Industrial Relations Commission of New South Wales CITATION: Health Services Union v Ambulance Service of New South Wales and another [2007] NSWIRComm 1004 APPLICANT Health Services Union PARTIES: RESPONDENT Ambulance Service of New South Wales FILE NUMBER(S): 2808 of 2006 CORAM: Ritchie C CATCHWORDS: Dispute notification hearing - transfer of a station officer to another station - Ambulance station subject to storm damage - concern over asbestos - officer sought for the station to be vacated due to safety concerns - the issue of vacating the station not uniformly accepted by all officers - officer sought to convince other officers to leave - officers complained of being bullied and harassed - Ambulance Service instituted investigation - officer sought to attend a particular meeting, prevented by Service, suspended on pay - a separate investigation commenced - at the hearing, officer denied he had bullied /harassed anyone - witnesses for the Service stated they had been bullied/harassed by the officer - evidence of officers preferred - Commission found that officers had reason to complain and that the transfer of the officer to another station was in accordance with the Ambulance Services Regulation 2005. LEGISLATION CITED: Industrial Relations Act 1996 Ambulance Service Regulation 2005 HEARING DATES: 02/11/06, 03/11/06, 11/12/06, 12/12/06, 13/12/06 DATE OF JUDGMENT: 6 February 2007 APPLICANT Mr R Morgan LEGAL REPRESENTATIVES: Health Services Union RESPONDENT Ms T Anderson of counsel DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 6 February 2007 Matter No IRC 2808 of 2006 IN THE MATTER OF: Notification under section 130 by Health Services Union of a dispute with the Ambulance Service of New South Wales and another re transfer of member DECISION [2007] NSWIRComm 1004 Background 1 On 25 July 2006 the Health Services Union (the Union) filed a dispute against the Ambulance Service (the Service) in accordance with section 130 of the Industrial Relations Act 1996 (the Act). The notification was initially allocated to Stanton C. and was listed to be heard in Newcastle but due to a joint request by both parties for the matter to be heard in Sydney, the matter was reallocated to the Commission as presently constituted. 2 The detailed notification stated in brief that a Committee of Inquiry had taken place as a consequence of allegations made by officers against Station Officer (S/O) Hogeveen that he had "harassed and bullied " them. The conclusions of that Inquiry finally resulted in that officer being transferred from the Toukley station to the Hamilton station. (S/O) Hogeveen, through his Union, objected to this forced transfer. 3 Conciliation between the parties took place on a number of occasions prior to a Recommendation being given by the Commission, as presently constituted, on 8 September 2006. At the same time a timetable for the filing and serving of evidentiary material was provided to the parties. A Hearing of the dispute took place on 2 and 3 November and 11, 12 and 13 December 2006. At the conclusion of the Hearing the Decision was reserved. 4 Mr R. Morgan of the Union appeared for the applicant and Ms T Anderson of Counsel appeared for the Service. 5 In the Northern Division (Central Coast) of the Service there are seven stations with Mr Allan Loudfoot being the Divisional Manager. The Operational Manager reporting to the Divisional Manager is Mr Alan Dent, with four Assisting Operational Managers reporting to him and then the seven Station Officers reporting to the Assistant Operational Managers. Case for the Applicant. 6 An extensive witness statement with annexures was filed by S/O Hogeveen to support his case. S/O Hogeveen joined the Service in 1979 and gained the rank of Station Officer in 1983 when acting in that position, which was confirmed in 1986. He was appointed to the Toukley station in 1998. 7 On 19 September 2004, Toukley Station suffered storm damage which resulted in the Station being vacated. Crews were relocated to the Wyong and Doyalson Stations. 8 Soon after the storm, S/O Hogeveen was appointed by the Union's Brisbane Waters Sub Branch to be their representative in the repairs of the Toukley Station. 9 Due to the damage to the Toukley Station and the threat of asbestos contamination there was not an immediate return to that station. A notification of a dispute was filed with this Commission and was heard by McKenna C. Further testing for asbestos contamination was carried out as well as rectification of the building with WorkCover being involved. 10 A meeting involving the Service, WorkCover, Union official and members was held on 18 April 2005. The Toukley Station was reoccupied on 21 May 2005. As per the minutes of the meeting it was the recommendation of WorkCover that if water re entered the building then the Station should be vacated. Notwithstanding the return to the Station, there existed concerns by officers of asbestos. Correspondence to this effect was sent to Mr Dent on 15 June 2005. On 21 June 2005 S/O Hogeveen completed a Workplace Hazard Report Form stating that: 1. unsafe engineering of re pitched roof in plant room, 2. unsealed asbestos sheeting in station areas. 11 On 28 June 2005 the Toukley station was again hit by a storm which resulted in water re-entering the station. It was the view of the Union and S/O Hogeveen and the agreement reached at the meeting of 18 April 2005 that the station should be vacated. 12 A meeting was held by staff of the Toukley station on 1 July. The staff voted to inform management that they would no longer work in the station until it was declared safe. Mr Dent was advised of this situation. 13 It was the view of S/O Hogeveen that Mr Loudfoot, had attempted to force staff to work from the Toukley station. 14 On 12 August S/O Hogeveen received by hand, an undated letter from Mr Loudfoot stating that the service had "received a Protected Disclosure alleging that he had bullied and harassed staff in relation to the asbestos issue at Toukley Ambulance station". A Mr Graeme Willis, Investigation and Policy Officer, Professional Standards and Conduct Unit was appointed to conduct the investigation. The correspondence dated 12 August 2005 stated that whilst the investigation was in progress, S/O Hogeveen was to be assigned to the Cardiff station from 16 August and was directed not to discuss the matter with the staff at the Toukley station. S/O Hogeveen objected to this forced transfer on a number of grounds. He did not attend the Cardiff station. Further correspondence from the Service to S/O Hogeveen dated 17 August 2005 reiterated the requirement for him to report to the Cardiff station. Correspondence dated the same date from S/O Hogeveen to Mr Mike Willis Acting General Manager stated that as the issue of his transfer was in dispute he would not be going to Cardiff. No dispute notification was filed by either party with this Commission. He was not paid for the period of 12 August to 31 August 2005. 15 The Union emailed to the Service stating their concerns, which included denying the harassment allegation, the lack of notice for change of roster, the issue of S/O Hogeveen coming into contact with another employee (Mr Peter Elliott) whom he had made previous allegations about to the Service and that he would be attending a meeting at the Toukley station as the union's representative. 16 On the following day 1 September 2005 S/O Hogeveen attended the Toukley station to partake in a meeting with persons from the Department of Commerce and structural engineers. He was refused entry to the meeting and was instructed to leave the premises by Mr Dent who stated that S/O Hogeveen had received a letter to the effect that he was not to go to the Toukley station. S/O Hogeveen was quite clear that he had not received such a letter and therefore refused to leave. When he stated that he was to attend the meeting on behalf of the Union, he was advised by Mr Dent, that he was suspended on full pay. He remained suspended on full pay until June 2006. 17 Subsequently on 21 October 2005, S/O Hogeveen was provided with particulars of allegations made against him and was invited to make written submissions. At no time during the investigation was S/O Hogeveen interviewed. His detailed responses were provided on 3 November 2005. His response covered his interaction with Ambulance Officer (A/O) Canrinus, A/O Forrester, Mr. Loundon, Operations Manager Dent ,Acting S/O Dent, A/O Wong and A/O Sharp. At no time in his response did S/O Hogeveen agree that he had acted in any way, other than in a professional business like manner. The Commission asked the following question to S/O Hogeveen: COMMISSIONER Q. Well , I'm more interested in what persons have written as to what they perceived your demeanour and your tone of voice was during the various discussions you had with fellow working officers. You've denied totally, if I can put it, that you were relaxed, your normal voice, and you have totally rejected any comment with respect to showing anger or being aggressive, correct ? A. That is correct. S/O Hogeveen later stated that he did get annoyed and was a bit uptight and a bit upset when he was at the Toukley station on 1 July 2005 speaking to officers who were still at the station. 18 On 29 November 2005 S/O Hogeveen was advised that the CEO had formed a view that S/O Hogeveen had engaged in misconduct and was to be reprimanded and demoted. He was given the opportunity to make a written submission by 14 December . This was done on 7 December by the Union. On 20 December 2005 the Service wrote to S/O Hogeveen to advise that the CEO had made a number of findings and S/O Hogeveen was invited to make a written submission by 30 December. This was done by the Union on 15 February 2006. Further correspondence was received by S/O Hogeveen on 24 March from the CEO again informing him that he had engaged in misconduct and was given the opportunity to respond. On 4 April 2006 the Union responded to this allegation stating that it did not accept the CEO's findings. 19 On 4 April 2006, as a consequence of a WorkCover Improvement Notice, the Toukley station was vacated until a clearance was received and staff returned to Toukley station on 5 June 2006. 20 On 4 May 2006 the Service wrote to S/O Hogeveen and advised him that they would deal with the matter as a remedial matter. That correspondence stated, amongst other matters, that he would be permanently transferred to another station. S/O Hogeveen was transferred to the Hamilton station. 21 S/O Hogeveen was on workers' compensation from May 2005 until 30 June 2005 (a period of some 7-8 weeks). From 12 August until 31 August he was not working and in dispute with the Service over his transfer to Cardiff, and then he was on suspension with pay (but no shift penalties) from 1 September 2005 until 26 June 2006. He then applied and was granted paid annual leave from 27 June 2006 until 5 September 2006. Then in accordance with the Recommendation issued by the Commission he commenced at Hamilton station on 12 September 2006. He proceeded on sick leave from 8 October to 27 October 2006. 22 It was the view of S/O Hogeveen that he had been transferred to Hamilton as punishment through additional cost and travel time and that he may possibly be the focus of industrial unrest, as he had been moved into a Hunter sub branch without the appropriate selection procedures being followed. He was also of the view that the Service's investigation of S/O Hogeveen's complaints against a fellow officer Mr Peter Elliott were not dealt with the same rigour as were the complaints against him. 23 In cross examination S/O Hogeveen admitted that he had attended an Anger Management course approximately ten years prior due to an issue that arose at the Hawkesbury station. 24 S/O Hogeveen doubted the accuracy of the report by A/O Canrinus of what she saw of the leakage in the Toukley station that occurred on the night of 28 June 2005. A/O Canrinus described what she had seen inside the cupboard. The cupboard had then been taped up. In S/O Hogeveen's view the damage and subsequent leakage could have been worse. The officers that night consisted of three persons who were not permanent at Toukley and A/O Collett who held the position of OHS officer at the station. S/O Hogeveen did accept that A/O Canrinus' description of the scene could not be constituted as flooding but in his evidence later on he did state that the water that entered the station that day did flood in through the cupboard. 25 It was the view of S/O Hogeveen that the Operations Manager Mr Dent omitted from the minutes of a meeting on 1 July 2005 the extent of leakage that had occurred as a consequence of the second storm hitting the Toukley station. It was his view that this omission was deliberate and he had therefore cooked the books. It was also his view, as expressed in an email sent by the Union to the Service on 31 August 2005, that Mr Dent had provided inaccurate information to the insurer( investigating S/O Hogeveen's workers compensation claim) which may have been made with mal intent. Notwithstanding the above accusations S/O Hogeveen believed he could still work in a harmonious working relationship with Mr Dent. 26 With respect to the meeting that took place on 1 September 2005 at the Toukley station, the Union by email, dated the day before, put the Service on notice that S/O Hogeveen would be attending the meeting as their representative and also as one of the "officers currently rostered to Toukley". 27 It was the Service's view that S/O Hogeveen was not currently rostered at that station and had been told not to attend that station whilst the investigation concerning him was in process. 28 S/O Hogeveen denied that he had intimidated or threatened Mr Loundon at the Toukley station on 1 July 2005. He was interested in protecting Mr Loundon's health and had inquired about Mr Loundon's training and qualifications. S/O Hogeveen admitted that he told Mr Loundon that because he did not have the qualifications he should not have done the repairs. He also admitted that he told Mr Loundon that the person who had directed him to do the work (Mr Dent) may have broken the law. At the time S/O Hogeveen did not believe his actions were inappropriate but he did accept it may have been better if he had asked Mr Loundon to step outside and hold their discussions privately and not before an audience. S/O Hogeveen did admit that his behaviour on that day possibly had an effect on Mr Loundon but in his view Mr Loundon had been sent by Mr Dent to work in an area that was not sealed, and that was his concern. 29 S/O Hogeveen denied that he had bullied A/O Wong. In fact he raised the issue that he had heard that A/O Wong had been bullied by his training partner Mr Sharp. He did not report this allegation to management because at the time he was not the S/O at Toukley. 30 S/O Hogeveen agreed that A/O Forrester had rung him on the night of 28 June 2005. He did not agree with what A/O Forrester had recounted as to what S/O Hogeveen allegedly said to A/O Canrinus. S/O Hogeveen denied that he would ring A/O Canrinus and apologise to her. In his view he had nothing to apologise for. He denied making any comment when talking to A/O Canrinus about his return to the station with his S/O pips on or about her relationship with A/O Forrester. 31 S/O Hogeveen disagreed with the statement of Acting S/O Dorahy concerning the phone conversation that took place between them on 1 July 2005 at 3.30pm. S/O Hogeveen said that there had been a decision to move out of the Toukley station until it had been checked and found to be safe and then move back. He did agree that he said to Acting S/O Dorahy that she would be doing the wrong thing if she stayed in the station when the asbestos testing had yet to be done and that she should be supporting both her fellow colleagues and the Union by walking out. He stated that she said that she would not be leaving the station prior to the testing. He stated that he was not okay with that. He sought uniformity between the officers. He admitted that he may have upset her when he rang her again that night at the request of Mr Weekes. He rejected Acting S/O Dorahy's version of their phone conversation in that he never said that she would be responsible for state wide bans being imposed if she stayed at the station and the Union would take action against her. He did admit that he said to her that "you would be doing the wrong thing if you turned up for work at Toukley" and that he sought to place pressure on her to leave the station. He said that he recognised this and when he saw her the next day he apologised to her for the phone call the previous night. He believed they were very good friends. 32 On the following day 2 July 2005, S/O Hogeveen agreed that he returned to the Toukley station around lunch time and advised the staff on duty that the bans had been lifted. He also stated that it was most likely that he said "well it's people like this lot here that can't be trusted and that have ruined it for everybody". 33 On 6 July 2005 S/O Hogeveen rang Acting S/O Dorahy to ask if she had a problem with him. He did this as a consequence of receiving a phone call from Mr Weekes asking him if he had a problem with Acting S/O Dorahy as he had heard something to that effect. S/O Hogeveen actually rang her on two occasions that night. It was his evidence that he was told on the second occasion, not to ring her again. 34 S/O Hogeveen did not agree with the conversation had between himself and A/O Canrinus on the night of 28 June 2005 as expressed in her Memorandum dated 30 June 2005 which was attached to her affidavit (Ex2). It was his view that he believed that the officers present would be vacating the station. He also believed that there was some residual animosity towards him by A/O Canrinus as a consequence of a personal relationship that had ended some years before. 35 With reference to A/O Smith's statement (Vol 2 annex.8) about events that occurred on 29 June 2005 at the Toukley station, S/O Hogeveen agreed that he said words to the effect of " you'd think we would have some support from you guys." He also agreed that he said that there could be state wide bans as a consequence. S/O Hogeveen said that he felt frustrated and that his voice was raised and that he used swear words but he denied threatening anyone. He agreed that he raised the situation with A/O Smith that it had been the Union who had assisted him getting his job at the Toukley station. He agreed this was said to put pressure on him to leave the station. 36 With reference to A/O Sharp's statement (Vol 2 annex.20), S/O Hogeveen agreed with the comments expressed in the statement with respect to the conversation between the two of them that took place on 2 July 2005 to the extent of S/O Hogeveen seeking support from his work mates. S/O Hogeveen denied being angry and denied entering A/O Sharp's personal space when raising the non smoking situation and also denied saying that "I'll remember this." 37 With reference to A/O Moffett's statement (Vol 2 annex. 18), S/O Hogeveen agreed that he said to A/O Moffett on 1 July 2005 that he was not happy with her still being at the station and that the paper bans that had been imposed had to be lifted because "you failed to vacate the station". He disagreed with her comments about how he had spoken to Mr Loundon in a cocky and sarcastic manner, treating him with disdain. 38 It was S/O Hogeveen's view that Mr Dent had misled a GIO investigator, Mr Greg Sawyer, over his workers' compensation claim. S/O Hogeveen had claimed workers' compensation (claiming stress) for a four hour period on the afternoon of 1 July 2005. He said that he believed he became stressful because of the actions of Mr Dent in trying to prevent him from attending the 1 July 2005 meeting and also trying to prevent him from raising concerns that he had about the Toukley station. 39 It was also his view that both A/O Canrinus and Forrester had lied and that Mr Dent had assisted officers to make complaints against him. 40 It was also stated by S/O Hogeveen that he had previously been to the offices of the local MP Mr Crittenden about various matters but not to speak to the MP about the Toukley station. 41 S/O Hogeveen said that it was not unusual for sub-branch Union representatives, such as himself, to attend stations on days off so as to communicate with members. 42 S/O Hogeveen believed that if returned to the Toukley station he could work effectively with Mr Dent and all the officers who had complained against him. In his view the use of mediation and the grievance procedure would assist. 43 In their outline of submissions and contentions the Union has sought the following from the Commission: · That the Investigation Reports and the findings of those reports be set aside; · That the Service take no action against S/O Hogeveen based on the findings of those reports; · That the Service reimburse S/O Hogeveen for the shift and weekend penalties forgone during the period of suspension; · That S/O Hogeveen resume his substantive position as Station Officer at Toukley forthwith. · That the Service pay S/O Hogeveen from 12 August 2005 to 1 September 2005. 44 In final submissions Mr Morgan made the following points: · That the use of the Protected Disclosure process by the Service was inappropriate. · That an alternative process was available. · That the investigation process was selective, in that the applicant was not interviewed, nor were other officers. · the overreaction by certain officers to S/O Hogeveen comments. · S/O Hogeveen has still not received any mentoring or mediation as part of the remedial action. · That transferring S/O Hogeveen from Toukley to Hamilton was inappropriate. · That what was alleged to have occurred in relation to S/O Hogeveen was a relatively small event. Case for the Respondent. 45 A number of witnesses filed affidavits for the respondent. 46 At the time of completing her affidavit Acting S/O Dorahy was on annual leave and prior to taking leave had been Acting S/O of the Toukley station. On 22 August 2005 she completed a statement for a Fact Finding Investigation concerning S/O Hogeveen. This was attached to her affidavit along with hand written notes she made in a notebook during the period between 23 June 2005 and 7 July 2005. 47 Acting S/O Dorahy stated that she received a phone call on the night of 28 June 2005 at around 9.00pm from an Operations Manager stating that there had been a small water leak in a cupboard at the Toukley station. The staff on duty had sealed off the area and were happy to continue working at the station. He also advised her that S/O Hogeveen had told staff to vacate the station due to concerns over asbestos. On her next day at work, being 1 July 2005, Acting S/O Dorahy along with other staff witnessed S/O Hogeveen speaking to Mr Loundon and asking him questions about the maintenance work he had completed, his qualifications to carry out such work and that he would be responsible if something happened. In her view Acting S/O Dorahy believed that Mr Loundon was being harassed by the manner and style of the questioning. A meeting of several officers then took place and Acting S/O Dorahy said she heard comment about using the Union to force a closure of the Toukley station. Another meeting was to be held at 10.00am concerning OH&S issues which Mr Dent was to attend. Acting S/O Dorahy and her partner returned to the station at 11.30am. She was advised that an outcome of the meeting was that each officer could please themselves as to whether they worked at Toukley or at another station. Acting S/O Dorahy said she told Mr Dent that she would work from Toukley station until an asbestos expert could tell her that she was at risk. That afternoon she returned a call to S/O Hogeveen and advised him that she would be staying at the station until the checks had been completed. On a number of occasions he told her that she was doing the wrong thing. To her he sounded forceful and powerful. At the end of the call she felt so sick she could not speak. She felt like she was being harassed and being pushed to do something that she did not wish to do. When the night crew came on Acting S/O Dorahy told them they could choose to work from Toukley or work from another station. That night at home, Acting S/O Dorahy received another call from S/O Hogeveen. He said that he was ringing her at the request of Mr Weekes a union executive member. He said that if she turned up for work on Saturday then she would be responsible for State-wide union bans and that the union would take action against her. She stated that she had not changed her mind and was told by S/O Hogeveen that she was doing the wrong thing. Acting S/O Dorahy felt really stressed at being forced to do something she did not wish to do. On arrival at work on 2 July 2005 Acting S/O Dorahy and other officers were approached by S/O Hogeveen who asked whether they were aware of the safety concerns at the Toukley station and said "we should be sticking together". Whilst Acting S/O Dorahy said that she was happy to stay, S/O Hogeveen said that the expert arranged by Mr Dent was not an expert at all. He said that the Union was arranging state wide bans and that they were ruining things by not supporting the bans. Later Acting S/O Dorahy rang Mr Sterland (from the union's sub-branch) who informed her that she was not responsible for the state wide bans and that only local bans would apply. He stated that no action would be taken against her and that officers could choose whether they worked at the station or not. On 2 July Acting S/O Dorahy was advised by Mr Dent that the bans had been lifted. Around lunch time S/O Hogeveen arrived at the Toukley Station and, in front of herself and other officers, stated that the bans had been lifted and blamed the officers who remained at the station for ruining the whole thing and that they did not stand by the union. S/O Hogeveen sounded aggressive and was angry. Acting S/O Dorahy said that she felt sick and harassed by S/O Hogeveen. She believed that S/O Hogeveen had singled this group out for ruining his agenda of closing the station and getting a new one. On 4 July 2005 a meeting was held between management, officers from Toukley station and a representative from the Chamber of Commerce. Recommendations were made which management accepted and a vote was taken to remain at the station and to await the implementation of the recommendations by management. On the night of 6 July Acting S/O Dorahy received two phone calls from S/O Hogeveen. The first was to question whether she had a problem with him, because someone had made a complaint against him. She told him that she had had enough of the issue and told him not to phone her again. The second was to state that since the first call he had spoken to both Mr Weekes and Mr Stirling and her name had come up. Acting S/O Dorahy told him she wanted nothing more to do with the whole thing and wanted to be left alone. 48 In examination in chief Acting S/O Dorahy said that on 2 July 2005, she was approached by S/O Hogeveen and was offered an apology for the previous night's phone calls. She said she was offended by this action because in her view it was not an apology. S/O Hogeveen was not specific about what he was actually apologising for yet she should accept it. Acting S/O Dorahy said that she did not believe it was necessary to vacate the station because the water leak was very minor and it had been dealt with accordingly. Acting S/O Dorahy said that she still felt uncomfortable around S/O Hogeveen even with the passage of time. In her view he had broken her trust. She said was asked by him to do inappropriate things based on wanting to get out of the station and based on an agenda of wanting a new station. In her position Acting S/O Dorahy had an obligation to management. She was asked to call an OH&S meeting but not tell management and when she told S/0 Hogeveen that she had told management, that's when he started to get aggressive. No friend of hers would speak to her on the phone as S/O Hogeveen had done. 49 A/O Canrinus filed an affidavit, attached to it was a record of interview dated 30 June 2005 and a Statement in the Fact Finding Investigation and correspondence with the Union. She said that she was on relief duty on the night of 28 June 2005 at the Toukley station. She was informed of the leak and had a look in the cupboard. She advised both union and the sector office of the situation. She in consultation with the other offices on shift agreed to seal the cupboard and remain in the station. She received a phone call from Mr Dent who said he would be at the station at 7.00am the next day. A/O Canrinus then received a phone call from S/O Hogeveen who said that officers had not adhered to the IRC ruling and WorkCover instruction to vacate. S/O Hogeveen then instructed them to leave the station as he was the station manager. A/O Canrinus replied that the area of concern was taped up and believed to be safe until management had assessed the problem. S/O Hogeveen stated that three of the officers were not from Toukley and that A/O Collett had been railroaded into agreeing. A/O Canrinus was told she was going against Union direction and that the sub-branch was supporting him in his endeavour to get a new station, and that she was "screwing around" with A/O Forrester and he was therefore agreeing with her and not doing his job with the Union. A/O Canrinus replied that her relationship with A/O Forrester had nothing to do with him or this matter. S/O Hogeveen then ordered A/O Canrinus out of the station and said that she would be getting a phone call from Mr Weekes. Mr Weekes did call later and all officers left the station. The following day there was a meeting between Mr Dent and officers at the Toukley station. A/O Canrinus found the comments of S/O Hogeveen insulting, offensive, derogative, belittling, harassing and bullying. At the time of the phone call S/O Hogeveen was not the S/O at Toukley . Both in examination in chief and in cross examination A/O Canrinus maintained her version of the phone call that took place between herself and S/O Hogeveen. She said that if S/O Hogeveen did return to Toukley then she would seek a transfer out of the area and if that was unsuccessful she would resign. She believed that S/O Hogeveen was a vindictive person. 50 A/O Forrester filed an affidavit. Attached to this affidavit was a record of interview given on 30 June 2005 and a Statement re Fact Finding Investigation. He stated that he received a phone call on the night of 28 June 2005 from A/O Canrinus stating there had been a leak at the station and what should be done. A/O Forrester called Mr Weekes who advised him to vacate the building. A/O Forrester advised the staff at Toukley of what to do. A short time later he received a call back that the risk had been contained and the staff were prepared to stay. He then phoned Mr Weekes and S/O Hogeveen and advised them of the officers' decision. Both phone calls were not received in a positive manner. A/O Forrester was told to tell staff to vacate the station as they had received authority from the Union who had spoken to the Services management. Approximately one hour later A/O Forrester said he received a phone call from A/O Canrinus in a highly upset state, complaining about a phone call she had received from S/O Hogeveen making derogative comments about A/O Forrester's role in the Union and his personal relationship with A/O Canrinus. A/O Forrester then rang S/O Hogeveen and stated that he was not impressed with what he had been told and that he should ring A/O Canrinus back and apologise. S/O Hogeveen replied that he would ring her back after dinner. The following day A/O Forrester was advised by A/O Canrinus that she had not received an apology. Later A/O Forrester spoke to Mr Sterling and Mr Weekes and advised them of the situation, stating that an apology was required. That night he received a phone call from S/O Hogeveen asking what the problem was. S/O Hogeveen was told that he should speak with A/O Canrinus. S/O Hogeveen denied speaking about what had been complained of and said that he would not be talking to her. S/O Hogeveen said that he would talk with her when he is "back at Toukley station wearing my S/O pips and will deal with it then". This was expressed in an aggressive and threatening manner. A/O Forrester then rang and told A/O Canrinus of the conversation. A/O Forrester and A/O Canrinus were married on 13 January 2006. 51 Mr Dominic Wong filed an affidavit with attachments but was not required for cross examination. A/O Wong is a Trainee Ambulance Officer commencing employment in September 2004. His evidence was that he was partnered with A/O Sharp located for a period of time at the Toukley station. Post the water leak at the Toukley station in June 2005 he decided to remain and work with A/O Sharp out of the Toukley station. Approximately a week later he was approached whilst at the Toukley station by S/O Hogeveen. He was told by S/O Hogeveen that it might be unsafe to remain at the Toukley station and that he could transfer to another one. He could make his own decision and not be coerced by A/O Sharp. He also made mention that the asbestos issue had resulted in a number of industrial actions. A/O Wong stated that whilst S/O Hogeveen was pleasant in his approach to him, he felt some pressure from him when the industrial action was mentioned. 52 Mr John Bryan Loundon filed an affidavit and was subject to cross-examination. Mr Loundon works for the Service at the Central Coast in the capacity of gardener with some handy work involved. He has worked there since 1997. On 29 June 2005 he stated that he was directed by Operations Manager Mr Dent to go to the Toukley station and do some handy work including patching around cupboards, painting exposed surfaces and inserting tarred rubber strip between some wall and roof surfaces to stop the wind entering the building. This was work that he had carried out before. He said that he completed the work that day. On 1 July 2005 Mr Loundon had cause to return to the Toukley station. Whilst he was there he was asked by S/O Hogeveen if he had carried out repair work on the skylights in the building. He was also asked whether he had the relevant qualifications. S/O Hogeveen then mentioned WorkCover qualifications and authority to carry out asbestos work, together with a lot of other relevant Certificates and Authorities, the significance of which Mr Loundon was unaware of and whether they were relevant to the repair work he had done. He stated to S/O Hogeveen that he did not have these qualifications. S/O Hogeveen then said that he will have him charged for carrying out work illegally as well as the person who directed him to carry out such work. Mr Loundon stated that S/O Hogeveen's tone and manner towards him was abrupt and threatening. He found him to be overbearing and felt belittled as this conversation was carried out in front of other persons. He felt concerned and threatened about work that he perceived as part of his day to day job. He then returned to Point Claire where he completed a File Note which was attached to his affidavit. In cross examination, Mr Loundon said that he initiated the File Note and asked a secretary at Point Claire to type it up. This was done within one hour of the incident taking place. He also reported the incident to the Sector Manager. He said at no time whilst carrying out the work, did he have access to the void between the ceiling and the roof. He stated that S/O Hogeveen sounded angry when he spoke to him and did not speak to him in a normal voice. He said he was surprised at S/O Hogeveen reaction to him and believed it was over the top. 53 Mr Allan Dent, Operations Manager for the Central Coast of the Service filed an affidavit with attachments. He stated that in his position he has the responsibility for the day to day management of the seven ambulance stations located in the Central Coast Sector Office at Point Clare. He confirmed that the minutes taken of the meeting held on 18 April 2005 to the best of his knowledge and belief were true and correct. He stated that he received a phone call from Operations on the night of 28 June 2005 advising him that the roof at the Toukley station was leaking. He received a second phone call from A/O Canrinus to say that the cupboard at the Toukley station where the rain had entered had been sealed up and that the two crews on duty were content to remain at the station until he met with them the following morning. Mr Dent attended the station the following morning and noted that the carpet in front of the cupboard was dry. He met with staff on duty and they agreed to work at the station on the proviso that the Department of Commerce were to report on and carry out necessary repairs. WorkCover were also advised and an Engineer was engaged to conduct a preliminary inspection that day and samples were to be taken. A plumber was engaged to fix the leak. Mr Dent received two memorandums both dated 30 June 2005 one from A/O Canrinus and one from A/O Forrester complaining about bullying and harassment from S/O Hogeveen. On 1 July 2005 Mr Dent attended a meeting of officers at the Toukley station. The meeting was advised that the station would not be closing but that individual officers were free to choose whether they stayed at Toukley or worked out of neighbouring stations. The meeting was advised that the Department of Commerce was to inspect, review and repair the station. S/O Hogeveen attended the meeting even though he was supposed to be at the Hamilton station to commence Selected Alternative Duties. At the conclusion of the meeting S/O Hogeveen advised Mr Dent that he was stressed and was going to see his doctor and would not be attending the Hamilton station. Mr Dent received a report dated 1 July 2005, from Mr John Loundon (gardener/handyman-Central Coast). The report detailed a conversation between himself and S/O Hogeveen that had taken place the same day. 54 Attached to the report was a File Note dated 2 July 2005 which outlined conversations that he had had with officers Smith, Dorahy and Moffett and their recounting of conversations they had had with S/O Hogeveen. 55 Also attached was another File Note dated 1 September 2005 that outlined the conversation he had with S/O Hogeveen that day when a meeting was held with officers at Toukley. This conversation ended with S/O Hogeveen being suspended with pay after Mr Dent had spoken by phone with the Divisional Manager Mr Allan Loudfoot. 56 In examination in chief Mr Dent said that on 1 September 2005 he believed there existed a written communication from the Service to S/O Hogeveen for him not to attend the Toukley station. He later found out that no such written correspondence existed. There did exist an undated letter directed to S/O Hogeveen (hand delivered on 12 August 2005) from Mr Allan Loudfoot, Divisional Manager, Northern Division advising amongst other matters, not to discuss this matter (allegation of bullying and harassment of staff in relation to the asbestos issue at Toukley station) with other staff. He was aware there had been discussions between the Service and the Union for S/O Hogeveen not to attend the station. He was also aware that S/O Hogeveen was the Union's representative over the Toukley asbestos issue. In cross examination Mr Dent stated that he directed Mr Loundon to the Toukley station to carry out some work. He was sent there because there was a concern about wind blowing into the building. He was not going to be exposed to asbestos. He was not going to be removing any asbestos. Mr Dent said that after the meeting with the staff on 1 July 2005, he gave specific instruction that staff could make up their own minds, on an individual basis, as to whether they wished to work at Toukley station or not. He said that when Acting S/O Dorahy had complained to him about S/O Hogeveen, she stated to him that she was frightened and therefore he encouraged her to have the matter treated as a Protected Disclosure which would be handled through the Professional Standards and Conduct unit. He rejected the accusation that he encouraged Acting S/O Dorahy to treat her complaint in this way so as to exaggerate the gravity of the offence. He also rejected the claim that he had manipulated Mr Gilham in the taking of minutes for 1 July 2005 meeting. He also stated that when he met with the workers compensation investigator he did no more than answer questions posed by the investigator. Mr Dent said his experience was that he found it very difficult to manage S/O Hogeveen. He believed he himself had been the subject of bullying by S/O Hogeveen. When S/O Hogeveen does not get what he wants, he keeps wanting to take the matter to a higher authority. He also denied the claim that he was going to "get him", referring to S/O Hogeveen. He did not believe he had established a relationship of trust with S/O Hogeveen. 57 A/O Sharp gave evidence and was questioned on a Statement he signed on 24 August 2005-(ExA Vol.2 tab 20). He joined the Service in 1976. A/O Sharp said in his statement that he had a conversation with S/O Hogeveen on 2 July 2005 outside the Toukley station. S/O Hogeveen spoke to him about his non support of his work mates with respect to the asbestos issue. He felt he was being bullied and belittled. A/O Sharp stated that he had determined that he would stay at the Toukley station. S/O Hogeveen then reminded him that there was no smoking on the station. This was said as S/O Hogeveen moved into the personal space of A/O Sharp. Again A/ O Sharp felt threatened. A/O Sharp replied that S/O Hogeveen was off duty. S/O Hogeveen said "I'll remember this ". He then said that there was no smoking on the station and that he was the official union representative at the station and he could tell him not to. A/O Sharp said he felt threatened, bullied and belittled as a result of S/O Hogeveen's efforts to have him comply with what he wanted. Later that same day A/O Sharp had a conversation with his partner Dominic Wong who recounted a conversation that he had with S/O Hogeveen. S/O Hogeveen was quoted by Wong to have stated that because Wong had not worked out of Wyong last night we are now going to have to go on strike, and it was all his fault. In response to a question from the Commission, A/O Sharp said that when he got home that night he was very disturbed by the confrontation, it bothered him a lot so he wrote down what had occurred partly as therapy to get over it. This was the only time since he had been with the Service, that he had ever experienced such threatening and bullying behaviour. 58 In final submissions Ms Anderson made the following points: · the use of the Protected Disclosure process was available to the Service. · the action of the Service in transferring S/O Hogeveen was available to it in accordance with the Ambulance Regulations 2005. · the claim for non payment of penalty/weekend rates not quantified. · the onus falls on the applicant to meet the Briginshaw/Briginshaw test with respect to the allegations raised by S/O Hogeveen against Mr Dent and Mr Rochford that the legislative process used by them was for an improper purpose. · the Commission does have the power to be critical of the report but not to set the Reports aside. · S/O Hogeveen may not have been interviewed by Mr Willis for his report but he did receive a detailed written reply from him and has had the opportunity in these proceedings to fully state his case and bring whatever evidence he wished. · it is open to the Commission to be critical of the Service that mentoring has not taken place. · there has been no breach of the award re the transferring of S/O Hogeveen without the appropriate notice because no transfer took place. · it would be detrimental to direct the Service to transfer S/O Hogeveen back to Toukley as the concerns expressed by officers still working in the area is still palpable. · the failure of S/O Hogeveen to recognise the negative effect he had on work colleagues. Consideration and Decision. 59 The original notification by the Union giving a brief history of the dispute and their Outline of Submissions and Contentions noted that S/O Hogeveen was subject to two investigations by The Professional Standards and Conduct Unit of the Service. The first was the claim that S/O Hogeveen had "harassed and bullied" staff at the Toukley station. This investigation was carried out by Mr G. Willis who, within his report, made recommendations based on his findings, they being that S/O Hogeveen had between 28 June and 2 July 2005 engaged in bullying and harassing staff at the Toukley station in accordance with his desire to vacate Toukley station. The findings of the second investigation were that S/O Hogeveen had failed to report for duty at the Cardiff station on 16 August 2005, that on 1 September 2005 he had at least on two occasions refused to comply with a lawful direction given by Mr A. Dent and that on 1 September 2005 he had sought to attend a meeting at the Toukley station to discuss the asbestos issue, in contravention of a written lawful instruction given by the Divisional Manager. This investigation was carried out by Mr M. Lynch. I could find no recommendations with respect to this report. I note that at point 6.3.18 of Mr Lynch's report, he makes the following comment: It is the contention of the investigator that the pivotal issue in this matter is, and always has been, Mr Hogeveen's behaviour in relation to the asbestos issue at Toukley station. I agree with Mr Lynch's comment. 60 It was the submission of the Union that the Service by utilising the Protected Disclosure process in handling the "harassment and bullying " claims used the wrong vehicle. In their view the Grievance Resolution Procedures was the correct vehicle. The process used by the Service led to delay which in conjunction with S/O Hogeveen being stood down on base salary, resulted in a substantial loss of money. The final remedial action of transferring S/O Hogeveen to another station was not a disciplinary action but one that resulted in an inconvenience. 61 The Service stated that the Protected Disclosure process was appropriate taking into consideration the concern by Acting S/O Dorahy for her own safety. Mr Willis at the request of the Divisional Manager, was appointed to conduct a fact finding investigation into the conduct of S/O Hogeveen. He was also required to include in his report recommendations as to what, if any further action, should take place. His recommendations in summary stated that the matter should proceed to a disciplinary inquiry and that charges be laid and that in the intervening period S/O Hogeveen not be permitted to return to the Toukley station or any other station where Toukley officers may be, until such time as the disciplinary inquiry is complete and further consideration is given to his conduct in this matter. 62 At the completion of Mr Graeme Willis' report, and after communication between the Service and the Union, the Service determined in accordance with the Ambulance Service Regulation 2005 that it would transfer S/O Hogeveen from one station to another. He would also be subject to mentoring by the Operations Manager and mediation was to be organised through an external and independent mediator. The transfer in my view is allowed in accordance with remedial action as defined by the said regulations. It was the Union's view that such a transfer contravened the Operational Ambulance Officers (State) Award (Clause 18) in that there was no advertising for the vacant position that S/O Hogeveen was placed into. I do not accept the Union's submission on this point. I accept the submission of the Service in that I do not believe that the award should operate in a way that displaced that power conferred by the regulation. 63 Incorporated into S/O Hogeveen's evidence were the reports of Mr Willis and Mr Lynch. I note in Mr Willis's report that there existed either file notes or statements from ten officers who were not witnesses in the hearing before this Commission. Also within the file was S/O Hogeveen's written response, going to 17 pages responding to the accusations. I note also that S/O Hogeveen was not interviewed by Mr Willis during his investigation. Taking into consideration the number of persons he did interview during his investigation I find this unusual. Whilst describing the non interviewing of S/O Hogeveen as unusual I do not see this omission as being fatal to Mr Willis' report. 64 In this matter, it is my view that the Commission has to determine whether the action taken by the Service in transferring S/O Hogeveen was appropriate, based on the facts placed before it during this hearing. 65 It is clear from the evidence of S/O Hogeveen that he had a keen interest in the asbestos issue at the Toukley station. From the first damage to the Toukley station back in September 2004 up until present day his evidence was that he sought to protect his fellow workers from the threat of asbestos at the station. He led this campaign. It was also noted in evidence, that the desire for a brand new station was also something that may come out of this campaign. As expressed earlier in this Decision, it was S/O Hogeveen's evidence that during his discussions with fellow employees he did not raise his voice or get angry. This blanket denial was varied during cross examination to agree that he did get a bit agitated and that he may have used inappropriate language but using such language was not unusual in the Station. He was surprised by their negative reaction, with the Union describing Mr Sharp's reaction as making a mountain out of a mole hill. 66 Except for A/O Canrinus and Mr Dent, S/O Hogeveen described his working relationship with Dorahy, Sharp, Forrester and Loundon in a positive way. Those same persons gave a similar response in their description of their relationship with S/O Hogeveen prior to the June/July 2005 incidents. Yet those same persons gave direct evidence being highly critical of S/O Hogeveen in the way he conducted himself during that period. At that time whilst not the actual station officer at Toukley, he was the substantive station officer. Because of his substantive position, also his appointed position through the sub branch, and his long period of service and experience, he had a high degree of implied power. The Union classified the reporting of S/O Hogeveen by these officers as a "relatively small event". Both Loundon and Sharpe at first opportunity put pen to paper and recorded what had happened with respect to their confrontation with S/O Hogeveen. Both were upset and agitated by their experience. Acting S/O Dorahy kept contemporaneous notes of her discussions with S/O Hogeveen and reported her experience to Mr Dent. She stated that she had six counselling sessions with the Service's Employee Assistance Provider. She said that if she sees Mr Hogeveen she suffers a physical reaction. A/O Forrester gave evidence in part to state that his phone conversation with S/O Hogeveen on 29 June ended with S/O Hogeveen stating that he would talk with A/O Canrinus "when I'm back at Toukley station wearing my pips and will deal with it then." This was said in an aggressive and threatening manner. This comment was denied by S/O Hogeveen. 67 When giving evidence S/O Hogeveen was most reluctant to admit that he at any time spoke in an aggressive and or threatening manner in any of his conversations to fellow employees. Unfortunately for S/O Hogeveen witnesses who had no previous negative history with him disagreed. He sought to apologise to Acting S/O Dorahy the next day after his phone conversation with her. An apology that she rejected. 68 Why would individual employees who had no previous negative history with S/O Hogeveen give evidence contradicting his with respect to what was said and the tone of the conversations. In my view there was no alternative reason other than they recounted what they had actually experienced. 69 It is my finding that evidence given by employees Dorahy, Forrester, Sharp and Loundon is to be preferred to that of S/O Hogeveen where they conflict. 70 The relationship between S/O Hogeveen and A/O Canrinus was different to other employees in that some years before they had engaged in a romantic relationship which had not ended well. Animosity seemed to still exist between the two people. Canrinus stated that Hogeveen accused her of "screwing around" with A/O Forrester resulting in Forrester not doing his job with the union. She immediately reported this conversation to Forrester who stated that she was in "a highly agitated state". She found the comment offensive and belittling. Hogeveen denied such a comment. It is my finding, based on the balance of probability, that such a comment was made by Hogeveen during that phone conversation. 71 It is my finding that the aim of S/O Hogeveen in having officers vacate the station, due to the leakage into the cupboard, was not happening, therefore pressure was applied to A/O Canrinus and to Acting S/O Dorahy for this to occur. 72 S/O Hogeveen made a number of claims against Mr Dent. Mr Dent was accused of manipulating the minutes of meetings, the misuse of the Protective Disclosure process, providing incorrect information to an insurance representative and a threat that Dent was "going to get him (Hogeveen)". No corroborating evidence was brought by the Union to support these serious allegations therefore I can not take them any further. As a consequence of discussions with Acting S/O Dorahy, Mr Dent believed it appropriate that a Protective Disclosure process take place. The administration of the two investigations was carried out by the Professional Standards and Conduct Unit. 73 I do not accept the Union's description of the reporting by various officers of the actions of S/O Hogeveen "as a small event". The officers who gave evidence in this matter did so in my view as a consequence of not accepting the actions of S/O Hogeveen or the way he treated them. As I stated during the hearing of this matter, when one considers whether harassment/bullying has taken place, one has to carefully consider the effect the alleged harassing actions had on the recipient, as well as what was actually said. I could not describe any of the witnesses who gave evidence complaining of their treatment by S/O Hogeveen as overly sensitive or thin skinned. All had considerable time with the Service and therefore would be experienced in the day to day pressures of their sometimes difficult job, yet they gave evidence being strongly critical of S/ O Hogeveen's actions. 74 It is my finding that whilst S/O Hogeveen may have had the best of intentions in his desire to resolve the asbestos issue at the Toukley station, it was the way he sought to engage and influence his fellow officers that was his undoing. He, in my view, clearly misread and underestimated how his comments were received by these people. I do believe the effect his actions had on these people either did not register with him or it was his belief that with his position, and therefore its power, he could overcome any opposition. In reality what occurred was that individual officers made up their own mind on how they would handle the situation and took offence at the way S/O Hogeveen sought to impose an opposite view. 75 In summary, I find that the actions of the Service in taking remedial action, in transferring S/O Hogeveen from one station to another, in accordance with the Ambulance Services Regulation 2005, as being appropriate in consideration as to my findings in this hearing. 76 With respect to the meeting that occurred on 1 September 2005 between Mr Dent and S/O Hogeveen, it is clear in my view that it should not have occurred. Evidence was that the Union were on notice by the Service that S/O Hogeveen should not attend this meeting, yet he did turn up. 77 Whilst it is accepted that a Union has the right to send a representative of its choosing to a meeting, the Union must have been aware that sending S/O Hogeveen would result in a confrontation of some degree. S/O Hogeveen turned up for the meeting and was met by Mr Dent who denied him access. 78 It is my finding that S/O Hogeveen should have recognised the impasse and passed the problem back to his Union for them to deal with immediately. During this impasse, Mr Dent spoke with his superior. It is my view that S/O Hogeveen should have taken similar action and contacted his appropriate Union official and stepped back. This he did not do but continued to press his point notwithstanding the directions he was being given by a superior officer. The standing down (with pay) of S/O Hogeveen for failure to follow such direction was available for the Service to use. 79 The transfer of S/O Hogeveen from Toukley station to Hamilton station commencing 12 August 2005 was objected to by the Union on behalf of S/O Hogeveen. S/O Hogeveen did not take up this transfer. He subsequently was stood down with pay on 1 September 2005 as a consequence of another issue. The Union during the Hearing sought payment for those two weeks due to the lack of notice for change of roster. The Service's submission was that as S/O Hogeveen never took up this transfer therefore he never worked any roster let alone a new one. I note, and it was confirmed by the parties, that in Clause 11 Rosters of Hours-Operational Ambulance Officers (State) Award , there is no prescribed penalty for breach of this clause. No evidence was provided to the Commission as to what the Hamilton roster was to be and if it varied from the Toukley roster S/O Hogeveen was to have worked. He could well have been rostered to work a mirror roster as to what he was to have worked at the Toukley station. It is clear the reason S/O Hogeveen was transferred to another station was so the investigation could take place minimising any difficulties. This is a logical and normal practise in industrial relations when allegations such as they were have been levelled at someone. Separate the parties so the investigation can take place. As their is no prescribed penalty for breach of the clause, even if a breach has taken place and S/O Hogeveen did not work any roster at all, I therefore am not in a position to agree to the Union's claim. 80 I believe it is also appropriate that I comment that in accordance with the transfer of S/O Hogeveen, certain actions were going to be taken by the Service. As at the time of the hearing these actions had not occurred. In the interests of fairness to S/O Hogeveen, what was expressed by the Service that was to take place should happen as soon as possible. D.W. RITCHIE 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.