Toll's silence leaves serious allegations unresolved

Fair Work Australia chastises Toll for making serious allegations of misbehaviour against its workers before conducting an investigation

Toll's silence leaves serious allegations unresolved
Toll's silence leaves serious allegations unresolved
By Brad Gardner | June 12, 2012

The industrial umpire has torn into Toll for making serious allegations of misconduct against some of its workers before conducting an investigation, labelling its actions "troubling".

In what is the latest incident stemming from Toll’s dispute with the International Brotherhood of Teamsters union in the US, Fair Work Australia has chastised the company for its response to union-led rallies outside its Los Angeles facilities in early March.

Representatives from the Transport Workers Union who travelled to the US to support the Teamsters and drivers trying to unionise were accused in a Toll press release of physically threatening, intimidating and abusing Toll’s US staff.

Toll also accused the group, which included TWU official Michael Aird and three union delegates, of trying to force their way onto company premises, blocking access points and donning skull masks.

Toll decided not to take action against delegates following an investigation into the incident, but did not release a statement explaining the reasons for its decision.

"Consequently, the spectre of the delegates and Mr Aird as masked men physically threatening and intimidating others has neither been proven nor dispelled," Fair Work Commissioner Ian Cambridge says.

"Anybody who publicises serious allegations of misbehaviour possibly involving criminality has an ethical and perhaps legal obligation to only make such allegations upon a properly established basis that gives rise to reasonable and genuinely held belief.

"It is therefore somewhat troubling that Toll would issue the press release of March 9 before rather than after conducting an investigation into the behaviour of the delegates in the US."

Cambridge says there is no place for threats, intimidation or bullying in industrial disputes and that any allegations of such misbehaviour should be treated seriously and properly resolved.

"It appears that the basis upon which Toll decided to take no further action against the delegates leaves these serious allegations in something of an indeterminate hiatus," he says.

"There is an obligation on Toll to properly finalise this matter. If its investigation did not provide sufficient basis to support the allegations it should be prepared to say so. Toll is a major Australian company and as a respected corporate citizen it has a responsibility to admit mistake if that is what occurred."

Aird wrote to Toll on March 12 labelling Toll’s accusations "completely false". He requested the company to provide evidence to support its claims and told Toll the union would seek to have the matter addressed through a dispute resolution clause outlined in its enterprise agreement struck with the TWU.

Aird also told Toll the union would seek legal advice if it considered the allegations of misconduct were defamatory or unlawful.

Toll responded on March 13 denying the accusations in the press release were false, defamatory or unlawful. The letter stated that the conduct of the three delegates was being investigated.

"If and when Toll decides to take action against any or all of them, they will be provided with the relevant evidence," the letter reads.

Toll wrote to the TWU on March 30 claiming the delegates "may have engaged in inappropriate behaviour", including falsely claiming they had authority to access Toll’s sites at Wilmington and San Pedro.

Toll also claimed the delegates wrongfully accessed the Wilmington site despite being told not to enter and were also part of a group containing people wearing skull masks.

Furthermore, Toll claimed the delegates’ attempts to repeatedly access the company’s sites could be regarded as intimidating behaviour.

However, the letter goes on to say Toll concluded its investigation and "decided not to take any action against them".

Toll also rejected the union’s bid to have the accusations in the press release dealt with under the dispute resolution conditions in the enterprise agreement, claiming events in the US fell outside the document’s jurisdiction.

However, Cambridge says Toll’s decision to specifically accuse Australian-based employees of threatening behaviour introduced a connection to the company’s Australian workplace and the subsequent media publicity gave rise to a dispute to the workplace in Australia.

Cambridge says Toll’s investigation encompassed material in the press release and that the matter related to the employment relationship between Toll and its employees.

"The press release of March 9 makes serious public insinuations of misbehaviour against employees of Toll and their representatives," Cambridge says.

He says criticism by an employer or employee will usually relate to the employment relationship.

"For example, one could hypothetically consider that if an employee of Toll publicly denigrated Toll management, Toll would want capacity to deal with such conduct as being employment related," Cambridge says.

Toll and the Teamsters have been engaged in a long-running dispute over wages and workplace conditions. Toll's US drivers recently voted in favour of union representation.

Teamsters officials last year flew to Australia to raise their concerns over workplace conditions with Toll management, while the TWU has pledged to support its US colleagues from Australia.

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