Hardware rebel faces anti-bully drill
Melissa Fyfe and Jason Dowling
THE rebel hardware seller who went to jail over Sunday trading laws in the 1980s has been ordered to undergo anti-bullying training after an independent council report found he had bullied and harassed the Glen Eira City Council chief executive.
Glen Eira councillor Frank Penhalluriack has denied the report’s findings, claiming he is the victim of a “kangaroo court” and says chief executive Andrew Newton is trying to get him kicked off council. “He doesn’t like me because I ask too many questions,” he told The Age.
The bullying report — completed last June by workplace lawyer Tracey O’Neill — was kept secret from the community. The findings have emerged only now among the documents filed in a misconduct case against Cr Penhalluriack, to be heard in the Victorian Civil and Administrative Tribunal next month.
The council has already spent about $65,000 on legal costs for inquiries and proceedings relating to Cr Penhalluriack.
Ms O’Neill, who investigated Mr Newton’s allegations against Cr Penhalluriack on behalf of the council, found the hardware store owner in breach of the councillors’ code of conduct, which states they must not “harass, bully, vilify or discriminate against colleagues or members of the public” and must “conduct themselves constructively”.
The report found Cr Penhalluriack had humiliated the chief executive officer by making derogatory public statements about him and placed unnecessary stress and pressure on him to resolve a personal matter regarding his hardware store.
Ms O’Neill found council officers felt “under attack” from Cr Penhalluriack who, she said, had been behaving unreasonably towards them for “a significant period of time”.
Ms O’Neill also noted Cr Penhalluriack had challenged her (Ms O’Neill) in a “confrontational and aggressive manner”. She concluded that while she did not consider Cr Penhalluriack malicious, “this does not alter that he has engaged in repeated unreasonable behaviour that creates a risk to health and safety”.
Glen Eira Council has faced a string of controversies in recent years. In 2005 the then Bracks government sacked the council after a scathing report found it had degenerated into a hotbed of “personality clashes, politics and egos”. More recently there have been controversies surrounding councillor actions on planning issues and the council’s decision to close a mulch facility. The Ombudsman’s office is also believed to be investigating some areas at the council.
Cr Penhalluriack — who in the 1980s famously opened his Caulfield hardware store outside the regulated times to highlight what he saw as outdated trading hours — has now hired expensive lawyers to fight the misconduct case. He said it was unfortunate but he was “adamant” ratepayers would pick up the bill and blamed the impasse on Mr Newton for not going to mediation.
The councillor has also filed a Workcover claim against the council, saying the situation is making him sick with stress. He told The Age he blamed his recent hospitalisation for a heart problem on his elevated stress levels.
Cr Penhalluriack said he might regret some things said in anger, but denied bullying or harassing anyone at the council. He acknowledged that before becoming a councillor he had battled with the council.
Glen Eira Debates 
March 26, 2012 at 10:35 AM
This is the same man who allowed (convicted in Melbourne Magistrates Court) Peter Goudge(a mate of Hyams and Esakoff) to use his Nomineeship to remain on Council. As a result the entire Council was sacked in 2005.Glen Eira face up to the fact that your close friend is a bully, and the fact that Frank is not what he seems, which will most likely be shown by the Ombudsman and now VCAT.
March 26, 2012 at 11:40 AM
Noel baby, how’s the fisticuffs? Been getting boxing lessons lately?
March 26, 2012 at 10:59 AM
The Leader disease is spreading to the Age judging by this piece of biased journalism. They are either super sleuths or somebody has tipped them off and I’d bet it came from inside council. Sure Penhalluriack has hired “expensive” lawyers but only in response to the “expensive” lawyers set loose by Newton and the gang. This is a “kangaroo court” and I don’t believe for one second that only $65,000 has been spent on this witchhunt.
March 26, 2012 at 11:51 AM
History is repeating itself. The only difference is that this time Newton is going all the way in his determination to get rid of Penhalluriack – regardless of the cost to the community. It’s not the first time that bullying has been alleged by Newton in his dealings with recalcitrant councillors – that is, I assume, those councillors who as true representatives of the people are prepared to question and ask for details on finances and policy decisions.
The statement, if true, that Newton refused mediation is unforgiveable for any Ceo and for other councillors to allow this situation to degenerate into tens of thousands of dollars that have needlessly been spent. I still query why this did not go to Worksafe but an “independent” lawyer hired instead. This is a dirty business where no-one comes out exonerated. It also reveals that personal vindictiveness has a higher priority than responsible fiscal management by this administration and its councillors.
March 26, 2012 at 11:58 AM
Macca the Workplace Lawyer Tracey O’Neal found that Frank was guilty of bullying. If your got any agots give your name and address and then attack her report. By the way Frank you can claim a ‘kangarroo court’ and the fools who follow you will agree, but you are before a real Court now called VCAT.
March 26, 2012 at 1:34 PM
It is debatable whether VCAT is a court. See for example the discussion in Pizer’s Annotated VCAT Act 3rd Ed [1282]. VCAT definitely has jurisdiction though, under the enabling enactment [LGA1989].
The Minutes of the Council meeting held on 28 February make no such claim about Ms O’Neal’s report. It is deliberately vague, and instead comments that his conduct “may cause Council to be in breach of its occupational health and safety obligations to provide a safe work place”, and “some of Councillor Penhalluriack’s conduct towards Council officers and staff was inappropriate”.
Those same OH&S obligations should have protected council employees who were forced to operate the mulch heap without protection from all the airborn particles stirred up.
March 26, 2012 at 12:33 PM
So which is it? An independent report, or a Council report? I don’t believe any report that is capable of being changed to suit the needs of the person who commissioned it is “independent”. Hence the ongoing mulch saga.
Nor do I see how Cr Penhalluriack can have been ordered to undergo anti-bullying training, until the matter has been heard by a Councillor Conduct Panel and/or VCAT. Anything less than that would mean the matter has been prejudged. It is open to VCAT to make a finding that remedial action is required (which could be that the CEO and all other councillors undergo training concerning their bullying, as per Worksafe guidelines about what constitutes bullying), regardless of whether there is a finding of Misconduct.
It may be a subtle thing, but The Age article is designed to mislead. It conflates the matters that appear in a Councillor Code of Conduct generally, with the alleged breaches of Cr Penhalluriack. I expect Ms O’Neill’s report is confidential, but stranger things have happened than for confidential documents to end up in the possession of journalists.
Curiously the article mentions the 2005 sacking of Council, but not the current councillors who were sacked back then. I can only conclude it doesn’t suit the dramatic narrative. I appreciate the timely reminder that degenerating into a hotbed of “personality clashes, politics and egos” are sufficient reason for Government action. [Personally I think that is over the top, and that remedial action for all councillors and senior officers of Council is required instead.]
One thing does need reinforcing though. Councillors *must* be able to ask questions, regardless of whether they are hard or embarrassing, in the pursuit of accountability. It is their duty. And nobody should be subject to retribution for doing their duty.
March 26, 2012 at 4:19 PM
“Nor do I see how Cr Penhalluriack can have been ordered to undergo anti-bullying training, until the matter has been heard by a Councillor Conduct Panel and/or VCAT”.
Reprobate, I think you’ve again hit the nail on the head with this comment. Penhalluriack denies bullying and on the basis of one highly dubious report council orders an individual to undergo training. I’m not even sure if Council has got the legal right to order any individual to do anything. They have the right to complain, but not to demand that individual to do certain things. Under this argument council could order any other councillor to be silent, to jump in the lake. It’s ridiculous.
More to the point it is, as you say, prejudging. It is for the Councillor Conduct Panel to determine the veracity of any of the allegations. By ordering Penhalluriack to do certain things these councillors have pre-empted the course of justice. When you think that there are 3 lawyers on council – Lipshutz, Hyams and Tang – you would also assume that there would be greater respect for the law. As lawyers, they can’t plead ignorance. If they voted in favour of this course of action then they have crossed the line and should be struck off.
March 26, 2012 at 12:38 PM
“The report found Cr Penhalluriack had humiliated the chief executive officer by making derogatory public statements about him and placed unnecessary stress and pressure on him to resolve a personal matter regarding his hardware store”.
So what was this all about the former should be on record, and the latter would be?
March 26, 2012 at 2:58 PM
No way could a report be independant when one of the sides was paying the bill and maybe even chose the lawyer. The lawyer that wrote the report may be very good but it must be seen to be independant. Anything else certainly should be classified as a kangaroo court.
March 26, 2012 at 3:23 PM
Agree totally. This is the same trick that Newton’s pulled with the mulch’s “independent” report and the documents that Penhalluriack is trying to get out of them which could just prove the backroom stuff that’s going on. I don’t even understand why they’d go to a lawyer when you’ve got worksafe set up to investigate such claims unless as you say anon, they can’t rig worksafe but they can rig the kind of report that they want written.
March 26, 2012 at 3:15 PM
All Cr Penhalluriack had to do when the independant O’Neal report came out was to apologise to the CEO and ammend his dreadful bullying behavior.Instead of taking the honourable path he is now fully responsible for taking this matter further with all of us picking up his tab.Even O’Neal commented on Cr Penhalluriack’s aggresive manner towards her. Resign Frank before you are removed . That is if your Liberal mates have the guts to do the right thing.
March 26, 2012 at 3:32 PM
If I remember correctly, OH & S considerations became part of the special committee to reappoint Newton. It should never have figured in such deliberations for two reasons (1) it’s covered under various bits of legislation already and (2) making it’s inclusion into contract negotiations irrelevant and effectively a pre-judgement. The obvious reason for the creation of this committee (as with the C60) was to ensure that Penhalluriack had no say in the matter. After the debacle of 2005 these councillors have fallen into exactly the same trap and allowed themselves to be manipulated (and perhaps even bullied) into compliance with Newton’s wishes. The really unfortunate part of all this is that some fair minded and I think decent councillors have been dragged along through this mire and not spoken up when they should. I include Pilling in this group.
March 26, 2012 at 3:47 PM
$65000 is total rubbish. Newton’s probably spent double that amount. You don’t get 3 lawyers sitting at vcat including a senior partner barrister in the attempt to stop the release of documents that could be incriminating. That’s not Penhalluriack’s doing but Newton’s. No way has he spent only $65000. All this figure means is that he hasn’t paid all the bills yet. That’s still to come and if it’s under $200,000 then he’s got himself a pack of duds.
What worries me is that no one is thinking about Tang’s role in all this. If council voted on sending Penhalluriack off to the panel and hiring the hired gun then what about conflict of interest on Tang’s part. He works for Maddocks. I don’t remember any of the records of assembly stating that he’s declared a conflict of interest on anything apart from the racecourse. Maddocks were the lawyers used for the Foi so I don’t see any reason why they’re not the lawyers used to try and get Penhalluriack. This whole thing stinks and there’s just got to be a public accounting of what’s really gone on.
March 27, 2012 at 8:27 AM
The partners at Maddocks must love the Glen Eira Council. I bet that Newton gets invited to there Christmas drinks. Maybe he could proxy a few ratepayers next Christmas. Imagine how many pot holes that could be repaired if we didn’t have to pay lawyers. Mediation would have been alot cheaper.
March 26, 2012 at 4:22 PM
Who paid for the so-called “independent” report?
The Age piece said: “The Ombudsman’s office is also believed to be investigating some areas at the council. What is he investigating?
Has the Glen Eira Leader woken up from it’s slumber and reported this yet? Not that I can see. They wouldn’t recognise news if it bit them on the bum.
March 27, 2012 at 8:29 AM
I hope he is investigating the staff at the town hall for splurging public funds on lawyers.
March 26, 2012 at 5:24 PM
We’re told by the article that officers and Newton were “humiliated” by Penhalluriack’s “public comments”. Nothing that’s ever been reported here from council meetings comes anywhere near “humiliation”. Instead they show a councillor who is doing his job and not letting these people get away with things. If they are so precious on over $200,000 per year then Glen Eira would be well served by getting rid of them.
March 26, 2012 at 6:43 PM
These events can only happen because of the self imposed secrecy of this council and its appalling ethics and lack of real governance. Newton would have liked to keep it all under wraps so no one has any idea of how much he has wasted. Good on Penhalluriack for at least forcing this into the open. Maybe now more and more people will start asking the right questions and demanding fair dinkum answers. None of this would have happened without the support of the gang. They have to take their full share of the blame. I hope that people keep this in mind when we go to the polls. Trying to railroad Penhalluriack has backfired big time. He won’t lie down and I don’t blame him. If he can beat the state government over trading he can beat a few show ponies who hate being exposed. My hat’s off to you Frank. Keep at them!
March 26, 2012 at 8:17 PM
You can’t teach an old dog new tricks. Just looked over the Whelan report and found this – For me to have confidence in the fairness of Council’s administration of the contract
and the Council’s other employment responsibilities, I would wish to see Cr Grossbard
excluded from:
o setting my Key Result Areas (KRA’s)
o assessing my performance against the KRA’s
o Section 95 of the Act as referred to above
o consideration of whether the Council would reappoint me in due course.
As far as I am concerned, the integrity of Council as an employer is at issue.
132
The suggested method to achieve this would be to establish a Special Committee of Council,
comprising all Councillors except Cr Grossbard, to perform the Council’s duties listed above.
A draft is attached for the Council’s consideration.
Sound familiar?
March 26, 2012 at 9:06 PM
Anon 8.17pm you are quoting a digraced sacked former Councillor.I invite everyone to read the Whelan Report,half of it is about Grossbard and none of it is complimentary.
March 26, 2012 at 10:09 PM
The Whelan report comments on events that date back to 2002 as per what Anonymous wrote above and what you seem to be having problems with. That’s an incredibly long time to be dealing over and over again with the same issues that all revolve around Newton. To my mind it’s obvious that what makes for a good council is mutual respect and trust between the ceo and councillors. This has never eventuated in Glen Eira. All we’ve ever had is discord, scandal, and municipal investigation after investigation. Many people see the outcomes of these investigations as mere whitewashes or to put it more bluntly, bureaucrats supporting bureacrats. When a ceo has to resort to threats, allegations and legal action in order to preserve his job, then it is really time that he went. There is no respect or trust for this administration and I dare say it has not been there from the moment Andrew Newton took charge. If there was, then we would not have gone through the last 3 investigations and we would now not be spending a fortune in the attempt to discredibt a councillor who is merely doing his job.
March 27, 2012 at 8:36 AM
There is a very obvious common denominator. All the Councillors have changed yet there have been 3 investigations. Change the CEO and get rid of the problem.Having the same blokes on the Audit committee since whenever says it all.
March 27, 2012 at 9:49 AM
Spot on D. Evans. Why is this so apparently obvious yet so little is done about it?
Newton is the root cause of the problems at GE- no respect for the Councillors nor the community he is supposed to be in a position to serve.
Criticise council and you’re blackmarked.
March 26, 2012 at 10:41 PM
D Evans the CEO in this case in 1011-12 is a victim. If you want to stick to the current era then wait for the VCAT decision. In the 2005 Whelan Report the only comment by Whelan about Andrew Newton was about how good an administrator he is.
March 26, 2012 at 10:55 PM
History repeats itself. The first time as tragedy; the second time as farce and the third time as a total travesty of justice. Haven’t you read your Karl Marx Noel baby, brilliant sacked pugilistic councillor that you were?
March 26, 2012 at 11:09 PM
Smart Aleck is it possible for you to discuss the topic and add something to the arguement instead of making a fool of yourself.
March 26, 2012 at 11:27 PM
Hang in their Councillor Penhalluriack. You received the highest number of votes for the whole of Glen Eira in the 2008 election (winning 35% of the vote in Camden Ward). You’ll probably increase that percentage in this year’s election.
March 27, 2012 at 12:45 AM
The pecuniary interest question and Cr Tang in employment with Maddocks very interesting indeed… Even if the cases are in a different department from Cr Tangs and sectioned off by the alleged “legal fire Wall’ … only common sense would tell anyone that the usual office expenses of rent , telephone and luxury car rentals, rates and legal insurances at any legal firm is helped along by a larger turnover no matter what section is accessed!!! Just consider the front receptionist salary for one!!
Would there be any compensation for witnessing the most severe verbal attacks on council members which I have heard occur at every council meeting? Some ratepayers are suffering serious depression at these occucrences.
THEY BRING WITH THEM THE KNOWLEDGE OF HOW SERIOUS THE COMPLETE DEPRIVATION OF THE OPPORTUNITY TO EXPRESS A DIFFERING POINT OF VIEW REALLY IS AND THEY ARE NOW STRESSED.
THEY CAME TO AUSTRALIAQ BELIEVING THAT DEBATE OF ALTERNATIVE IDEAS WAS .CHERRISHED AND HAQVE BEEN SLAMMED DOWN BY THE GLEN EIRA COUNCILLORS AND MAYORS’ BEHAVIOUR,
THEY ARE LOOKING FOR SOMEWHERE ELSE TO GO NOW!!!!!
March 27, 2012 at 8:00 AM
so does that mean I get my mulch back since Penhalluriack has been found to be in the wrong?
March 27, 2012 at 9:42 AM
He hasn’t been “found to be in the wrong” and even if he were what about the other 6 councillors who voted with him to close the mulch. How about the fact that a year on after a motion was moved to find an alternate spot nothings happened. How about realising that the damn thing should never have been put near a kiddies playground and school and how about asking Newton how he could allow this to happen. Maybe he should be up in front of vcat for lousy management and wasting peoples money
March 27, 2012 at 10:52 AM
does anyone know anywhere where I can buy mulch in the area?
March 27, 2012 at 10:54 AM
Broadbents – Centre Rd. They even have loose mulch which Penhalluriack doesn’t!
March 27, 2012 at 11:10 AM
I should have said my comment was with sarcasm!. You can actually get it free when they are knocking down a tree. Much better than giving it to a vested interest
March 27, 2012 at 10:08 AM
Cr Penhalluriack raised health concerns about the operation of the mulch heap. The Revised Report, which Council didn’t want to release to the public, confirmed that the mulch heap was poorly operated and represented a health risk. For example, “…it is likely that workers and mulch users are potentially exposed to bacteria (eg. Legionella) and fungi as a result of handling the mulch material”. In failing to operate the facility in accordance with best practice as exemplified by the long list of recommendations in the Revised Report, Council failed its OH&S obligations and its duty of care. The remaining debate is about whether the recommendations, if implemented, would be adequate. On that front the Report is ambivalent, admitting that a number of Australian Standards don’t apply to this particular facility, and that there are gaps in the scientific literature. I don’t see how in any of this Cr Penhalluriack was “wrong” to be concerned.
March 27, 2012 at 8:34 AM
In all this we have failed to discuss the fact that Cr Penhhalluriack was recently hospitalised with a heart problem and blames stress as a result of the Council situation. He has taken out a workcover claim against Council.The only comment I would make is if you can’t stand the heat get out of the kitchen.
March 27, 2012 at 9:30 AM
CRAIG THOMPSON