Notification under section 130 by Shop, Distributive and Allied Employees' Association, New South Wales of a dispute with Roche Products Pty Ltd re warning [2005] NSWIRComm 1014

Industrial Relations Commission of New South Wales

CITATION: Notification under section 130 by Shop, Distributive and Allied Employees' Association, New South Wales of a dispute with Roche Products Pty Ltd re warning [2005] NSWIRComm 1014

NOTIFIER Shop, Distributive and Allied Employees' Association, New South Wales PARTIES: RESPONDENT Roche Products Pty Ltd

FILE NUMBER(S): 4938 of 2002

CORAM: Patterson C

Dispute notification - final warning issued to forklift driver for unsafe operation of equipment and intimidation of work colleague - Union sought dilution of warning with similar warning to other employee - orders sought - Held - Application for orders rejected - Commission's intervention not justified - matter dismissed. CATCHWORDS:

LEGISLATION CITED: Industrial Relations Act 1996

HEARING DATES: 06/20/2003; 08/07/2003

DATE OF JUDGMENT: 02/11/2005

EXTEMPORE JUDGMENT DATE : 02/07/2005

NOTIFIER Mr W Dedula LEGAL REPRESENTATIVES: RESPONDENT Mr P Newall of Counsel Mr P Hayward Solicitor

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: PATTERSON, C

4 March 2005

Matter No IRC 4938 of 2002

Notification under section 130 by Shop, Distributive and Allied Employees' Association, New South Wales of a dispute with Roche Products Pty Ltd re warning

DECISION

[2005] NSWIRComm 1014

1 This dispute was notified by the Shop, Distributive & Allied Employees' Association (the "Union") following the issuance of a "final written warning" to one of its members, Simon Baxter, a warehouse person employed by Roche Products Pty Ltd (the "Company") located at Dee Why. 2 Following its enquiry into an incident alleged to have occurred between Mr Baxter and a co-worker, Ms Joanne King, management's warning was based upon the following assessment that he: "(a) Drove his forklift truck deliberately into the forklift being driven by Joanne. This was done by nudging his vehicle into Joanne's truck; (b) Manoeuvred his forklift truck in such a way that the pallet he was carrying was positioned over a pallet on Joanne's truck; (c) Continued to request Joanne to move out of his way in an intimidating manner". 3 Having considered Ms King's version of events, which were not seriously denied by Mr Baxter according to his alleged responses at interview, management concluded his actions to have been in breach of his most basic obligations to operate his equipment safely and to have caused considerable distress to Ms King by his imposing actions and demeanour. 4 The "warning" document then sets out, inter alia, a series of corrective actions in the form of counselling and periodic review of Mr Baxter's future attitude and performance. Failure to positively respond "may put Simon's employment with Roche in jeopardy". 5 Although management was prepared to treat the entire matter as private between the principal parties as recorded in the document and, I believe, to spare either of them - in particular Mr Baxter - any embarrassment elsewhere within the warehouse he referred the matter to his Union for advice/representation. 6 Further to the Union's involvement, through Mr Wally Dedula, it was put to the Company that a "formal final written warning" was not justified in the circumstances. Instead, the warning against Mr Baxter should have been considerably diluted to reflect an unfortunate, but minor accident, with an accompanying warning being issued to Ms King for her so-called part in events. 7 In the absence of settlement, the union's notification of an industrial dispute was first listed before Tabbaa C who, eventually, upon a motion moved by Mr Dedula , stood the matter out of her list pending the Union's approach to Workcover that they conduct on inspection and, by inference, offer an opinion (and outcome?). 8 After approximately three months having passed without any advice from the notifier, Commissioner Tabbaa's office made enquiries as to the status of the matter.