – you’ve never had any other problem at work with Mr Guley other than that particular incident? Connolly: That’s right. Callaghan: Is that correct? Connolly: Yes. Callaghan: So as far as you’re concerned Mr Guley has always behaved appropriately to you except for that one incident? Connolly: Yes. Callaghan: Thank you. Okay. That, of course – I’d like to take you to paragraph 30. Read paragraph 30 of your affidavit please. Have you read paragraph 30? Connolly: Yes. Callaghan: That is in conflict, isn’t it, with what you’ve just told me? Connolly: No, you asked me if he ever showed inappropriate behaviour to me at work.”. Mr Cooper, the General Manager of the Rockhampton Workshop, having held that position since June 1997, gave evidence of his knowledge and involvement in relation to the grievances lodged by Mr Connolly. He further provided evidence of the grievance lodged by Mr Guley against himself and other management personnel and of the investigation by Mr Briton. In relation to an incident in December 1997, at paragraph 15 of his affidavit, he stated: “Sometime later, on the same night, Mr Guley came to the other area of the Criterion Hotel, and stood behind me staring at me with a madness in his eyes that I have not seen the likes of before. He then started abusing me calling me a ‘fucking cunt’ and saying that he was going to get rid of me. He then said ‘I’ll kill you, you fucking cunt’ and went to strike me. Before he could do so, Neil Pettit hit Mr Guley and he fell back on his behind to the ground. He sat there for a few moments glaring continuously at me then got to his feet and went to strike again. At this stage several Workshop staff grabbed him and I left. I recall that Neil Pettit, Stephen Williams and Ian Saunders were holding him.”. Recalling a phone conversation with Mr Guley in 1998, at paragraph 20 of his affidavit, he stated: “At approximately 10.00 a.m. on Sunday 1 March 1998 Mr Guley rang me on my mobile phone and was extremely abusive. He informed me that I as well as Mr O’Sing and Catherine Baxter were on his hit list. He accused me of replacing tradesmen with trainees and that Mr Dore had said there would be no tradesmen in the Wheel Shop in the future. He referred to Catherine Baxter as the ‘bitch with balls’ and told me several times I was on his hit list and implied he would get someone to get rid of me. This conversation went for approximately 12 mins. In the end I could not reason with him as he was becoming more threatening and abusive, saying ‘I will fucking get rid of you, you’re No. 1 on my hit list you cunt of a thing’ and stated that he would use his political connections to get rid of me, so I informed him I would be going to the police and hung up. I recorded the details of this conversation as well as my conversation with Mr Hick in my diary. Copies of my diary notes are attachment marked ‘LC-2’.”. In his capacity as General Manager, he had received numerous complaints in respect of inappropriate behaviour by Mr Guley and, as such, on 13 March 2001, in speaking to Mr Guley, told him “this type of behaviour would not be tolerated”. Whilst conducting the investigation of Mr Connolly’s grievance, Ms Eves had raised with him that she was “unsettled” due to the “hard time” given to the investigators by Mr Guley. It was his opinion that, due to the type of behaviour exhibited by Mr Guley, any return to QR would not be an acceptable outcome. At paragraph 43(a), (b) and (c) of his affidavit, he stated: “(a) He has seriously breached QR’s Code of Conduct. -- 6 of 19 -- 28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 263 (b) Mr Guley refuses to accept or acknowledge that he has done anything wrong. He was given many opportunities over several years to change his behaviour but he either chose not to or is incapable of changing his behaviour and controlling himself. (c) His return would say to all QR staff that workplace bullying and inappropriate behaviour is acceptable and that QR just have to put up with it.”. Some of the issues raised in cross-examination were: • Procedures when a grievance is lodged • Guley previously speaking to Cooper re: QR “getting rid of him” • Awareness of the Connolly grievance • Industrial situation in the Workshops (in general terms) • Les Moore grievance • Relationship with Connolly • Interview with Briton • Incident with Guley – December 1997 (page 411, line 32 of transcript): “Callaghan: You never reprimanded Mr Guley about his behaviour at the Criterion that night; did you? Cooper: I had no right to reprimand him. I – I certainly made it clear that I didn’t think that it was, ah, behaviour that should happen between, um, people at work, either inside the – the – side or outside. I made it clear that I wasn’t happy with it.”. • Notes in his diary • Phone call from Guley in 1998 over hit list • Guley’s attitude towards O’Sing (page 420, line 40 of transcript): “Callaghan: I put it to you that you never heard Mr Guley abusing Mr O’Sing? Cooper: Yes, I did. Callaghan: Abuse him. I put it to you, you might have heard them arguing? Cooper: It was abusive – abusive argument. Callaghan: Abusive. What words were used? Cooper: He was calling him a fucking useless manager and – – Callaghan: Fucking useless manager. I put it to you that you never heard Mr Guley say that to Mr O’Sing? Cooper: I did. Callaghan: Were you – were you – did you see them? Cooper: Yes. Callaghan: Whereabouts did it happen? Cooper: In the – in the foyer outside the – the large – larger conference room – lecture room.”. Mr Ashton, in evidence, recalled witnessing the incident involving Mr Connolly and Mr Guley in which he recalled Mr Guley saying “You’ll be hearing form the Minister over this.”. Despite Mr Guley being “abrupt and boisterous”, Mr Connolly remained calm. Ms Callaghan tendered an unsigned affidavit provided to the applicant by the witness and, whilst there were some minor discrepancies, at paragraph 5 of the unsigned statement where Mr Ashton stated: “I can’t recall very much of the conversation although I can recall Shane saying words to the effect ‘you’ll be hearing from the minister over this’.”. In his evidence, Mr Bock told of being informed by Mr Cooper that Mr Connolly had lodged a grievance, and whilst not familiar with the details of the grievance, upon making an enquiry found that the Human Resources Section had assigned investigators Ms Eves and Mr Carmody. At the completion of the investigation, Mr Carmody told him that Mr Guley had been quite threatening during the process which had caused concern. Not long after Mr Cooper informed him of Mr Guley’s grievance, and because of the nature of the complaint, he decided to engage an outside person rather than use an internal investigation team. The reason for the choice of Mr Briton was that previously, when engaged for a similar task, he had endeavoured to resolve the matter by mediation, and Mr Briton had credentials that could not be questioned. During the course of Mr Britons investigation, he was informed that a “significant amount of evidence was emerging which suggested that Mr Guley was, in fact, bullying”. Having being given examples of the counter-allegations that were emerging, he agreed to extend the breadth of the investigation beyond the original terms of reference. -- 7 of 19 -- 264 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 On receipt of the Briton report, it became clear that the aggressive behaviour of Mr Guley was not an isolated matter, and therefore, a serious issue for the workplace. Mr Bock, in paragraphs 26, 27 and 28 of his affidavit, spelt out the course of action implemented under his direction: “26. I recognised that no one had lodged a grievance against Mr Guley, but there appeared to be such a body of evidence supporting the serious allegations that had been made against him during the course of the investigation that there appeared to be significant breaches of the bullying policy. I was clearly duty bound to implement Queensland Rail’s bullying policy. 27. A decision was made in concert with David Dawes, the Manager Industrial Relations and Greg Coughlan, General Manager Human Resources that there was sufficient evidence to proceed with disciplinary action as a result of the Carmody and Eves investigation. 28. We decided that a disciplinary interview would be conducted based on the matters which emerged from the Carmody and Eves report into Shannon Connolly’s grievance, including the aggressive conduct towards Mr Carmody and Ms Eves.”. An interview was conducted with Mr Guley on 26 September 2001 at which both Mr Dawes and himself attended, with a decision taken at the conclusion of the meeting to issue a show cause letter to Mr Guley as to why his employment should not be terminated. Mr Guley was suspended from work on pay from that point of time and shortly afterwards members of the AMEPKU commenced industrial action. After receiving Mr Guley’s response to the show cause letter on 28 September 2001, a notice of termination (dated the same date) was provided to Mr Guley. Some days later, QR filed a Notice of Industrial Dispute, which was followed by a conference before Commissioner Asbury, from which emanated a number of recommendations which included the issuing of a second show cause letter. Following the eventual receipt of Mr Guley’s response to the second show cause letter, and after consultation with Mr Dawes, correspondence was provided to Mr Guley reaffirming that the original decision to terminate his employment stood. Ms Callaghan, in conducting the cross-examination of Mr Bock, raised a number of issues including: • Allegations of bullying and harassment – did he generally become involved? • Connolly grievance – who determined the investigators • Change to workshop culture • Outsourcing • Policies and procedures • Investigation of grievances – processes • Contact with Briton during his investigation • Eves and Carmody report • Interview with Guley, Dawes and himself • Termination of Guley (page 453, line 25 of transcript): “Callaghan: There had been no formal warning issued to Mr Guley prior to him being issued with a show cause letter or had there been? Bock: I would have like to have issued a formal warning to Mr Guley. Callaghan: Why didn’t you? Bock: ‘Cause at the disciplinary interview process Mr Guley denied every aspect of the issues that we put to him and showed no interest in reflecting on his own behaviours leading up to that point. There was noting to issue a warning about. Callaghan: So are you saying that Mr Guley was sacked because he didn’t make admissions? Bock: No. He wasn’t sacked because he did not make admissions. Callaghan: Mmm. He was sacked because of the results of the Carmody and Eves investigation; wasn’t he? Bock: That’s correct. Callaghan: Right. Okay. Then Mr Guley was given two days to respond to that show cause letter? Bock: That’s correct. Callaghan: Correct. And at the same time he was excluded from the workshop? Bock: That’s correct.”. Mr Carmody, an employee of QR for thirty-eight (38) years, has held his current position as Senior Industrial Officer since 1997, during which time he has undertaken numerous investigations ranging from sexual harassment, bullying, to all manner of workplace issues. -- 8 of 19 -- 28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 265 His evidence commenced with an overview of the investigation, conducted by Ms Eves and himself, of the grievance lodged by Mr Connolly, with a copy of the final report attached to his affidavit. In terms of the involvement of Mr Guley in the process, at paragraphs 19 and 20 of his affidavit, Mr Carmody stated: “19. When Mr Guley was advised that he was required to attend for an interview, he stated that the process was a joke, that he had friends in very high places and if his name gets out as slander, the issue would not stop there. More worryingly, he said to us ‘After this is over, I don’t want to see you in Rockhampton again’. He completed the statement with ‘That’s not meant as a threat either’. 20. Mr Guley’s stance and tone of voice was such that those words were spoken in a very threatening way. I said to him ‘Are you threatening us?’ He said it was not a threat. However he said that in a tone which suggested it was a promise.”. The attached report provided full disclosure on all the matters that were considered by the investigators, including: • Background • Terms of reference • Methodology • List and summary of all interviews • Relevant legislation/policies • Grievance management policy • QR’s harassment, bullying and violence in the workplace policy statement • QR’s code of conduct policy • Identification of those who made allegations • Burden of proof • Findings • Additional observations • Recommendations • Education. As the report related to Mr Guley, it found the allegation that “Shannon Connolly alleges that Shane Guley has victimised him, in the form of threatening behaviour, as a result of lodging the initial grievance” was substantiated. By way of recommendation, at page 16 of the report, it stated: “2. Discipline Action In line with the findings and the relevant breaches detailed above, the investigators recommend the following disciplinary action be taken: • Mr Shane Guley, Disciplinary Interview regarding the victimisation against Shannon Connolly.”. Matters canvassed during the cross-examination included: • Investigation skills and training • Role during investigation • Process after a grievance is lodged • Guley’s attitude during interview • Threat by Guley to Connolly (at page 478, line 24 of transcript): “Callaghan: What was the threat? Carmody: We’re gonna take – um, we’re not gonna take the shit. We’re out of the gate. Expect a call from the Minister for Transport. And other people came back and also said there was words definitely to that effect. That – that’s – that is a threat. That is an intimidating threat on a person in the workplace to say that they’re going to cause this – this – this massive industrial disruption is a threat.”. • Report findings Mr Dawes, the Manager – Industrial Relations at QR, became involved in the disciplinary process of Mr Guley when requested to accompany Mr Bock in the undertaking of the disciplinary interview. Prior to the interview, he had been given a copy of the Eves and Carmody and Briton reports which, upon reading, formed the view that it would not be possible to put all of the allegations arising out of the Briton report to Mr Guley without divulging the source of the allegations. -- 9 of 19 -- 266 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 Mr Dawes prepared a Record of Disciplinary Interview for use in the interview with Mr Guley which was held on 26 September 2001. In his evidence, at paragraph 16 of his affidavit, he spelt out the specifics of the interview: “In the course of the interview, there was no emphasis placed on Mr Guley’s grievance and the Briton Report outcomes, other that the fact that his grievance had not be substantiated. For the reasons indicated at paragraphs 7, 8 & 9 I was conscious not to put anything to Mr Guley that had arisen out of the Briton Report. I did not want Mr Guley or ourselves to be distracted away from the findings of Carmody & Eves. Brian and I clearly communicated to him that the basis of the disciplinary action was as a result of the Carmody & Eves investigation. This is reflected in the record of disciplinary interview. In the course of the interview, we broke for a short time and I typed up Mr Guley’s responses.”. It was Mr Dawes’ opinion that during the course of the interview, Mr Guley had “not offered a real explanation for his conduct”. After the interview had concluded, he and Mr Bock decided that it would be appropriate to issue Mr Guley with a show cause letter. The response to the show cause letter from Mr Guley was considered by Mr Bock and himself with the decision to terminate the employment of Mr Guley being subsequently made. In response to the decisions taken by QR in respect of Mr Guley, industrial disputation by way of strike action took place. QR filed a Notice of Industrial dispute which resulted in a conference before Commissioner Asbury in Rockhampton. Despite a second show-cause being issued, and response being provided, QR determined that the decision to terminate the employment remained unchanged. Mr Dawes evidence on whether reinstatement could be an acceptable consideration was dealt with at paragraph 60 of his affidavit: “I also hold the opinion that it would not be practical to reinstate Mr Guley to another part of QR’s business. I base this opinion on the attitude displayed by Mr Guley toward persons in authority within QR at the disciplinary interview and in his second show cause response. In addition it has been a well publicised fact that the Chief Executive has taken a very strong stance on workplace harassment, bullying and violence in the workplace. The organization has gone to a great deal of time and expense to ensure that all QR employees can function in the workplace free of these pressures. I believe his attitude and behaviour will not be isolated to a particular workplace or particular employees. I believe that given Mr Guley’s clear denial of any wrong doing, reinstatement of him to another part of the business would result in exposing additional QR employees to his behaviour. It would follow that regardless of where Mr Guley was placed within the organization, because he does not see anything wrong in his behaviour, his behaviour would simply continue in another workplace.”. In cross-examination matters raised included: • Decision to issue first show cause letter • Preparation of disciplinary interview paperwork • Carmody and Eves investigation • Interview with Guley • Second show cause letter • Impracticability of reinstatement. Ms Eves, a Senior Human Resources Advisor, gave evidence corroborating that of Mr Carmody in respect to the investigation of Mr Connolly’s grievance and the behaviour of Mr Guley during the course of the investigation. The cross-examination of Ms Eves included reference to: • Training as an investigator • Connolly grievance • Interview with Guley • Guley’s behaviour/demeanour • Wearing of open toe shoes • Report recommendation for Guley (page 607, line 30, of transcript): “Callaghan: Okay. And your recommendation was that Mr Guley be subjected to a disciplinary interview regarding the victimisation against Mr Connolly? Eves: That’s right. Callaghan: Why – you’ve got – you recommend disciplinary action against Mr Misztal and disciplinary action against Mr Kneen and then a disciplinary interview against Mr Guley. What’s the difference? Eves: Um, disciplinary action is more – there’s no difference as such. Disciplinary action may be a number of different, um, responses. Callaghan: Why – why did you use different words for Mr Guley than the other two? Eves: I’m not positive. Callaghan: Would disciplinary action mean a disciplinary interview? Eves: It may do but it may not. Callaghan: But it may not? Eves: That’s right. Callaghan: A disciplinary interview must mean a disciplinary interview? -- 10 of 19 -- 28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 267 Eves: That’s right. Callaghan: Do disciplinary interviews always lead to show cause letters? Eves: Ah, no. Callaghan: No, okay. Can you have a show cause letter without a disciplinary interview? Eves: Um, I believe so. It depends on the circumstances.”. The remaining witnesses for the respondent, with the exception of Mr Briton and Ms Katy Steenstrup, provided evidence that related to alleged inappropriate behaviour by Mr Guley in the workplace, incidental to the matters subject to the Carmody and Eves investigation. In most cases, these witnesses had been interviewed by Mr Briton as part of his investigation and copies of the record of interview emanating from that enquiry were attached to the witnesses affidavits filed in these proceedings. For the purpose of expediency, this particular evidence is best documented in a summarised form. Kiran “Bill” Gitsham – Product Controller – Wheel and Bogie Shop • Witnessed inappropriate behaviour by Guley over a period of time • Guley’s hatred of Cooper • Opinion that Guley is not capable of changing his conduct • Interview with Briton Catherine Baxter – Operations Manager – Rollingstock • Received regular complaints from staff about Guley’s behaviour • Spoke to O’Sing about Guley’s behaviour (paragraph 12 of her affidavit): “I took the complaints made to me by my staff seriously. I had hoped that by Mr O’Sing talking to Mr Guley he would change his behaviour. However, that did not happen.”. • Guley’s standard of dress • Being “stared” down by Guley on a regular basis • Effect on workplace if Guley reinstated (paragraph 31 of her affidavit): “If Mr Guley is reinstated I will certainly reconsider my employment options. I also believe that it would result in a lot of people not turning up to work. Since the termination of Mr Guley’s employment the people in the workplace are more relaxed, and the atmosphere is not emotion charged. The staff working in the Scheduling Section relate better to each other. Meetings that are conducted are more cordial, and most noticeably the barbed comments that used to be injected by Mr Guley are absent.”. • Interview with Briton Michelle Codd – Materials Manager • Incident involving Guley outside of work • Guley’s comments on O’Sing being incompetent (paragraph 14 of her affidavit): “Mr Guley was constantly telling people around the office that Sid [Syd] O’Sing, Operations Manager – Components, was incompetent, a hopeless manager, that he did not know what he was doing and couldn’t make decisions.”. • Guley’s behaviour – intimidating • Guley giving her the “death stare” in meetings • Reinstatement of Guley (paragraph 30 of her affidavit): “If Mr Guley was reinstated I would consider leaving the Workshops Group and maybe even QR. I do not think I would be the only person who would take this drastic step. Most people, particularly in the office at Rockhampton Workshops, do not believe that they would be able to continue to work if Mr Guley was reinstated.”. • Interview with Briton Keith Jarvey – Personnel Officer • No direct contact with Guley in the workplace • Witnessed argument between Guley and O’Sing • Guley’s inappropriate behaviour (paragraph 12 of his affidavit): “I recall another incident that occurred around Easter in 2001. It was definitely a Monday morning at approximately 6.45 or 6.50 a.m., however I cannot recall the date. I do remember that it was a major RDO. I had just left the kitchen in the main office at Rockhampton Workshop when Mr Guley came boring down the hallway. It was obvious he was ropable. I said ‘good morning’ to him but he just ignored me. Someone else, I cannot recall who, made some comment to Mr Guley to the effect of ‘gee you look unhappy this morning’. Mr Guley turned around and said, in an aggressive voice, ‘you can fucking shut up. I’ve had a cunt of a weekend’. He was very agitated and stormed out.”. • Interview with Briton -- 11 of 19 -- 268 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 Clarence Plummer – Project Officer – Workplace Strategies • His role in delivering training sessions on discrimination, harassment and workplace bullying • Advice given to Connolly prior to the lodgement of his grievance against Misztal and Kneen • Witnessing an aggressive confrontation between Guley and O’Sing • Interview with Briton Sydney O’Sing – Operations Manager – Components • Guley in the course of his employment reported directly to O’Sing • Grievance lodged by Guley against O’Sing and a number of other managers • Briton investigation of Guley’s grievance • Incidents involving inappropriate behaviour from Guley (paragraph 33 of his affidavit): “Mr Guley’s behaviour was inappropriate and in breach of QR’s Code of conduct and the bullying policy. It was difficult however to act as people were not prepared to make formal complaints against Mr Guley as I have said, for fear of Reprisal. I was also very cautious of Mr Guley, primarily as I did not wish to be seen to be singling him out because of his union involvement.”. • Complaints received about Guley’s behaviour • Reinstatement of Guley (paragraph 34 of his affidavit): “In my view there has been considerable change in our work environment since the absence of Mr Guley. Generally the staff appear to be happier. There is less tension in the workplace, our discussions and meetings are more positive and open and our teamwork has improved. Everyone’s focus has always been to ensure that the Rockhampton Workshop remains a sustainable business. However, in order for this to occur, everyone must be able to contribute and be accountable and responsible for their actions.”. • Interview with Briton Darren Stock – Contract Administration • O’Sing intervening in an incident between Guley and Stock • Behaviour of Guley inappropriate • Interview with Briton Craig Evans – Senior Employee Relations Advisor • Phone call received from Cooper in 1997 (day after incident involving Guley in hotel at Christmas) • Incident in September/October 2000 where Guley called O’Sing an “idiot” and “mad” • Interview with Briton Geoffrey Thompson – Manager – Manufacturing and Engineering Services • Recalled being present at Criterion Hotel in December 1997 and witnessing an altercation involving Guley and Cooper in which Guley was the aggressor • Guley’s behaviour outside QR premises at the time of an industrial dispute in early 2000 • Interview with Briton Katerine (Kate) Steenstrup – Manager Employment Equity, Human Resources • Gave evidence of her responsibilities which included the development of policies and strategies on issues such as: • Anti-discrimination and equal opportunity programs • Bullying • Harassment • Violence • Work and family • Training (paragraphs 10 and 11 of her affidavit): “10. All Regional Consultative Committees have been informed in relation to Queensland Rail’s strategy and in relation to the policies, material and training. 11. The training has involved 2 hour sessions for all employees. The training makes it clear that a breach of the policy can result in dismissal.”. Mr Langley, employed as a Master Scheduler, would not voluntarily provide evidence in these proceedings and, on the request of Mr Perry for QR, an attendance order, pursuant to s. 329(b) of the Act was issued by the Commission. Mr Langley’s evidence related to an altercation with Mr Guley over comments that Mr Langley had allegedly made in respect of the work ethic of some “shop floor” employees. On the subject of Mr Guley’s behaviour, at page 157, line 10 of transcript, in his evidence in chief: “Perry: In the context then of what you have either been involved in or witnessed of Mr Guley’s behaviour, how would you describe his conduct; acceptable or unacceptable in the workplace? Langley: At times unacceptable but that’s only at times.”. -- 12 of 19 -- 28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 269 Ms Callaghan subjected each of the witnesses Gitsham, Baxter, Codd, Jarvey, Plummer, O’Sing, Stock, Evans, Thompson, Steenstrup and Langley, to various degrees of questioning during the cross-examination process. Mr Briton, a consultant, was engaged by QR to investigate the grievance lodged by Mr Guley. Instructions were given by Mr Bock on 5 July 2001 in relation to the conduct of the investigation. Mr Briton, a most experienced investigator, in referring to the investigative methodology adopted, at paragraph 13 of his affidavit, stated: “When making my recommendations on the final page of my report, I was conscious that any disciplinary process undertaken against Mr Guley would be part of a process involving an entitlement on his part to show cause why he should not be disciplined. I am acutely aware that I am a fact- gatherer, not a decision-maker, I merely make recommendations based on my experience, for the consideration of the employer.”. On the investigation itself, he was originally limited to the grievances against the seven (7) persons, however as the investigation progressed, a number of disturbing allegations were levelled against Mr Guley which ultimately led to a larger number of people being involved. The additional scope for his investigation was authorised by Mr Bock. Mr Briton, in a second meeting with Mr Guley on 31 August 2001, raised the issue of the allegations against him and, at paragraph 22 of his affidavit, stated: “Conscious that in our first meeting, Mr Guley had told me he expected the people against whom he had made a grievance to assert that he was ‘aggressive’ and a ‘bully’, I informed Mr Guley on 31 August 2001 that he was correct about what people would say and I wanted to put to him what they had told me. I told him that his allegations were denied and that people had made allegations against him which appeared to be serious breaches of the bullying policy. I told him words to the effect ‘It looks bad for you.’ I told him that was the case because not only did he appear to have breached the bullying policy but people had tried to counsel him in relation to it in the past and it appeared that he had not changed his behaviour.”. In his evidence as it related to the findings of his investigation, Mr Briton, at paragraph 35 of his affidavit, stated: “In formulating my findings I knew no one had formally disciplined Mr Guley, I recommended that he be formally disciplined and I was conscious that the initial step in any disciplinary process would be that he be given a show cause letter setting out the full allegations made against him and given the opportunity to respond.”. Attached to the affidavit of Mr Briton was his report of the investigations carried out, including copies of all interviews obtained in the process. In cross-examination, issues raised included: • Investigation (brief given) • Eves and Carmody report • Briton’s interviewing methods (beginning at page 511, line 25, of transcript): “Callaghan: Right. Okay. Now, I want to go to the processes that you used. Mr Briton, I notice in a number of the records of - or the notes taken by you of the interviews indicates that you actually led the person that you were interviewing. By that I mean that you actually told the person who had purportedly witnessed a particular event, what another person had said about that particular event? Briton: You’d have to take me to those particular – – Callaghan: I will? Briton: – – examples. . . Callaghan: So you told Mr Gitsham about the incident before asking him? Briton: The – the process that I use in these interviews is I will refer to an incident like something that’s happened on or alleged to have happened on such a such a date or something that will identify the incident and ask people what they recall of it and get them talking. They say what they say. If people don’t recall the incident in sufficient detail I give them a bit more and I might say that Ms Baxter told me this or you know Mr O’Sing told me that, is that true? But the process to start with is an open-ended question inviting a response. . . Callaghan: Next paragraph. ‘I told Ms Codd that a number of people had told me that Mr Guley had told her at a function in January 2000 that he wouldn’t rest until he got rid of Lindsay Cooper or words to that effect. I asked Ms Codd for her recollection of that occasion’. Are you concerned about putting words into her mouth about comments supposedly purportedly made by Mr Guley? Briton: I was asking her whether comments that other people had told me that Mr Guley had made on that occasion were true. So I asked her that question. She then goes on to give a quite a well a long and comprehensive answer to that question.”. Final Submissions Applicant Ms Callaghan provided extensive written submissions (49 pages in all) in which a number of matters were covered under the following headings: • Undisputed facts (hopefully) • Evidence • Evidence on behalf of the applicant • Evidence on behalf of the respondent • The law • Conclusions. -- 13 of 19 -- 270 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 Applicant’s Evidence Ms Callaghan submitted that Mr Guley was a credible witness and that the cross-examination was unable to expose any inconsistencies in his evidence. The evidence of the other witnesses on behalf of the applicant was also credible, with no inconsistencies, with the exception of Mr Ceisiolka, who had also signed an affidavit on behalf of QR. Respondent’s Evidence Ms Callaghan, having carefully examined the evidence of each of the witnesses, raised a number of issues which, in her opinion, questioned both the credibility and consistency of the evidence. A number of witnesses, according to Ms Callaghan, were “endeavouring to paint Guley in the worst possible light”, including significant references to incidences that had occurred outside work that were not relevant to the considerations before the Commission as to whether the dismissal of Guley was unfair. In relation to the evidence of Mr Bock on the circumstances of the disciplinary interview with Mr Guley at paragraph 34(d) of the submission, Ms Callaghan stated: “Bock gave evidence that he and Dawes decided they would interview Guley only on the basis of the Carmody and Eves investigation. Following that interview, they issued Guley with a show cause letter as to why his employment should not be terminated. Bock denied that he actually decided to terminate Guley prior to interviewing. This is of course contrary to evidence by Cooper, who stated he was telephoned and told prior to Guley being interviewed that they were going to come to Rockhampton, interview Guley and then terminate him. Bock denied this had happened.”. Ms Callaghan, in submissions, was quite scathing in her comments in respect of the evidence of Mr Briton and of his report. At paragraph 37(b) of the submissions, she stated: “The most important evidence that came out of Briton was that he in fact led evidence from the people that he interviewed about Guley prior to compiling the Briton Report. Briton’s evidence was that he first of all asked people for their recollection prior to telling them what others had said. Evidence shows that this was not the case nor is his evidence supported by his own notes of the various interviews he held with people. Stock’s recollection of how Briton conducted the interview was that Briton read to him Connolly’s statement first of all before asking for his recollections. (Page 565 line 1). It is my submission that Stock ought to be believed rather than Briton as Stock’s recollection is backed by Briton’s notes. This of course puts the whole Briton report into question, as clearly, all of the evidence obtained from those witnesses who were led by Briton as indicated in the notes, is contaminated and cannot be given any weight by the Commission.”. Conclusions The submissions concluded that the termination of Guley was unfair for the following reasons: • He was never given a formal warning about his behaviour, nor given the opportunity to respond to that warning; • QR had made up its mind about terminating him prior to putting any allegations before him; • His words with Connolly concerning the grievance Connolly had raised about Misztal and Kneen and his behaviour during the investigation by Eves and Carmody did not warrant termination; and • Allegations arising out of the Briton Report were never put to Guley. On the issue of reinstatement, it was submitted that it would not be impractical, due to the size of QR, for a position to be found for Mr Guley, who was a skilled worker with a considerable number of years service. If the Commission was of the view that compensation was a more appropriate remedy, then the maximum available under the Act was sought. Respondent The submissions from Mr Perry, on behalf of the respondent, were also substantial (50 pages in all), covering the following areas: • General outline of submissions • Summarised response to applicant’s submissions • Legal consequences of the proceeding before Commissioner Asbury • Particular legal issues – • Function of pleadings in dismissal cases • Corroboration • Formal warnings • Procedural requirements • Summary of evidence concerning various instances of misconduct • Submissions as to credit • Summary • Appendix A – Chronology of incidents • Appendix B – Gorman & BHP Integrated Steel Division [2000] NSWIRC 1079 • Appendix C – Arun Dube v QANTAS Airways Limited, 26 June 1996, Industrial Relations Court of Australia, Judicial Registrar Murphy, Decision No: 279/96. -- 14 of 19 -- 28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 271 Applicant’s Submissions In response to the applicant’s submissions and, in particular, the reasons said to summarise the basis for the contention that Mr Guley was unfairly dismissed, at paragraph 2.2 and 2.3 of the submission, it was stated: “2.2 The first point to emphasise is that none of these matters were pleaded. It is not accurate to say that the second dot point arose only during the trial. Guley’s position in evidence was that all of the QR witnesses who gave evidence of his conduct had lied because, either, they didn’t like him or because of his union activity. That is, that his dismissal was based upon trifling grounds due to his particular industrial record. Nothing of the kind was pleaded and, in particular, no basis was laid for the conclusion that Guley alone (rather that Misztal or Kneen who were also the subject of substantiated grievances) was terminated due to industrial activity. 2.3 As to the various issues raised in the dot points, the Respondent submits that: (a) A formal warning was neither required nor necessary. The purpose of such a warning is to allow the employee to have the opportunity of remedying a particular deficiency in performance or changing particular behaviour. In this case Guley’s consistent position was, firstly, that none of the instances of misconduct had occurred and, secondly, that he would continue to act, in the future, in the same way as he had acted in the past. Obviously, the first step in modifying behaviour is recognition that that behaviour has occurred and acceptance that it is unacceptable. On both counts, Guley failed utterly. What then could any formal warning have possibly achieved? Procedure and process are not, of course, ends in themselves. Unless there is a purpose, a warning, formal or otherwise, is irrelevant. Here no purpose could possibly have been served. In any event, there was a wealth of evidence of informal attempts at behaviour counselling. . .”. The respondent drew to the attention of the Commission the matter of Gorman v BHP Integrated Steel Division [2000] NSWIRC 1079, in which it was observed that there is authority for the proposition that the behaviour, that Mr Guley consistently engaged in, justified termination. In that decision, a description of Gorman’s behaviour was given: “. . . life with Mr Gorman in the workplace was a continuing barrage of loud and aggressive behaviour, frequently intimidating, often offensive . . . Mr Gorman was not for turning. . . What has emerged in this hearing is a series of altercations between Mr Gorman and his supervisors, sometimes related to work issues and sometimes what appears to me to be personal issues. . .”. On the legal consequences of proceedings before Commissioner Asbury, it was submitted that the process of termination was complicated by those proceedings, in that a further show cause notice was issued (by agreement) and responded to, which had the legal effect that the initial termination was superseded. The respondent ultimately made the decision to terminate on the context of both show cause notices. In the submission, at paragraph 3.6, Mr Perry went on to say: “The consequence of the subsequent show cause process is however to significantly broaden the factual bases upon which termination was effected. That is, the Respondent must be held to have terminated the Applicant upon the totality of the material contained in both investigations, upon the basis of the Applicants responses to both show cause notices and upon the basis of Guley’s responses in the interview of 26 September.”. The submission, in a most comprehensive manner, went to the evidence of many of the respondent’s witnesses, and also, in same process, challenged a significant portion of the evidence given by Mr Guley. In amongst this section of the submission, at paragraph 5.21, Mr Perry made a rather telling comment in respect of Mr Guley’s threat to Mr Connolly as a result of the grievance lodged against Mr Misztal and Mr Kneen: “12 June 2001 – Guley threat to Connolly This incident was the instigating factor in the eventual termination. It reveals a serious attempt to threaten Connolly into withdrawing his complaint or ensuring that no further complaint was ever issued. If conduct of this kind occurred in the context of a Commission hearing it would amount to contempt.”. On the case of witness credit, it was submitted that the respondent’s witnesses related a consistent description of Mr Guley’s (inappropriate) behaviour, whilst Mr Guley simply fell back upon his constant refrain – “they’re all lying”. Summary The respondent, when faced with overwhelming corroborative evidence of a number of incidents involving Mr Guley, acted reasonably in relying on the Eves and Carmody report to terminate his employment. It was put, at paragraph 7.6 of the submission that: “The Respondent submits that it was open to it, on the face of the material to find that Guley had engaged in intimidating and threatening conduct in breach of the Respondent’s Code of Conduct and its Workplace Harassment, Bullying and Violence in the Workplace Policy. The Respondent submits that the conduct initially relied on to terminate Guley’s employment prior to the intervention of Commissioner Asbury, was of itself, sufficiently serious conduct to warrant dismissal.”. -- 15 of 19 -- 272 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 In terms of a remedy, it was submitted that, in the event that the Commission finds that the termination was harsh, unjust or unreasonable, the evidence of the respondent’s own employees is a compelling argument as to why reinstatement or re-employment, in any capacity or at any location, would be impracticable. Mr Perry relied further upon the evidence of Mr Guley, at page 76 of transcript, to support his argument: “Perry: And, therefore, there is no need nor any occasion for you to reconsider or modify any behaviour of yours? Guley: No, I don’t see why, no. Perry: No. And that were in deed you ever to be reinstated you would consider that it would be appropriate for you to conduct your relations with those with whom you work and the managers in the same way in the future as you have in the past? Guley: Yes, I’d just continue how I do my work. Perry: And continue in treating them the same way as you have in the past? Guley: Yes.”. Finally, if the Commission was minded to award compensation to Mr Guley, the following should be considered: • “the lack of any remorse and total denial on the part of Guley that his behaviour was in any way unacceptable. A position that Guley has held firmly since the commencement of informal discussions with him regarding his behaviour and conduct in the workplace as early as 1997; and • the fact that Guley was terminated on notice, being paid 1 months salary in lieu of notice.”. Conclusion Like any application for reinstatement, this matter had its fair share of “twists and turns”, however, it became, in some respects, a little more complicated, in that, interwoven into the circumstances surrounding the termination of Mr Guley, were the findings of not one, but two investigations, commissioned by QR that related to the work situation involving Mr Guley. Whilst the evidence of Mr Bock (referred to earlier in this decision [page 456, line 23 of transcript]) that QR had relied only upon the findings of the Eves and Carmody investigation to effect the dismissal of Mr Guley, I have formed a view that, on the reading of paragraph 26 of Mr Bock’s affidavit there was certainly evidence that the Briton report had, to some extent, been influential in formulating the decision taken by Mr Bock to terminate the employment: “I recognised that no one had lodged a grievance against Mr Guley, but there appeared to be such a body of evidence supporting the serious allegations that had been made against him during the course of the investigation that there appeared to be significant breaches of the bullying policy. I was clearly duty bound to implement Queensland Rail’s bullying policy.”. Eves and Carmody report This internal investigation which, firstly, had the responsibility of investigating the grievance lodged by Mr Connolly on 29 May 2001 alleging that the AMEPKU Conveneyor, Mr Misztal, and Shop Steward – Motor Shop – Mr Kneen, had been responsible for issues relating to threatening, offensive and unwelcome behaviour towards him. The terms of reference of this investigation were extended to enable the investigators to consider further allegations made by Mr Connolly that, on 12 June 2001, Mr Guley had “victimised him in the form of threatening behaviour as a result of lodging the initial grievance.”. It is not necessary to go to the findings of the investigation as they related to Mr Misztal and Mr Kneen as they have no bearing on this matter, suffice to say that the findings were varied, in that, some of the allegations were substantiated and others not. In respect of the allegations against Mr Guley, I am satisfied that the carriage of the investigation was such that Mr Guley was given every opportunity to present his side as to the allegations levelled against him in an environment free from any outside pressure. On the behaviour of Mr Guley towards Ms Eves and Mr Carmody during the investigation, it would be difficult to reach any conclusion on the evidence before the Commission other than he had deliberately tried to intimidate the investigators as they went about their business and, as such, potentially have some impact upon the outcome of the investigation. Having studied, in detail, the report in its entirety, I fully concur with the findings of the investigators and of their recommendation that required Mr Guley to be subjected to a disciplinary interview. Briton Report Whilst the original brief given to Mr Briton related to the grievances lodged by Mr Guley against a number of the QR Managers at the Rockhampton workshops, it became apparent that, during the life of the investigation, it changed to seemingly focus more on the alleged inappropriate behaviour of Mr Guley, both at work and outside of work hours. Ms Callaghan, in her final submissions, left no doubt that it was the applicant’s view that all of the evidence obtained from those witnesses was led by Mr Briton and, as such, was contaminated to the extent that it could not be relied upon by the Commission. It was somewhat late in the proceedings when Mr Briton was called upon to give evidence and, when questioned by Ms Callaghan on the issue of his interviewing method, denied that he had led any of the persons interviewed. Ms Callaghan further pursued the issue with Mr Stock, another of the respondent’s witnesses who, at page 566, line 10, of transcript, stated: “Callaghan: Okay, okay. Then – then Mr Briton read to you – well then – then the last paragraph talks about how Mr Briton actually read to you about an incident in early August 2000 when Mr O’Sing intervened in an argument between you and Mr Guley, okay? -- 16 of 19 -- 28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 273 Stock: Yes. Callaghan: Can you recall whether or not Mr Briton actually asked you about that incident prior to reading Mr O’Sing’s comments to you? Stock: I think it was same. I think he went on to read that one before he spoke about it.”. On having closely examined the Briton report, including all of the transcripts of interviews carried out by him and consideration of the comments of Mr Stock, I am inclined to place little weightage upon the findings of the report but would suggest it is not beyond the balance of probabilities to form a view that at least at some stage of the investigation’s life, QR had thoughts of relying upon the findings of the report to further strengthen their position in dealing with Mr Guley. Witness Credibility As often as is the case in matters such as this application, the Commission, in determining the outcome, must make a judgement based upon the credibility of those giving evidence in the proceedings. Firstly, in looking at the evidence of Mr Guley who spent the best part of two days under cross-examination, he simply adopted a position where he denied almost every allegation levelled against him and relied upon either of two reasons as to why such allegations had been made, in the first place. Those being: • That the persons, in giving evidence, did so on the basis that they did not like him • His activities as a Union delegate had angered people who where anti-union and this was the reason they had made such allegations. From my perspective, having listened closely to the evidence, particularly the cross-examination, of Mr Guley, I found that there was little genuineness about the witness, and that his demeanour, whilst giving evidence, was less than impressive. In respect of the two reasons given by Mr Guley as explanations for the allegations against him, the evidence before the Commission from the respondent’s witnesses could not, under any circumstances give credibility to such claims and it is my view that Mr Guley’s evidence could not be given a high level of credence. The other witnesses for the applicant, in my view, whilst offering little to assist the applicant’s cause were, for the most part, credible. It is not necessary to make comment in respect of all the witnesses for the respondent in terms of credibility, however the evidence of “key” witnesses, such as Mr Connolly, Mr Carmody, Ms Eves, Mr Bock and Mr Dawes does require some mention. In the case of Mr Connolly, he knew from the moment that he lodged the grievance against Mr Misztal and Mr Kneen that “life” was going to be difficult and that position was further compounded when he reported (what he deemed to be) the threatening behaviour of Mr Guley on 12 June 2001. During the course of his evidence, he withstood the rigors of Ms Callaghan’s cross-examination and emerged from it (in my view) as a credible witness with an honest belief that the actions of Mr Guley were a deliberate attempt to intimidate him as a result of his lodging of the grievance. The evidence of Mr Carmody and Ms Eves related to their investigations and the compiling of the report on the grievances lodged by Mr Connolly with each of the witnesses presenting as persons that the Commission accepts as both truthful and credible. The evidence of Mr Bock, the person who, at the end of the day, determined the fate of Mr Guley, was generally acceptable however, the exception would be in terms of his evidence around the reliance upon the information provided to QR in the Briton report which, to some extent, was contradictory. On the other hand, Mr Dawes, a most experienced industrial relations practitioner, clearly recalled his involvement in the process with great clarity, with his evidence being of assistance to the Commission. Other witnesses, including Mr Gitsham, Ms Codd, Mr O’Sing, Mr Stock and Mr Langley were also, in the view of the Commission, witnesses that gave evidence in good faith and came across as honest and truthful witnesses. Findings On the evidence before the Commission, it is safe to say that Mr Guley, on becoming aware of Mr Connolly’s grievance lodged against Mr Misztal and Mr Kneen, fronted Mr Connolly in an abusive and aggressive manner, threatening a number of reprisals which included the prospects of a visit from the Minister for Transport and threats of industrial action. There was corroborative evidence before the Commission of the exchange between Mr Guley and Mr Connolly, from which I can draw no other reasonable conclusion other than the intention of Mr Guley to intimidate Mr Connolly into withdrawing the grievance he had lodged, or at least making it clear to “all and sundry” that the lodging of such grievances would not be tolerated into the future. This finding is most serious, in that, any behaviour that threatens to impinge upon the right of any QR employee to utilise the established and well accepted procedures available in the area of grievances, threatens the very integrity of the employment arrangements of QR’s extensive workforce. There is no doubt from the evidence before the Commission that Mr Guley was a person with some “clout” in the workplace and Mr Guley was very much aware of his reputation, using it to his advantage in situations like that of his exchange with Mr Connolly. QR, armed with findings of the Eves and Carmody report, had every reason to initiate disciplinary proceedings against Mr Guley and, in my view, should have followed the recommendations immediately after that report was handed down on 12 July 2001, rather than wait until the Briton report was finalised. Clearly the Briton investigation was commissioned to investigate grievances lodged by Mr Guley against a number of managers and was, at the time, totally separate from the matters investigated by Eves and Carmody. It would be a “long stretch of the imagination” for anyone to accept that QR’s decision to commence with the disciplinary action against Mr Guley shortly after receiving the Briton Report was coincidental and, as such, I am of the view that QR either directly or indirectly relied upon, to some extent, the information contained within the Briton report. -- 17 of 19 -- 274 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 June, 2002 In terms of the disciplinary process adopted by QR in dealing with Mr Guley, it was, to say the least, rather hasty, in particular, as it related to the issuing of the first show cause letter which required an immediate response from Mr Guley, followed up by the letter of termination. The actions of QR in this instance led to industrial disputation, of which was subject to conferences before Commissioner Asbury. Emanating from the conferences was a recommendation from Commissioner Asbury, which resulted in a second show cause letter being issued to Mr Guley containing significantly more detail than the original show cause letter. At the same time, the response provided by the Union on behalf of Mr Guley also contained significantly more detail, however it seems that the second show cause letter had little impact with Mr Bock stating, in evidence, Mr Guley’s termination was effective from the first occasion a show cause letter was issued. Had QR given a more realistic consideration to the second show cause letter, followed by a transparent review of their original decision to terminate Mr Guley’s employment, then the process itself may have been more fair all round rather than one that I have found to be questionable. Whilst I have previously mentioned, concurring with the recommendation of the Carmody and Eves investigation that Mr Guley be subjected to a disciplinary interview, it is my finding that, having considered all of the evidence and materials before the Commission in these proceedings, the handling of that disciplinary interview process by QR did not, in all probability, provide Mr Guley with a reasonable opportunity to respond to the findings of the investigation. I have also formed the view, based on the evidence, that the findings of the Briton report were, to some extent, relied on by QR in reaching their decision to dismiss Mr Guley and, without Mr Guley having been given access to the allegations contained in that report that had been levelled against him, clearly prejudicing his ability to provide a proper response to the show cause letter issued, in the first instance, by QR to facilitate the dismissal. Therefore, it is my finding that the termination of Mr Guley was, at the time, harsh, unjust and unreasonable. Remedy Once the Commission becomes satisfied that an employee has been unfairly dismissed, it must first give consideration to the options of reinstatement or re-employment, as provided for at s. 78 of the Act. In this matter, it is not contested that Mr Guley was, prior to his termination, a long-term employee of QR, with an acceptable level of skills which had enabled him to perform the tasks required for the position he held. There has not been argument advanced in the proceedings that it is impracticable for the option of reinstatement to be considered for reasons that Mr Guley’s former position has been filled or was no longer available, nor due to an inability to order re-employment based on the operational circumstances of the respondent. Ms Callaghan, for the applicant, submitted that the reinstatement of Mr Guley was a reasonable proposition to which the Commission should give the upmost considerations. Mr Perry, for the respondent, stated that during the proceedings, a compelling argument had been advanced as to why reinstatement or re-employment, in any capacity or at any location, would be impracticable. From the Commission’s perspective in looking at reinstatement or re-employment, it is important to consider such an order in the context of the ability of the parties to recommence the employment relationship in an environment where a harmonious and productive partnership can go forward. The Commission must also take into account the evidence as it related to the reasons for the termination of Mr Guley by the respondent, and on this point, I am of the view that his actions and behaviour in threatening Mr Connolly was of such gravity that I would doubt whether a harmonious and productive employment relationship is at all possible in the circumstances. I have taken into account the evidence of a number of the respondent’s witnesses, given directly in the Commission, as to the behaviour of Mr Guley in the workplace, and find that it was unacceptable and inappropriate behaviour to the extreme. Further, to order reinstatement or re-employment, I would also have to be convinced that Mr Guley would be prepared to undergo a somewhat extensive change in both attitude and behaviour and, based on the below listed comments of Mr Guley from the proceedings, it would seem that such changes, on his own admission, would not be forthcoming: “Perry: And, therefore, there is no need nor any occasion for you to reconsider or modify any behaviour of yours? Guley: No, I don’t see why, no. Perry: No. And that were in deed you ever to be reinstated you would consider that it would be appropriate for you to conduct your relations with those with whom you work and the managers in the same way in the future as you have in the past? Guley: Yes, I’d just continue how I do my work. Perry: And continue in treating them the same way as you have in the past? Guley: Yes.”. On consideration of all of the evidence before the Commission, I consider that, for the reasons previously mentioned, reinstatement or re-employment would be impracticable. That then leaves the Commission with the need to consider the awarding of an amount of compensation in accordance with s. 79 of the Act. Again, on this issue, as with most other issues, the parties are at opposite ends of the scales, with Ms Callaghan requesting the maximum amount of compensation available, based upon Mr Guley’s substantial period of service, with Mr Perry seeming to believe that the one months notice paid on termination being sufficient compensation. -- 18 of 19 -- 28 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 275 In having given consideration to all of the relevant issues, in respect of the awarding of financial compensation, including the inappropriate behaviour of Mr Guley over an extensive period of time which, for all intents and purposes, was seemingly tolerated by QR’s management, and of QR’s failure to provide a proper and reasonable process, even after being handed a belated opportunity through the recommendations of Commissioner Asbury to rectify the situation, I have determined that QR pay Mr Guley compensation of four (4) months wages at the rate of remuneration at the time of his termination. I order that such monies be subject to the deduction of the appropriate level of income tax and be paid within twenty-two (22) days of the release of this decision. I order accordingly. J.M. THOMPSON, Commissioner. Released: 18 June 2002 Appearances:– Ms B. Callaghan, of Counsel, instructed by Mr E. Moorehead and Mr D. Harrison of Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. Mr R. Perry, of Counsel, instructed by Ms H. Davis, of McCullough Robertson. -- 19 of 19 --