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Introduction

What happens when an anti-union employer sacks the union delegate? Knives at the ready!

This is a case which illustrates the importance of conducting proper investigations and whether the punishment fits the crime.

Background

The applicant in this matter was the union delegate in the slaughter floor of an abattoir. He had been employed by the company for nearly 12 years and was terminated because he (at the union’s request) sought out other employees’ payslips in agitation for a pay rise.

Following complaints from two employees of being asked for their payslips (and one for an employee’s girlfriend) and an ensuing investigation finding allegations of bullying and harassment, the applicant was dismissed.

The detail

Despite agreeing to provide copies of the payslips to the applicant, he complained to management about the union delegate asking for their payslips as he was not a union member and did not think the union delegate had any right to demand the payslips in the way he did, and further objected on his girlfriend’s behalf.

However, under cross examination, the worker had a very poor memory of events.

Another employee, however, was more forthcoming having complained first verbally and then in writing about the payslip request. This other employee no longer works for the respondent.

Management was concerned about the request, in particular that the applicant was claiming to be an official of union, in particular, that it was a covert attempt to get information from someone without their knowledge or consent (referring to passing on of the girlfriend’s payslip).

The applicant was advised of the employees’ complaints to management from a workmate.

And this is when the trouble started…

First Incident

The first employee who complained to management stated that he had an altercation with the applicant in the washroom area at work. This employee said that the applicant said a number of things to him in a hostile voice such as calling him a “dog c**t” for making the complaint to management about his demand for the payslips.

The applicant’s side of the story was that he said to the employee “A little birdie told me you dogged me”. He said he was referring to the employee informing management about his inquiries on behalf of the union. He said that when he said this, he was at one end of the boot wash area, and that the employee was at the other end – about four metres apart.

The applicant stated that it was in fact the employee approached him and speak to him in a raised voice, saying: “You won’t get a pay rise. It’s a waste of f**ken’ time.” The employee denied saying this.

The applicant admitted that he responded to the employee’s comment, saying “You’re a dog c**t.” And repeated this a number of times.

The employee then threatened the applicant saying: “Don’t forget you’re an old c**t…, I’ll take you out.” The applicant responding: “You haven’t got it in ya.”

Both the employee then went to work and working quite close to each other. No further comments were exchanged during the first part of the shift. The applicant was advised by another worker that the employee was staring or glaring at the applicant.

Second Incident

At the end of their morning tea break, the applicant alleged that the employee said words to the effect: “Out the gate after work.” The applicant took this to be an invitation for a fight after work had finished for the day. The applicant’s response was to laugh at the employee.

This, allegedly, made the employee angrier, saying: “You won’t be laughing this afternoon, I promise you.”

Another worker witnessed the altercation and testified that the applicant called the employee a “dog c**t”. The employee responded with: “Righto then, after work you old c**t.” The applicant’s response to this was “You’re nothing,” and then laughed. With the employee countering: “You won’t be laughing after work; I guarantee you that.”

Meeting with management

Whilst working, the applicant was told to go the manager’s office by his foreman.

The applicant went the office as instructed and found two management representatives present. The applicant was asked if he wanted a representative and he said no as the only person he would want was the union organiser who would not be available at short notice.

The meeting continued, with management putting to the applicant that he had been harassing people about their payslips, and the applicant said that he denied this. The applicant said that he couldn’t be harassing anyone if he hadn’t even been asking them for payslips.

The meeting lasted about 15 to 20 minutes; at its conclusion the applicant was suspended whilst management undertook a formal investigation.

On his way home he rang the union official, telling him that someone had reported him to management and that management had said and told him that asking people for payslips was deceitful and unlawful. The union official told the applicant that was nonsense.

The union’s response was to write to the respondent’s manager demanding that the applicant be immediately reinstated, under threat of legal action.

The letter was for all accounts, ignored.

The investigation

Another management representative undertook an investigation into the allegations. During the course of the investigation further serious allegations of bullying and harassment

Following the investigation, the applicant was called to the respondent’s premises for a meeting which resulted in his termination of employment.

Valid Reason

The Commissioner decided to believe the events as testified by the applicant over that of the employee stating:

“I found [the applicant] to be a witness of truth who was not inclined to give self-serving evidence and was prepared to make concessions about his own conduct even where it would not assist him.

“I found [the employee’s] evidence less reliable. Firstly, he claimed in his evidence that he refused [the applicant’s] request to assist him regarding obtaining payslips…as his response to [the applicant] by text for assistance read ‘Yeah I’ll see what I can do’.

“In my view [the applicant] had some justification for being angry at [the employee] given [the employee’s] disingenuous conduct toward him. [The applicant] made a request of [the employee] for assistance in exploring a concern raised that employees were not being paid correctly”.

Role of the union delegate

And more telling, the Commissioner stating:

“[The applicant’s] request of [the employee] was in keeping with the ordinary conduct one would expect of a union delegate. It was not contested in the course of the hearing and I accept that [the applicant] was a bona fide delegate under the rules of the [union].

“[The employee] said he was not a member of the [union] [and] was entitled to refuse [the applicant’s] request if he wished, and had he done so presumably that would have been the end of the matter as far as [the employee] was concerned.

“[The employee] did not tell [the applicant] he did not wish to assist him, and instead [the employee] lead [the applicant to believe in his text message that he did intend to attempt to assist him. However rather than doing what he indicated he would do in his text, he instead made a complaint to management about [the applicant’s] that misrepresented what [the applicant] had done, and without any indication to [the applicant] that he took any objection to [the applicant’s] request.

“I also observed that during his evidence [the employee] had a poor memory of key incidents. All of these things taken together lead me to prefer [the applicant’s] evidence as more reliable then the evidence of [the employee]”.

The Commissioner concluding that was reasonably clear that the applicant did not purport to deceive anyone into giving him payslips on false pretences or demand that he be giving payslips because he was a representative of the union.

The war of words

The Commissioner found that it quite clear through witness testimony that it was the employee who challenged the applicant for a fight, not the other way around.

It did not help the company’s cause, when the employee (being a key witness) was disciplined for striking another employee. This being after the applicant’s dismissal, nor did the fact that the letter of termination did not reference the incident in which the applicant called the employee a “dog c**t”.

Any unreasonable refusal to allow a support person to assist?

Surprisingly, the Commissioner found that the Respondent did not refuse to allow the applicant to have a support person.

In my experience, where an employee states that they would prefer to have the union present, the meeting would be adjourned until such time that the union official was available. Or, at the very, least, ask whether the employee was happy to continue without the union official, get the preliminaries out of the way and then reconvene when all parties were available.

No Human Resources?

The Commissioner found that the lack of HR expertise was likely to have impacted on the management’s process. [Yes! A win for HR, at last].

Did the punishment fit the crime?

The Commissioner finding:

  • The applicant’s length of service of 11 years and 9 months.
  • The applicant’s conduct in the language he directed at the employee was inappropriate and amounted to misconduct.
  • However, termination of employment was too harsh a consequence and was disproportionate to the actual conduct.

The Commissioner also emphasising that it was the employee who challenged the applicant to a fight and the flawed investigation.

Harsh, Unjust and Unreasonable

Not a surprise that the Commission found that the dismissal was harsh, unjust and unreasonable.

Remedy

Whilst initially wishing to be reinstated, the applicant changed his mind and sought compensation and the Commissioner stating that given this, it would be inappropriate to order reinstatement.

Compensation:

In assessing the amount of compensation, the Commissioner considered:

  • The applicant worked full time hours on a standard 38-hour week as a slaughterer and earned $22.63 per hour.
  • The applicant had received a final warning for the incident in August 2019.
  • Given his long service with the company, it is likely the applicant would have remained in employment for at least another 12 months had he not been dismissed.
  • The applicant was paid five weeks pay in lieu of notice paid in lieu. This amount was deducted from the total compensation. And, more notably, the deduction of the notice period is contrary to another case report (see “Aggressive employee awarded six months compensation”) who was allowed to retain the notice period without deduction.
  • Nearly $10,000 was deducted for casual work the applicant had managed to secure in the interim, plus the earning he was likely to earn between the hearing and the decision (14 days).
  • Deducted 10 per cent for misconduct.

Thus, arriving at a final compensation figure of $21,716.18 gross taxed according to law within 14 days.