FEDERAL COURT OF AUSTRALIA Elliott v Kodak Australasia Pty Ltd (ACN 004 057 621) [2002] FCA 154 INDUSTRIAL LAW –– matter referred back to trial judge for reconsideration of applicants' evidence – reconsideration of whether applicants' evidence tests the veracity of the respondent's evidence – no question of principle - order made in terms of original order after such reconsideration Workplace Relations Act 1996 (Cth) s 298V Elliott v Kodak Australasia Pty Ltd [2001] FCA 807, (2001) 108 IR 23 referred to Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804 referred to General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 referred to JOHN ELLIOTT & AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION v KODAK AUSTRALASIA PTY LTD (ACN 004 057 621) V 513 OF 2000 MARSHALL J MELBOURNE 26 FEBRUARY 2002 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 513 OF 2000 BETWEEN: JOHN ELLIOTT FIRST APPLICANT AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION SECOND APPLICANT AND: KODAK AUSTRALASIA PTY LTD (ACN 004 057 621) RESPONDENT JUDGE: MARSHALL J DATE OF ORDER: 26 FEBRUARY 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 513 OF 2000 BETWEEN: JOHN ELLIOTT FIRST APPLICANT AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS' UNION SECOND APPLICANT AND: KODAK AUSTRALASIA PTY LTD (ACN 004 057 621) RESPONDENT JUDGE: MARSHALL J DATE: 26 FEBRUARY 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 29 June 2001, I dismissed the application in this proceeding: see Elliott v Kodak Australasia Pty Ltd [2001] FCA 807, (2001) 108 IR 23 ("the 29 June 2001 judgment"). On 20 December 2001, a Full Court partially upheld an appeal from that judgment: see Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804 ("the Full Court judgment"). As a consequence of the Full Court judgment, my current task is to carefully reconsider the evidence given before me by the applicants and to determine whether, in light of that reconsideration, my original decision to dismiss the application should stand. In other words, I must determine whether, after reconsideration of the evidence, I remain of the view that Kodak's decision-makers did not make Mr Elliott redundant for reasons that included a reason that he was a delegate of a trade union. These reasons for judgment are to be read together with the reasons for judgment in the 29 June 2001 judgment and the Full Court judgment. 2 Since the publication of the Full Court judgment, I have carefully reconsidered the totality of the evidence of the applicants. What follows are my findings of fact in respect of that evidence. It is unnecessary to repeat findings already made in the 29 June 2001 judgment, including findings of fact concerning the evidence of Mr Elliott and various Kodak decision-makers. 3 Evidence was given by witnesses who worked with Mr Elliott to the effect that they would have accorded Mr Elliott a different ranking in the redundancy process to that accorded by Kodak. Such evidence may be of relevance if it is able to discredit the evidence given by Kodak representatives regarding the reasons for Mr Elliott's ranking. However, in and of itself, it is not to the point that other workers who worked with Mr Elliott may have viewed his abilities and attitudes in a different way to the way Kodak management representatives viewed them. I have carefully considered the views of Mr Elliott's co-workers regarding Mr Elliott's work conduct. I do not consider that any of the evidence given by witnesses who worked with Mr Elliott supports a view that Kodak's assessment of Mr Elliott was dishonest or part of a corrupt process. Indeed, in some cases, the evidence given by the applicants' witnesses supported Kodak's assessment of Mr Elliott. In assessing the evidence of workers who worked with Mr Elliott I note the following: · While Mr Duckmanton gave evidence that he regarded Mr Elliott a good worker, he also considered the other workers who were terminated with Mr Elliott were good workers (see transcript at p 166). He also gave an example of a situation, concerning the working of 12-hour shifts, where he found Mr Elliott hard to work with (see transcript at p 168). · Mr Reichelt gave evidence that Mr Elliott "rubbed [him] the wrong way a little…" (see transcript at p 220). Mr Reichelt also gave evidence of a conversation with Mr Wain, where Mr Wain had said that if he (Mr Wain) were given the position of resource allocator, which would have entailed supervision of Mr Elliott to a limited extent, he would have difficulty working with Mr Elliott. · Mr Gallo conceded that his recollection of the relevant events in March to June 2000 was hazy. · Mr Shoesmith swore an affidavit in support of the applicants, but conceded that when he did so he had no clear recollection of precisely what criteria was used in the redundancy selection process (see transcript at p 211). · Mr Brown's assessment of Mr Elliott must be treated with suspicion having regard to the evidence given by Mr Brown that Mr Elliott was "an enthusiastic supporter of the Kodak model of high performance work teams" (see transcript at p 300), a matter disavowed by Mr Elliott. · Mr Bridley, an organiser with the second applicant, gave evidence that he was shocked that Mr Elliott was selected for redundancy. He said that he did not suspect that Kodak would target Mr Elliott for redundancy. Mr Bridley said that the scores, for ranking purposes, were rigged so that Mr Elliott could be targeted. He did not give particulars of what, in effect, is mere assertion. I reject that assertion. Mr Bridley also alleged that Mr Walshe admitted to him that he had targeted another person in a previous redundancy round. Mr Irving did not put this allegation to Mr Walshe on behalf of the applicants. I do not accept it. 4 Mr Elliott gave evidence regarding his activism at Kodak – in particular, Mr Elliott was involved in a number of negotiations with management in his capacity as a delegate. It is the applicants' case that in ranking Mr Elliott lowly in the redundancy process, management took those negotiations into account. Mr Elliott gave evidence regarding negotiations with management in late 1999 and early 2000 concerning shift changes. In early 2000, employees in the dispersions area took part in an unofficial overtime ban. The matter was amicably resolved and I do not consider that there was any residual animosity by Kodak to Mr Elliott in his role as delegate as a consequence of the position taken by Mr Elliott in that particular dispute. 5 The shift issue, according to Mr Elliott's evidence, led Mr McGowan to give Mr Elliott a low ranking (see transcript p 54). However, counsel for the applicants did not put to Mr McGowan that he ranked Mr Elliott lowly because of that issue (see transcript p 698). Indeed, at transcript p 702, Mr Irving said, "I acknowledge that we've got grave difficulties in proving that Mr McGowan was motivated by a prohibited reason". 6 In the applicants' submissions, attention is drawn to the comments made by Mr Shannon that he took Mr Elliott's role in the above negotiations into account in ranking Mr Elliott for the purposes of redundancy. The relevant part of the transcript reads as follows (transcript at p 700): "Mr Irving: [Elliott's role in the negotiations] was a good example, was it not, and you believed it was a good example, of Mr Elliott not acting as a good team player? Mr Shannon: It wasn't one of the ones that primarily came to mind when we looked at his performance. Mr Irving: But it was one of the ones? Mr Shannon: If I can give you an indication of where it's at in my mind, I think when I talk in my affidavit about applying the criteria to Mr Elliott, it's not one that I mention. Mr Irving: But it was, nevertheless, one of the incidents that you took into account? Mr Shannon: It would have been on the smaller end of things but yes. Mr Irving: Not only for good team player but how he modelled Kodak values, again one of the minor reasons, you might say?" Mr Shannon: It would have been on the low end. Mr Irving: And similarly with – so good team player, models Kodak values and resolves conflict effectively, you agree that it was again...? Mr Shannon: I think I maybe considered it more around resolves conflict effectively but again there were other examples that I gave." 7 If anything, I consider Mr Shannon's comments illustrate that, in ranking Mr Elliott, he made a concerted effort not to consider Mr Elliott's role in the negotiations. In his affidavit at para 79, Mr Shannon gave evidence that he ranked Mr Elliott lowly as a team player because "he did not work well within the department" and "he had had a number of conflicts with members from other zones and management staff". I accept Mr Shannon's evidence that these were his primary considerations, and I understand his comments regarding Mr Elliott's role in negotiations as peripheral. 8 In the 29 June 2001 judgment, I made a similar finding concerning Mr Lay's evidence about his contact with Mr Elliott with respect to industrial issues. At [71- 72] of that judgment I said: "In an affidavit filed in the proceedings, Mr Lay gave evidence that he had no reason to "punish or single Mr Elliott out… as far as his role as a delegate went". In support of this claim Mr Lay listed the industrial issues that caused him to come in contact with Mr Elliott in his delegate role, emphasising that these issues were generally resolved amicably. The examples given by Mr Lay included: · "The staggered shifts that resulted from the overtime bans… were a win win result. The company obtained extra capacity for very little extra cost." · "The Easter leave loading issue… was a minor one that was ultimately decided by the pay office's inability to distinguish between different types of annual leave." · "The Queen's Birthday holiday issue was a minor one and a good outcome for the company." · "Mr Elliott's insistence that the roster be reduced from 6 to 5 days instead of a 6 day 12 hour per day roster to a 6 day 8 hour per day roster cost the company nothing and Mr Elliott's claim for the 5 days to be worked from Tuesday to Saturday was rejected." In reality, in admitting that he did not distinguish between Mr Elliott's role as an employee and a delegate when considering the teamwork issue, Mr Lay was doing no more than saying that to the extent Mr Elliott acted as a delegate in any incident relevant to his teamwork assessment, his role was minor. I do not consider Mr Lay to have effectively admitted that he rated Mr Elliott lowly on this criterion because Mr Elliott was a delegate. Rather, Mr Lay appeared to be chiefly concerned about the inappropriate behaviour engaged in by Mr Elliott." 9 There is nothing in the evidence of Mr Elliott or any other of the applicants' witnesses to lead me to conclude that Kodak considered Mr Elliott's role as delegate in those negotiations when ranking him for redundancy purposes. 10 Kodak gave Mr Elliott a low ranking for various teamwork categories because of a range of issues, which included his attitude to High Performance Work Teams ("HPWT"). The applicants submitted that Mr Elliott's objections to HPWT were intimately connected with his role as a delegate. I reject that submission. The union had previously agreed with the concept of HPWT in an Enterprise Bargaining Agreement and the site delegate gave evidence that the teams were central to the Kodak work model. Mr Elliott, in opposing the concept of HPWT, was not acting as a delegate of his union but rather was expressing a personal view. So much was admitted by Mr Elliott, as is apparent from transcript p 121, where the following exchange is recorded between myself and Mr Elliott: "Marshall J: Well, when you say you did oppose it, did you express that opposition to management? Mr Elliott: Did I oppose it? Marshall J: Yes? Mr Elliott: No. Marshall J: It was just a personal view you held? Mr Elliott: Yes." 11 I am satisfied that relevant Kodak representatives understood Mr Elliott's opposition to HPWT in the context of expressing a personal view and not in the context of him being a delegate. Nothing in the applicants' evidence negates this view. 12 There was evidence that during team meetings Mr Elliott raised industrial issues. Both Mr Lay and Mr Shannon gave evidence that they thought Mr Elliott raised such issues in an inappropriate manner. There is evidence that at such meetings, Mr Elliott would raise his voice and be forceful in presenting his point (see for example Mr Duckmanton's evidence at transcript p 175). Counsel for the applicants submitted that the issues Mr Elliott sought to raise at the team meetings were ventilated in his capacity as a delegate and these so-called "interruptions" were taken into account in the low ranking given to Mr Elliott by Kodak in the redundancy process. I reject this contention. In my view, Kodak's consideration of the "interruptions" as being inappropriate did not relate to Mr Elliott's role as a delegate. I am convinced that Kodak representatives would have taken a similar view in respect of any employee who raised issues in an inappropriate manner and on an inappropriate occasion. This is my considered view, having regard to the evidence as a whole. 13 The applicants submitted that Mr Elliott was acting in his capacity as union delegate when he represented employees from the dispersions area in a number of disputes with employees from the chemical preparations area. Consequently, the applicants submitted that Kodak took into account Mr Elliott's actions as a delegate by considering Mr Elliott's role in these disputes. Evidence was given regarding three primary disputes. 14 The first dispute was between the employees in Mr Elliott's dispersions area and employees in the chemical preparations area. Mr Elliott raised matters with management on behalf of employees in his area after a rude note was found. The note, written by a person from the chemical preparations area, was directed to employees in dispersions by employees in chemical preparations. I do not consider that Mr Elliott's role in this issue amounted to any more than him being involved in a puerile dispute between two sections of Kodak's workforce. I do not consider that Mr Elliott's role in this matter led to any low ranking being given to him by Kodak in the redundancy process on account of his delegate status. There is no cogent evidence to support any such allegation. There is evidence denying such an allegation. I accept that evidence as I indicated in the 29 June 2001 judgment. 15 Mr Elliott was involved in a second dispute concerning the use of a new solvent, which was essentially another demarcation issue. It was not a dispute with management but with another section of the workforce. Mr Elliott's role in this matter was essentially a personal one as distinct from one qua delegate. In giving Mr Elliott a low score on the team player issue and like issues, I remain satisfied that Mr Elliott's position as a delegate in relation to the solvent issue was not taken into account by Kodak's decision-makers in deciding to terminate his employment. 16 Mr Elliott gave evidence that he raised a complaint on behalf of the dispersions employees on the question of the transfer of gel barrels. This again was essentially a dispute between two sections of the workforce. Kodak was concerned that the matter could not be amicably resolved, as Mr Lay said in his evidence. I do not, however, consider that Kodak viewed Mr Elliott poorly as a result of this dispute. That is so in the context of his delegate role as distinct from his personal position. The latter was affected by his poor relationship with Mr Burns, the delegate in chemical preparations. The evidence of the site delegate, Mr Vasilakis supports this view (see transcript at p 362). 17 In applying the selection criteria to Mr Elliott, Kodak representatives took into account Mr Elliott's relationship with other staff. Both Mr Lay and Mr Shannon took Mr Elliott's relationship with Mr Guinea into account. The applicants contend that it was inappropriate for the decision makers to take this relationship into account as Mr Elliott had confronted Mr Guinea on a number of occasions in his capacity as union delegate. On two occasions in 1999, Mr Elliott approached Mr Guinea to object to some of Mr Guinea's actions in the dispersions area. Mr Elliott gave evidence that he approached Mr Guinea in his capacity as union delegate in response to complaints by a number of union members. In Mr Elliott's affidavit at [79-80] he gave the following reasons for approaching Mr Guinea: "Operators in the dispersion area received considerable training in operating the different processes. Issues have arisen over my period as union representative about Mr Guinea and other members of management (most of whom had not received the full training), operating machinery and interfering with production processes. There were two principal issues here. The first is the principle that management should not be operating machinery on the shop floor. This is because it takes jobs away from workers on the shop floor. Secondly, there are safety considerations. There are some steps in the production process in dispersion that can be very dangerous, especially in the make area." 18 There was some evidence that other union members in dispersions were concerned with management operating machinery on the floor (see for example Mr Duckmanton's 2nd Affidavit, para 7). 19 I am not convinced that when Mr Elliott approached Mr Guinea, he did so in his capacity as delegate. As a production technologist, part of Mr Guinea's job is to ensure the quality of the product being manufactured in the dispersions area. Mr Guinea has been involved in the dispersions area for approximately twenty-five years. His job requires that he have access to equipment in dispersions. It is difficult to see how, in carrying out his own job, Mr Guinea was taking work away from employees on the shop floor. It is also questionable whether Mr Guinea's actions on the occasions discussed caused a health and safety risk. In fact, Mr Elliott acknowledged that in regard to the second occasion there was no health and safety issue (see transcript p 63). Even if I am wrong, however, and Mr Elliott did approach Mr Guinea in his capacity as delegate, I consider Mr Lay and Mr Shannon were centrally concerned with the manner of Mr Elliott's interaction with Mr Guinea, not the substance of such interaction. 20 In his affidavit at para 15, Mr Guinea gave evidence that on the first occasion that Mr Elliott had approached him, "Elliott's behaviour in speaking loudly and angrily and invading my personal space led me to believe that he was trying to make things difficult for me". Mr Guinea further gave evidence that on the second occasion that Mr Elliott approached him he was "red in the face, shouting at me and waving his hands about. He launched into a long tirade about me interfering when the operators were trying to do their jobs." Mr Elliott denied he yelled at Mr Guinea, although he conceded that he raised his voice (transcript at p 62). An issue raised by the applicants in their written submissions was that Mr Guinea did not tell Mr Lay that Mr Elliott had shouted at him prior to the selection process. The applicants also pointed out that Mr Lay and Mr Shannon had discussed the relationship between Mr Guinea and Mr Elliott prior to making their rankings. 21 As noted above, in assessing whether Mr Elliott was a good team player both Mr Lay and Mr Shannon considered Mr Elliott's relationship with other staff. They were entitled to consider complaints they had received from other staff regarding Mr Elliott's behaviour. I consider that Mr Lay and Mr Shannon were entitled to take into account, and had no reason to doubt, Mr Guniea's report of Mr Elliott's behaviour towards him. Mr Lay and Mr Shannon took into account Mr Elliott's poor relationship with Mr Guinea in the context of the knowledge that Mr Elliott had difficult relations with a number of other staff members. In light of this context, I do not consider it important that Mr Lay did not know the specific details of the particular confrontation between Mr Elliott and Mr Guinea before the redundancy process. It is unavoidable that Mr Shannon and Mr Lay would have discussed Mr Elliott and Mr Guinea's relationship some time prior to ranking Mr Elliott. I am not convinced that this discussion undermined Mr Lay's independent judgment. I am further not convinced that any of this evidence supports the view that Mr Elliott was terminated in part because he was a delegate of the Union. 22 There is some conflict between Mr Lay's evidence and Mr Elliott's evidence concerning two specific interactions between Mr Lay and Mr Elliott. Those conflicts of evidence are not unimportant, especially because Mr Lay referred to the interactions as matters he considered when ranking Mr Elliott. The specific evidentiary conflicts must, however, be seen in the broader context of the particular interactions. One conflict concerned whether Mr Elliott swore at Mr Lay during a meeting. I do not consider it necessary to resolve the conflict between various witnesses on this issue, but I am prepared to assume that Mr Elliott did not swear in an offensive fashion on the occasion in question. This issue is a very small part of the overall factual matrix. I consider Mr Elliott's behaviour, regardless of swearing, caused Mr Lay offence. I am satisfied that Mr Elliott, in this and other instances, was forceful in his dealings with management. I am also satisfied that on this occasion he did raise his voice and behave without respecting the dignity of Mr Lay. Mr Elliott's behaviour at the time was sufficiently inappropriate for Mr Shannon to feel he had to intervene. 23 Similarly, I do not consider it necessary to resolve the question whether Mr Elliott yelled at Mr Lay that he could not be trusted. I have approached Mr Elliott's evidence concerning this event with some caution considering his statement that Mr Lay slammed the door to building 3, when the relevant door is a heavily framed door that cannot be slammed. However, I accept Mr Vasilakis' evidence that Mr Elliott was upset by his conversation with Mr Lay (see transcript at p 365). I also accept that after the meeting Mr Elliott and Mr Lay had a further interaction that caused offence to Mr Lay. 24 Without resolving the specific evidentiary conflict in each matter, I accept Mr Lay's evidence that he considered Mr Elliott's verbal behaviour, in both instances, to be inappropriate. While this is a subjective matter, I consider the evidence reveals that this is not an unreasonable conclusion on Mr Lay's behalf. Mr Lay was entitled to take this view into account in the redundancy process. However, I consider that Mr Lay did not label Mr Elliott as verbally aggressive by reference to his delegate role but by reference to his general demeanour. I do not consider that Mr Elliott's low score was affected by the view management took of Mr Elliott's demeanour qua delegate as distinct from his demeanour qua worker. Previously, in the 29 June 2001 judgment, I accepted as honest and probative the denials made by Mr Shannon and Mr Lay on this issue. I remain of that view after a careful reconsideration of the evidence as a whole. 25 I reject the proposition that Mr Lay or any other Kodak decision-maker fabricated any incident to justify a low ranking for Mr Elliott. The evidence does not support it. The ranking of Mr Elliott, in my view, was a bona fide one and not one made for the illegal and improper purpose of ridding the company of a union delegate. This is so notwithstanding the longevity of Mr Elliott's employment and the fact that he had previously been promoted on merit. 26 In my view, the above analysis deals with the major points of issue as outlined in the final submissions of the applicants, filed in Court on 2 April 2001 and orally expanded upon. It also takes into account the written submissions filed on 8 February 2002 by the applicants in so far as they are relevant to the task remitted to me by the Full Court. It further takes into account the respondent's reply filed on 22 February 2002. I have grappled with the relevant conflicts in the evidence on those matters and others, and having done so remain of the view that the respondent's witnesses gave truthful and reliable evidence before me. Consequently, I remain of the view that Kodak has discharged its onus under s 298V of the Workplace Relations Act 1996 (Cth). Once again I will order that the application be dismissed. I do so now after two careful examinations of all relevant material, albeit the second time on a more painstaking basis, whereby I have made specific findings on material upon which I did not find it necessary to make findings on the first occasion. That was so, given my understanding as to the way the reverse onus provisions in s 298V were required to be applied in light of longstanding authority: see General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 612 per Gibbs J and at 617 per Mason J (with whom Stephen and Jacobs JJ agreed). Having had the benefit of such a thorough examination and re-examination of all the evidence, I am satisfied beyond any doubt that Kodak has discharged its onus under s 298V, notwithstanding that it is only necessary for Kodak to so prove on a balance of probabilities. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 26 February 2002 Solicitor for the Applicant: ALHMWU Solicitor for the Respondent: Blake Dawson Waldron Date of Full Court Judgment: 20 December 2001 Completion of Written Submissions: 22 February 2002 Date of Judgment: 26 February 2002