Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (Guley) v Queensland Rail [2002] QIRC 48 (2002) 169 QGIG 311

12 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 311 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 326 – interlocutory proceedings Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (S. Guley) AND Queensland Rail (No. B2154 of 2001) COMMISSIONER THOMPSON 28 March 2002 Application in a proceeding – Orders sought – Suppression of certain documents and evidence – Statements to Media – Witness evidence – Concerns relating to harassment and victimisation – Impact of orders on preparation of case – Application in a proceeding dismissed. DECISION Background In this matter, an application was lodged with the Industrial Registrar on 15 March 2002 on behalf of Queensland Rail, the respondent in the substantive proceedings, in which the following was sought:– -- 1 of 6 -- 312 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 April, 2002 “1. directions, orders and undertakings under the Industrial Relations Act 1999 and the Industrial Relations (Tribunal) Rules 2000 in relation to matter B2154 of 2001. 2. The following orders: (a) An order by the Commission pursuant to section 326(f) of the Industrial Relations Act 1999, that: (i) the documents numbered 12, 13, 17, 18, 19 and 20 in the Respondent’s list of documents (signed records of interview, the investigation report and notes and correspondence provided for the report) (‘the Briton Report’) be released only to the Applicant and the Applicant’s direct legal or other appointed representatives (‘Applicant’s representatives’) for the sole purpose of preparing for matter B2154 of 2001; (ii) the Applicant and the Applicant’s representatives give an undertaking that the Briton Report and/or any names and/or statements contained in it, will not be published, reproduced, copied or distributed in part or in full to any persons, verbally or in writing, other than the Applicant and the Applicant’s representatives and that the Briton Report be kept securely and safely at all times, in a place inaccessible to persons other than the Applicant or the Applicant’s representatives, and that the Briton Report and any copies made of it be destroyed at the conclusion of the proceedings in matter B2154 of 2001 and that the Applicant should provide to the Respondent and the Commission a Statutory Declaration that all copies of the document have been destroyed. (b) An order pursuant to Rule 38 of the Industrial Relations (Tribunals) Rules 2000, that: (i) the Respondent’s witness statements be exempt from public search at the Registry of the Queensland Industrial Relations Commission: (ii) the Applicant and the Applicant’s representatives give an undertaking that the Respondent’s witness statements will not be published, reproduced, copied or distributed in part or in full to any persons, verbally or in writing, other than to the Applicant or the Applicant’s representatives except for the sole purpose of preparing for matter B2154 of 2001, and that the Respondent’s witness statements be kept securely and safely at all times, in a place inaccessible to persons other than the Applicant or the Applicant’s representatives, and that the Respondent’s witness statements and any copies made of them be destroyed at the conclusion of the proceedings in matter B2154 of 2001 and that the Applicant should provide to the Respondent and the Commission a Statutory Declaration that all copies of the documents have been destroyed. (c) An order pursuant to Rule 38 of the Industrial Relations (Tribunals) Rules 2000 that the Applicant and the Applicants representatives give an undertaking pursuant to the recommendation of Commissioner Asbury dated 3 October 2001, that the Applicant and the Respondent make no form of statement to the media regarding the matter B2154 of 2001, other than that agreed between the Applicant and the Respondent.”. Applicant In seeking the orders identified in the application, evidence was given by Mr Shannon Connolly and Mr Lindsay Cooper, with submissions being provided by Mr A. Horneman-Wren, of Counsel. The evidence of Mr Connelly was that he had known Mr Shane Guley (the dismissed employee) for approximately eight (8) years and was aware of the history relating to the termination. In his role as Project Leader, he spent considerable time on the “shop floor” and training employees which assisted him in forming a view that he would have concerns that persons involved in the investigation, which resulted in the formulation of the Briton Report, would be harassed and victimised if the Report was to be available to Queensland Rail employees and the wider community. Mr Connolly stated that he felt apprehensive about giving evidence in the proceedings and, at paragraphs 7 and 8 of his affidavit of evidence, further stated reasons for such concern:– “7. During the last weeks of December 2001 and the first few weeks of January 2002, on numerous occasions when I have had reason to walk through the shop floor, I have had verbal abuse hurled at me by employees in relation to this matter. I have been called ‘a bastard’, ‘a germ’ and told to ‘fuck off scab’. I am unable to identify who it is coming from as there are up to 30 men on the Workshop floor at any one time and people shout from behind the welding bays or the wagons in the Workshop. 8. I clearly recall one particular incident which occurred on Melbourne Cup Day last year. At the Workshop, everyone gets a smoko so that we can watch the race on the television in the amenities room. When I arrived at the amenities room, I found a spare seat at the front of the room. Someone shouted from the back in a threatening way, ‘Who let that fucking scab in?’. I did not say anything, however, I did not feel very comfortable in the room and left directly after the race. I did not want to leave before because I did not want them to feel as if they had intimidated me to leave.”. Finally, in his evidence-in-chief, Mr Connolly said that it was his “sincere belief that other participants in the Briton investigation may suffer the same sort of treatment if the report is distributed widely”. At page 8, line 30 of transcript, an exchange involving the Commissioner and the witness occurred:– “Commissioner: Mr Connolly, in your statement at paragraph 5 you say that, ‘I support the respondent’s application to have the Briton Report made available only to the applicant and the applicant’s representatives because I am concerned that people who have been involved in the investigation will be harassed and victimised’, and it goes on, ‘if the report is made available to employees of Queensland Rail and the wider community.’ Who do you believe would be the perpetrators of that harassment and victimisation? Connolly: I believe that it would come through the AMWU representative on-site, primarily the AMWU convenor for the site, is my opinion”. The other witness for the applicant in this matter, Mr Cooper, had been employed with Queensland Rail for a period of approximately thirty (30) years, the last four (4) and a-half years as the General Manager of the Rockhampton Workshops. He has known Mr Guley for the period of time he has been in his current role as General Manager and was fully aware of the history relating to the dismissal. -- 2 of 6 -- 12 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 313 Like the previous witness, he shared concerns that persons who participated in the investigation by Mr John Briton may be subjected to harassment and victimisation in the workplace if the Briton Report was made widely available. Further evidence from Mr Cooper related to him being given a copy of the Report and an awareness that it contained confidential and sensitive information. On the possible ramifications should the contents of the Briton Report become more widely known, Mr Cooper, at paragraph 10 of his affidavit of evidence, made the following comment:– “I am also aware that the circumstances involving Mr Guley are the subject of discussions by employees generally and have created such high feelings amongst the workforce that industrial action took place from 26 September until 3 October 2001. The Workshops are a closed environment. Employees work in a physically confined space. Their roles frequently overlap. It is essential for the effective operation of work that employees work harmoniously as a team. There are approximately 25 people who participated in the Briton investigation and who are potential witnesses. If that number of people are exposed to a hostile work environment it will have a detrimental impact on them and the jobs they perform. It is important that all the workforce can sustain ongoing relationships both before and after these proceedings.”. Mr Cooper was subjected to a lengthy cross-examination by Ms Bernadette Callaghan, of Counsel, for the respondent, which touched on issues including:– • Number of workshop employees. • Union coverage. • Briton Report – participants – Management persons or otherwise. • Previous allegations levelled at Mr Guley. In transcript, at page 16, line 3, Ms Callaghan, in questioning the witness on what might happen if the Briton report becomes known, addressed this issue:– “Callaghan: Well, I’m really wanting to know – I’m wanting – you make a statement about concerns that you have in order to protect persons. I’m really wanting to tease out, what are your concerns? What do you think is going to happen if the Briton Report becomes known? Cooper: Well, the rumour-mill is rife up there all the time, whether you listen to it or not, but some people do and a lot of people are concerned about people finding out what they’ve had to say to Mr Briton.”. The Commission, in addressing a similar question to that asked of Mr Connolly, at page 26, line 12 of transcript, put to Mr Cooper:– “Commissioner: . . . At paragraph five, Mr Cooper, in your statement, you say that, ‘I hold concern’ – the last sentence, ‘I hold concerns that these people may be subject to harassment, maybe victimised in the workplace if the Briton Report is made available.’ Who do you believe would be the people who would perpetrate the harassment and the victimisation? Cooper: The actual people? Commissioner: Well, you’re saying - -? Cooper: I believe that there’s – certainly I’m concerned there’d be pressure brought to bear on some of those people. Commissioner: Yes, but by who? You’re saying that these people would be subject to harassment and may be victimised. I mean, you must have some idea who you think might be the harasser or the victim – or the person who victimises them? Cooper: I’ve got no - - Commissioner: If you don’t know fine. I mean I’m just – I just wonder why you would make that statement? Cooper: There’s things happen all the time there that I – you know, that I’m aware of. I’ve got no proof of them, but I have concerns for some of the people. Commissioner: And this is – and you say – do those concerns relate simply to the workplace? Cooper: That’s only my main concern, the workplace, and running that site the best I can, the most efficient.”. In re-examination of Mr Cooper by Mr Horneman-Wren, at page 27, line 53 of transcript:– “Horneman-Wren: Now, you mentioned before that you didn’t know when you read the report who W1, W2, et cetera, were. And but for a list of names that have been read to you today, is that still your current state of knowledge? Cooper: I didn’t even know there were 25 people spoken to by John Briton until I saw that report. Horneman-Wren: All right. Now, you did way, however, that people – I think Ms Callaghan asked you about where the interviews were conducted and I think you said in the admin building in Murray Street and that people – the workshop knew who was – knew of the interviews? Cooper: I was told by one of the union delegates some weeks later that they knew everyone that went over and the times they went and the figure that was suggested was the figure I saw in the report. Horneman-Wren: All right. But to your knowledge are they aware of the content of the interviews that were conducted? Cooper: I wouldn’t think so. -- 3 of 6 -- 314 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 April, 2002 Submissions Applicant Mr Horneman-Wren, in his submissions, placed on record that it was not the intent of the application to seek a blanket restriction in terms of access that would deny the applicant the ability to prepare fully for the substantive proceedings. However, it was the intention of the application for the Respondent’s witness statements to be exempt from public search altogether. It was also being sought that the applicant and the respondent refrain from making media comment regarding the matter, other than agreed positions, which is in line with a previous recommendation by Commissioner Asbury in the related dispute matter. These proceedings, in Mr Horneman-Wren’s view, had confirmed the situation that had been precisely anticipated, in that, essentially that the applicant (in the substantive matter) wanted the Commission to provide direction that the Briton Report be publicly released and given wider distribution than simply for the intended proceedings. Certainly, the comments of Mr Horneman-Wren, at page 30, line 14, of transcript, identified what should be the normal or accepted practice:– “Well, with the greatest respect, apart from it being absolutely beyond jurisdiction to do so, it really removes any doubt as to whether or not you would make the direction in the form sought or in a form closely resembling the form sought, because, as I say, what might be the one thing that would mind you not to accede to the application that’s made is to simply say, ‘Well, really, all it does is articulate the status quo.’. That is to say that a party can’t publish material obtained for the purposes of proceedings and obtained within proceedings for any purpose other than its use within the proceedings. That’s a fundamental basis of discovery. That’s the basis upon which the document is received. So why would the Commission direct that which the parties should in any event observe?”. The Commission’s attention was drawn to pages 20 through to 31 of the Briton Report which referred to matters concerning intimidation and harassment which directly relate to the reasons for seeking the restriction on the circulation of the Report. There was apprehension expressed that the matters of intimidation and harassment were not confined to the workplace but to circumstances outside of the workplace including social engagements, peoples homes and contact being made by phone. In supporting the argument for a finding in favour of the applicant Mr Horneman-Wren, at page 33, line 45 of transcript, stated:– “But, in terms of giving you some comfort in making the directions sought, it would give you a great deal of comfort in that regard because you could have no confidence, with respect, that it’s use would not extend beyond the purposes and all of the proceedings and all we seek to do is to confine it to the purposes of these proceedings. With the greatest respect, my friend has really made my case for me in that regard.”. Finally, the Commission’s attention was drawn to the matter of Queensland Nurses’ Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Ors (No. B1019 of 1998) 165 QGIG 131 as an appropriate authority supportive of the application. Respondent In these proceedings, the respondent solely relied upon submissions put on their behalf by Ms Callaghan who, in the first instant, placed on the record that it was not the intention of her client to generally distribute the Briton Report and, if comments attributed to her during the course of these proceedings had alluded to such a position, then she apologised to the Commission. The opposition to the application stemmed from the view that the directions, if granted, would prohibit the ability of the Union and Mr Guley to properly present a case. According to Ms Callaghan, the application was not about what normally happens with discovered documents, but went much further in seeking to limit the use to which the document could be put. There was a need, in preparation for the substantive proceedings, for her client to discuss fully the allegations in the Briton Report that relate to Mr Guley and to be able to discuss with various people who may or may not have been witnesses to particular events. In respect of the matter relating to comments in the media, the Union had refrained from making such comments from the time of Commissioner Asbury’s recommendation in the dispute proceedings. In reference to the matter of Queensland Nurses’ Union of Employees AND Queensland Chamber of Commerce and Industry Limited, Industrial Organisation of Employers and Ors, Ms Callaghan acknowledged that, in suppressing of the name of a nursing home, the Commission’s power extends beyond dealing with confidential material and trade secrets. On the application for orders before the Commission, it was submitted that there is no basis for issuing such orders and that it would not be in the public interest to do so. Relied upon by Ms Callaghan was the matter of J v L & A Services Pty Ltd 1995 2 QR 10, with submissions going into some detail in respect of certain passages of that decision. In transcript, at page 43, line 54, Ms Callaghan stated:– “I’d like to just – fundamentally, Commission, the paramount public interest in the due administration of justice, freedom of speech and a free media and open society require that Court proceedings be open to the public and it’s no different in this particular case. It will be difficult to run this case or for you to hear this case if the Briton Report is, in fact, suppressed in any way. There is no doubt that during the course of the proceedings, that Briton Report will be the subject of a great deal of evidence before you. In fact I would presume that the respondent to the substantive application, actually called Mr Briton, because the processes that he used in his investigation would be certainly under scrutiny by the Commission and it has been that report that is what Queensland Rail have relied upon, that ended in the termination of Mr Guley.”. The evidence before the Commission from Messrs Connolly and Cooper, whilst indicating their difficulty with the contents of the Briton report being made available, was not sufficient to warrant the granting of the orders sought and the Commission was requested to dismiss the application. -- 4 of 6 -- 12 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 315 Ms Callaghan reserved her position on the question of costs. Conclusion In determining whether to grant the application in either part or full, it is firstly necessary to make some reference to the Briton Report. It would appear inevitable that the report and its contents will feature prominently in the substantive proceedings and without wishing to go to precise detail contained within the Report, it is suffice to say that an investigation was commissioned by Queensland Rail with terms of reference requiring the findings and recommendations to be provided to Queensland Rail as expeditiously as possible. Mr Briton, in conducting the investigation, interviewed a total of twenty-five (25) persons (including Mr Guley) and, at the conclusion, made a series of recommendations which included a proposal that Mr Guley be formally disciplined and that the penalty have regard to the fact that his conduct has persisted despite the informal efforts to impress upon him the impact his conduct was having on people around him. It would be fair to make the comment that the report contains significant reference to matters including allegations of intimidation, harassment, abusive and aggressive behaviour, all of which have not, at this time, been subject to the proper tests that apply when evidence is given before the Commission. In the application itself, at paragraphs 4(e), (f) and (g), the following reasons were given for seeking the orders:– “(e) The nature of this matter and the parties involved have created a highly charged environment and a great deal of animosity has developed in the workplace. This is evidenced by the strike action taken at the Rockhampton workshops and in the dispute proceedings before Commissioner Asbury; (f) Matters contained in the Briton Report were provided by participants in confidence and are of a highly sensitive nature; (g) In light of the significance of this matter in the work environment, the potential exists for the harassment and victimisation of participants who are referred to in the Briton Report if the Report is widely distributed.”. In the course of the proceedings, evidence was adduced from both Mr Connelly and Mr Cooper which identified their concerns that persons who had given statements to Mr Briton were likely to be harassed and victimised if the Report was circulated without restriction. When questioned as to the likely perpetrators of that harassment and victimisation, Mr Connolly identified the AMWU representative on site whilst Mr Cooper was unable to identify any such person or persons to the Commission. Ms Callaghan, for the respondent (in this matter), in opposing the orders, argued that, to impose the restrictions sought in the order would have a severe impact on her client’s ability to prepare their case. The Commission, having considered all of the evidence, submissions, and material put before it during the proceedings, is not disposed to grant the orders as sought for the following reasons:– • The granting of the application as sought in 2(a)(i) and (ii) would have the potential to unreasonably limit and restrict the capacity of the applicant in the substantive matter to fully prepare for those proceedings unhindered. • The evidence given in the proceedings was not of a sufficient nature to convince the Commission that the concerns of the applicant (in this matter) in respect of the prospect that harassment and victimisation of persons mentioned in the Briton Report would occur. In fact the only person nominated by either of the applicant’s witnesses in these proceedings was the AMWU on-site representative and the Commission during the course of these proceedings was advised that he had already had access to the report. • The commitment given in transcript by Ms Callaghan, on behalf of the Union, that it was not the intent of her client to generally distribute the Report and, further, that the Report would only be utilised in line with accepted and normal practices in dealing with discovered documents in a proceeding. • The refusal of the Commission to grant the application for orders as sought in 2(b) of the application is made on the basis that it would be inappropriate, in this instance, to deviate from the well established practice of the Commission in being open and transparent, in particular, in matters that relate to unfair dismissal. • The respondent’s witness statements were not available at this point in time, for obvious reasons, which further compounded the reluctance of the Commission to grant the application exempting those statements from public search. • In relation to 2(c) of the application, which sought to inhibit either party from making any form of statement to the media regarding this matter, other than an agreed position, I have formed the view, after consideration of the material raised in support of the proposition, that such an order would be inappropriate in all of the circumstances. In summary, I am of the opinion that the applicant, in these proceedings, made the application out of genuinely held concerns, and not for any vexatious purpose and, whilst not granting the application as sought or in an amended form, I will take the opportunity to place on record, in the most strongest terms, that any inappropriate or misuse of any of the material subject to discovery in these proceedings will be viewed by the Commission as a serious breach of established protocols. It would certainly have the potential to impact upon the remedy which the Commission might determine if the applicant proper is successful in the proceedings. Finally, Ms Callaghan informed the Commission that on receipt of written undertakings from Mr Guley and Mr Bernie Misztal not to publish the content of the Briton Report that they were each provided with a copy. It was her request that if the application was not granted, then each of those two persons should be released from the undertakings. Mr Horneman-Wren considered that if the application was not granted, then the release, as suggested by Ms Callaghan, would be appropriate. Whilst the undertakings in question were not, as such, given to the Commission, it is my intention to release Mr Guley and Mr Misztal from the undertakings as requested. -- 5 of 6 -- 316 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 12 April, 2002 Accordingly, the application is dismissed. I order accordingly. J.M. THOMPSON, Commissioner. Released: 28 March 2002 Appearances:– Mr A. Horneman-Wren, of Counsel, instructed by Ms H. Davis, of McCullough Robertson. Ms B. Callaghan, of Counsel, instructed by Mr E. Moorehead of Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland. -- 6 of 6 --