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. When re-listed the Commission was advised that the dispute remained unresolved, and Workcover had informed the Union that it had no wish to become involved. 9 During those proceedings, according to the record, Mr Dedula had become resistant to the Commissioner's constructive approach towards chartering a course for outcome and, after his confronting of her in a most discourteous - and unacceptable - fashion, made application for the matter to be re-assigned pursuant to section 173. 10 Following upon Tabbaa, C then issuing a Certificate of Attempted Conciliation directions were issued for the filing and serving of relevant material in anticipation of an arbitration and the file referred to the Commission's President for re-allocation. 11 When later received by me, the matter was re-listed for report back and further directions with an amended timetable for filing and a hearing date put in place. 12 However, for a combination of reasons - which include the inability of one party or the other to meet the original or amended timetables, and subsequent incapacity of myself due to persistent illness, the initial hearing date was considerably adjusted. THE HEARING 13 Appearing for the Union, its official, Mr W Dedula, called: Bernard Joseph Smith Union's Industrial officer; Simon Baxter Warehouse person and subject of the dispute; Anthony James Pollard Warehouse person; - and tendered, without objection, an unsworn statement of Chris Donkin , another warehouse person who was originally intended to give evidence but later became unavailable. Appearing for the Company, Mr P Newall of Counsel, instructed by Mr P Hayward solicitor, called Raymond Terence Coughlin Personnel Development Manager; Wayne Barry Stagoll Safety and Environment Manager; Joanne Adele King Warehouse person; Stephen Keith Moss Warehouse and Distribution Manager THE UNION'S APPLICATION 14 The Union seeks an Order in the following terms: Draft Order "1. The Commission orders the employer, Roche Products Pty Ltd to remove the final written warning from the file of Simon Baxter issued to Mr Baxter on date 9 August 2002, immediately". - falls well short of that being later sought, as loosely raised in proceedings on the run [6], where it seeks a "downgrading" of the original warning in addition to a comparable warning then being issued to Joanne King." THE EVIDENCE 15 Simon Baxter, on his evidence, has accumulated more than 40 years' experience in the operation of forklift trucks. At the time of his incident with Ms King he had been employed at Roche Products in excess of six years. 16 Joanne King, a considerably younger person, had been employed there for approximately 3 and ½ years. She was, excepting for one of the warehouse supervisors, the only female operative amongst a group of "24 to 27" male colleagues. 17 "Replenishing" stock within the racks is performed with the aid of a forklift truck - helpfully described by Mr Baxter as a "large" vehicle, orange or red in colour, with safety cage, handbrake, driver's seat and is driven whilst facing at right angles to the load and direction of travel (unlike the conventional/more common machine where a driver faces his/her load in the forward direction of travel). 18 "Order picking" is generally, but not always, as I understand the evidence - limited as it is in this respect - performed with the aid of smaller vehicles also fitted with tynes (forks) - called "order pickers" - which are lower in height and of less general bulk, yellow in colour, have no safety cage or handbrake, no driver's seat, and are driven by the operator standing on its rear platform and facing forward in direction, or opposite direction, of travel and lift. According to Mr Baxter, "order pickers" do not have a handbrake but a "deadman's pedal". 19 On the occasion of the alleged incident caused by Simon Baxter he was replenishing the warehouse storage racks with the aid of a forklift truck. Joanne King, engaged in picking customers' orders was, in her recollection also using a forklift, contrary to Mr Baxter's evidence that she was using the smaller machine, an "order picker", for which she states - at that time - she was not qualified to operate. 20 No other evidence is offered as to whether she was, in fact, using a forklift for the purpose of "picking", or when an "order picker" is normally used - appropriate to operational terms or requiring specific authorisation. 21 In any event, on the occasion in question, Ms King had already commenced picking and loading the pallet situated on her machine according to her - or yet to commencing picking according to Mr Baxter - when he observed that she and her machine were blocking access to his designated bay. 22 As he considered that his role of "replenishing" had priority over her "order picking" - it seems he made no attempt to wait or to discuss. "Priority" of one role over the other was never clearly demonstrated in the evidence. 23 Instead, he told/asked (?) her to "MOVE!". According to his evidence-in-chief Mr Baxter had politely asked Ms King to "move up please" in order to replenish the bay from which she seems to have been "order picking". 24 He states that she "moved up two bays with me following and, when she suddenly stopped for no obvious reason, there was a minor collision … accidental and appeared to me to be of a very minor nature … no noise, damage, movement or minor debris caused by the event". 25 She made no comment, according to him, and when he "again asked her to move a bit further … she took off down the aisle" returning again from the opposite end, in reverse, "so that the empty pallet she was carrying" was in front of another bay thereby obstructing his free movement of an empty pallet retrieved from the bay that he had replenished. 26 "As I swung my empty pallet over hers, she said 'don't do that' …. I immediately stopped, put my head in my hands and waited" until "she then took off down the aisle" (again). 27 Joanne King states that whilst reviewing her order sheet of items to be "picked", and whilst still waiting on her forklift, Simon Baxter had come down the aisle, stopped, and abruptly ordered her to "MOVE!" . She asked where he wanted to go and he replied "THERE!" which she understood to mean the position that she occupied. 28 Ms King thought she had reasonably obliged by moving along two bays whereupon he is stated to have then driven his machine into the pallet situated on her machine. She hadn't seen him approach in this way and, after the "collision", asked him "what he wanted". "His reply was 'MOVE!'. Asked where he wanted her "to go" he is stated to have replied "I don't care, not there". 29 She describes the contact between machines as "stronger than a nudge but a little less than a bump, something half-way in between, more like a push". She was "halfway off" her forklift "when Simon Baxter's forklift hit mine". 30 Ms King states that she then drove off around into the adjacent aisle, and returned full circle into the original aisle, to await completion of her task. Her forklift, with the tynes and partly loaded pallet, was now in the opposite direction and thereby facing towards Mr Baxter's machine. 31 As she proceeded to alight from the vehicle she states that Simon Baxter then moved his forklift towards her and placed the tynes and empty pallet of his machine immediately over the products and pallet of her own. Ms King, already distressed from an unrelated personal circumstance said "please don't do this to me, Simon, not today". He did not respond. 32 Opposite to his evidence, Ms King states that "Simon Baxter did not swing his empty pallet over mine, he drove it towards me and stopped with it over the top of my pallet and products on the pallet". 33 At about that time she was approached by another employee, Geoffrey Howell, (who was not called in proceedings) to attend a telephone call and she then left the scene. However, due to "Simon Baxter's behaviour I was quite emotional, felt unable to take the call, and "went outside for a short walk to clear my mind". She did not report the incident to her supervisor. 34 Shortly thereafter, Ms King was approached by Stephen Moss, the company's Warehouse and Distribution Manager, who had received news that she was "upset" and he pressed her to reveal if her condition was work-related. 35 Mr Moss states that he "become aware" that Joanne King "had been crying … for that reason and because I had a question to do with an administrative matter" he sought her out. 36 Then attending Mr Moss' office, at his insistence, Ms King asked for another employee (Lisa Lambert, who was not called in proceedings) and who "knew about the issue" to join the meeting. 37 Describing her version of events, with some minor variations in the respective evidence-in-chief of Ms King and Mr Moss, the latter interpreted her claim as one of intimidation by Baxter and arranged to interview him a few days later. 38 When he put the allegation to him Mr Moss states that, before responding, Baxter had told him that he "needed to know that Joanne King was a Drama Queen … had a reputation as a dobber …. was moody and that a lot of people felt the same as he did". 39 Mr Moss describes Baxter's explanation to have included an admission that, when Ms King had not moved her machine sufficiently, he "drove his forklift up to (her's) and bumped into it … not at high speed … (but) inched" it into her machine. 40 After consultation with Raymond Coughlin, Personnel Development Manager, the two arranged a further interview with Simon Baxter. Both managers state that Baxter did not deny nudging Ms King's machine, or that he had over-layed his pallet across her own. 41 According to each of those witnesses Baxter had explained his nudging of her machine as being due to the fact that "she did not move far enough" and advanced no explanation as to why he had then overlayed his pallet after Ms King had left the aisle and returned from the opposite end. 42 But Baxter had "emphasised he made it clear (to Ms King)" that whilst he considered his role to have priority over the other "he (had) pointed out (to her) that there was no rush … so if Joanne King had asked him to wait until she had completed her task he would have stopped". 43 The meeting was adjourned with Mr Coughlin concluding that Baxter's actions were considered serious and he would be advised of the consequences on the following day. 44 Attending with an "observer" of his choice, Chris Donkin (who was not required for cross-examination), Simon Baxter was then issued with his "final written warning" notice and invited to respond with any positive comments which "might influence the decision to place the warning on his file". Management heard nothing from him subsequently until contacted by the Union. 45 When questioned at length, in cross-examination, Baxter variously confirms the evidence of Messrs Moss and Coughlin as to what was put to him in each of the interviews, including that described as his admissions of deliberately bumping/nudging/pushing her machine and, later, overlaying his pallet across the one on her machine. 46 Considering his responses here to be in stark conflict with his evidence-in-chief he was asked: "COMMISSIONER: Q. Why didn't you tell management the story that you have unfolded here? A. There's at least two reasons, your Honour. Firstly, I was called at very short notice for the meeting and I was unprepared. Q. How long after the incident was this? A. It was nearly a week". 47 Asked in cross-examination of the risk to safety: "Q. The question is this, Mr Baxter: you would accept, wouldn't you, that a person who deliberately bumped another person on a forklift, if that were to occur, would be acting as a risk to safety? A. There would be some safety risk angle to it, certainly". 48 Asked as to his reaction of being presented with the final warning notice Baxter confirms his understanding of the allegations as put by the Company - but fails to adequately challenge them: "Q. Do you understand the company was saying that? [2] A. Yes. Q. Yes, indeed. In that meeting, of course, Mr Baxter, you were asked if you wanted to make any comment and you told us various things that you said, different kinds of things about the matter and about what would happen in the future. You didn't at any time in that meeting where you were given the warning, did you, say, 'Hold on, you've got it all wrong … there was nothing deliberate about this … this is rubbish … what do you mean deliberate' or anything of that kind, did you? A. No, I didn't. Q. No. You didn't challenge at all in that meeting what you were being warned about, which was the proposition that you had deliberately driven your truck into Joanne King's vehicle. You didn't challenge that in that meeting, did you? A. Well, I was a bit astonished, quite honestly, with the warning. Q. Yes, but be good enough to answer my question. A. No, I didn't". CONSIDERATION 49 "A bit astonished" (?). What, in my assessment, was he astonished about? How, in such circumstances can this person of mature age and long experience - and one who has been involved with the works occupational health and safety committee - by management's enquiry or its outcome? 50 In essence, Baxter did not deny striking Ms King's apparatus and subsequently placing his pallet over the one on her machine. 51 When asked why, his vacillation and contradictory evidence in this place is seriously at odds with his earlier explanations to management [46] and I regard his total response to represent a nonsense and nothing less than the product of recent invention. CONCLUSION 52 Having considered the evidence and the demeanour of the witnesses I accept the evidence of management's witnesses without question and the evidence of Ms King (given certain imprecision in her recollections) as sufficiently reliable. Conversely, the central evidence of Simon Baxter represents an attempt to mislead this Commission. 53 In my opinion, this person has sought to erect an elaborate camouflage - by his lying on oath to this Commission - in order to deflect the true focus of events from himself towards Ms King. 54 Baxter's actions in the warehouse can only be characterised as arrogant and intimidating towards Ms King but, also, a serious breach of his most basic obligations in operating his equipment safely. 55 In my opinion the Company was entitled, perhaps obligated, to have issued a warning of the type served upon him. He should consider himself fortunate that his services were not terminated. 56 I, therefore, find no grounds to support the Commission's intervention. As to the warning remaining on Baxter's record indefinitely, I do not subscribe to that approach and recommend that he be given opportunity to redeem himself by it being effectively expunged from his record after a reasonable period (subject to other matters which may be appropriate for taking into account). I recommend a period of three years to be reasonable. 57 As to the second strand of the Union's application that Ms King be issued with a warning I am left to wonder, on the evidence, on what basis should this be justified. 58 After all, she was the innocent party. She was merely performing her function when she was effectively interrupted and stood over by Baxter. When she attempted to resume her duty she was intimidated again. I wonder whether, in similar circumstances, Baxter would have approached/treated a male colleague in this fashion. 59 There shall be no such order issued. The Union's application in this regard is not only unsubstantiated, but unbalanced, ill-considered, cowardly and utterly ridiculous. 60 As for the taint that Baxter and, by inference, the Union would seek to inflict upon this lady - the only female amongst "24 to 27" male colleagues - by describing her as a "drama queen" the Union seems to have overlooked, or conveniently ignored, the fact that Ms King had not reported Baxter's conduct to management. 61 The applications are dismissed and the matter concluded. R J Patterson Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.