Glen Eira Debates

What features below is part of the transcript of the cross-examination of Peter Jones by Penhalluriack’s lawyer, Mr Gunst on the second day of the VCAT hearing. This relates to the allegation that Penhalluriack “humiliated” Jones via his use of the phrase “dumb mute” in the context of a private letter sent to Esakoff and cc’d only to Forge. Jones in fact states that he can only assume that it was Esakoff who passed on this letter to the administrators.

Our only intervention in the following transcript is to:

• Italicise Jones response for ease of reading, and
• To bold certain sections that we feel are significant. The rest of the extract is untouched except for the deletion of line numbers.

_____________________________________________________

 MR GUNST:  I won’t press the question.  (To witness) Come back to the meeting of 22 March.  You were present at the assembly of councillors on 22 March 2011?—Yes.

It was at that meeting – you were at the assembly of councillors on 22 March 2011?—Yes.

It was at that meeting that an allegation was made – sorry, I’ll stop myself there.  It was at that meeting it was disclosed that the CEO had complained that Councillor Penhalluriack had been harassing or bullying you?—I think the disclosure was prior.  I think there had been, the issues had been raised prior to that meeting, but that meeting was discussing that in that sense.

At the very least from your recollection the issue was raised at this meeting?—Yes.

The CEO was not present at this meeting?—That’s correct.

The councillors were?—Yes.

Was it all nine of them?—Yes.

Certainly the mayor, Councillor Esakoff, Councillor Penhalluriack, Councillor Forge and, to your recollection all of the other councillors?—I believe all the councillors were present.

And you were present as well?—Yes.

You were there because the CEO was not there?—That’s correct.

Was the CEO not there because he said he had a conflict of interest because this involved a complaint by him, or was he not there for some other reason?—He was not there because he thought it was a conflict of interest.

So you were there in place of the CEO?—Yes.

The CEO, as you’ve agreed with me earlier, has a statutory duty to provide timely advice to council?—Yes.

You were in his shoes at that meeting on that day?—I really saw myself on that day as a minute taker and that was the role that was explained to the group at that time.

I’ll come back to that in a moment.  When this issue was raised, it was raised at this meeting, it may have been raised earlier but it was certainly raised at this meeting of 22 March?—Yes.

It’s what I’ll call the OH&S matter or the bullying complaints by Mr Newton, whatever you term it, that issue was the issue raised?—Yes.

Councillor Penhalluriack asked what he’d done didn’t he?
—That’s correct, yes.

He asked you what he’d done?—That’s correct, yes.

You didn’t answer him?—I did answer him.

He says you sat there mute?—Yes, I know he did.

SENIOR MEMBER:  Could you keep your voice up please?—Sorry, yes.

MR GUNST:  Yes, he does say that?—Yes, he does.

And Councillor Forge says it too?—Yes.

None of the other councillors who were at that meeting, the other seven of them, are coming to give evidence?
—Right.

So at the moment it’s Councillor Penhalluriack who said – I’ll go back a step.  It’s a serious allegation, an allegation of bullying or harassment of a council staff member by a a councillor isn’t it?—Yes.

When it was raised with him Councillor Penhalluriack said in essence “What’s this about, what have I done?  What is it said that I have been doing?”  That was what he was asking wasn’t it?—Yes.

That’s a fair question to ask when a serious allegation is made against you.  You’d like to know, well, what have I done, what’s this about?  And that’s what he did ask?—Yes.

He seemed genuinely mystified and seemed genuinely not to know what it was that it was said that he’d done didn’t he?
—Yes.

He asked you “What have I done”?—M’mm.

His evidence and that of Councillor Forge is that you didn’t answer?—I did answer.

They say you sat there mute?—Yes.

Not acknowledging that he’d asked you a question, not responding to the question, not providing him an answer to this very serious matter that has been raised.  That’s their evidence and you’ve read that?—Yes.

That’s their evidence?—Yes.

You say you did provide an answer do you?—Yes, I did.

What did you say?—I said my role was to take the minutes and that it was up to the mayor and other councillors to discuss this issue.

You see, that’s not what your witness statement says, Mr Jones.  Have you got your witness statement, Exhibit B, there?
—Yes.

Do you see in Paragraph 4 you say that you saw a copy of this letter of 2 April.

SENIOR MEMBER:  What page is this?

MR GUNST:  It’s Exhibit B, sir.  It will be p.256 of the Tribunal book and it’s Exhibit B, Mr Jones’s first witness statement, 266.  I’ve got the numbers wrong, I apologise for that.  You have your witness statement there do you, Mr Jones?—Yes.

You see in Paragraph 4 you say you saw a copy of the letter dated 2 April from Councillor Penhalluriack to the mayor in mid 2011, and then over the page in Paragraph 5 you say “As to the reference to me sitting as a dumb mute, when I read this I was very annoyed, I was angry at Councillor Penhalluriack.  It was not my role to contribute to the discussion.  My role was to take the minutes and I was asked by Councillor Esakoff to be there for that purpose as the CEO had a conflict of interest,” et cetera.  Do you see what you say in Paragraph 5?
—Yes.

Do you agree that there is no mention in your witness statement at all of you responding to Councillor Penhalluriack’s question about what he’d done wrong?—Yeah, that’s correct, yes.

So the position is this isn’t it; you’re at this meeting and you’re standing in the shoes of the CEO, you’re the senior officer present?—Yes, I’m the senior officer present, yes.

A serious issue is raised?—Yes.

And Councillor Penhalluriack, who seems genuinely mystified by what the issue’s about, asks you as the senior officer present what this issue was about?—Yes.

You didn’t provide any substantive response?—I guess the point I’m trying to make is I responded but I didn’t answer his question in that sense.

Thank you for that.  He says in his evidence, and you’ve seen this, he says you didn’t provide any response?—Yes.

Councillor Forge says you didn’t provide any response?—Yes.

Your evidence now is that you provided a response but it was not one of substance as I understand it, you said “I can’t answer you, I’m just here as a note taker,” or words to that effect?—That’s right, that’s correct.

That story, that version is not in your witness statement is it?—I don’t think it contradicts my witness statement at all.

That’s an argument, Mr Jones, not an answer to my question, and I’ll press you for an answer to the question.  That version of events is not in your witness statement is it?  You see, what you say is, I was angry at Councillor Penhalluriack.  It was not my role to contribute to the discussion.  My role was to take the minutes.  You’re responding to Councillor Penhalluriack’s evidence where he says he’s mystified, he doesn’t know what this allegation is about and he asks you what it’s about, and he says “The man sat there mute, he didn’t acknowledge my question and he didn’t answer my question.”  In answer to that you say, “It was not my role to contribute to the discussion” don’t you?—That’s right, yes, that’s correct.

Today in the witness box what you’re saying is it was not my role to contribute the discussion, I answered him to the extent of telling him that I was just there as a note taker or words to that effect?—That’s correct, yes.

When did you make that story up, Mr Jones?—It’s not a story, it’s the truth.

When did you first tell anybody that story?  It’s not in your witness statement?—I guess my role wasn’t to contribute to the discussion.  I don’t believe I did contribute to the discussion.

You have a duty as an officer which you agreed with me earlier to provide responsive service, is that right?—That’s correct, yes.

You’re standing in the shoes of the CEO at this meeting?—Yes.

The CEO has a duty to provide timely advice to the council?
—Yes.

You have an assembly of councillors, yes?—Yes.

And a serious allegation is made against one of those councillors and the man says what’s this about, what have I done in essence.  I’m paraphrasing but that’s what he asked you?— You didn’t answer him.  You gave no substantive answer?—I simply said I’m here to take the minutes.

Both he and Councillor Forge say you didn’t say that and it’s not in your witness statement but you now say that that’s’ what you said, is that right?—Yes.

Who was it or from where did you get this idea that you couldn’t respond, that you couldn’t provide a responsive service as your duty required you and you couldn’t provide timely advice as the CEO in whose shoes were standing on that day was obliged to do?—In discussion with the mayor prior to the meeting it was clear that I was there in my role at that meeting was to take the minutes.  It was seen as primarily a meeting of councillors to discuss the issue of the Williams and I guess I didn’t see – you know, it put me a in a very difficult position and my role – – –

SENIOR MEMBER:  Mr Jones, could you look towards the clock?
—Sorry.  My role was to – – –

No, Mr Jones, look towards the clock.  Perhaps if you just turn around straight into your chair and then you might look – I can assure you and you’ll correct me if I’m wrong but Mr Gunst won’t think you’re rude if you don’t look at him when you’re talking?—And my role was to take the minutes.

MR GUNST:  So do you say that it was Councillor Esakoff prior to this assembly of councillors who told you that you should not answer questions?—I didn’t set out not to answer questions.  I set out to basically take the minutes of the meeting.

Perhaps you could answer my question now.  Do you say at the meeting before the assembly of councillor that Councillor Esakoff told you not to answer questions?—No, I’m not saying that.

You’re saying she told you simply to take the minutes?—Yes, that was the – – –

And made it clear to you that that was your only role and you shouldn’t go beyond the boundaries of that role?—That’s right, yes.

So you had a meeting with at least one councillor prior to the assembly of councillors?  The answer is yes, isn’t it?
—Probably at some stage I had that discussion with the mayor, yes.

The very sort of pre meeting with a select group of councillors that you said not long ago would be quite improper for an officer to attend, Mr Jones?—It’s quite normal to have a conversation with the mayor about the conduct of a particular meeting.

SENIOR MEMBER:  I don’t know it was a select group of councillors.  It was a conversation between one councillor and a council officer.

MR GUNST:  Thank you, sir, I stand corrected.  (To witness) In any event, you say that the mayor gave you to understand that you shouldn’t answer any questions in this meeting?
—No, I wouldn’t phrase it that way.  In the discussion with the mayor it was clear that my role was to take the minutes.

And nothing more?—And nothing more, yes.  I couldn’t – yeah.

But when you say it was clear from that discussion, it was clear because the mayor made it clear to you, that’s your evidence?—It was also what I wanted to do in that meeting in terms of my role.

Those are two very different things, Mr Jones, and I’d like to find out which is right or which predominated.  Was it because the mayor told you to take the minutes and nothing more or was it because you didn’t want to answer questions?—It was a discussion and the outcome of that discussion was that was my role was to take the minutes.

That doesn’t answer my question?—I don’t – – –

That avoids answering the question, Mr Jones, with respect?—I don’t know how to answer your question in any other way because there was no – I mean what you’re suggesting is that I was directed by the major but I wasn’t necessarily directed.  It was what came from a discussion.

Mr Jones, I’m not suggesting to you that you were directed by the mayor.  I’m not suggesting – in fact if anything I’m suggesting to you the contrary of that.  I’m suggesting to you that the decision to not answer a question of substance put to you was your decision?––I think it was seen as more than my decision.  It was – – –

In any event, it accorded with your preference?—Yes, it accorded with my preference.  I’m happy with that, yes.

Your strong preference was to take the minutes of this meeting and not answer any questions?—My strong preference at this meeting was to be clear about my role.

Your preference, I suggest, was not to answer any questions of substance?—My preference was not to get into the debate between councillors about the CEO.

When Councillor Penhalluriak asked you what he’d done wrong when this serious allegation was raised you didn’t provide any answer of substance?—That’s correct, yes.

Apart from, as you now say, I’m only here to take the minutes, as you would have this Tribunal accept, you made no answer of substance?—I didn’t answer – I didn’t provide – yes, that’s correct, yes.

Insofar as he – it’s an important question, wasn’t it, that he asked?  It was an important issue, you’ve agreed with me about that?—Yes.

If the man genuinely didn’t know what was being alleged against him he was entitled to ask what this was about, wasn’t he?—Yes.

And he was entitled to get an answer from someone?—Yes.

And he asked you?—Yes.

And he didn’t get an answer from you?—Not a substantive answer, that’s correct.

So far as the topic was concerned you remained mute, didn’t you?—No, I spoke.

You spoke to say you were the minute taker?—Yes, that’s right.

You uttered not a single word in substantive answer to the question that he asked you?—That’s correct.

But so far as the substantive question that he asked you was concerned you sat there mute?—I’m not – I spoke so I mean I wasn’t mute.  I mean – – –

Do you see that a councillor – this is an important issue, as you’ve said, and Councillor Penhalluriak was entitled to ask what it was it was said he’d done wrong.

SENIOR MEMBER:  Did you at that point know what the bullying allegations were against Councillor Penhalluriak?—I didn’t know the full extent of the allegations because I hadn’t really seen the full extent of the allegations.

You had or you hadn’t?—I hadn’t seen the full extent.

MR GUNST:  You could have said that, couldn’t you?  You could have said I don’t know, or I don’t know the detail?—I guess sometimes in these circumstances if you are trying to state out what your role is at a meeting it’s better to restate your role.

Or was it that you were not sure of the party line, you weren’t sure of all that Mr Newton was wanting to say and you didn’t want to contradict something that might be said later?—No, that’s not correct.

Would you accept that the words dumb and mute are a tautology, they’re interchangeable words?—Not necessarily, no.

I suggest to you, Mr Jones, that on this day you failed in your duty.  You had a duty as an office to provide a responsive service to councillors and standing in the shoes of the CEO you had a duty to provide timely advice and when asked a direct question by a councillor about an important matter you had a positive duty to respond with such information as you had about the issue and you failed to do so, what do you say to that?—I think that it was the responsibility of other councillors to discuss the issues with Councillor Penhalluriak.  At that point I was there as a minute taker and it was not my role to discuss whatever I might have known at that point with Councillor Penhalluriak but the discussion was between councillors and that was the purpose of the meeting.

But it wasn’t between councillors.  You’re a senior staff member.  You work closely with Mr Newton day in, day out, is that right?—Yes.

The councillor says, “Well, it’s said I’m bullying Mr Newton, what have I done, Peter have you ever seen me doing anything like that to Andrew Newton”.  You could have responded, couldn’t you?  You could have assisted the discussion.  You could have provided timely advice to the councillor who was entitled to ask about this important matter, couldn’t you?—I think that – I think the role that I did in that meeting was the appropriate role and the role was not to get involved in the discussion because the issue was one that councillors were wanting to talk about and I was there for the specific purpose.

I suggest to you that in sitting mute or effectively mute you’ve breached your duty as an office and that the description of you sitting there as a dumb mute in this letter privately between two councillors was entirely appropriate in the circumstances, what do you say to that?—I think that for anybody to be called a dumb mute is incredibly derogatory.  I was and still am particularly angry at being called a dumb mute and it’s clearly used as a pejorative term and he knew why I was there and I think it was – I just think it’s disgusting quite frankly to be called a dumb mute.

You still, if I may say so, this won’t get on the transcript, pretty angry about it, aren’t you?—I am, yes.

Angry about Councillor Penhalluriak?—I am in terms of this letter, yes.

Against whom a very serious allegation had been manufactured by the CEO who wanted to know what it was about.  He asked somebody who works close to the CEO day in and day out and that man sits mute and doesn’t give him a substantive answer to his question and somehow you’re angry about it.  Is that your evidence?—I was angry about the statement, yes.

And you still are today?—Yes, I am.

Somehow you failed in your duty, you work with the CEO, you know something about what these allegations are – – –

SENIOR MEMBER:  Mr Gunst, I don’t think it’s proved that he failed in his duties.  Certainly you’ve alleged that but I think that’s probably not a fair way to put it when you’re rolling it up in a number of other questions.

MR GUNST:  It’s probably a matter for final address, sir, and I won’t press it in cross-examination.  I have one more matter I could probably do in five minutes or we could break now.

SENIOR MEMBER:  All right.