DISPUTE RE ALLEGED DISCIPLINARY ACTION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2014 WAIRC 00824

DELIVERED : FRIday, 1 AUGUST 2014

FILE NO. : CR 3 OF 2014

Applicant

AND

Public Transport Authority of Western Australia

Respondent

Catchwords : Industrial law (WA) – Matter referred for hearing and determination under s 44(9) of the Act – Dispute regarding implementation of disciplinary procedures – Dispute regarding allegations concerning the conduct of employees – Disciplinary investigation – Reprimand – Credibility of witnesses – Penalty imposed was appropriate – Application dismissed

Legislation : Industrial Relations Act 1979 (WA) ss 44, 44(9)

Result : Application dismissed

Representation:

Counsel:

Applicant : Mr K Singh

Respondent : Ms J Rhodes of counsel

Solicitors:

Respondent : State Solicitor’s Office

Reasons for Decision

1          Ms Janet Vimpany is employed by the Authority as a Passenger Ticketing Assistant on the Joondalup line.  On Saturday 27 April 2013 Ms Vimpany was rostered to work on an overtime shift with a colleague, Ms Jennifer Blake, at the Perth City Station.  The shift commenced at 10am and was scheduled to finish at 4pm. It was common ground that both Ms Vimpany and Ms Blake were given permission by the morning duty Station Coordinator Mr Avtar Singh, to leave early by about 3:30pm, if their shift duties had been completed.  In accordance with this understanding, Ms Vimpany and Ms Blake entered the station office to prepare to depart. 

2          At the time, Mr David Hammon had taken over from Mr Singh as the duty Station Coordinator. Mr Hammon was unaware of Mr Singh’s earlier agreement that Ms Vimpany and Ms Blake could leave early, if their duties had been completed. As a result, Mr Hammon directed both Ms Vimpany and Ms Blake to complete their shift to their usual finish time of 4pm. It was contended by the Union, that Mr Hammon did so in a loud and aggressive manner, which caused upset to Ms Vimpany and Ms Blake.

3          Subsequently, at about 3:50pm, Ms Vimpany returned to the station office to collect her belongings. She had previously, with Ms Blake, decided that she would speak with Mr Hammon about the previous encounter.  Ms Vimpany said as she did so, Mr Hammon again became loud and aggressive and told Ms Vimpany to leave the office.  Following these events, a complaint was made by Mr Hammon to the Authority’s senior management, asserting that Ms Vimpany had acted in an intimidating and inappropriate manner in speaking with him on her return to the station office. Additionally, Ms Vimpany also lodged a grievance in relation to Mr Hammon’s conduct. The complaint of Mr Hammon ultimately led to disciplinary action against Ms Vimpany, in which she was issued with a formal reprimand. Additionally, further possible action against Ms Vimpany, in relation to allegations she knowingly misled the investigation into the relevant events, is pending.

4          The matter was unable to be resolved at a s 44 conciliation conference before the Commission. Accordingly, the matter has been referred for hearing and determination under s 44(9) of the Act.  In essence, the Union and the Authority are in dispute over:

(a)      Allegations concerning the conduct of the Union’s member Ms Vimpany, and the Authority’s Station Coordinator Mr Hammon, on the afternoon of 27 April 2013; and

(b)     The Authority’s implementation of its disciplinary procedures against Ms Vimpany.

5         There is a substantial body of agreed facts in this matter.  They are set out below.

Agreed facts

6         On the afternoon of 27 April 2013 between 1500 and 1600 hours, there were two interactions at Perth Railway Station between the Union’s member, Ms Vimpany, a Passenger Ticketing Assistant and Mr  Hammon, a Station Coordinator, in the presence of other employees of the Authority.

7         Following the second interaction, Mr Hammon emailed the Authority’s Passenger Service Manager Perth, complaining about Ms Vimpany’s conduct during their second interaction. Specifically, Mr Hammond alleged that Ms Vimpany abused his position with threatening behaviour by pointing her finger directly in his face and saying “do not talk to me like that again and who do you think you are anyway?”

8         A memorandum dated 8 May 2013 sent on behalf of the Authority and received by Ms Vimpany on 10 May 2013 (the Memorandum):

(a) Notified Ms Vimpany of allegations that she:

(i)               “Stormed” into the Station Coordinators’ office area;

(ii)             Shook her finger in Mr Hammon’s face from within approximately two feet; and

(iii)          Shouted at him in an intimidating and threatening manner; and

(b) Required Ms Vimpany to respond with a written statement explaining her actions.

9         Ms Vimpany booked off work on receipt of the Memorandum on 10 May 2013.

10      On 14 May 2013, Ms Vimpany submitted a Health and Safety Incident Report Form (the Form) in which she alleged that:

(a) Mr Hammon was aggressive, threatening and abusive towards her and bullied and harassed her on 27 April 2013;

(b) She felt anxiety, stress and tension headaches as a result of feeling vulnerable and powerless following her interactions with Mr Hammon on 27 April 2013; and

(c) Exposure to these mental stress factors, including receipt of the Memorandum, had resulted in psychological injuries.

11      On 17 May 2013, Ms Vimpany responded to the Memorandum stating that the allegations were false and not a true and correct account of what occurred.

12      Ms Vimpany lodged a workers’ compensation claim with the Authority in relation to her absence commencing 10 May 2013.

13      On 24 May 2013, a representative of the Union raised a grievance with the Authority’s Manager Human Resource Services relating to the conduct of Mr Hammon on 27 April 2013, alleging that Mr Hammon had humiliated, degraded and threatened Ms Vimpany and the Union’s other member, Ms  Blake in delivering an instruction to them aggressively, by yelling and screaming at them in the presence of other staff.

14      On 29 May 2013, the Authority’s Acting Manager Human Resource Services recommended that the grievance first be raised with Mr Hammon’s Manager.

15      On 7 June 2013, following a meeting with a representative of the Union and Ms Vimpany, the Authority’s Acting Manager Human Resource Services discontinued the grievance on the basis that the disciplinary investigation would take into consideration Ms Vimpany’s account of the events on 27 April 2013, and on the basis that Ms Vimpany’s workers’ compensation claim was still pending.

16      On 11 June 2013, Ms Vimpany submitted a revised response to the Memorandum which alleged that:

(a) During their first interaction, Mr Hammon “stood and glared at us and shouted instructions regarding our finishing time in an aggressive, threatening, intimidating and completely unnecessary manner” such that she had “never in (her) life been spoken to by a male in such a threatening way”; and

(b) During their second interaction, Mr Hammon reacted once again in a threatening, loud and aggressive manner, becoming agitated and unreasonable and entered her personal space.

17      The allegations against Ms Vimpany were referred to the Authority’s Acting Supervisor Customer Service for investigation under cl 2.6 of the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2011 (the Disciplinary Investigation). The Investigator stated in the introduction to his report that “As both parties lodged allegations of inappropriate conduct, a formal investigation was deemed necessary, as a finding against either party would be considered a breach of the Authority’s Code of Conduct and as such, may result in disciplinary action”.

18      An external investigator was also engaged by the Authority’s insurer, RiskCover, to investigate Ms Vimpany’s workers’ compensation claim.

19      On 15 June 2013, Ms Vimpany returned to operational duties.

20      On 28 June 2013, the Union notified the Authority of a dispute under cl 8 of the Agreement contending that Transperth Train Operations management were not sufficiently capable, competent or independent to investigate the allegations between Ms Vimpany and Mr Hammon.

21      On 4 July 2013, the Union agreed to allow the Disciplinary Investigation to proceed.

22      During July 2013, interviews were conducted for the Disciplinary Investigation.

23      During the Disciplinary Investigation, Ms Vimpany stated to the Investigator that during their first interaction:

(a) Mr Hammon seemed angry, and was very loud, abusive and threatening;

(b) Specifically, Mr Hammon said loudly “where do you think you are going, you are not off ‘til 1600” and when she replied that the boss had said they could go home earlier, he screamed “I’m the boss now, and you are rostered ‘til 4 and you will stay ‘til 4 so get back out there and don’t come back until 4 o’clock”.

24      During the Disciplinary Investigation, Mr Hammon stated to the Investigator that during their second interaction:

(a) He was sitting at his desk within his cubicle and stayed seated throughout;

(b) Ms Vimpany confronted him in a threatening manner; and

(c) Specifically, Ms Vimpany entered his area, leant over and pointed her finger at his face (within approximately 30 cm) and said “don’t ever shout like that to me again.  Who do you think you are?”

25      During the Disciplinary Investigation, Ms Vimpany stated to the Investigator that during their second interaction:

(a) She felt verbally abused and threatened by Mr Hammon; and

(b) Specifically, Mr Hammon got up from his chair and stood face to face with her in her personal space and shouted “I did not scream at you Jan” and then said in a very loud voice “I suggest you leave Jan, leave now” with his arm outstretched and finger pointed to the door.

26      On 10 September 2013, Ms Vimpany’s workers’ compensation claim was declined by the Authority’s insurer, RiskCover, though Ms Vimpany’s wages during her absence have been paid due to the failure to meet the statutory 17 day time limit for notifying the decision as to the response.

27      On 11 September 2013, the Authority provided Ms Vimpany with the report from the Disciplinary Investigation and provided her with an opportunity to respond.

28      On 27 September 2013, Ms Vimpany responded again denying the allegations and alleging that the Disciplinary Investigation process had been a conspiracy.

29      On 17 October 2013, the Authority’s General Manager of TTO found the allegations set out in the Memorandum were proved and reprimanded Ms Vimpany accordingly.

30      On 23 September 2013, the Authority’s Manager Customer Service, notified Ms Vimpany of, and required a response to allegations that Ms Vimpany knowingly gave a false account of Mr Hammon’s actions on the afternoon of 27 April 2013 in support of the conclusion that his behaviour was intimidating and bullying towards her.

31      The Authority’s Manager Customer Service has not yet taken further action to pursue these allegations as a disciplinary matter for the purposes of cl 2.6.6 of the Agreement.

32      Given the nature of the matters in dispute between the parties, they have conferred and agreed upon the matters for determination in these proceedings.  They are set out below.

Matters for determination

33      The matters arising for determination are as follows:

(a) Whether during the first or second interaction between Mr Hammon and Ms Vimpany on 27 April 2013, Mr Hammon:

(i) Conducted himself in an intimidating manner by shouting instructions to Ms Vimpany about her finishing time in an aggressive, loud, abusive, threatening or intimidating manner;

(ii) Behaved in an agitated or unreasonable manner, entering her personal space and speaking in a threatening, loud or aggressive manner during the second interaction and yelled or screamed at Ms Vimpany in the company of other staff;

(iii) Was aggressive, threatening or abusive towards Ms Vimpany and Ms Blake; or

(iv)  Bullied, harassed, humiliated or degraded Ms Vimpany.

(b) Whether, during the second interaction between Mr Hammon and Ms Vimpany on 27 April 2013, Ms Vimpany:

(i) Shouted at Mr Hammon;

(ii) Leaned over Mr Hammon or shook her finger in his face; and/or

(iii) Engaged in threatening or intimidating behaviour towards Mr Hammon in breach of the Authority’s Code of Conduct.

(c) Whether, in relation to the events of 27 April 2013, Ms Vimpany, Mr Hammon or any other employee of the Authority conducted themselves dishonestly by:

(i) Initiating an allegation or claim that they knew to be false; or

(ii) Giving an account of those events to investigators that they knew to be false.

(d) Whether the Authority abused its disciplinary procedures in relation to the events of 27 April 2013, in that the circumstances of the case did not warrant disciplinary action.

34      Based upon the issues referred for hearing and determination, the Union seeks relief by way of various declarations and orders in the following terms:

(a) A declaration that the Authority initiated its disciplinary procedures against Ms Vimpany where the circumstances were inappropriate;

(b)  A declaration that the Authority’s decision to find Ms Vimpany in breach of discipline was in all of the circumstances harsh and unfair;

(c) An order removing the Final Determination Letter from Ms Vimpany’s record;

(d) A declaration that, if the Authority implements further disciplinary action against Ms Vimpany in relation to the Secondary Allegations Letter, it would be in all of the circumstances harsh and unfair; and

(e) An order restraining the Authority from implementing any further disciplinary action against Ms Vimpany.

35      On the hearing of this matter, the Union was represented by Mr Singh and the Authority was represented by Ms Rhodes of counsel.  I will deal with each of the issues to be determined, in light of the evidence, both oral and documentary, adduced in the course of the proceedings.

Issues 1 and 2 – the conduct of Mr Hammon and Ms Vimpany on 27 April 2013

36      It is convenient to deal with the alleged conduct of Mr Hammon and Ms Vimpany conjointly.  Mr Hammon is a Station Coordinator employed by the Authority since September 2007. At the time of the events in question Mr Hammon was based at the Perth Station.  He was rostered to work on the afternoon shift from 1:30pm to 11:30pm on Saturday 27 April 2013.

37      Mr Hammon and Customer Service Attendants occupy an office, which is essentially open-plan in design.  A copy of the floor plan (not to scale) was part of the Agreed Bundle of Documents in exhibit A8. The Station Coordinator is positioned inside a partitioned area, the opening of which looks out to the open plan seating area. Adjacent to the partitioned area, are “hot desks” that are occupied by CSAs when on shift. On the day in question, three CSAs were present in the office, they being Mr Pontarolo, Mr Geson and Mr Barinder Singh.

38      Mr Hammon testified that he was seated in the partitioned area checking emails and attending to other matters. At some point, he stood up from his seat and began conversing with the CSAs in the office.  Both Ms Vimpany and Ms Blake came into the office and began to remove their equipment.  Mr Hammon noticed on the office clock that this was at about 3:15pm.  Aware that both Ms Vimpany and Ms Blake were rostered to work until 4:00pm, Mr Hammon asked what they were doing.  They told him they were going home.  Mr Hammon said that he told them that they were rostered to 4:00pm and to go back out on the platform and to continue their duties.  Mr Hammon testified that he said this in his normal tone of voice.  He testified that being Scottish, his normal tone of voice is strong and pronounced, but denied that he spoke loudly.

39      According to Mr Hammon, both Ms Vimpany and Ms Blake seemed disappointed, confirmed by the looks on their faces.  He said that they “mumbled something to themselves” as they left the office: T97.

40      Mr Hammon continued to work as he had been previously.  Some time later, as he was seated at his computer, he heard someone coming up behind him.  He was facing his computer with his back to the opening of the partition, sitting in his usual place.  In his testimony, the following exchange took place as described at T97:

Okay.  So I’ll take you then to what happened next, can you please give your account of that?‑‑‑Yeah, working at my computer, I’m at my desk, you’re kind of blindsided, you know.  I can’t - can’t see somebody coming from behind me if you look at that area, and I think it was a book‑off I was covering so I had different things happening on the screen.  And I just got the noise of Ms Vimpany coming towards me and I - I’ve turned on my seat and she got to this area here with her finger and she’s, “Don’t you ever talk to me like that again, who do you think you are anyway?”.  And I turned and went, “Jan, this is not the time or place.  I didn’t talk to you in any way.  I suggest you leave my office”.  And I pointed my hand, “I suggest you leave my office”.  Now, “Who do you think you are anyway?” again and, “Jan, not the time or place.  Please, leave”.  She turned, walked away, again, mumbled some things that I wasn’t privy to and I - and I just sat there kind of a bit dumbfounded to say the least.

When she said those words to you, how would you describe her tone? ‑‑‑ Yeah, it was – it was aggressive, but the finger pointing was more aggressive.  I learned to respect, you know, people’s positions and as a supervisor, I would not expect that to be done to me, so I was a bit taken aback.

And your responses to her, how would you describe your tone? ‑‑‑ Surprised.  I was surprised and not the time or place.  Didn’t shout, didn’t do anything like that.  I was probably more calm, because it was the kind of shock that was given to me.  But I said, “No.  Jan, please leave”, and that was it; that was – that was the total context of it.

41      In cross-examination, Mr Hammon said that Ms Vimpany approached him from his right hand side, while he was seated, and she “blind-sided me”: T102.

42      At the time this occurred, Mr Hammon said that the other CSAs were in the office and were surprised and shocked by the incidents. According to Mr Hammon, he remained in his seat during the time that Ms Vimpany approached him and he did not stand up until after she left the office.  Mr Hammon said that he considered Ms Vimpany’s approach totally uncalled for and was no way to speak to a supervisor. Shortly after the incident with Ms Vimpany, Mr Hammon said that he went outside the office and saw Mr Singh, the Station Coordinator who was on duty earlier in the day.  Mr Hammon told Mr Singh what had just happened. It was only then, that Mr Singh informed Mr Hammon that he had told Ms Vimpany and Ms Blake that they could leave early if all their work was done for the shift.

43      Given what had occurred, Mr Hammon decided to inform his manager and did so by email that afternoon. The email was written about 20 minutes after the incident and a copy was at p 3 of exhibit A8.  Both in the email to the manager and in cross-examination, Mr Hammon said that he wanted an apology from Ms Vimpany.

44      As is often the case in matters such as this, Ms Vimpany’s version of the events is diametrically opposed to that put by Mr Hammon.  Ms Vimpany testified that she was working an overtime shift on 27 April at the Perth Station.  She was working with her colleague Ms Blake. Mr Singh was the Station Coordinator on the morning shift and they spoke with him about leaving early to catch a 3:30pm train, if all their duties had been performed.  Ms Vimpany and Ms Blake were told by Mr Singh that if their work was completed, they could leave early.  At about 3:20pm Ms Vimpany said she went into the station office to prepare to leave with Ms Blake. They entered by a side door, next to the crib room, which she said was locked. Mr Hammon came to the door and unlocked it.  Ms Vimpany and Ms Blake entered the office.  Ms Vimpany confirmed that she saw Messers Geson and Pontarolo in the office. She was not sure if the other CSA, Mr Singh was present.  Both Ms Vimpany and Ms Blake took off their gear and got their bags ready to leave.  As they did so, Mr Hammon was standing in the partitioned area. According to Ms Vimpany, the following exchange took place: T11.

He just opened the door and didn't acknowledge us, which I thought at the time was a bit unusual, and walked away.  But we just ‑ Jen walked around to the back of the office, hung up her radio, and I walked towards our bags.  There was ‑ and I walked towards the bags.  Then she came back and joined me, we both took off our orange vests, folded up our vests, put them in our bags.  We put our bags onto our shoulder, and as we were heading towards the door, that's when Dave turned around.  He was in the partition area and he said, "And where do you think you're going?"  In quite a loud voice.

When you say loud, what do you mean? ‑‑‑ Yeah, well he sort of said it loudly.  Like, "Well, where do you think you're going?"

Okay.  And you were a bit taken aback? ‑‑‑ We were taken aback and said, "The boss said we could go at 3.30."

And how did Mr Hammon react? ‑‑‑ Well he said, "I'm the boss now”, still loudly, and stood looking at us.  "I'm the boss now, you're not going anywhere.  You're rostered till 4 o'clock."

Okay, "You're rostered till 4 o'clock."  And what happened after that? ‑‑‑ He said, "You're rostered till 4 o'clock, so you get out there."  And he pointed his hand in the direction of the door, "And don't come back in till 4 o'clock.  Leave your shift at 4 o'clock." 

And obviously I ‑ you went back out onto the platform? ‑‑‑ We put our bags down and we went back out and stood outside, just on the platform outside the door.

45      Ms Vimpany said that both she and Ms Blake then went outside onto the platform. Ms Vimpany, later in cross-examination, said that Mr Hammon “definitely shouted” in the office and he “screamed” and described this as “very crazy, crazy talk”:T26.  Mention was also made of this in her examination in chief at T12. Whilst outside on the platform, during the first ten to fifteen minutes or so, Ms Vimpany and Ms Blake discussed Mr Hammon’s behaviour.  Ms Vimpany said that she went back into the office to pick up her bags at the end of the shift. Ms Blake was not with her as she had stopped to speak to a colleague outside the office.  Ms Vimpany said she “did not go looking for Dave” but saw him in the office and went over to him and the following exchange is described at T13:

Okay.  So you went and you picked up your bags, and you saw Dave sitting at his desk? ‑‑‑ I glanced around and saw him and I just thought ‑ I didn't ‑ I probably didn't even think.  I put the bags down and I just went up and looked at his face, and I turned to the side and said, "Dave, why did you speak to Jen and I like that?  We didn't do anything wrong." 

Mm? ‑‑‑ I just wanted him to realise how it made us feel, and I didn't understand why.

And when you said that to Dave, what did he do? ‑‑‑ He said, "I didn't speak to you like that, Jan."  I said, "But you did, Dave.  You screamed at us." 

And then? ‑‑‑ He stood and he pushed his chair up, and he stood and came into my face and shouted at me, "I did not scream at you, Jan."

Okay.  And that's when you left the cubicle? ‑‑‑ And I said, "You did, Dave.  Don't speak to me again”, I said.  And then I left, and I walked away.  I nearly ‑ and I bent down to pick my bags up, and as I did he said, "Just leave, Jan.  Leave now and I'll wait for your email."  And I said, "But I'm not going to write an email, just ‑ just don't speak to us like that again."

Okay.  So just to get a bit of clarity for me at this point, you went and picked your bags up and you spoke to Dave, and he stood up and he spoke to you back and you left.  And to the best of your memory, Mr Geson and Mr Pontarolo were in the office at the time? ‑‑‑ As far as I know, yeah.  Yeah, I can remember.

46      Ms Vimpany denied she had pointed her finger at Mr Hammon or spoke in a loud and aggressive manner to him. After she arrived home, Ms Vimpany testified that she received a telephone call from Mr Hammon in relation to a request to work an overtime shift. She said Mr Hammon sounded normal and friendly. No mention of the incident was made by Mr Hammon or anyone else, when Ms Vimpany returned to work after some days off. Subsequently, Ms Blake became aware that Ms Vimpany had been “written up” by Mr Hammon to management.

47      On 10 May 2013, Ms Vimpany received the Memorandum from Mr Heaysman, the Authority’s Acting Passenger Services Manager, requesting a response to the complaint from Mr Hammon, (at p10 exhibit A8). The allegation was in the following terms:

On Saturday 27 April 2013, whilst working at Perth Station, it is alleged that at approximately 15:55 you “stormed” into the Station Coordinators’ office area approaching the duty Station Coordinator (Dave Hammon) who was sitting at the computer.  Once within close proximity (approx two feet) you then shook your finger in his face and shouted at him in an intimidating and threatening manner.  This behaviour continued until such time as the Station Coordinator requested that you leave the area.

48      Whilst its origin was somewhat unclear, Ms Vimpany said she prepared a statement about the events on 27 April 2013, which was emailed from her daughter’s email address.  Although undated, Ms Vimpany said it was prepared on or about 13 May. A copy of the email was exhibit A9. However, this document was not provided as a part of Ms Vimpany’s formal response to the Memorandum from Mr Heaysman.  Ms Vimpany’s formal response of 17 May 2013 was a one line comment “The alleged allegations are false, it is not a true and correct account of what occurred on the day”.  It seems that the earlier fuller statement was sent to the Authority some time later, in connection with a grievance lodged by the Union on behalf of Ms Vimpany, against Mr Hammon. This grievance process seems to have been overtaken by the disciplinary process commenced by the Authority, earlier in time.

49      A further response by Ms Vimpany to the Authority was provided on 11 June 2013. This letter refers to allegations that Mr Hammon shouted at her and Ms Blake in an aggressive and intimidatory manner.  No reference is made to the actual words alleged to have been used by Mr Hammon, as opposed to the content of exhibit A9. According to Ms Vimpany, the further statement of 11 June 2013 was prepared after she consulted the Union for assistance.

50      According to Ms Vimpany, it was the stress and anxiety of the “please explain” letter that caused Ms Vimpany to see a doctor and her being off work for a period of time.  Additionally, the Form was lodged on 21 May (see exhibit R1) and a workers’ compensation claim was made by Ms Vimpany as well. In this regard, Ms Vimpany made a statement to RiskCover on 2 July 2013. A copy of the statement was exhibit R2. The allegations against Mr Hammon are repeated in Ms Vimpany’s statement to RiskCover.

51      Evidence was also given on behalf of the Union by Ms Blake.  She referred to the first incident in the office with Mr Hammon in much the same terms as Ms Vimpany. She said that Mr Hammon spoke to them in a “loud, aggressive” tone: T43.  Both Ms Vimpany and Ms Blake were then on the platform outside of the office. They discussed the situation and decided to go and speak to Mr Hammon “about the way he spoke to us...because he shouldn’t have spoken to us like that…”: T44. They considered that Mr Hammon was “out of line” by his manner: T50.  Ms Blake did not go back into the office with Ms Vimpany as they were preparing to leave, as she stopped to talk to another employee outside.  However, when Ms Vimpany came out of the office, and on the way to catch their train, Ms Blake testified that Ms Vimpany told her that she had spoken to Mr Hammon and “he had told her off, but she wasn’t overly concerned, she wasn’t upset or anything”: T44.

52      Evidence was also led by the Union from Mr Olding and Ms Martin.  However, that evidence did not go directly to the present issues in dispute in these proceedings and it is unnecessary for me to deal with it further. 

53      The resolution of the factual contest as to the incident on 27 April 2013 turns on an assessment by the Commission of the credibility of the witnesses who gave evidence in this matter.  I have carefully considered all of the oral testimony and the written evidence. I am satisfied that on 27 April 2013 at the Perth Train Station office both Ms Vimpany and Ms Blake entered the office at about 3:15-3:20pm and prepared to leave for the day. Unaware of the prior arrangement with the Station Coordinator on the morning shift, Mr Singh, Mr Hammon questioned Ms Vimpany and Ms Blake and informed them to continue working to their appointed finish time of 4:00pm.

54       I accept the testimony of Mr Hammon supported by Mr Pontarolo, that Mr Hammon has a strong tone of voice, being Scottish.  To some extent, this was reflected in his evidence in the witness box.  In particular, as to those present in the office at the time, I found Mr Geson to be an impressive witness.  He no longer works for the Authority and therefore has no interest in the outcome of these proceedings.  His recollection was Mr Hammon spoke to Ms Vimpany and Ms Blake normally, when requesting that they resume their station duties as rostered.  This was also generally confirmed by Mr Pontarolo and Mr Singh.  All three CSAs present in the office at the time, located only a short distance from the Station Coordinator partition, confirmed this. The office being an open plan office was of a size and shape that all witnesses said any person raising their voice or shouting, could be easily heard.

55       I am also satisfied that both Ms Vimpany and Ms Blake were not ambivalent about having to work to the end of their shift. They had been led to believe that they could finish work early by the previous Station Coordinator. It is only natural, that they would be somewhat disappointed that they could no longer leave early as planned.  I accept on the evidence, that on leaving the office, both Ms Vimpany and Ms Blake may have “muttered” something and they had facial expressions reflecting that they were less than pleased with the decision made by Mr Hammon. This was the evidence of both Mr Hammon and Mr Geson, which evidence I accept.

56       Consistent with this state of affairs, both Ms Vimpany and Ms Blake then had time, on their own testimony, to reflect on Mr Hammon’s direction to continue to work to 4:00pm, when they were on the platform outside the office.  In my view, on all of the evidence, it is open to infer and I do infer, that both Ms Vimpany and Ms Blake were quite upset with Mr Hammon.  Having discussed the matter, they both decided that they would confront Mr Hammon and raise the issue with him. This was the evidence of Ms Blake. They both decided to speak with Mr Hammon “because he shouldn’t have spoken to us like that”.  I am therefore satisfied that Ms Vimpany entered the office at around 3:50pm with the purpose of confronting Mr Hammon as to the earlier exchange. I do not accept Ms Vimpany’s evidence in chief, to the effect that she did not go looking for Mr Hammon and only went over to him, somewhat incidentally, after sighting him in the office.

57       In my view, both Ms Vimpany and Ms Blake were upset with Mr Hammon and I accept Mr Pontarolo’s testimony, that when she entered the office, Ms Vimpany made a “beeline” for Mr Hammon, largely as described by the Authority’s witnesses. I accept that Ms Vimpany did go up behind and to the side of Mr Hammon, and spoke to him in a strong and angry manner whilst pointing her finger at him. I accept that she spoke the words alleged. I accept that Mr Hammon was taken by surprise by Ms Vimpany’s approach and responded to the effect that Ms Vimpany should leave the office. I also accept Mr Geson’s testimony that Ms Vimpany did, on leaving the office, refer to Mr Hammon as an “ass” or a word to that effect.

58       Additionally, Ms Blake’s testimony that when Ms Vimpany emerged from the office to go home, she was not upset or overly concerned is not consistent with Ms Vimpany’s allegation that she had just been verbally abused and bullied by Mr Hammon, moments earlier.  It is however, quite consistent with Ms Vimpany, having confronted Mr Hammon and having gotten her frustration and upset “off her chest”, by speaking to Mr Hammon as she intended to do.

59       Importantly however, to my assessment of credit, is that shortly after the incident on 27 April, all three CSA witnesses, recorded the events they witnessed in writing. Their accounts of the events were formally recorded in emails to Mr Jordan, after 27 April, as referred to at pp 4-9 of the Agreed Bundle. In particular, Mr Geson testified that he made a handwritten note of the incident very shortly after it occurred, and he used that handwritten note to prepare his email to Mr Jordan.

60       In contrast, it is to be noted that Ms Vimpany was not going to do anything about the alleged bullying and intimidatory behaviour of Mr Hammon. It was only when she received the “please explain” Memorandum from the Authority of 8 May 2013, that matters seemed to take a different complexion for Ms Vimpany.  It was not for a further one week after that, that Ms Vimpany put in writing her allegations against Mr Hammon. It is also to be noted, that there was some inconsistencies in the subsequent statements made by Ms Vimpany to the Authority, as to the events of 27 April 2013.

61       Accordingly, based upon the evidence and my findings, I am not satisfied that Mr Hammon conducted himself in an intimidating, threatening and aggressive manner as alleged.  I am not persuaded that Mr Hammon entered Ms Vimpany’s personal space and yelled and screamed at her in the company of the Authority’s staff. I am not satisfied that Mr Hammon bullied, harassed or humiliated Ms Vimpany.

62       On the evidence however, I am satisfied that Ms Vimpany, when she did return to the office shortly prior to 4:00pm on 27 April, did shout at Mr Hammon and did engage with him in an inappropriate manner, pointing her finger at him and at his face whilst leaning over towards him. Such conduct was not appropriate conduct towards a supervisor.

63       Whilst in the proceedings there was reference to parties “self-resolving” interactions in the workplace in accordance with the Authority’s relevant policies, in my view, whilst this is to be encouraged, such self-resolution needs to be done in the appropriate manner and at the proper time and place.  If Ms Vimpany and Ms Blake had been offended in any way by Mr Hammon’s earlier direction, the appropriate response would have been to request to meet Mr Hammon at a convenient time to all concerned, to discuss the matter.

Issue 3 – did any employee of the Authority act dishonestly in relation to the events of 27 April 2013?

64       Given the findings I have made above, there was a large gulf in the versions of events between Ms Vimpany and Mr Hammon, and others involved.  This is not a case of there being subtle differences in descriptions of events that may be more nuanced in their assessment. Whilst it is possible that Ms Vimpany has, with the passage of time as of now, reconstructed events in her own mind to convince herself that events transpired as she said they did, regrettably, it is also open to conclude, and I do conclude, that both Ms Vimpany and Ms Blake were less than frank in their characterisation of the events which occurred on 27 April 2013, when they were first reported to the Authority, and in the subsequent investigation, earlier in 2013. 

65       Four employees of the Authority, one of whom as I have already mentioned, no longer has any association with it, gave clear and consistent evidence as to the incident on 27 April, quite at odds with that given by Ms Vimpany. Their versions of the events, has been largely consistent, since their first reports in April and May 2013. It is open therefore to conclude, that Ms Vimpany in particular, has demonstrated a lack of candour in relation to these events.

Issue 4 – did the circumstances of the case warrant disciplinary action?

66       In the final result, the Authority, by letter of 17 October 2013 from Mr Italiano, imposed a penalty on Ms Vimpany of a reprimand. A reprimand is the lowest level penalty available under the disciplinary process set out in the Public Transport Authority Railway Employees (Transperth Train Operations) Industrial Agreement 2011. In the circumstances, the imposition of such a penalty was plainly appropriate. There is no warrant to disturb it.  Furthermore, based on the evidence of the disciplinary process invoked, this was in accordance with the terms of the Agreement. Ms Vimpany and Ms Blake were given a full opportunity of being heard.

67       The investigation of the incident also appropriately sought input from all relevant witnesses. The fact that the Authority preferred the account of the Authority’s witnesses was a conclusion entirely open to it. Simply because both Ms Vimpany, supported in part by Ms Blake, presented one version of the events, that does not lead to the conclusion of equal probability, as submitted by the Union.  The Authority, as any employer, is not required to adopt the investigative standards of the police. The investigation conducted was reasonable and fair. The conclusion reached was one fairly open in my view.

68       In any event, it is the evidence in these proceedings, which is finally determinative.

Conclusion

69       It is regrettable, and in my view, it was entirely unnecessary, that this matter has progressed to the point that it has. Had both Ms Vimpany and Ms Blake simply got on with their duties on 27 April 2013 after Mr Hammon’s initial direction to resume work, or attempted to “self-resolve” matters in an appropriate manner, none of the events set out in this decision would have occurred. 

70       Accordingly, based upon the foregoing, the application is dismissed.