Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Goondiwindi Regional Council & anor [2018] QIRC 128

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Goondiwindi Regional Council & anor [2018] QIRC 128 PARTIES: Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (Applicant) v Goondiwindi Regional Council (First Respondent) V Gary Smith (Second Respondent) CASE NO: GP/2017/5 PROCEEDING: General Protections DELIVERED ON: HEARING DATES: 28 September 2018 13 December 2017 28 February 2018 MEMBER: Black IC HEARD AT: Goondiwindi Brisbane ORDER: 1. 1. The application is refused CATCHWORDS: INDUSTRIAL RELATIONS ACT 2016 – General Protections – whether adverse action had been taken because of the exercise of a workplace right or engagement in industrial activity LEGISLATION: Industrial Relations Act 2016 (Qld) s 280, s 282, s 284, s 285, s 290, s 291, s 305, s 306, s 541. Fair Work Act 2009 (Qld) s 361 Work Health and Safety Act 2011 (Qld) part 6 Local Government Act 2009 (Qld) s 197 Local Government Regulation 2012 (Qld) s 280 -- 1 of 74 -- 2 CASES: Shea v Energy Australia Services Pty Ltd (No 7) [2014] FCAFC 167 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Elliott v Kodak Australasia Pty Ltd [2001] 129 IR 251 National Tertiary Education Union v Royal Melbourne Institute of Technology 234 IR 139 Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 APPEARANCES: Mr C Massy, Counsel, for the applicant, instructed by Hall Payne Lawyers; Mr J C Dwyer, Counsel, for the respondents, instructed by McCullough Robertson Lawyers. Decision The Application [1] The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (the applicant) (CFMEU) lodged an application on 22 June 2017 pursuant to the general protections provisions of the Industrial Relations Act 2016 (IR Act). The application relates to actions taken against Barrie Irvin and Kevin Sewell by their employer, the Goondiwindi Regional Council (the first respondent) and by their supervisor, Gary Smith (the second respondent). Kevin Sewell commenced work with the Council in 2005 while Barrie Irvin commenced employment in April 2016. [2] An amended application was filed by the applicant on 17 August 2017 and a further amended application was filed, without objection, at the commencement of proceedings on 13 December 2017. Matters for Determination [3] The applicant alleged that the respondents had contravened s 285 and s 291 of the IR Act in that they had taken adverse action against Irvin and Sewell for exercising a workplace right or taking part in an industrial activity. The adverse action took the form of Council's intention to take disciplinary action and the subsequent decision of Council to issue written warnings. -- 2 of 74 -- 3 [4] Under the legislative scheme, to establish a breach of s 285 of the IR Act, the following three elements need to be satisfied: (i) That the workers had a workplace right or exercised a workplace right (s 284); (ii) That there has been adverse action (s 282); and (iii) That the adverse action was taken because the workers had exercised a workplace right (s 285) [5] The respondents accepted that Irvin and Sewell had exercised a workplace right and that adverse action had been taken against them in the form of warnings issued to both Irvin and Sewell. The respondents denied however that adverse action had been taken because workplace rights had been exercised, or industrial activities had been engaged in, by Irvin and Sewell. It was respondents' position that the adverse action was motivated by a need to address performance shortfalls and that these considerations were the substantial and operative aspect of the decision to take disciplinary action. [6] The respondents did not accept that the second respondent was involved in any claimed contravention of the Act, or that Irvin's complaints to Workplace Health and Safety Queensland (WHSQ) involved the exercise of a workplace right. [7] The respondents conceded that, except in relation to the WHSQ complaint, the complaints made by Irvin and Sewell met the definition of s 290(b)(vii) of the Act. Given the concessions made by the respondent, the only matters in dispute were: (a) Whether the adverse action was taken because of the exercise of the workplace right or engagement in industrial activity; (b) Whether the second respondent was involved in any contraventions; and (c) Whether complaints made to WHSQ were made under an industrial law. [8] The specific complaints and industrial activity constituting the workplace rights exercised are set out in the further amended application. For Sewell, paragraphs 14 to 17 describe the conduct involving the exercise of workplace rights, while paragraphs 15 to 17 describe the conduct relative to the engagement in an industrial activity. For Irvin, paragraphs 25 to 32 describe the conduct involving the exercise of workplace rights, while paragraphs 26, 29, and 30 describe the conduct relative to the engagement in an industrial activity. Workplace Rights [9] The effect of paragraphs 14 to 17 of the further amended application was that Sewell made the following complaints, or complaints of a like nature, in relation to his employment:  He made a complaint to Council in relation to spraying duties on 29 November 2016;  He made a complaint to the CFMEU some time in December 2016 about the requirement to perform spraying in unsafe conditions, and the CFMEU organiser, Paul Taylor, contacted the Council about the matter on 7 December 2016;  A complaint was made on his behalf by Paul Taylor on 14 February 2017 about the outcome of a performance appraisal; -- 3 of 74 -- 4  A further complaint was made on his behalf by Paul Taylor about the performance appraisal outcome on 27 February 2017. [10] The effect of paragraphs 25 to 32 of the further amended application was that Irvin made the following complaints, or complaints of a like nature, in relation to his employment:  He made a complaint to Council in relation to spraying duties on 29 November 2016;  He made a complaint to the CFMEU some time in December 2016 about the requirement to perform spraying in unsafe conditions, and the CFMEU organiser, Paul Taylor, contacted the Council about the matter on 7 December 2016;  He made a complaint to Dion Jones about spraying activities in a meeting on 17 January 2017;  He made a further complaint about spraying activities in a meeting with Council representatives on 19 January 2017;  A complaint was made on his behalf by Paul Taylor on 14 February 2017 about the outcome of a performance appraisal;  A further complaint was made on his behalf by Paul Taylor about the performance appraisal outcome on 27 February 2017;  He made a complaint to the WHSQ Inspector about spraying activities and chemical storage on 8 March 207;  He made a complaint to another WHSQ Inspector about spraying activities on 9 March 2017. [11] While these latter two complaints can be considered complaints in respect to employment, the respondents argued that complaints to WHSQ inspectors did not constitute a workplace right under s 284(1)(c)(i) of the IR Act because the Work Health and Safety Act 2011 (Qld) was not an act regulating the employer-employee relationship and therefore did not involve a complaint under an "industrial law" as defined in Schedule 5 of the IR Act. Industrial Activity [12] The effect of paragraphs 15 to 17 of the further amended application was that Sewell engaged in industrial activity or caused the applicant to engage in industrial activity in that:  He made a complaint to the applicant in December 2016 in relation to unsafe spraying practices and the applicant contacted the respondent in relation to the complaint;  The applicant, on behalf of Sewell, made a complaint to the first respondent on 14 February 2017 about the outcome of Sewell's performance appraisal;  The applicant, on behalf of Sewell, made a complaint to the first respondent on 27 February 2017 about the outcome of Sewell's performance appraisal. [13] The effect of paragraphs 26, 29 and 30 of the further amended application was that Irvin engaged in industrial activity or caused the applicant to engage in industrial activity in that: -- 4 of 74 -- 5  He made a complaint to the applicant in December 2016 in relation to unsafe spraying practices and the applicant contacted the respondent in relation to the complaint;  The applicant, on behalf of Irvin, made a complaint to the first respondent on 14 February 2017 about the outcome of Irvin's performance appraisal;  The applicant, on behalf of Irvin, made a complaint to the first respondent on 27 February 2017 about the outcome of Irvin's performance appraisal. [14] It was submitted that the conduct set out in paragraphs 12 and 13 above constitutes conduct that is: (a) An incident of becoming or remaining a member of the applicant, an industrial association, within the meaning of section 290(a) of the Act; (b) Participation in lawful activity organised or promoted by the applicant, an industrial association, within the meaning of section 290 (b)(iii) of the Act; (c) Representing the views, claims or interests of the applicant, an industrial association, within the meaning of section 290 (b)(v) of the Act; (d) Seeking to be represented by the applicant, an industrial association, within the meaning of section 290 (b)(vii) of the Act. Adverse Action [15] For Sewell, the adverse action took the form of:  The issuance of a Notice of Proposed Disciplinary Action in a meeting on 4 April 2017 in which the second respondent told Sewell words to the effect that "everyone is sick of listening to you about spraying"; and  The imposition of a formal warning on 2 May 2017 without good cause in circumstances where any further unsatisfactory performance could result in the termination of employment. [16] For Irvin, the adverse action took the form of:  The issuance of a Notice of Proposed Disciplinary Action on 5 April 2017; and  The imposition of a formal warning on 2 May 2017 without good cause in circumstances where any further unsatisfactory performance could result in the termination of employment. Legislation [17] The relevant parts of the relevant sections of the (IR Act) are reproduced hereunder: 280 Action to which this part applies Subject to section 281, this part applies to the following action— (a) action taken by an employer; (b) action that affects, is capable of affecting or is taken with intent to affect the activities, relationships or business of an employer; -- 5 of 74 -- 6 (c) action that consists of advising, encouraging or inciting, or action taken with intent to coerce, an employer— (i) to take, or not take, particular action in relation to another person; or (ii) to threaten to take, or not take, particular action in relation to another person. 282 Meaning of adverse action (1) Adverse action is taken by an employer against an employee if the employer— (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. … (6) Adverse action does not include action that is authorised under— (a) this Act or any other law of the State; or (b) a law of the Commonwealth. 284 Meaning of workplace right (1) A person has a workplace right if the person— (a) has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or (b) is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or (c) is able to make a complaint or inquiry— (i) to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or (ii) if the person is an employee—in relation to his or her employment. (2) In this section— industrial body means— (a) the commission; or (b) the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission's functions and powers. 285 Protection (1) A person must not take adverse action against another person— (a) because the other person— (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or -- 6 of 74 -- 7 (iii) proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Reverse Onus [18] In circumstances where it was not in dispute that Irvin and Sewell had exercised a workplace right, and not in dispute that the respondents had taken adverse action against Irvin and Sewell in the form of notices of disciplinary action and warnings, the presumption under s 306 of the IR Act has been enlivened. Section 306 provides: 306 Reason for action to be presumed unless proved otherwise (1) Subsection (2) applies if— (a) in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would be a contravention of the provision. (2) It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (3) Subsection (2) does not apply in relation to orders for an interim injunction. [19] Given that s 306 is in materially the same terms as s 361 of the Fair Work Act (FW Act), and in circumstances where s 361 of the federal legislation had been subject to considerable judicial attention, it is accepted that relevant principles are to be found principally by reference to decisions handed down in the Commonwealth jurisdiction. Section 361 of the Fair Work Act (FW Act) in its relevant parts is set out below: 361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. Evidence [20] Evidence for the applicant in the proceedings was given by Paul Taylor, an organiser for the CFMEU, Irvin and Sewell. Evidence for the respondents was given by the following employees of Council: Carl Manton, Chief Executive Officer -- 7 of 74 -- 8 Dion Jones, Director of Engineering Services Debbie Elliott, Human Resources Officer Luke Tanner, Manager Works Katie Galvin, Technical Officer for Projects, Design and Assets Gary Smith, Supervisor of the Parks and Gardens crew Greg Newman, Senior Advisor, Local Government Association [21] The evidence in chief of all witnesses was provided by affidavit. Manton, Elliott and Newman were not required for cross-examination. Spraying Activities [22] Galvin said that the work of the parks and gardens crew includes spraying for weeds, grubs, paspalum and other plants on and around sporting fields and local facilities. On occasions, the crew may be required to spray weeds near the roads around Goondiwindi on behalf of the Department of Transport and Main Roads. [23] Persons engaged in spraying herbicides or pesticides are required to be licenced under the Agricultural Chemicals Distribution Control Act 1996. The Government agency responsible for the issuing of licences was at the relevant time either the Department of Agriculture and Fisheries (DAF) or the Department of Primary Industries (DPI). Part of the requirements imposed on licenced persons by DAF is a requirement that a record of spraying activities be kept which discloses the area in which the spraying occurred, relevant climatic data and other information. [24] While Sewell and Irvin were licenced operators, neither the second respondent, Galvin nor Tanner held licences. Galvin said that in addition to being licenced, workers engaged in spraying were required to complete training in Council's spraying procedures. She referenced a Council work health and safety procedure last reviewed on 25 March 2016 dealing with "Chemical/Weed Spraying". Galvin said that Council procedures regulating spraying activities had been in place since 2009. She said that both Irvin and Sewell were familiar with these procedures. [25] Sewell's evidence was that he had been a licenced sprayer for the first respondent for about six or seven years. He said that the first respondent had arranged and paid for him to attend a chemical certification course to enable him to become a qualified sprayer. Sewell said that his expertise included knowledge relevant to wind speeds and temperature levels, mixing or water rates, personal protective equipment, weeds or plants to be killed, and the type of chemical to be used to ensure an effective kill. [26] Irvin held the same qualification as Sewell. His experience prior to his employment at Council was derived from working on a grain farm outside Goondiwindi for about six years where his duties included spraying. Irvin said in his affidavit that he knew the rules and regulations about spraying because he had been dealing with them for a long period while working on the grain farm. [27] Irvin maintained in his affidavit that from time to time he had been required by Council to conduct spraying in an unsafe manner. Irvin alleged in effect that he had been directed to spray when wind speed and temperature limits were exceeded, that he had been directed to use products that were not registered to be used for that purpose, and that he -- 8 of 74 -- 9 had not been provided with personal protective equipment. Irvin claimed in his affidavit that he knew the rules and regulations about spraying and that he knew that what Council was doing to be "completely wrong". [28] Tanner pointed out in his evidence (T1-99) that typically Council's spraying was low risk. He diminished the significance of wind drift and said it was unlikely that Council's spraying operations would represent a risk to property, crops or people. He said that while wind and drift remained a risk factor, a number of considerations operated to mitigate risk. These considerations include that the majority of the work performed by the parks and gardens crew involved spraying by hand, the volumes sprayed are low, the droplet sizes are large, and the volumes of water mixed with the chemical are high. It was Tanner's evidence that, to his knowledge, there had been no incidents in the last two years involving damage to property or personal injury as a result of wind drift from spraying by Council. [29] It was clear on the evidence that spraying practices were regulated by DAF or DPI guidelines, by material safety data sheets, and by reference to the specific instructions provided by manufacturers in respect to the safe use of each particular chemical. Typically these instructions were referred to as the label instructions. [30] Propositions by both Irvin and Sewell to the effect that Council's spraying practices contravened work health and safety regulations or manufacturers' guidelines were disputed by both the second respondent and Galvin. Galvin said that Irvin was wrong in saying that specific limits around wind speed and temperature applied. She said that the limits referred to in Irvin's affidavit were recommended limits only. [31] The second respondent pointed out in his affidavit that the specifications on labels are recommendations only and that very little risk was associated with spraying at a low level using a coarse nozzle spray. His standing advice was that workers should contact him if conditions exceeded those specified on the label. The effect of Galvin's evidence was that Irvin and Sewell had been following this instruction and that the DAF log book provided a record of spraying having been stopped on a number of occasions following issues raised by Irvin or Sewell with the second respondent. [32] Galvin agreed that recommended levels for temperature and wind speed were included in the DAF log book. The effect of her evidence was that levels are recommendations only because there may be variations in levels for different chemicals. Her evidence was to the effect that Council procedures retained a similar flexibility. [33] The effect of the second respondent's evidence was that the DAF recommended guidelines were to be read in conjunction with the information specific to each particular chemical and set out on the label. [34] The second respondent said that not all labels specify minimums and/or maximums. He also said the mode of spraying was a factor relevant to drift and risk and distinguished between crop dusting, the use of boom sprays and the use of hand sprays drawing from a small spray bottle. He accepted that the DAF guidelines recommended a maximum wind speed of 20 km per hour and a maximum temperature of 28 degrees. -- 9 of 74 -- 10 [35] The proposition put to Galvin during cross-examination was that the label instructions were not adequate or did not deal with sufficient precision with the circumstances confronted by employees. Galvin maintained that all employees engaged in spraying activities were ticketed and competent and knew how to respond (T1-49). Galvin agreed that Council's procedures did not specifically instruct workers to "comply with the labels". [36] Both Irvin and Sewell said that they were required to complete and maintain a DPI logbook. Sewell said that the log book provided guidance or direction about the location of spraying, wind speed, temperature and the nature of the crop or vegetation being sprayed. He said in particular that the logbook contained information about minimum and maximum temperatures and wind speed for spraying. [37] Compliance with DAF or DPI requirements associated with the recording of data when spraying occurs appeared haphazard either as a result of limited enforcement activity or because workers neglected to record the relevant information. While Council suggested workers were at fault, the workers maintained that they were not supplied with measurement devices to enable readings to be taken relevant to wind speeds and temperature. Either way, data sheets were not tendered into the evidence and there is no documentary record of climate data applicable at the times that operators were required to spray chemicals. [38] My understanding of the evidence was that the level of risk associated with chemical spraying varied depending on a range of factors. Climatic conditions such as wind speed and temperature were common risk factors, but a number of other factors also had to be considered in the determination of any risk profile including the type of chemical used, the mechanism of spraying such as boom or hand held equipment, nozzle size, the proportion of water mixed with the chemical to create the spraying fluid, and whether ground or aerial spraying was employed. Risk was diminished with the use of particular types of chemicals, spraying at ground level, hand held spraying with low volumes and the use of a coarse nozzle producing large droplets. Some factors, particularly high temperatures, also influenced the effectiveness of the chemical sprayed and what was referred to as the "kill rate". Variability also included location to location factors impacting on wind speed and temperature. Sheltered locations might diminish otherwise high wind speeds and permit spraying, while similarly spraying might be viable despite high temperatures if spraying was limited to shaded or irrigated areas. [39] Views diverged about whether it was practicable for the first respondent's spraying procedures to identify maximum temperatures or wind speeds relevant to the use of particular chemicals. The second respondent acknowledged that Council procedures did not specify excessive wind speed or excessive temperature limits. Irvin and Sewell advocated the case for the determination of simple limits or cut-off points which, once reached, would automatically lead to a cessation of spraying. [40] Irvin also complained in his affidavit about non-compliance in other areas including inadequacy in the supply of personal protective equipment (PPE) and the use of chemicals contrary to the purpose for which they were registered. Irvin failed to particularise his complaint that chemicals were incorrectly used. If however he was referring to the use of "2,4-D", he was wrong and this was pointed out to him at the meeting held on 29 November 2016. In terms of PPE, Irvin acknowledged that this issue -- 10 of 74 -- 11 had been resolved but only after he had to fight for the improvement. Given that the issue was not mentioned in exchanges between Taylor and Elliott and was not raised in meetings on 29 November 2016, 17 January 2017 or 19 January 2017, it is presumed that the issue was resolved prior to the end of November 2016. [41] Both Galvin and the second respondent acknowledged that Irvin's representations were a factor in decisions made to effect improvements in the method of recording and keeping spray data and to acquire additional devices for measuring wind speed and temperature. Irvin had suggested that DPI log books be used to record data rather than the use of individual "spray" forms. Prior to the acquisition of additional devices, the parks and gardens crew had access to one dedicated device and may have relied on mobile phones to provide information on temperature levels and wind speeds. 29 November 2016 Meeting [42] In his affidavit, the second respondent said that on 29 November 2016, he directed Irvin, Sewell and Shane Horne to "spray around posts and signs on the side of the road for the day". He said that the workers were using "a long handle spray unit with a coarse nozzle and spraying at ground level around the base of specific posts and signs". The second respondent pointed out that the "benefit of using a coarse nozzle and spraying at ground level was that there was minimal opportunity for the chemical spray dripping and travelling. [43] It was common ground that around mid-morning on 29 November 2016, the workers stopped work and returned to the depot. When the workers arrived at the depot they approached the second respondent who was with Galvin at the time. The second respondent said in his affidavit that the men came into his office to speak to him regarding their spraying concerns. Soon thereafter it was suggested that the Director of Engineering Services, Dion Jones, should participate in the discussion and Galvin phoned him and asked him to come to the depot. [44] There were differing versions presented for why work was stopped. Sewell attributed the stoppage to high wind speeds and Irvin said that it was too hot. The Council representatives however were consistent in their view that the workers stopped work because of two reasons. Firstly, they were concerned about the impact of drift on nearby cotton farms and they thought that a 20 kilometre exclusion zone existed, and secondly they were concerned that the chemical being used in the spraying was not authorised. [45] Sewell said that he, Irvin and Horne were "out on the highway spraying for fleabane around guide posts" when wind speed was becoming a factor. Sewell said that he, Irvin and Horne decided that the wind speed "was getting too high" and elected to leave the job site and return to the Council depot. Sewell said that when the men arrived at the depot, the second respondent was informed "that the wind was too high". [46] Irvin's evidence was different in that he said that the workers stopped work because "it was too hot for us to be spraying, so we asked for a meeting with the hierarchy of the Council to discuss our concerns". Irvin said that when he arrived at the depot he told the second respondent that "it's too hot and we need to discuss this because what we are doing is illegal". When Jones arrived, Irvin said that "we told them our concerns about high temperatures and wind." -- 11 of 74 -- 12 [47] Irvin said in his reply affidavit that the label requirement was that the 2,4-D should not be sprayed in wind speeds above 15 km per hour and should not be sprayed in temperatures over 30 degrees. Whether wind speeds on the day exceeded 20 km per hour was not factually known and the effect of the second respondent's evidence was that the workers did not make an entry about wind speed in the relevant spray form. [48] The second respondent said in his evidence in the proceedings that the workers were spraying a herbicide called 2,4-D and bearing a brand name of "Amicide". Exhibit 10 was presented by the applicant as evidence of the label requirements for 2,4-D, including prescription of a maximum wind speed of 20 km per hour. No temperature information was included. [49] The workers' right to stop work and return to the depot and air their grievances were not questioned. Management discussed matters with Irvin and Galvin for up to an hour, then asked to talk to Jones and waited around until he arrived. They then participated in a discussion with Jones for some time. [50] Irvin and Sewell did not make mention of the chemical 2,4-D in their first affidavit. However Gavin said that when the workers arrived at the second respondent's office, Irvin questioned whether Council had approval to spray a chemical known as 2,4-D and raised an issue with a 20 kilometre exclusion zone for cotton farms. The second respondent's evidence was that when the workers came into his office, Irvin spoke about a restriction on spraying within 20 kilometres of cotton farms. The second respondent said that Irvin mentioned that he had been speaking with Clem Smith and that Clem Smith had told him that spraying should not occur within 20 km of cotton farms. In terms of the issue relating to the use of 2,4-D, the second respondent said that he had previously notified the parks and gardens crew that the Department of Transport and Main Roads (TMR) had approved the use of a particular chemicals. [51] When Jones arrived, Irvin said that he did the talking and that he told the second respondent, Galvin and Jones about "our concerns about high temperature and wind". Sewell's recollection was that Irvin complained that the wind and the temperature were too high, and that he was worried about "spray drift". The second respondent said that the meeting discussed the type of chemicals being used, the risks to cotton farms in the region, and the application for the approval of the spot spraying of chemicals with a coarse nozzle. He said that Jones had established that the suggested exclusion area around cotton farms did not exist. [52] In his evidence in the proceedings, the second respondent agreed with propositions that Irvin and Sewell raised concerns about spraying in hot and windy conditions. [53] It was Jones' recollection that when Galvin telephoned him and requested his attendance she told him that the issues were the spraying of 2,4-D, and an exclusion zone for cotton farms. When he participated in the discussion, Jones said that the main concerns of Irvin and Sewell were the type of chemical being used and the cotton exclusion zones. He also said that the workers had concerns about personal liability. [54] Galvin said that neither Irvin nor Sewell complained about heat or wind speed as issues in the meeting and that Irvin's primary concern was the proximity of spraying to cotton farms. Galvin's evidence was consistent with a note that she had made in her diary the -- 12 of 74 -- 13 following day to the effect that the issue prompting the discussion was a concern about an exclusion zone for cotton farms. The diary note also indicated that when Jones was asked to come to the meeting, it was also arranged for Clem Smith to attend. Clem Smith's attendance was significant because of his association with the cotton farm exclusion issue. [55] Neither Irvin nor Sewell acknowledged Clem Smith's presence at the depot meeting in their first affidavit, nor did they make any mention of the issue related to the cotton exclusion zone. In his reply affidavit however, Irvin acknowledged that Clem Smith attended the meeting and said that Clem Smith had raised the exclusion for cotton farms. He said that his concerns and Sewell's concerns were solely about wind speeds and temperature. He said that neither himself nor Sewell raised the cotton farm exclusion. Sewell however had a different version. He said in his reply affidavit that Clem Smith had told Irvin and himself about the exclusion zone for cotton farms and that he (Sewell) had raised the issue at the meeting. However he said that he also raised issues of wind speed and temperature and that these were the main issues of concern to him. [56] In terms of meeting outcomes, Irvin was of the view that he would receive a further response from Council. He said that their concerns were listened to and that they were told by the management representatives that "they would look into it and get back to us". Irvin said that at the end of the meeting the workers were told to return to work and resume spraying until lunch time. Sewell said that when the workers expressed their concerns, Jones told them that he would look into the matters and come back to them, but that the workers should continue spraying. [57] The effect of the Council's evidence was that spraying was to be conducted consistent with instructions on the label of the chemical container. The second respondent said that the specifications on the labels are recommendations only. He said that the instruction to the workers was that if they had any concerns regarding the climatic conditions, he should be contacted. [58] Jones said that he told the workers that they were to continue spraying as long as the condition were within the specifications on the label of the chemicals being used. The second respondent said that Jones instructed the workers to continue to spray in accordance with the product label and in large droplets with a coarse nozzle. Galvin said that at the end of the meeting the workers were told that they should spray within the specifications on the label of each individual product. [59] Sewell and Irvin both said that the workers resumed spraying as instructed. Irvin said that as the day progressed it got hotter and windier, prompting him to ring the second respondent around 11.00am. Galvin said that Irvin's call to the second respondent was made around 11.45am and that his call was consistent with the instructions given in the meeting. Irvin said that the second respondent told the workers to keep spraying for another hour. [60] In his reply affidavit Irvin asserted that he had raised concerns about spraying conditions with the second respondent a number of times and that most of the time the second respondent told him to keep spraying. He said in these circumstances, he would keep ringing the second respondent as the wind speed or temperature increased and the second -- 13 of 74 -- 14 respondent would eventually agree to him stopping spraying. Irvin did not provide particulars and is not known when the events described occurred. [61] On Council's version, they had answered the issues that prompted the workers' visit and the matters were resolved. The workers had been told that use of the chemical "2,4-D" had been approved and that there were no exclusion zones. [62] Despite the version of events laid out in his first affidavit, Irvin provided a different version in his second affidavit. On this occasion he said that his principal concern was that he was directed to spray 2,4-D outside label conditions for wind speeds and temperature. In particular, he said that he raised concerns about the wind speeds. [63] The case prosecuted by the applicant in cross-examination was based on Irvin's second version of events. The case was to the effect that the workers stopped work because they believed that wind speeds were too high to allow for the spraying of Amicide. It was put to Galvin in cross examination that one of the things that Irvin and Sewell were complaining about was the use of the chemical 2,4-D on a windy day. [64] Galvin accepted that directions for use of a herbicide, Amicide Advance 700 (Exhibit 10), which included 2,4-D as an active constituent included reference to "spray drift restraints" and directed that the chemical should not be applied "where the wind speed is less than three or more than 20 kilometres per hour for ground application …". [65] The effect of the proposition put was that if the directions on the label were to be followed, then a specific range for wind speed, including a specified maximum of 20 kilometres per hour, had to be complied with. The evidence around the matter is considered in a context where Exhibit 10 is an extract from a document which is marked "Version 21 Mar 2014". It is not known if this version was current as at 29 November 2016 or through early 2017. While there was no direct evidence of wind speed, circumstantial evidence was provided by data from a bureau of meteorology station in the region which indicated that wind speeds in excess of 20 kilometres per hour were recorded on the day. [66] Contemporaneous accounts of the meeting were provided in an email exchange between Taylor and Elliott. In his email to Elliott dated 7 December 2016, Taylor described the workers' concerns in the following terms: In a meeting on 29 November with the above Senior staff Barrie alerted these officers that Goondiwindi Council is requiring some workers to perform chemical, herbicide and pesticide spraying in conditions that contravene Qld Dept Primary Industries standards, some of which have been reviewed this year. Of a major concern is being instructed to perform spraying when the temperature and wind fall outside the recommended safe parameters as stipulated by the DPI. The chance of spray drift in windy conditions is always a real possibility and these workers are concerned that as Cert holders they would be liable if a contamination event occurred. Barry Irvin has many years experience as a farm hand and spraying duties made up some of those duties in his previous role. His only intention is to do his job properly and he is concerned that no official response has yet been forthcoming from Council. -- 14 of 74 -- 15 [67] In her reply dated 16 December 2016, Elliott said that senior staff never requested that workers undertake spraying which contravened standards. She confirmed the Council position that the issues addressed were the type of chemical and the proximity of the work site to cotton farms. Jones had advised the workers that on his advice there was no exclusion zone around cotton crops. Jones instructed staff to continue spot spraying in accordance with the product label. 6 December 2016 Depot Meeting [68] Both Irvin and Sewell said that they raised their concerns about spraying practices with Paul Taylor, an organiser employed by the applicant, on 6 December 2016. Taylor said that he held a depot meeting at the Council on 6 December 2016 and that both Irvin and Sewell attended. He said that after the meeting both Irvin and Sewell expressed their concern to him that they were required to conduct spraying in extreme temperatures and excessive winds and that this requirement had not changed despite their representations to Council. This discussion also included reference to a notice of insufficient care and subsequent warning issued to Sewell, and to questions about the classification levels of the workers. [69] Taylor said that the discussion ended with him undertaking to email the Council and raise the workers' concerns more formally. He also said that he encouraged Irvin and Sewell to continue liaising with management about their issues related to spraying. In Taylor's email which was sent to Elliott on 7 December 2016, he raised four issues. He raised the disciplinary issues directed at Sewell, he asked whether Irvin's classification might be increased a level because he was the holder of a HR licence, he asked whether Sewell's classification might be increased a level because he had attained his Certificate 3, and he raised "a serious safety issue" which Irvin said that he had raised with management on 29 November 2016. Elliott responded to Taylor's email on 16 December 2016. 17 January 2017 Meeting [70] Irvin said that on 17 January 2016 the second respondent accused him of recording conversations that had taken place between the second respondent and himself. He said he denied the accusation. The second respondent agreed that he did put the question to Irvin because he had been told by other workers that the recording was occurring. Irvin also said at the same time that the second respondent told him that he had heard rumours to the effect that Irvin had been "interfering with the spraying that other Council crews carry out" and also interfering with spraying practices within his own crew. The second respondent denied that he had made those comments but he said that he was aware that Irvin had been speaking to other employees about different ways of spraying. [71] Irvin also alleged that the second respondent told him that he was to meet with Jones to prove that "what I was saying about the spraying was correct". The effect of the second respondent's evidence was that he did speak to Irvin about spraying because Irvin had concerns about spraying in temperatures over 28 degrees and that he referred Irvin to Jones to resolve the issue. After some equivocation, he admitted that he may have told Irvin that he should prove to Jones that his contention about spraying above 28 degree was correct. -- 15 of 74 -- 16 [72] There is no dispute that following this discussion and after work on that day, Irvin presented at the Council head office and requested to speak to Jones. [73] Irvin said that Jones "sat down with me and we discussed the issue at quite some length". Irvin said that during the meeting he pointed out the relevant rules and regulations and also told Jones that he felt bullied and intimidated by the second respondent arising from their exchange earlier that morning. [74] Irvin said that the meeting ended on the basis that Jones said that he would look into the issues raised, including the bullying claim. Irvin said however that Jones did not get back to him in respect to his bullying claim. [75] It was Jones' evidence that in the meeting Irvin spoke about his experience in performing spraying duties. He said that he told Irvin that Council's requirement was that he perform spraying within the specifications of the label and not to spray outside those specifications. Jones denied that Irvin claimed that he was being bullied or intimidated by the second respondent. He did not recall or was uncertain if the second respondent was mentioned during the meeting. [76] A review of email exchanges between Jones, Galvin, the second respondent and Tanner indicates that Irvin requested another meeting with Jones after his discussion with him on 17 January 2017. An email sent by Jones on 19 January 2017 at 12.17 pm to Galvin, the second respondent and Tanner said that Irvin "had been in touch and would like to have another meeting regarding spraying". Jones said that he told Irvin that the meeting could take place either that afternoon or the following afternoon. After consulting with Galvin, Tanner and the second respondent about availability, the meeting was fixed for 2.00 pm that same day (19 January 2019). 19 January 2017 Meeting [77] The second respondent's evidence was that he was told that Irvin had requested a meeting to discuss wind speeds and temperatures while spraying. The second respondent said that the meeting took place at the depot on 19 January 2017 and involved himself, Jones, Galvin, Tanner, Irvin and Sewell. [78] At the meeting, Irvin said that he raised information mainly about wind speed and temperature and about the use of a boom gun spray or a hand gun spray. Irvin said that Jones, Tanner, Galvin and the second respondent "all sat there and listened to what I was saying". [79] Sewell said that he also participated in the meeting and that he raised his concern "about spraying in circumstances where the temperature and wind was higher than the DPI guideline". Sewell said that the management response was limited to a statement that he should follow directions on the subject. [80] The second respondent agreed that the meeting discussed the recommendations specified in the DPI logbook about wind speeds and temperature. He accepted that Irvin and Sewell maintained that they should not be spraying in temperatures in excess of 28 degrees. It was Galvin's evidence that Irvin and Sewell were told in the meeting that the DPI logbook -- 16 of 74 -- 17 recorded the recommended conditions only and that they would need to refer to the product labels for accurate specifications regarding spraying conditions. [81] The second respondent said that the meeting discussed information on the labels of chemical products and the meaning of the term "excessive wind speed and temperature" as it appears on the labels. Galvin agreed that Irvin and Sewell raised the issue of cut-off points for wind speed and temperature. She accepted that one of Irvin and Sewell's complaints was that some of the chemical labels did not specify a maximum temperature or wind speed. [82] Jones' evidence was that the meeting mainly discussed temperature, wind speed and atmospheric conditions. He said that Irvin and Sewell had concerns about the effectiveness of chemical kills on the weeds and chemical travelling in spray drift. He also said that the discussion included an explanation of the differences between spot spraying and boom spraying and the effects of the different types of spraying. He subsequently engaged in an email exchange with an agronomist on the subject on 27 February 2017. [83] Tanner said that the meeting discussed Irvin's concerns about spraying in adverse conditions. He said that the "the point that we made strongly" to Irvin and Sewell was that they were not expected to spray in unsafe conditions. He also said that Irvin and Sewell were informed that "it is not as simple as the guidelines and will often require a risk assessment". Tanner also said that the meeting confirmed that if the workers had any concerns they should consult with their supervisor. [84] Irvin's evidence about an inconclusive end to the meeting was disputed by both Galvin and the second respondent. Galvin said that Irvin and Sewell were told by Jones that if they if they held concerns about spraying conditions, they should use the available instruments to measure the conditions, and if there were still issues, they should contact their supervisor. [85] The second respondent said that the meeting ended on the basis that Galvin would complete some research on the issues of wind and speed and ascertain whether any exact level could be fixed which would dictate when spraying should stop. He did not recall that any time limit was agreed within which Galvin would complete her research. He also did not recall either Irvin or Sewell approaching him and asking him when Galvin would get back to them. Tanner said that Galvin was to research the conditions on the product labels and that Jones would contact a local agronomist. [86] Evidence that Jones did contract the agronomist was provided by an email exchange between Jones and the agronomist dated 27 January and 31 January 2017. Jones' observation on the advice was that it reflected their understanding of the regulatory regime. He noted that while the advice said that temperatures above 28 degrees were to be avoided, there was no prohibition. [87] Galvin said that she undertook in the meeting to research wind speed and temperature levels and that she subsequently had prepared a spreadsheet showing minimum and maximum conditions for the most frequently used chemicals. In her evidence in the proceedings she said that she did not provide any written advice to the parks and gardens crew but that she had placed the spreadsheet containing her findings in the "spraying -- 17 of 74 -- 18 cabinet". She said that the spreadsheet contained a list of the chemicals commonly used by Council and, where relevant, the stipulated minimums and maximums. [88] Galvin also maintained that she had spoken to both Irvin and Sewell about the spreadsheet and also about an email that Jones had received from an agronomist. Irvin said that the meeting ended on the basis that that the management representatives would get back to him, but he said that this did not happen and he denied, in effect, that he had got any subsequent feedback from either Galvin or Jones. He said in particular that Jones never distributed the advice that he had received from the agronomist. The Complaints [89] On my understanding of the competing points of view, it appeared to be the case that Irvin and Sewell wanted the respondents to determine specific cut off points for temperature and wind speed, beyond which spraying should stop. The respondents however resisted the specification of cut off points and promoted the need for a more flexible regime in circumstances where Council's spraying practices were confined, risk was mitigated, and where both the regulatory regime and manufacturers guidelines recognised, as a generality, that mandatory prescriptions relating to temperature levels and wind speed were not appropriate. [90] I accept that despite dissatisfaction on Irvin and Sewell's part with the status quo, and despite the stated intention of Council to investigate particular aspects of their spraying practices, Council's primary response was consistent throughout and that both Irvin and the second respondent knew and understood the standing instruction to spray consistent with the label instructions and subject to supervisory direction. [91] I accept that any equivocation in the articulation of Council's position or any ambiguity perceived to exist in Councils policies, procedures or practices reflected the regulatory regime which was complex and where numerous variables were at play. Save and except for one example, there was no evidence that any of Irvin and Sewell's assertions if factually sound involved contraventions. Rather, they involved differences of interpretation in a regulatory regime that acknowledged substantial variability in practical circumstances and avoided in many cases inflexible prohibitions on spraying. [92] The WHSQ intervention occurred because of the applicant's dissatisfaction with the outcomes of the internal Council processes. In these circumstances the applicant sought vindication of Irvin and Sewell's position in a referral of the complaint to the regulator. However the WHSQ involvement did not vindicate Irvin and Sewell, rather it broadly accepted the legitimacy of Council's spraying regime and the appropriateness of the fundamental direction to spray consistent with label instructions or, in the event of doubt, consistent with supervisory direction. [93] There is no dispute between the parties that complaints were made to the respondents and that in making these complaints Irvin and Sewell were exercising a workplace right. While however the applicant characterised the complaints as responses to unreasonable or unlawful directions, and as matters involving contraventions of the Workplace Health and Safety Act 2011, the factual basis for such a characterisation was not made out on the evidence. -- 18 of 74 -- 19 [94] Nor was any significant attempt made in the evidence to make good such a characterisation. While Taylor said that both Irvin and Sewell kept extensive work diaries, they were not produced; while regulations required the keeping of spraying logs, the spraying logs were not produced; while regular complaints were made to the effect that DPI regulations were being breached, none of the regulations were tendered; while it was consistently asserted that manufacturers' guidelines were being breached, save for one exhibit, manufacturers' guidelines or labels were not provided, and no expert evidence was adduced. [95] In Shea v Energy Australia Services Pty Ltd (No 7), the Full Court of the Federal Court considered whether there was a need for a genuine complaint. The issue arose because of the appellant's attack on the primary Judge's characterisation of complaints made by the worker, and by the respondent's arguments in the appeal, that a workplace right did not include a right to make a vexatious complaint. While the Full Court noted that the ambit of the term "complaint" as employed in the Fair Work Act had not been previously considered, it expressed the following cautionary comments: Considerable care needs to be exercised before implying into s 341 any constraint that would inhibit an employee's ability to freely exercise the important statutory right to make a "complaint". To too readily imply into the language of ss 340 and 341 the necessity for a complaint to be a "genuine" complaint, necessarily would be productive of argument about whether a "complaint" is bona fide and may serve to discourage those who may well have mixed motives for making a complaint. The expression or drafting of a "complaint" should not require the sophistication or knowledge of an experienced industrial lawyer or legal advice regarding whether it should in fact be made. Care should also be taken before construing the term "right" in s 341 in a manner which may have more far- reaching implications for the meaning of that term when it is employed elsewhere in the Fair Work Act. When considering the construction of these provisions, there is an obvious need to balance the legitimate interests of both employees and employers in a manner consistent with the objects of the Act as a whole and the objects of Part 3- 1.1 [96] While expressing these cautionary words the Full Court did not contradict the reasoning of the primary Judge who had concluded in effect that a distinction needed to be drawn between the prosecution of a complaint and behaviours which are linked to the complaint for illegitimate means: Similarly, the statutory protection would not extend to extraneous matters or conduct associated with, but not reasonably incidental to, the communication of the grievance. It will be a question to be determined in all the circumstances of the particular case whether the content of a communication is a complaint that an employee is able to make, or part thereof, or merely extraneous matter expressed at the same time. Whether relevant conduct falls within the scope of "making" a particular complaint will depend on whether it is required for or reasonably incidental to its communication. To hold that all conduct and communications come under the aegis of a valid complaint with which they are contemporaneous or associated would effectively prohibit the employer from taking adverse action against an employee for misconduct because it was coupled with a complaint or inquiry that the employee was able to make. An employee could, for example, make mischievous, baseless and damaging accusations of misconduct in the workplace against other employees in an abusive or threatening manner, yet the employer would be prohibited from taking adverse action to discipline or restrain the complainant, even where it was necessary to do so in order to protect other employees. A provision aimed at the protection of workplace rights should not operate to secure immunity from the consequences of misconduct.2 1 Shea v Energy Australia Services Pty Ltd (No 7) [2014] FCAFC 167, [12]. 2 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, [629]-[630]. -- 19 of 74 -- 20 [97] French CJ and Crennan J in Barclay 3 (dealt with later in this decision), dealt with a related issue in stating that it is not required that the establishment of the reasons for taking adverse action must be entirely disassociated from the making of the complaints. [98] In this matter, the evidence has included reference to a number of events which relate to the complaints made by Irvin and Sewell about spraying. These references include the second respondent's criticism of Irvin for leaving the work site without permission to discuss his complaints with a WHSQ inspector, statements that everyone is sick of listening to Sewell complaining about Council's spraying practices, statements that Irvin and Sewell were spending too much time talking when they should be working, statement that Irvin had been interfering in the spraying practices of crews other than the parks and gardens crew, and statements to the effect that Irvin and Sewell have been causing divisions in the parks and gardens crew which have negatively impacted on team work. The applicant has taken exception to some of these events and submitted that some of the incidents demonstrate the probability that the second respondent and Galvin were motivated to commence a disciplinary process against Irvin and Sewell because they had complained about spraying practices. [99] In this regard care has to be exercised to avoid conflating the issues and in understanding that while behaviours such as unauthorised absences from the workplace or causing disruptions to team work may be traced back to the initial complaints made about spraying practices, these behaviours do not enjoy any statutory immunity. Responses to Complaints [100] Both Irvin and Sewell complained in their affidavits about a failure by Council to communicate answers or responses to them in relation to the matters that they had raised. The effect of their evidence was that the first respondent on each occasion either prevaricated or said they would look into the issues raised and get back to them, but this never occurred. The view promoted was that their safety concerns were ignored and that there were significant unresolved issues that required Council to provide further responses. [101] The effect of Sewell's affidavit was that Council had not "clarified their views on the limits" and that "they haven't spoken to us about this at all and instead have just ignored us the whole time. The lack of a response from the Council has been extremely frustrating". Irvin said that after the 29 November 2016 meeting that he waited a couple of weeks to hear back from Council and that when he did not hear anything "eventually we decided to contact Mr Paul Taylor of the CFMEU". [102] These views are not consistent with the evidence. Firstly, if Council were to get back to Irvin and Sewell, Irvin and Sewell did not wait for any such response. Only a few days had elapsed following the 29 November 2016 meeting when they took their concerns up with Taylor on 6 December 2016 and asked Taylor to take their issues up with Council. Taylor did this in an email to Elliott dated 7 December 2016. [103] Elliott responded to this email a little over a week later on 16 December 2016. On January 17 2017, the second respondent asked Irvin to meet with Jones for the purpose of 3 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, [62]. -- 20 of 74 -- 21 resolving differences. Very soon after this meeting, Irvin requested a further meeting with Council officers. This meeting request was agreed to promptly and another meeting was held on 19 January 2017. [104] It was not in dispute that no further meetings were held after 19 January 2017 and the impression gained from the evidence was that, in terms of management, the issue was closed. Broadly consistent with this perspective, it was Taylor's evidence that he decided in the first half of February 2017 to pursue the issue with WHSQ and, for this purpose, he made contact with a senior principal advisor in mid-February 2017. [105] Around the same time, Taylor had emailed Elliott on 14 February 2017 about performance appraisal results and had mentioned that Irvin and Sewell had not got a response from senior engineering staff about their spraying concerns. Elliott replied to Taylor's email on 23 February 2017 where she said inter alia: Kevin and Barrie have raised concerns about safe spraying procedures, but have yet to provide any evidence that they have been instructed to conduct spraying operations in unsafe conditions. Council engineering staff are continuing to research the facts regarding responsible spraying operations. Senior Engineering staff have met with Kevin and Barrie and discussed their queries with them. I don't believe an 'official' response or reply is warranted at this stage. Council also responded to the Union's enquiry. [106] The email reasonably clearly communicated to Taylor that while Council was continuing to make some enquiries, it considered that it had responded to Irvin and Sewell's questions or concerns related to spraying practices. Taylor however did not accept that the matter was resolved and in his response to Elliott on 27 February 2017 he proposed that a further meeting be held to give Irvin and Sewell the opportunity to explain why spraying instructions were inappropriate. While a meeting was proposed for either 7 or 8 March 2017, it never eventuated. [107] WHSQ attended on the Council's operations at various times between 8 March and 10 March 2017. A meeting between WHSQ officers and Council management on 10 March 2017 effectively confirmed the adequacy of Council's spraying practices. Despite that Taylor would have known the outcome of the WHSQ investigations soon after 10 March 2017, he elected to revisit the spraying issue some six weeks later when he prepared correspondence responding to the show cause notices issued to Irvin and Sewell. In this correspondence dated 21 April 2017 he promoted a view that Council had been recalcitrant in the handling of Irvin and Sewell's complaints and that serious health and safety issues remained unresolved. [108] In the correspondence Taylor said that the CFMEU was "astounded and extremely concerned that after 4 months, GRC has been unwilling or reluctant to officially respond to the concerns" of Irvin and Sewell. He also stated that both Sewell and Irvin want the opportunity to refute the claims contained in the email dated 23 February 2017 to the effect that no evidence of inappropriate spraying practices had been provided. Taylor then said that "both workers have kept extensive Work Diaries should have the opportunity to present their case". [109] Taylor's retrospective assessment of issues motivated Galvin to address what she believed to be misrepresentations. In an email to Elliott, Tanner and Jones on 26 April 2017, Galvin noted the earlier 23 February 2017 response to Taylor, and then stated: -- 21 of 74 -- 22 It seems that the CFMEU have disregarded this response from GRC, as have Kevin and Barrie disregarded all verbal responses from us in regard to spraying as they continue to seek an official response. They have been encouraged to use the DPI spray log book, to read the chemical labels and MSDS' and to advise their supervisor if they feel that there are issues with the wind conditions or temperature. They have not contacted Chook whilst undertaking spraying yet claim that they have extensive work diaries as evidence. The responses also claim that threats were made at the performance appraisal meetings that they would be sacked unless there was improvement. This is completely untrue, as Debbie and myself were both present during these meetings. Another section in the responses refer to GRC failing to adhere to the strong suggestion by WHS that the GRC chemical certificate holders play a role in reviewing and contributing to the new methods and procedures. GRC have been working on specific chemical procedures and have involved other chemical certificate holders in this process (rural services). The CFMEU have stated that they will inform WHS 'that their request has been ignored also and that no attempts have been made by GRC to move forward on this matter'. Our safety officer can give you all of the details of how GRC have addressed the concerns of the WHS inspectors. [110] Council's evidence was generally to the effect that while Irvin and Sewell's concerns were listened to, and while Council agreed to make some external enquiries, there was to be no change to the day to day spraying practices which were to the effect that chemicals should be sprayed in accordance with the manufacturer's label and, if in doubt, workers should contact their supervisor. The response that was provided by Elliott to Taylor on 16 December 2016 is evidence of a concluded view on the matter. In this response Elliott told Taylor that approved chemicals were to be applied by spraying with a coarse nozzle and spot sprayed; that workers were never requested to undertake spraying that contravenes standards; that a commercial spray operator and a local agronomist had advised that "there was not an exclusion zone around cotton crops and that there are no issues if operators are careful and abided by label requirements and instructed the staff to continue spot spraying in accordance with the product label." [111] To the extent that Irvin and Sewell were dissatisfied with this result, Irvin was given the opportunity in a lengthy meeting with Jones and a further meeting two days later to further press the case for change. Their claims that they had been ignored or that their concerns were not adequately responded to were more accurately statements reflecting their frustration that they were not getting the responses they wanted or were not getting the level of direction that they preferred. [112] Neither was there any evidence of hostility toward Irvin or Sewell. Email exchanges between various council officers about Irvin's request for a further meeting on 19 January 2017 support the respondents' view that senior council officers in particular did not resent Irvin's initiative, were happy to meet with him, and wanted to meet expeditiously. There was a preparedness to listen to Irvin's point of view. The email exchanges did not suggest annoyance or antagonism. The exchange also demonstrates that Irvin was sufficiently confident to press Jones for another meeting notwithstanding that he had met with him the day before. [113] Given this chronology, it is difficult to entertain any suggestion that the concerns articulated by Irvin and Sewell had been ignored. While the evidence supported a conclusion that undertakings by Galvin and Jones on 19 January 2017 to report back to Irvin and Sewell on particular research outcomes did not occur, or did not occur on a timely basis, there is no basis, prior to this, for any complaint from Irvin or Sewell to the effect that they had been ignored. -- 22 of 74 -- 23 [114] The applicant submitted that "save for some unsatisfactory evidence from Ms Galvin" there is no evidence from anyone else that a formal response was ever given to Irvin or Sewell, or that Irvin or Sewell were ever informed about whatever it was that Council found out after the meeting on 19 January 2017. [115] I accept that after 19 January 2017 Council may not have adequately communicated the results of their research activities. While Jones received an email reply to a question he had posed, the email was not passed on and there was a lack of precision in Galvin's evidence that she had reported back to Irvin and Sewell about the matters in issue. Notwithstanding these failings, not a lot turns on the issue. From Council's perspective, they had not agreed to change their practices and in any event there was nothing to preclude Irvin or Sewell from following up with Galvin, or Tanner or Jones. WHSQ Audit [116] It was Taylor's evidence that around mid-February 2017, he elected to contact Helen Burgess, Senior Principal Advisor with WHSQ, about the spraying issues at Goondiwindi Council. Burgess asked Taylor to supply a list of chemicals used by Council in its spraying activities, and this list was supplied in an email dated 20 February 2107. [117] A week or two after this, Taylor was advised by Irvin that Council had been given notice of an upcoming WHSQ inspection and that he had been instructed to clean up the chemical storage facility. Irvin said at paragraphs 35 and 36 of his affidavit that the second respondent told him on 3 March 2017 to "clean the chemical shed and remove any empty chemical bottles and anything that was out of date or not labelled". Irvin also opined that it was "illegal to have a chemical that isn't properly labelled on site". After saying that the second respondent said someone had dobbed him in to WHSQ, Irvin stated that a stack of unlabelled and out of date chemicals on a pallet "ended up being moved out of sight, which was odd". [118] While the second respondent denied that he told Irvin that someone had dobbed him in to WHSQ, I accept that it was more likely than not that this statement was made. Such a statement was consistent with other statements the second respondent subsequently made about Irvin's attendance on the WHSQ inspection or 8 March 2017, and reflects an expectation that the second respondent knew or suspected that the WHSQ visit was associated with a complaint made by the applicant or by an employee. [119] The second respondent agreed that he told Irvin to go to the chemical shed and help tidy up however he said that he was not at the shed himself and he did not give Irvin any specific directions. He said that three sheds were being tidied up, one of which belonged to the parks and gardens crew. The other sheds were the responsibility of rural services and bitumen maintenance crews. He said that the tidying up process was overseen by Glenn Reibelt, Council's Workplace Health and Safety Officer. Irvin omitted to mention Reibelt's presence in his affidavit and did not contest the second respondent's account in his reply affidavit. Irvin's affidavit is misleading to the extent that it implies that the second respondent was involved in some form of contravention. [120] It was Jones' evidence that he was told on 1 March 2017 that a WHSQ visit had been scheduled for 10 March 2017 in relation to hazardous chemicals storage. Galvin said that -- 23 of 74 -- 24 she was told about the visit on 2 March 2017. She understood the visit to involve an audit of the use, handling and storage of hazardous chemicals. [121] The WHSQ action in providing Council with notice of the inspection caused the applicant to complain in writing to WHSQ on 7 March 2017. The correspondence accused WHSQ of complicity with the employer and suggested that "inspectors visit the site as a matter of haste" and that their "attendance be unannounced". [122] WHSQ responded with alacrity and the next day, 8 March 2017, inspectors made an unannounced visit to Council. Galvin said that she was notified by the second respondent that WHSQ had arrived at the Council depot and were making an inspection in relation to bulk fuel storage and chemical storage. The second respondent also told her that a Council employee had met with the WHSQ inspector. [123] Galvin said in her evidence in the proceedings that she had been involved in similar audits in other workplaces. She agreed that she undertook preparatory steps relating to the audit including ensuring that all chemicals had matching documentation and that she had given consideration to scheduling tool box talks or refresher training for the parks and gardens crew about spraying responsibilities. She acknowledged that certain parts of relevant health and safety procedures may be out of date and that there was some uncertainty about the outcomes of the audit. Galvin also agreed that preparations for the audit included the isolation of unlabelled and out of date chemicals. The second respondent agreed that he talked to Galvin about a toolbox talk and that some procedures may have needed updating. [124] While Galvin accepted that she was not happy that a complaint had been made to WHSQ, the effect of her explanation was that she was disappointed that the complaint was made in circumstances where she considered that Council had addressed the workers' concerns. Duration of Absence [125] Irvin said that he received a call from a WHSQ inspector around 9.10am on 8 March 2017. He said that he was having smoko at the time. He said that the inspector asked him to talk to him at the depot. Sewell's evidence was that "he had just sat down for smoko" when Irvin asked him to drive him to the depot for his meeting with the inspector. He said that they left the work site at about 9.10am and that, following a phone call from Irvin at 9.40am, he drove to the depot and brought Irvin back to the job site. He said that he was away from the job site for about 15 minutes. [126] Irvin said that he spent about 30 minutes with the inspector explaining his concerns to him. The inspector said that he believed Irvin knew where unlabelled and out of date chemicals were stored and asked to be shown the chemicals. After inspecting the chemicals, the inspector told Irvin he had no issues with what he had seen. Irvin accepted in his evidence that whatever his concerns in respect to the storage of chemicals, such concerns had not been validated by the WHSQ inspector. Irvin said he also had a discussion with the inspector about individual liability arising from spraying practices. [127] Galvin's diary notes disclose that she was advised on 8 March 2017 that WHSQ inspectors had arrived at the depot at 8.30 am and wanted to inspect bulk fuel and chemical storage arrangements and chemical containers. The notes also indicate that one -- 24 of 74 -- 25 of the inspectors "received a phone call at 9.15 am and went to meet someone at the front gate". The notes then disclose that the inspector came back 20 to 25 minutes later and said "a bloke from parks and gardens needed to talk to me about chemicals". On Galvin's notes, Irvin would have been absent from the workplace between 9.10 am and 9.45 am. [128] It was the second respondent's evidence that the depot manager identified from CCTV that Sewell drove Irvin to the depot around 9.30am. The second respondent also gave evidence to the effect that Irvin left the depot around 10.10am and that he was told this by another supervisor who had seen Irvin leave. Neither the depot manager nor the supervisor gave evidence and this version of events is not consistent with Galvin's contemporaneous notes which indicates that Irvin was at the depot with the WHSQ inspector from 9.15am to 9.45am. Nor is this version consistent with Sewell's evidence. [129] The second respondent said that when Irvin and Sewell completed their job sheets for the day, they did not make a record of any absence from work. He said that on the job sheet Irvin and Sewell recorded that they commenced smoko at 9.00 am and finished smoko at 9.20 am. [130] The evidence supports a finding that Irvin and Sewell had commenced smoko around 9.00 am and that the smoko would have ended around 9.20 am. Irvin was absent from the workplace between 9.10 am and 9.45am. Part of the absence coincided with the smoko break, but the remaining time (about 25 minutes) fell during Irvin's normal working hours. Sewell would have completed his first round trip during his smoko break, but would have been away from work for about five minutes in completing his second round trip. Leaving Worksite Without Permission [131] Neither Irvin nor Sewell sought permission from their supervisor to leave the job site. However the workers believed that because most of the time taken in travelling to the depot and back occurred during the normal smoko interval, it was not necessary to seek permission. [132] The second respondent did not accept that Irvin and Sewell were entitled to leave the worksite without permission. He made his views plainly known at the parks and gardens briefing the next morning. According to Irvin, the second respondent criticised him in front of the crew for leaving the workplace and spending time with the WHSQ inspector. Irvin said that the second respondent "wanted me to provide him with a job number so the Council could bill WHSQ for that time". Sewell's version of events was consistent with that provided by Irvin. [133] The second respondent accepted that the day after the WHSQ audit and Irvin's meeting with the WHSQ inspector, he raised Irvin's and Sewell's attendance record in front of the parks and gardens crew (T1-122): Okay. Now, it's fair to say, isn't it, that you were unhappy about Mr Irvin returning to the workplace to speak with Workplace Health and Safety?---I was just annoyed. That's all. And indeed, the next day, in front of the whole crew, you asked Mr Searle and Mr Irvin for the job number which you could allocate to the time they spent speaking to Workplace Health and Safety, -- 25 of 74 -- 26 didn't you?---I was mainly concerned about the leaving worksite without notifying your supervisor, leaving the other fellas working at the time. You asked them for a job number on the basis that the time could be charged to Workplace Health and Safety Queensland, didn't you?---Yeah, the time that was wasted, yes. Yes. And you did that in front of Mr Irvin's workmates, didn't you?---Yes. You didn't ask him privately about that, did you?---Nah. You were trying to make an example of him in front of his workmates and embarrass him, weren't you?---No. [134] Galvin said that neither Irvin nor Sewell should have left the worksite without notifying their supervisor. She said that she spoke to both Irvin and Sewell about the matter and told them that they were required to notify their supervisor before leaving their allocated work. [135] Jones accepted that Irvin's decision to leave the job site and meet with the WHSQ inspector was a relatively minor issue, but he maintained that Irvin should have communicated with his supervisor. [136] Irvin accepted in his evidence that he should have informed his supervisor. While Sewell did not believe that permission was necessary, he accepted that the second respondent was entitled to raise the issue with him. Withholding Pay [137] On 15 March 2017, Sewell said that the second respondent told him he was not going to be paid for his full attendance on 8 March 2017 because of the time lost in transporting Irvin to and from the workshop. Irvin's evidence was similar. He said that the second respondent told him on 16 March 2017 that unless WHSQ paid for the time that he was absent on 8 March 2017, he would not be paid for the full day. The second respondent did not deny that he had declined to authorise a full day's pay on Irvin's and Sewell's time sheets, and that he had informed Irvin and Sewell accordingly (T1-122): You were annoyed – I'm sorry, I withdraw that. It's right to say, about a week later, you told both Mr Irvin and Mr Searle that, unless they could provide you with a job number, they wouldn't be paid for the entire day, didn't you?---Yes. Now, you would've spoken to some of your supervisors about that notion?---Yes. Who did you speak to?---I think I might've spoke to Dion Jones. Right. And what did he say about that idea?---We agreed that we should pay. [138] The second respondent said that, for costing purposes, each job is allocated a job number and when a workers is assigned to perform work under a particular job number, the time spent must be recorded. As each job number had a limited budget for the year, he needed to ensure that workers assigned to each particular job actually performed the work. [139] The effect of Jones' evidence was that it was necessary for him to sign the time sheets of both workers to ensure they were paid in full for their attendance on 8 March 2017. It was Galvin's evidence that the second respondent spoke to her about withholding pay in circumstances where Irvin and Sewell left the worksite without letting him know, and had left the rest of the crew to do their work. -- 26 of 74 -- 27 Entitlement to meet with WHSQ [140] There was significant diversity in the respondent's evidence about the right of a worker to leave his workplace during smoko. In cross-examination, the second respondent accepted a proposition put to him that Irvin was actually performing work for his employer during the time that he spoke to the WHSQ inspector. The legal basis for such a proposition was not made out, but it achieved a concession from the second respondent that if time spent talking to the inspector equalled time worked, then he was wrong to say that Irvin had been wasting time. The second respondent's evidence was (T1-122): Right. You'd accept, wouldn't you, that talking to Workplace Health and Safety Queensland about work-related issues is part of their job, isn't it?---It's – quite right and I got no problem with that if they had have come to me and said, “Is it fine?”. You know, I got no problem." [141] In his evidence in the proceedings Jones agreed with a proposition that had Irvin's absence been limited to the smoko break there would be no obligation on him to notify his supervisor. Jones also accepted the proposition that Irvin's meeting with the WHSQ inspector should be deemed to be part of his employment. [142] Tanner's evidence on the subject was different. He maintained that Irvin was required to account for his whereabouts during a smoko break. He said that the smoko break was a "10 minute rest stop to have a refreshment, typically at their work location". He said that "leaving your worksite or your duties to undertake some other task is a different matter entirely". Tanner agreed that if the smoko break was 20 minutes duration and if the depot were a short distance from the work site, returning to the depot would not be particularly problematic. He maintained however that someone leaving the worksite should secure permission. [143] The confusion and inconsistency in some of the respondent's evidence was in part attributable to the witnesses' understandable uncertainty about how industrial relations law and workplace safety law should be interpreted. [144] While custom and practice is relevant, the general legal position is to the effect that as smoko breaks are taken in the employers' time (paid time), employees do not have unrestricted rights in terms of how this time is spent. Further, while WHSQ inspectors have broad powers associated with their entry onto workplaces, the Work Health and Safety Act 2011 does not prescribe that any discussions with workers must be deemed to be in the employer's time, or that workers have rights to leave their workplace without permission for the purpose of discussions with a WHSQ inspector. 9 March 2017 [145] Following Irvin's discussion with the WHSQ inspector on 8 March 2017, he was invited to a further discussion the following day when a different WHSQ inspector called him and said that he was aware of the previous day's discussion and that he too wanted to talk to Irvin about his concerns about spraying. When Irvin arrived at the meeting at 3.30pm, a third inspector was present and the three of them spent about an hour discussing issues raised by Irvin. Irvin said he was told by one of the inspectors the next day (10 March 2017) that a meeting had been held with Council representatives. -- 27 of 74 -- 28 [146] Taylor expressed his dissatisfaction with the progress made by WHSQ in an email on 9 March 2017 to the WHSQ regional director: The CFMEU and the worker interviewed yesterday are dismayed that Qld WH&S Departmental Officers were more interested in giving Goondiwindi Council accolades for going to the trouble of cleaning up the shit pit that masqueraded as a Chemical storage shed and then scolded the worker for his actions of spraying outside the recommended parameters. So again it's the whistleblower that finds themselves in the firing line. To say I am disappointed is a massive understatement. I can only hope that the Officers attending the Site tomorrow are more interested in asking Council Supervisor’s why they are forcing employees to apply chemicals when its 44 degrees and blowing a gale. The CFMEU intends to pursue this matter whether the Dept is or not. [147] Taylor's email is evidence that the applicant held the view well prior to the issuing of the notices of disciplinary action that reprisal action had been taken against Irvin and Sewell and that Council's practices contravened workplace safety laws and regulations. Council meeting with WHSQ [148] Galvin, the second respondent and Clem Smith attended the meeting with the WHSQ inspectors on 10 March 2017. Galvin said that the meeting included a discussion about the identification of a cut off point for wind speed and temperature which could inform the workers when to stop spraying. She said that the discussion culminated in an inspector saying words to the effect that "stopping is at the operator's discretion and discussion with their supervisor". Galvin kept a record of the meeting in her diary. The diary entries include reference to procedures being implemented for each type of chemical, to storage arrangements for dangerous goods or chemicals and fuel, and mention "cut off wind & temp conditions". The diary entries also disclose that the inspectors said at the end of the meeting that: - They could have issued a notice but decided not to; - Council has to create procedures for chemicals; - Instead of stipulating wind speed and temperature cut-off points, stopping spraying should occur at the operator's discretion after discussion with their supervisor. [149] Galvin's notes of the meeting also indicated that some improvement in existing procedures was required. Galvin said in her evidence that WHSQ wanted quick reference guides developed for each individual chemical used. She said that WHSQ proposed different spraying procedures for each chemical. She also said that if procedures were to be updated, WHSQ asked that consultation occur with those who are applying the procedures. [150] It was Jones' recollection that the improvements in spraying procedures required by WHSQ were minor and that there was no criticism around the actual practices of spraying undertaken by Council. Galvin's evidence was that there was no change to the day to day spraying practice. Jones said that spraying within the terms of the label remained the basic requirement. -- 28 of 74 -- 29 Post WHSQ Visit [151] Irvin said that he received some feedback about the 10 March 2017 meeting from one of the WHSQ inspectors. Irvin said that he was told that when Council was asked for their spraying procedures "the Council people all looked at each other blankly and then said that they didn't have one". On Irvin's version the inspector then told Council that they must have procedures and that workers must be involved in the writing process. [152] On 26 April 2016, Galvin included in an internal email the observation that the applicant had owned up to reporting Council to WHSQ. In the email, Galvin said that "the CFMEU own up to reporting GRC to WHS which resulted in the audit of chemical storage". The disclosure that the applicant had been responsible for the WHSQ visit was made in correspondence sent by Taylor to the Council on 21 April 2017 wherein he stated: After being contacted by the CFMEU, on Wednesday 8 March 2017, a Queensland Government Department of Workplace Health & Safety Inspector visited the GRC Depot to inspect Chemical storage and other matters. The inspector contacted Mr Irvin and requesting Mr Irvin to make his way to the Depot for an interview regarding chemical application and storage. Mr Irvin had no prior knowledge of this visit, unlike GRC who were afforded several days' notice of the Department's impending visit, which enabled it to clean up the Chemical storage facility before the inspector's arrival. When contacted during the morning smoko break, Mr Irvin got a fellow employee, Mr Sewell to drop him off at the Depot. Mr Irvin simply obliged the request by the Government inspector for an interview. Improvement Notice [153] It was not in dispute that WHSQ did issue Council with an improvement notice on 23 May 2017. The respondent submitted that it was only after the applicant "complained bitterly" to WHSQ management that the notice was issued. In this regard it was notable that the improvement notice was not issued until 23 May 2017 and that the notice did not include any significant criticism of the first respondent's spraying practices. [154] The notice is in the evidence as Exhibit 11. The contravention, which was limited to a failure to consult with workers, was expressed in the following terms: Goondiwindi Regional Council have failed to, so far as is reasonably practicable, consult with workers who carry out work for the business or undertaking who are, or are likely to be, directly affected by a matter relating to work health or safety. Discussions had with workers involved in the work process of spraying hazardous chemicals i.e. herbicides and pesticides have identified that said workers have not been consulted with on the proposed changes to systems of work for the use, handling and storage of said chemicals. Performance Appraisals [155] Elliott's evidence was that Council had turned its mind to the introduction of performance appraisals around July 2015 when it engaged Tweak HR to provide training to supervisors on a range of HR issues including behavioural profiling to help with the management of employees. Elliott said that after one of these training sessions Galvin -- 29 of 74 -- 30 and the second respondent approached her and expressed an interest in introducing performance appraisals for parks and gardens employees. [156] Galvin said that she attended these training sessions and had requested a copy of a performance appraisal template from Elliott on 13 April 2016 so that she could customise it for application to the parks and gardens crew. Galvin said that she sent the performance appraisal template to the second respondent on 14 April 2016 and encouraged him to implement the process. The second respondent's evidence was consistent with that given by Galvin. Contemporaneous emails from Galvin to the second respondent dated 14 April 2016 and 13 October 2016 supports their version of events. [157] Tanner said that he spoke to Galvin around April 2016 about the introduction of performance appraisals for the parks and gardens crew. She subsequently delivered a presentation at a managers meeting on 9 June 2016 about her plans for the implementation of appraisals. Galvin said that she discussed the implementation of the appraisals with the second respondent a number of times throughout 2016 and up to the implementation point in early 2017. She said that before the appraisals started she discussed the process, including the scoring system, with the second respondent. She said that she emphasised that the process was an opportunity to surface areas for improvement, and that each employee was to be given three months to work on these areas before re-evaluation. [158] The second respondent said that he informed the parks and gardens crew about the implementation of performance appraisals on 20 January 2017. At the same time the second respondent told his crew that improvements in productivity needed to be effected and that some work practices were not acceptable. The second respondent said that he raised with the crew the consequences of a poor performance appraisal and what might happen if performance did not improve. The effect of his evidence however was that he did not have the power to hire and fire and that he would not have threatened employees with dismissal. [159] Irvin said that the second respondent informed employees about the introduction of performance appraisals in late January 2017 while Sewell said that he was informed about the process by the second respondent in early January 2017. Sewell said that he had not previously been subject to such a process in the life of his employment with Council, while Irvin said the process was foreign to him. [160] Irvin and Sewell were both appraised on 7 February 2017 with the second respondent, Galvin and Elliott in attendance. A record of the appraisals was provided in a form headed "Professional Development Appraisal". A reading of the form discloses that the appraisal involved both a rating of the employee's performance against eight dimensions as well as some discussion around particular matters. The scoring range for the dimensions was between 1 and 4. A score of "1" was deemed "unacceptable"; a score of "2" meant "needs improvement"; a score of "3" meant "meets expectation"; and a score of "4" meant "exceeds expectation". Both Sewell and Irvin received the same score in respect to each dimension: Work capacity (ability to carry out tasks & responsibilities) 2 Comprehension and ability to learn/progress 3 Attitude toward supervision and general manner 3 Performance as part of a team 2 -- 30 of 74 -- 31 Attendance and punctuality 3 Application to work goals 3 Communication skills 3 Commitment to workplace health and safety requirements 3 [161] Apart from rating the eight individual dimensions, the process also required an "Overall Assessment" of an employee's performance. This assessment was arrived at by rating the employee on a scale from "1" to "5" in accordance with the following descriptors: 1. Unsatisfactory – unlikely to respond to further development 2. Does not meet satisfactory requirements – requires further development/experience 3. Carried out tasks & responsibilities competently 4. Results exceeded those set 5. Exceptional results achieved [162] In terms of the overall assessment, Sewell, Irvin, and another crew member, James Sharp received a rating of "2". It was not in dispute that these three employees were the only employees out of a crew of 15 who received an overall rating of "2" in their appraisal. Additionally, according to the second respondent's evidence, none of the 15 crew members were allocated an overall score of "5" or an overall score of "4". It followed therefore that the majority of crew members received an overall score of "3". [163] On the surface, the appraisal process appears to be a little dysfunctional in that while Irvin and Sewell met expectations in six out of 8 individual dimensions, they were given an overall rating of not meeting satisfactory requirements. The lack of correlation between results however may be explained by the use of different scales. Under the overall assessment scale, if an employee's performance needed improvement in any respect, the rating of "2" was the only available rating. [164] Galvin's explanation for the overall assessment rating of "2" was that, for Irvin, he was regularly the last worker to get involved in work, that he needed to improve the time taken to complete jobs, and that he was talking when he should be working. It was Galvin's evidence that Irvin's performance appraisal outcome was consistent with what she had observed during the course of Irvin's employment with the parks and gardens crew. She illustrated her view by reference to an incident during a community tree planting activity where Irvin declined to actively engage in the activity in the same way as other crew members. [165] Galvin said that the concerns about Sewell's work related to his need to complete jobs in a timely manner, to a practice of talking to other employees or to members of the public when he should be working, and to a concern that he was not working as part of a team. [166] The second respondent said that in every appraisal he told the employee that he wanted to "improve the team work for the team". In Sewell's appraisal, he said in effect that he drew attention to previous warnings and identified areas for improvement. In Irvin's appraisal he said that problems included a failure to complete jobs in a timely manner, failure to work as part of a team, and talking with Sewell. [167] It was noted during the second respondent's cross-examination that one of the allegations subsequently put to Irvin in the notice of proposed disciplinary action included an incident that occurred on 24 January 2017 which was prior to the conduct of the performance appraisal. The second respondent agreed that he raised the issue during the -- 31 of 74 -- 32 appraisal and took the issue into account in arriving at an assessment that Irvin's performance needed improvement. [168] On Irvin's evidence, not much was said during the appraisal. He said that at the start of the appraisal Elliott informed him that the appraisal was to be "a mutual discussion to fix problems in the crew". The qualitative part of the assessment form included comments that Irvin had performance issues related to not staying on task and not getting tasks done in a timely manner, and that his areas for improvement were related to his work capacity and team work and communication. [169] Sewell said that during his appraisal the second respondent told him that he was not happy with the way that he was communicating with the crew and that "you need to pick your act up. You've been lacking in team work". The qualitative part of Sewell's assessment identified performance deficiencies as "talking" and the "timely completion of tasks". Areas for improvement were identified as "staying on task" and "working as a team". [170] It was Sewell's evidence that when he was subsequently issued with the notice of proposed disciplinary action on 5 April 2017, the second respondent told him that the meeting was about team work and said words to the effect that "everyone is sick of listening to you two whinge about spraying". The second respondent denied that he said these words when the show cause notice was being issued and in this regard he was supported by Tanner's recollection of what was said. It was Tanner's evidence that the second respondent said very little in the meetings other than to indicate that "we would like to do our work and work as a team". [171] During the cross-examination of the second respondent and Galvin an alternative proposition was explored in which it was suggested that the second respondent had uttered these words during Sewell's performance appraisal on 7 February 2017. This proposition was explored because it was the second respondent and Galvin's evidence that some employees had complained in their appraisals about Irvin's and Sewell's preoccupation with the subject of spraying. [172] Galvin had also stated in her affidavit that between December 2016 and September 2017 she recalled a number of parks and gardens crew telling her that "they were sick of hearing Mr Irvin and Mr Sewell talk to them regarding the spraying issues, as they had already been addressed". She also said that during the appraisal process one member of the parks and gardens crew said that Irvin and Sewell kept to themselves while another worker said that Irvin and Sewell were talking non-stop about spraying. The second respondent also mentioned the issue in his affidavit when he said that he had received a complaint from some workers about Irvin and Sewell discussing their concerns about spraying within 20 kilometres of cotton. [173] The second respondent denied that he had said the words to Sewell in the performance appraisal process. Galvin however agreed that other employees in their appraisals had complained about Irvin and Sewell spending too much time talking about spraying, and that this was probably one of the issues addressed by the second respondent in the appraisals of Sewell and/or Irvin. -- 32 of 74 -- 33 [174] I accept that it was more likely than not that the comment claimed to have been made by the second respondent to Sewell was made during the performance appraisal meeting, and not in the meeting in which the show cause notice was issued. [175] Both Irvin and Sewell interpreted an overall assessment score of "2" to mean that they had failed the appraisal and that if they failed the next assessment in three months' time, the might lose their jobs. Galvin said that the process did not allow for a failure and that it was focussed on identifying areas for improvement and allowing time for the improvement to be effected. Galvin disputed Sewell's evidence that he was shocked by everything that had happened and that he had "shut off" during the process. Galvin said that Sewell was an active participant and that he spent more than ten minutes making suggestions about how the parks and gardens crew could be structured differently. [176] Both Irvin and Sewell subsequently asked Taylor to take up their concerns about the performance appraisal outcome with the Council. Taylor did this in an email dated 14 February 2017. In the email, Taylor variously informed Council that the applicant did not "recognise this type of disciplinary procedure"; that the applicant was both "curious and alarmed" at the appraisal process; that the validity of the process was questioned; and that they did not understand how a worker could fail the assessment when he got "3 out of 4" in six questions and "2 out of 4" in the remaining two questions. Taylor also questioned the impartiality of the supervisor who conducted the appraisals (The second respondent), and wanted to know what appeal mechanism was available. [177] Elliott asked Tanner and Jones to assist her in crafting a response to Taylor's email. Tanner provided his input in an email to Elliott on 16 February 2017. Galvin said that she had discussed Taylor's email with Tanner and explained that Irvin and Sewell had misinterpreted the purpose of the appraisals and pointed out that Irvin and Sewell were not the only parks and gardens crew members who were asked to improve their performance. Galvin said she provided content to Tanner and Elliott to assist in the drafting of a response to the email. [178] Tanner said that he was aware that Irvin and Sewell completed their performance appraisals on 7 February 2017, but that he was not present in the appraisal meetings. When Taylor complained about the performance appraisal outcomes, Tanner said that he had assisted Elliott in the development of a response [179] Jones said that while he was aware that performance appraisals were going to be conducted in the parks and gardens section, he was not directly involved in the process. He said that he was aware that, after the performance appraisals, some continuing performance issues had emerged with Irvin and Sewell. [180] Elliott responded to Taylor's email on 23 February 2017. In this email she explained to Taylor why performance appraisals were conducted; informed him that the appraisals had surfaced areas for improvement in the work of Sewell and Irvin; said that the overall assessment score of "2" was not intended to indicate a failure but to indicate that some improvement was required; said in effect that Irvin and Sewell had three months to improve their performance; pointed out that the performance appraisal was not a disciplinary procedure; and said that as the second respondent was the direct supervisor of the workers, he was the only appropriate person to conduct the appraisal. -- 33 of 74 -- 34 [181] Taylor responded to Elliott's email on 27 February 2017 and informed Elliott that the concern of Sewell and Irvin arose from the second respondent's statement to them that a failure in two appraisals would lead to dismissal. He said the workers had contacted him because of a concern for their futures. [182] Irvin and Sewell gave consistent evidence about what the second respondent told them about the performance appraisal process in January 2017. The effect of the evidence was that a three step process applied and that if three consecutive appraisals were failed, termination of employment would follow. Sewell's evidence was that the second respondent had described the process in the following terms: We're having our appraisals. You'll have your first meeting. If you fail that you'll have three months, than another meeting. If you fail that you'll have another three months, than another meeting. If you fail that, then you're gone. [183] In his affidavit Sewell said that the outcome of the appraisal left him confused and fearing for his employment. Irvin said that he was worried that he was going to lose his job because if he failed the next assessment in three months' time he would be in trouble again. [184] When Taylor responded on 21 April 2017 to the notices of proposed disciplinary action issued to Irvin and Sewell, he elected to revisit the issue and wrote that "with regard to the purported Workplace Appraisal of 7 February 2017, we take great exception to the threats issued by Supervisor Gary Smith that unless there was 'improvement' that Mr Irvin and Mr Sewell would be sacked. We regard such threats as reprisals against Mr Irvin and Mr Sewell for having raised genuine safety concerns at GRC in relation to their direction to spray chemicals in an unsafe manner. " [185] In an email to Elliott on 26 April 2017, Galvin rejected Taylor's comments saying that she and Elliott were present when the appraisals were conducted and that Taylor's version of what was said was completely untrue. [186] The second respondent accepted in his evidence that he raised issues about work efficiency and work effectiveness with the parks and gardens crew and that he did this because workers have good days and bad days and that a number of workers in the crew were "slacking off". In the context of this general evidence, the second respondent was called to account by the applicant for why only three employees received a poor performance appraisal. [187] The applicant's call does not significantly assist its cause. Firstly, there was no evidence that this issue was not raised individually in the performance appraisal of all the parks and gardens crew members. Secondly, in circumstances where the main consideration is whether any drop in performance was isolated or part of a deteriorating trend, no evidence was adduced enabling a determination to be made. Notices of Proposed Disciplinary Action [188] The effect of Galvin's evidence was that the performance appraisals did not have the desired remedial effect in terms of Irvin's and Sewell's performance and that issues continued to emerge after 7 February 2017. Galvin said that she and the second respondent met every morning to discuss issues relevant to the parks and gardens crew. -- 34 of 74 -- 35 Galvin said that it was her practice to report all performance issues in the parks and gardens crew to Tanner. She said that between February 2017 and April 2017 "there had been an influx of performance issues that were reported to Mr Tanner regarding Mr Irvin and Mr Sewell". [189] Tanner's evidence was consistent. He said that both Galvin and the second respondent provided him with updates about performance issues associated with Irvin and Sewell between 7 February 2017 and 4 April 2017. He said that Galvin had been "coming to me quite regularly regarding her and Mr Smith's frustration with the ongoing performance issues occurring with Mr Sewell and Mr Irvin's work". Tanner also said that on more than one occasion leading up to 4 April 2017 he had spoken to Manton about these performance issues. [190] It was the second respondent's evidence that each time there is a performance issue with a member of his crew, he reported the issue to Galvin at their morning meeting. He said that he was aware that Galvin informed Tanner about the issues. Galvin said that the disciplinary process involved in the first instance the delivery of a verbal warning by a supervisor, of which a written record is kept. If the matter is more serious a written warning is issued or a notice of insufficient care and attention. The CEO is usually involved in the imposition of written warnings and in the termination of employment. [191] In his affidavit, the second respondent identified performance issues associated with the work of both Sewell and Irvin after the conduct of the performance appraisals on 7 February 2017. The effect of his evidence was that he had to intervene and counsel Sewell for poor performance in respect to incidents on 2 March 2017, 8 March 2017 (WHSQ visit), 15 March 2017, and 23 March 2017. In Irvin's case, he said that he counselled Irvin in respect to incidents on 16 February 2017 (aerodrome spraying), 8 March 2017 (WHSQ visit), 20 March 2017, and 23 March 2017. [192] Tanner and the second respondent issued the notices of proposed disciplinary action to Sewell and Irvin in meetings held on 4 April and 5 April 2017 respectively. In the meetings which Tanner said were very brief, Tanner explained what was in the notices and said that he told both Irvin and Sewell that they had the opportunity to respond to the allegations made. [193] In both the case of Irvin and Sewell, the notices of proposed disciplinary action referenced the 7 February 2017 performance appraisal, noted that a number of areas for improvement had been raised in the appraisal, and said that since that time "Council has become aware of a number of other events concerning your behaviour in the workplace. These issues are considered to be a continuation of inappropriate workplace behaviour". The correspondence then listed five areas of unsatisfactory conduct in the case of Irvin and four areas of unsatisfactory conduct in the case of Sewell. In both letters Council indicated that it had not, at that point in time, determined whether it would take disciplinary action. The notices did however state that the proposed disciplinary action was either a formal warning or a reprimand. [194] Pursuant to s 197 of the Local Government Act 2009, a chief executive officer may take disciplinary action against a local government employee. Types of disciplinary action are prescribed by regulation. Section 280(1) of the Local Government Regulation 2012 provides that disciplinary action may take the form of a dismissal, a demotion including -- 35 of 74 -- 36 a reduction in remuneration, a deduction from salary or wages, a reduction in classification level or a written reprimand or warning. Section 280(2)(a) of the regulation provides that a written reprimand or warning must state the following: (i) the employee's conduct that is disapproved of; (ii) the remedial action needed to rectify the conduct; (iii) the period within which the remedial action is to be taken (iv) the possible consequences for a repeat of the conduct by the employee. [195] Both Irvin and Sewell referred the notices of proposed disciplinary action to the applicant for assistance. The applicant then responded to the allegations made against the workers in correspondence dated 21 April 2017. [196] It was Jones' evidence that following the receipt of the applicant's responses to the show cause notices, he met with Galvin and Tanner on 24 April 2017 to discuss the Council response to the applicant's correspondence. He noted some deficiencies in the applicant's responses and then participated in a process where he, Tanner, and Galvin passed on their comments to Elliott. [197] Irvin and Sewell were advised on 2 May 2017 that disciplinary action in the form of a "formal warning letter" would be implemented. An attempt by the applicant to persuade Council to reconsider its decision was unsuccessful. Sewell's Show Cause Notice [198] Sewell denied all the allegations. Sewell's evidence in the proceedings was that the performance issues which were relied on in the disciplinary notice had been in effect fabricated and should be seen to be reprisal action against him for making complaints in relation to spraying. He attributed responsibility for the fabrication to the second respondent, Jones, Galvin and Tanner. The evidence associated with the allegations is summarised below: Allegation 1 – excessive time to complete [199] The effect of the allegation was that on 2 March 2017, Sewell took excessive time to complete the tasks allocated to him. In particular he took longer than expected to remove a tree from the front of the depot and longer than expected to complete the mowing of median strips in the town centre. [200] The tree removal task involved cutting down the tree, carting the tree parts to the dump, and returning the truck to the workshop for service. After the completion of this task Sewell was expected to take another vehicle with mowing equipment to town to commence work on median strips. It was alleged that work associated with the tree lopping was not finished until 11.20am, after which the second respondent observed Sewell "going into the workshop 3-4 times unnecessarily until you and the other crew member left the depot 11.40 am to mow the islands". However, despite leaving the depot at 11.40 am, work on the median strips did not commence until after the lunch break which was taken at 12 noon. -- 36 of 74 -- 37 [201] It was also alleged that it should have only taken 1 hour and 20 minutes to complete the median strip work, however this work was not completed until the end of the day (3.00pm). [202] The second respondent said in his affidavit that on 2 March 2017 he instructed Sewell and Steep to remove a dead tree from the depot, return the truck to the workshop for servicing, and mow three traffic islands in Goondiwindi. The first task involved cutting up the tree and loading the tree parts onto a garbage truck before dumping the rubbish. He said that the tree cutting had been completed around 10.00 am and the truck was loaded by 11.20am. The second respondent said that while the truck was being loaded Sewell went into the workshop three times to chat with the mechanic, leaving Steep to load the truck and wait for Sewell to stop chatting. [203] The second respondent said that Sewell and Steep left the workshop at 11.40 am to start work on the median strip, however no work was commenced. He said that both Sewell and Steep told him that the 20 minutes before lunch had been occupied in replenishing Steep's water bottle. [204] In his reply affidavit, Sewell said that a delay in his work occurred because the head mechanic took time to decide whether the truck should be emptied before conducting the service. Sewell needed this decision before the loaded truck was taken to the dump. In his evidence in the proceedings Sewell said, in effect, that while he was cutting the tree down, he walked in and out of the depot about three or four times to ascertain whether the truck was to be serviced loaded before it went to the dump, or unloaded after it came back from the dump. Eventually he was told to empty the truck first and then return it for the service. He said that it was around 11.45 am to 11.50 am before he got back to the workshop and loaded the utility. [205] It was in these circumstances that Sewell said that insufficient time was available before the lunch break to start the next task of mowing the median strips. He said in effect that there was not enough time to travel to town and unload and reload the equipment before the break. He also said that he lost time because, after he had left the yard, Steep told him that he needed his water bottle filled. [206] The applicant's response stated that "under no circumstances did Mr Sewell waste time in the lead up to the lunch break". However neither this correspondence, nor Sewell's evidence, included a response to the allegation that slow work was associated with the mowing job in the afternoon. The failure to respond was significant because there was no confusion around the facts. Subject to the duration of the lunch break and the customary time of return to the depot at the end of the day, Sewell would have taken at least two hours to complete the work in circumstances where the second respondent maintained that the work could be done in one hour and twenty minutes. [207] Sewell denied that he had wasted time in the performance of his assigned tasks. He pointed out that while he was working with Kenny Steep at the time, Steep had not received any warning. [208] On the second respondent's evidence, Steep accepted that one of the reasons why he and Sewell were slow in getting away was because of a delay in getting a water bottle filled. The second respondent agreed that he did not give Steep a warning but said that he had -- 37 of 74 -- 38 spoken to him about it. The second respondent said that it was a factor that once the truck was loaded, Steep had to wait around until Sewell was ready to leave. He said that Sewell was the senior of the two employees and that because Steep did not have a license, he was dependant on Sewell in terms of movements. [209] Galvin said that Steep was spoken to but that as he did not have a licence to drive the vehicle he was reliant on Sewell to drive them to the location of the next job. Galvin also said that when spoken to, Steep had said that Sewell was wasting time. Allegation 2 – failing to seek permission to leave work site [210] The allegation was to the effect that on 8 March 2017 Sewell failed to advise his supervisor that he would be stopping work and leaving the job site. The allegation noted that the behaviour was inappropriate, that it was unfair to leave co-workers to complete his share of the work, that the issue was raised with him on 9 March 2017, and that his timesheet was not signed by his supervisor. [211] In his evidence in the proceedings, Sewell said that the smoko break was for 20 minutes and was usually taken from 9.00 am to 9.20 am. Sewell said that he left the worksite and drove Irvin to the depot around 9.10 am. He returned to the work site but left again around 9.40 am to pick Irvin up from the depot. He said that he was not away from his work location for more than 15 minutes. [212] In its response on Sewell's behalf, the applicant said that the trip was completed within the smoko break and that a few minutes absence would not impact negatively on co- workers. The applicant maintained that the second respondent's refusal to sign time sheets illustrated his intimidation of employees. The applicant stated that the episode involved an "overzealous" supervisor "being allowed to ride roughshod over workers" in circumstances where health and safety concerns had been raised and were being "seen to by the Government Inspector". [213] Sewell said in his evidence that he did not think that there would be a problem with leaving the work site without permission during his smoko break. He accepted in cross- examination however that the second respondent was entitled to raise the matter with him because he did not seek permission. Allegation 3 – driving around town for 20 minutes instead of performing work [214] It was alleged that on 15 March 2017 while co-workers were taking a load of rubbish to the dump, Sewell did not perform work but drove around town for 20 minutes before returning to the depot. The time wasting occurred between 2.25 pm and 2.45 pm which was just prior to a finishing time of 3.00 pm. [215] In his affidavit Sewell said that it was necessary for him to drive past his sick co-worker's house on the way back to the depot and that in these circumstances he elected to stop quickly to see if the co-worker needed anything. [216] In its response on behalf of Sewell, the applicant said that the allegation involved a "complete exaggeration" and that Sewell had simply detoured to the address of a co- worker who had recently suffered a heart attack for the purpose of checking on his -- 38 of 74 -- 39 welfare. It was acknowledged that Sewell should have made the visit after finishing time, but that as the co-worker was not at home very little work time had been lost. [217] Sewell accepted that he was not engaged in work duties in visiting the home of a co- worker and that the second respondent was entitled to chastise him for this conduct. [218] Sewell noted that while he had been disciplined in relation to the incident, the co-worker, Tatum Marchant, who was with him at the time, had not received a warning. In this regard the second respondent conceded that Marchant was also culpable, but he said that Sewell was the senior person, and the driver of the vehicle, and should have acted differently. He also said that Marchant was a casual employee who did not have a long period of service with Council. Allegation 4 – early finish after work in outlying towns [219] It was alleged that Sewell elected to return to the depot at 3.00 pm instead of 4.00 pm on 23 March 2017. On that day, Sewell had been rostered to work in the outlying districts of Bungunya and Toobeah which were about 70 km outside of Goondiwindi. It was alleged in effect that instead of returning to Goondiwindi early, Sewell should have stayed in the outlying districts and performed a range of alternate duties. [220] The allegation stated that the crew had been instructed on several occasions to undertake as much work as possible while in rural towns, including spraying and whipper snipping. A subsequent inspection disclosed that useful work could have been performed. [221] The second respondent said in his affidavit that when work is performed in rural towns, the practice is for workers to work an additional hour. He said that this practice applies because it takes time to travel to these locations and there is always a lot of work to do when these towns are serviced. The allegation noted that when Sewell was asked why he returned to the depot early, Sewell said that he had finished mowing. [222] In his affidavit, Sewell said that he could not access the areas where work could otherwise have been performed because road works were being conducted and there was too much vehicle activity. He said that he and his co-worker had already completed mowing the entire township of Bungunya and that this task normally took more than one day. [223] In its response on behalf of Sewell, the applicant said that Sewell and his co-worker had to curtail the working day because they had been denied access to a work area by road works. It was suggested that Sewell's initiative in returning to the depot early would have saved the first respondent some overtime costs. [224] In an email dated 26 April 2017, Galvin noted that Sewell had in his response provided a different explanation for his early arrival. In the allegation, it had been noted that Sewell said he came back early because he had finished mowing. However in the response Sewell introduced the proposition that he did attempt to undertake alternate work by trying to spray up North Toobeah Road. Galvin rejected this explanation on the basis that Sewell was not required to spray in North Toobeah Road because this location was outside the area required to be maintained by the town maintenance crew. -- 39 of 74 -- 40 [225] Sewell acknowledged that the second respondent was entitled to question him about why the 30 minutes in question could not have been taken up in whipper-snipping and weeding. [226] Sewell drew attention to the fact that his co-worker, Jack Hunt, was working with him on the day, but that Hunt had not received any warning. In response Galvin said that Hunt was a junior member of staff and would have been expected to follow Sewell's lead. Sewell was regarded as the senior person and was also the driver of the truck. The second respondent evidence was similar. He said that Hunt was also culpable but that he had not been warned for the reasons that he was not the senior member of the team nor the driver of the vehicle. Previous Warnings [227] It is relevant to the commencement of disciplinary action against Sewell that he had been the subject of counselling and informal warnings in relation to his performance at work during 2015 and 2016. The show cause notice did not require Sewell to respond to these prior instances and they are not relied on by the respondents in deciding to commence the disciplinary process. If the prior events are relevant, they support the legitimacy of the performance appraisal outcome and they support the decision to escalate an informal warning or counselling stage to a disciplinary stage. [228] On 9 July 2015, Sewell was issued with a verbal warning by the second respondent for using his mobile phone a lot during work time and for not "pulling his weight". The warning stated that Sewell did not make a "reasonable effort" and that he "got a lot less work done" than his co-workers. In his reply affidavit, Sewell attributed the phone calls to complications associated with his wife pregnancy. He said that his wife was home alone and that he recalled being on the phone to her on a lot of occasions. [229] On 22 January 2016, Sewell was issued with a further verbal warning for "talking" rather than working. The record of warning noted that Sewell was observed talking to someone in a ute while the other members of the crew continued to work. Sewell was still talking 10 minutes later. In his reply, Sewell's explained his diversion from work duties by saying that it was an extremely hot day and he was enjoying the relief offered by the car's air conditioning. This facile explanation in circumstances where his co-workers continued to work diminishes Sewell's credibility and supports the supervisor's conclusion that Sewell did not make a reasonable effort, and that he got a lot less work done than his co- workers. The warning also indicated that "any further instances of this behaviour will not be tolerated – and further disciplinary action may follow if things do not improve". [230] On 7 November 2016, Sewell was criticised for failing to complete a TAFE assignment by the specified time. Sewell suggested however that the assignment was not due until June 2017 and there was no urgency to complete the assignment. He also advanced an alternative defence in that he suggested that any delay in submitting his assignment was attributable to his grandmother's illness and that the TAFE assessor told him to focus on his family not on his assessment. [231] On 16 November 2016, Sewell was counselled by the second respondent for poor workmanship which resulted in significant damage to the playing surface of a sports field. -- 40 of 74 -- 41 On 17 November 2016, the second respondent met with Sewell and issued a verbal warning in respect to the incident. [232] Taylor had made representations to Elliott on or about 6 December 2016 in relation to the warnings issued on 7 November 2016 and 16 November 2016. Elliott responded to the representations in an email dated 16 December 2016. [233] In terms of the TAFE issue, Elliott said that Sewell had been told by both Galvin and the TAFE assessor that if his turf assessment was not submitted before the end of the current semester, he would have to repeat the module. The effect of Elliott's communication was that a verbal warning was appropriate in circumstances where despite both TAFE and Galvin telling Sewell that the assignment was due on 21 November 2016, Sewell claimed that the deadline for his assignment was mid-2017. Elliott said that the verbal warning had been effective in that it achieved Sewell's compliance with the TAFE instruction and the lodgement of his assignment within time. The verbal warning was issued on 17 November 2017. [234] In his affidavit in reply, Sewell said that he told the TAFE instructor that he could not complete his assessments on time because his grandmother was ill and had gone to the Gold Coast for treatment. In response, the TAFE instructor agreed that he should focus on his family and not on his assessment. Despite implying that he had been granted an extension, Sewell also advanced an alternative proposition to the effect that the respondent had mistakenly confused his assessments, and that the assessment in question was not due until mid-June 2017. [235] Sewell's evidence was ambiguous and unsatisfactory. He did not explain when his grandmother was ill, did not explain how her illness precluded him completing his assignment, nor did he adequately explain his assertion that his employer had confused the actual date by which the assignment was to be lodged. Nor did he explain the contradiction that if his assignment was not due until mid-June 2017, why he nevertheless completed it before the end of November 2016. [236] In terms of poor workmanship, Sewell explained that the machine was not working correctly and that he did not know that damage was being caused to the surface of the field because the surface was covered by grass clippings. Elliott said that Sewell as an experienced operator and should have exercised more care particularly given that he was aware there may be issues with the machine. She said that once the damage to the field had been identified it was necessary to fertilise and apply additional water in order to promote growth in areas where some of the grass had been completely removed by the mower. [237] While Sewell denied the factual basis for the earlier warnings, he accepted that he had been counselled by the second respondent in respect to each of the incidents. [238] It was Galvin's evidence that she had received a number of complaints in the second half of 2016, and before 29 November 2016, about Sewell talking to Council employees when he should have been undertaking work. She said that in one instance Sewell had been seen talking to depot workshop workers for an excessive period of time and that the depot workers had confirmed that Sewell had been chatting to them for a long period of time while they were trying to work. Galvin also said that Sewell had been observed talking -- 41 of 74 -- 42 to members of the public leaving his co-workers to complete the assigned work without his assistance. In another instance, the supervisor of the bitumen maintenance crew had observed Sewell and Irvin chatting for an extended amount of time on Gilbert Oval. Irvin's Show Cause Notice [239] Irvin agreed with a proposition put to him during cross-examination that the allegations which founded the notice of disciplinary action were in part a "concoction by the Council as a form of punishment or retribution" in response to the complaints that he had made to Council or WHSQ. He said "partly" because some of the allegations had never been raised with him prior to receipt of the disciplinary notice. He said he considered the allegations as "over-exaggerated" rather than being an "invention". He seemed to accept that the events described in the allegations occurred, but he did not accept the validity of the allegations and he regarded the second respondent's response as an over-reaction. [240] Irvin denied all of the allegations. He said in his affidavit that none of the conduct complained about had been drawn to his attention when it had occurred. Both Galvin and Tanner disputed the veracity of this assertion. Galvin said that the second respondent had addressed many of the issues shortly after they had occurred, and she noted that she had directly counselled Irvin in respect to his failure to seek permission from his supervisor to leave the site on 8 March 2017. The second respondent acknowledged in his evidence in the proceedings that he may not have counselled Irvin about the incident on 20 March 2017 when it occurred. [241] The evidence relevant to the allegations is summarised below: Allegation 1 – excessive time to complete tasks [242] It was noted during the proceedings that the incident the subject of this allegation preceded the conduct of the Irvin's performance appraisal on 7 February 2017. In his evidence, the second respondent agreed that he raised the issue during the appraisal and took the issue into account in arriving at an assessment that Irvin's performance needed improvement. [243] The effect of the allegation was that Irvin took too much time in completing a task assigned to him on 24 January 2017. Irvin had been instructed to whipper snip the town park. It was alleged that while Irvin recorded on his job sheet that the task took five hours to complete, the task should not have taken longer than two hours to complete. The allegation stated that when the second respondent discussed "this time management issue" with Irvin, he was informed by Irvin that additional time was taken up in removing tree branches to the dump mid-way through the job. However the second respondent believed that the amount of branches did not warrant a trip to the dump. In this regard he said that crew members had been instructed on several occasions not to go to the dump excessively and to take half loads back to the depot at the end of the working day. [244] Irvin denied taking excessive time to complete the work. He said in effect that it was unreasonable to expect one person to complete the assigned work in two hours. He said that normally anywhere between 2 and 4 employees would complete this piece of work. Irvin said that he was aware of standing procedures relevant to dump runs, but that the load size warranted a trip to the dump. -- 42 of 74 -- 43 [245] The second respondent did not accept Irvin's explanation. He said that the job could have taken five hours if whipper snipping had not been done for months and there was a lot of debris on the ground. This however was not the case and even allowing for a visit to the dump, the time taken by Irvin was excessive. The second respondent said that Irvin did not record any additional information on his daily job sheet which explained the time taken to complete the task. [246] The second respondent's evidence in the proceedings was to the effect that the condition of the park determined the number of staff required to complete the assigned tasks and the duration of the work. He said that anywhere between one and five employees might be assigned to this work. [247] Galvin's evidence was that the state or condition of the park at that time meant that only one employee was required to perform the work assigned to Irvin. In an email dated 26 April 2017, Galvin reiterated that the condition of the park meant that only one employee was required to perform the work, and stated that the scope of work did not include paths surrounding the tennis courts and the pool. Allegation 2 – aerodrome spraying [248] Irvin had been directed on 16 February 2017 to spray "roundup" at the aerodrome including the storage yard and around the residence. The allegation stated that while Irvin had recorded on the daily job sheet that the task had taken 5 hours to complete, there was limited evidence of effective spraying. [249] The effect of the allegation was that with the effluxion of time it became apparent that "the weeds did not die which indicates that they were not sprayed correctly". It was stated that an effective kill rate should have be evident within the following two weeks. Photographs of weeds that should have been sprayed by Irvin and which were taken five weeks after 16 February 2017, disclosed that none of the weeds that Irvin was instructed to spray had died. As a consequence, another crew member had been instructed to spray "roundup" at the same location, and within a few days, evidence of weeds dying was apparent. [250] The second respondent said in effect that had the job been done correctly, the weeds should be dead within two weeks. However a Council ganger, Kerry-Anne Jones, told him that the weeds were not dying and that "lots of areas were missed". He made a diary entry to this effect on 23 March 2017. When the second respondent subsequently inspected the area he noted that the weeds were not dying. He said that when he spoke to Irvin about the matter on 10 March 2018, Irvin told him that the weather was hot and the weeds were under stress. [251] The second respondent also said that Kerry-Anne Jones complained to him on 10 March 2017 about Irvin "speaking to her a lot about spraying and the damage the spraying might be doing to the crop near the airport". [252] In his evidence in the proceedings the second respondent agreed that the temperature may have reached 38 degrees but said that a lot of areas sprayed were not under heat stress because these areas were irrigated, including areas adjacent to trees and fence lines. He said in particular that a lot of weeds were under trees and that they would have had to -- 43 of 74 -- 44 have been hit. He expected that there should have been some sort of kill and that more should have been achieved by Irvin in 5 hours of spraying. He said that there was not much evidence that a significant area had been sprayed. [253] The second respondent also relied on past experience in stating that when "roundup" had been sprayed in 40 degree heat, a reasonable kill had been achieved. [254] Irvin denied that his work was in any way deficient. He said in his reply affidavit that the ineffective kill was inevitable because he was required to spray "well and truly outside the conditions that were recommended for the chemicals" that he was applying. He said that at the time high temperatures were recorded and that conditions were not suitable for spraying. He also denied that the poor or non-existent kill rate was a result of his failure to spray particular areas of the aerodrome. [255] Galvin said that Irvin did not make the required records associated with this spraying activity and that it was not known what the specific climatic conditions were. It was accepted that at times the temperature reached 38 degrees. Galvin said in her email dated 26 April 2017 that at high temperatures "round up" is still effective and that the practice is to add more water to the chemical mix. [256] Part of the applicant's defence of Irvin turned on a proposition that Irvin was the licenced operator and that neither Galvin nor the second respondent were qualified to contradict his views on the effectiveness of "round up" in the prevailing conditions. Allegation 3 – failing to seek permission to leave work site [257] It was alleged that on 8 March 2017 Irvin failed to advise his supervisor that he would be stopping work and leaving the job site. The allegation noted that the behaviour was inappropriate, that it was unfair to leave co-workers to complete his share of the work, and that the issue was raised with him on 9 March 2017. As a result of his actions, his timesheet was not signed by his supervisor. [258] Irvin said that he left the job site because a WHSQ inspector had contacted him during his smoko and requested that he attend at the depot and participate in an interview about chemical storage and other matters. The applicant said that Irvin simply obliged a request from a government inspector in attending the interview. [259] In his evidence, Irvin accepted that the appropriate course would have been for him to inform the second respondent that he wanted to leave the site. He accepted in retrospect that he could have phoned the second respondent and got approval. Allegation 4 – slow work when laying turf [260] It was alleged that Irvin was observed working very slowly when laying turf with other members of the crew at the cultural centre on 20 March 2017. It was alleged that "it was also apparent and reported by other staff" that Irvin was avoiding work. The allegation also stated that the same issue had been emphasised with Irvin during his performance appraisal and that he was expected to improve his team work. -- 44 of 74 -- 45 [261] The second respondent said that Irvin was part of a large parks and gardens crew laying turf. He said that he drove the forklift for part of the day and had observed Irvin standing back while co-workers laid the turf. He was also informed by other crew members that after he left the job, Irvin and Sewell declined to assist co-workers in digging a hole. The second respondent acknowledged that he may not have spoken to either Irvin or Sewell on the day about this matter. [262] The effect of the applicant's response was that Irvin denied the allegation and said that he and Sewell had laid a pallet load of turf, more than matching another group of 3 to 4 employees doing the same task. It was also stated that Irvin needed to take time out to direct the second respondent's operation of a fork lift because the second respondent was putting the pallets too close together and inhibiting Irvin's work. Irvin rejected the proposition that he did not work as part of a team. Allegation 5 – rubbish at Gilbert Oval [263] It was alleged that Irvin failed to clear rubbish in front of the grandstand on 23 March 2017. Photographic evidence was provided of a "lot of rubbish" which had not been picked up by days end. The allegation pointed out that all crew members had been instructed to collect any rubbish they encountered during the course of spraying duties. The allegation noted that the issue had been raised with Irvin the following day when Irvin said that he was too busy spraying. [264] The second respondent said that Irvin was instructed to complete spraying duties at Gilbert Oval and that part of the worker's responsibility was to collect any rubbish that had found its way on to the oval. The second respondent said however that while he had observed rubbish on the oval in front of the grandstand, Irvin did not collect the rubbish. [265] A contemporaneous note made by the second respondent on 23 March 2017 recorded that there was lots of rubbish on the ground near the front fence of the grandstand which had not been picked up. [266] Irvin said in his first affidavit that the second respondent told him at the start of the day that he was required to spray 8 ovals that day. In Irvin's view this would take him 12 hours to complete, not the 8.5 hours allocated. He disputed Galvin's statement that under normal work allocation arrangements it would have been permissible for Irvin to complete the allocated spraying activity in more than one day. [267] While the applicant's response on behalf of Irvin rejected the allegation, it included an admission that due to time constraints a small amount of rubbish was not collected. Irvin said that when he sprayed the number one oval he did notice rubbish near the grandstands, but not very much. He did not pick up the rubbish because he did not have time given his spraying responsibilities. [268] The applicant did not accept the photographic evidence of rubbish and said that the photographs did not accurately represent the true state of affairs. It was stated that the photographs did not include a date stamp and that the rubbish shown in the photograph was not there when he finished work. The proposition advanced was that it was more likely that the rubbish depicted in the photographs had accumulated during football training on Thursday night and after Irvin had finished for the day. Galvin however, in -- 45 of 74 -- 46 an email dated 26 April 2017, rejected Irvin's claim of misrepresentation. She said that the date that the photographs were taken was evident in the file properties of the photos taken from the second respondent's phone. [269] Irvin also said that Shane Horne worked with him at Gilbert Oval on 23 March 2017 but that Shane Horne did not receive any warning. Galvin however explained that Horne was not performing work at the front of the grandstand where the rubbish had accumulated and that it was Irvin's responsibility to collect the rubbish as he was working in that area. Galvin said that Irvin should have made time to collect the rubbish and that lack of time was not an adequate excuse. She said that the crew have been told many times to pick up rubbish and leave a tidy workplace. [270] The second respondent said that he spoke to Horne the day after the incident and established that Horne was working at the back of the grandstand and did not see the rubbish. Discussion on Allegations [271] The applicant responded to the show cause notices on behalf of Irvin and Sewell in correspondence dated 21 April 2017. The applicant did not elect to provide extensive responses to the allegations included in the notices and relied on a mix of factors. Firstly there was an attempt to discredit the entire process and treat it as a sham and nothing more than undisguised reprisal against Irvin and Sewell for making complaints about spraying practices. Secondly, and consistent with the first factor, there were a number of blanket denials and responses which did not go much beyond a perfunctory dismissal of the allegation. At the third level, the responses did try to address the allegations and provide a competing version of events. [272] After the responses were received by Manton they were evaluated by relevant Council officers. In the first instance, Manton distributed the responses to Newman, Elliott, Jones and Tanner. On Newman's advice, the input of Galvin and the second respondent was also sought. After meeting with the second respondent, Galvin provided her input in an email to Elliott dated 26 April 2017. [273] It was the respondent's position that the reasons for taking disciplinary action were laid out in the notices and that there was no evidence that the allegations levelled against Irvin and Sewell were made for a proscribed reason. However the applicant submitted that when the allegations were reviewed in the context of the evidence given in the proceedings, it was apparent that there was no objective basis for the commencement of a disciplinary process and that this outcome in turn strongly suggested that the notices were issued for an ulterior purpose. [274] In Elliott v Kodak 4, the appeal bench of the Federal Court identified the error made by the primary judge as his failure, in deciding whether to accept or reject the evidence of the employers' witnesses, to also "weigh up the evidence led on behalf of the appellants". The illustration given related to the allocation by the decision maker of a low score against a dimension of "good team player" because the worker had allegedly shouted at his supervisor that the supervisor could not be trusted. 4 Elliott v Kodak Australasia Pty Ltd [2001] 129 IR 251. -- 46 of 74 -- 47 [275] The Court stated in effect that the determination to be made on the balance of probabilities was whether Kodak had established that its reasons for terminating the workers employment did not include the reason that the worker was a union delegate. Part of this determination required a consideration of all the evidence and determinations about whether alleged incidents did not occur, or did not occur as described. If findings to this effect were made, it may be open to consider whether the incident had been fabricated for a prohibited reason. The Court concluded that: The trial judge is, of course, entitled to accept the evidence of the Kodak decision-makers once he took into consideration evidence given by the other witnesses. In the ordinary way, this may or may not involve accepting or rejecting, in whole or in part, evidence of those witnesses, and may involve reconciling all or part of that evidence. This process does not necessitate resolving every conflict which emerged on the evidence, or dealing with every piece of evidence which was tendered. It is necessary, however, to consider the whole of the evidence and deal with it in a conventional fashion.5 [276] Consistent with the approach in Kodak and in circumstances where Irvin and Sewell have challenged the factual basis for the allegations and deposed that the allegations have been concocted in whole or in part to support a process motivated by a proscribed reason, it is necessary for all the evidence associated with the allegations included in the notices to be evaluated and findings entered about whether the reasons given by the respondents for commencing the disciplinary process are to be accepted as reliable. Sewell Allegations [277] While the respondent appeared to complain about Sewell's failure to perform work in an efficient and effective manner across the morning of 2 March 2017, the allegation is not expressed with sufficient precision for me to conclude anything other than that the main issue in contention was the delay occasioned by Sewell's co-worker losing his water bottle where the respondent said twenty minutes were wasted, while Sewell said it was no more than fifteen minutes. In any event the delay enabled Sewell and his co-worker to go directly to lunch rather than proceed to the work site. [278] In submissions, the applicant confined its response to the allegation to a failure to perform work between 11.40am and 12 noon. The applicant noted firstly that, in his response Sewell had made clear that the reason no work was undertaken was because his co-worker had requested to fill up his water bottle and by the time that task had been completed it was sufficiently close to lunch time so as not to allow for work to commence. [279] While I accept that the respondent was entitled to form a view that the workers were shedding time in the lead up to the luncheon interval, the ambiguity and the conflict in the evidence in the proceedings does not allow for a finding that Sewell was guilty of malingering. However no defence was advanced in response to the allegation that Sewell wasted in the order of thirty minutes in the performance of work in the afternoon. This part of the allegation can be accepted as true. [280] The applicant also drew attention to the fact that despite the second respondent accepting that both workers were equally at fault, only Sewell was disciplined for his conduct. I accept the respondent's explanation about this issue because of the reasons articulated 5 Ibid, [38]. -- 47 of 74 -- 48 and because for the co-worker, on the available evidence, this was a single misdemeanour. [281] The applicant submitted that if the following were accepted, it could be seen that there was no basis for the warning in respect of the events of 8 March 2017: (i) The only evidence is that Sewell's conduct occurred during his smoko time; (ii) Employees were not required to advise their supervisor where they were going during their smoko; (iii) Workers were not required to report in when they moved from one work location to another; and (iv) In the words of Jones, the requirement to advise the supervisor was a courtesy only. [282] I do not accept the applicant's submission in this regard. The central issue is whether Sewell was entitled to absent himself from the workplace during working hours without permission. The consistent response provided by the respondents was that there was no such entitlement. What workers' entitlements were during the smoko break and what practices applied to the parks and gardens crew as they moved from job to job, were peripheral or side issues which do not need to be determined. In terms of the central issue, while the first leg of Sewell's trip from the worksite to the depot and back occurred during smoko break, his second trip to collect Irvin occurred outside his smoko break and constituted an unauthorised absence. Sewell should have sought permission to leave the worksite, and Council was entitled to warn him in respect to his conduct. Jones' evidence is not relevant to Sewell's circumstances because his second absence fell outside of the smoko period. [283] In submissions, the applicant noted that the allegation related to an incident wherein Sewell and another council employee, Taitum Marchant, had finished their duties for the day and, rather than return to the depot, they took twenty minutes to visit a co-worker who was on sick leave. The veracity of this response is doubted in that the allegation did not suggest that Sewell's truck had been parked up for twenty minutes. It alleged that that Sewell was driving around town for no purpose for twenty minutes. Further, in his affidavit Sewell said that he "quickly stopped in" to see if the sick co-worker needed anything. In my view the evidence advanced on behalf of Sewell does not adequately account for the twenty minutes of time lost or wasted and particularly given the nature of previous warnings, the respondent was justified in again drawing attention to Sewell's questionable work ethic. [284] It was again noted that while the second respondent accepted that Marchant was equally culpable, no disciplinary action was taken against Marchant. In this regard, I accept that the respondent's explanation is plausible and adequately explains the differentiation. Again, it is reiterated that neither Irvin nor Sewell were disciplined for any single misdeamours, but for a series of misdeamours. Absent any evidence that Marchant had a history of previous warnings or misdeamours, he might not be expected to be formally warned. [285] In terms of the work in outlying towns, I prefer the respondent's version of events. It seems to me that the applicant's response did not adequately address the issues. Despite the allegation stating that Sewell had told his supervisor that he had returned early -- 48 of 74 -- 49 because he had completed the mowing, the applicant's response introduction a different explanation. The veracity of that explanation is then questioned by Galvin's statement in the 26 April 2017 email to the effect that Sewell could not have tried to work in the alternative location that he nominated. [286] The applicant's proposition that Sewell saved the Council overtime costs was not a relevant consideration as both Sewell and the applicant knew that the work imperative was that the maintenance needs of the outlying townships were to be fully serviced. Sewell was reprimanded for not fully servicing the towns' needs and for not following work instructions. [287] The applicant also drew attention to the fact that despite that the second respondent accepted that Sewell's co-worker was equally responsible, the co-worker was not disciplined. However I accept the respondent's explanation that a warning was not delivered to the co-worker because Irvin was the senior employee and the driver of the vehicle and the co-worker was only a junior member of staff. Also, for the co-worker, there was no evidence of other blemishes. Irvin Allegations [288] The first allegation related to the performance of work on 24 January 2017. The applicant said that several things should be noted about this allegation. Firstly, Irvin disputed the allegation and said that usually the job would be allocated to 2-3 workers and would usually take several hours. Irvin also identified that time was taken up in delivering rubbish to the dump. Secondly, a written warning for a once-off slow performance of duties would appear to be a demonstrably heavy handed and a more reasonable approach would have been to first raise the issue informally and only issue a warning if there was a repeat of the conduct. Thirdly, the issue had been raised and dealt with at the performance review. Finally, the applicant said that it was apparent that at first instance the second respondent and Galvin did not think the conduct warranted any formal disciplinary action. It was only after the events of 8 March 2017 that the issue was raised formally with Irvin. [289] In circumstances where the respondent was responding to a pattern of behaviour and was not proposing that each incident in isolation warranted the commencement of disciplinary action, I don’t think there was anything wrong in the respondent including the 24 January 2017 incident in the notice. Further the notice did, in its introduction, state that part of the reason for issuing the notice was a belief that concerns raised in the performance appraisal had not been addressed and that inappropriate behaviour was continuing. While I accept the applicant's proposition that an instance of inferior performance might not warrant a warning, the fact is that Irvin was not, in the notice being warned for the incident on 24 January 2017. Rather he was being warned for a continuing pattern of inappropriate behaviour related to five incidents. Finally the respondent's evidence about the condition of the oval and the estimates of the time normally taken to complete the work suggest, on balance, that Irvin did not complete the work to the expected standard. This evidence included Tanner's evidence in cross- examination where he said in effect that he independently verified the allegation by reference to rates of production disclosed in job sheets and time sheets. -- 49 of 74 -- 50 [290] In terms of the second allegation, the applicant pointed out that Irvin made clear in his response that the reason the weeds had only been partially killed was because the temperature exceeded 35 degrees Celsius and the evidence established that high temperatures decreased the effectiveness of "roundup". The issue was however one of degree. The position of the respondent, in part relying on a report from the aerodrome ganger, was not to dispute the proposition that round up was less effective in high temperatures, but to maintain that five hours of round up spraying should have achieved a much better kill rate despite the climatic conditions. Further, the high temperature did not explain why many areas that should have been sprayed, were found to be completely non-responsive to the application of "roundup". [291] While the applicant promoted the view that neither the second respondent nor Galvin were qualified to reach the conclusion that they did, or to dispute Irvin's explanation, I do not accept this view. Firstly, while Irvin was a licensed operator, the only evidence of his experience in spraying prior to working for the Council was that he worked as a farm hand on a grain farm and that his duties included spraying. There is no evidence that his experience in spraying under Council conditions would have been superior to the second respondent who had been supervising the spraying operations of the parks and gardens crew for a number of years. [292] There is also no objective evidence supporting a conclusion that Irvin possessed any higher level of knowledge of the regulatory regime than was held by the second respondent, other Council officers, or other licensed Council employees. Galvin pointed out that there was no exclusivity associated with Irvin's experience. The effect of what she said in an email dated 26 April 2017 was that when it came to spraying experience, Council could draw on the contributions of many experienced and long serving employees in rural services, bitumen maintenance and town maintenance crews in Goondiwindi, Inglewood and Texas. [293] While the second respondent did not hold an operator's licence his evidence disclosed that he was familiar with the chemicals used, the conditions under which spraying was performed and the variable factors encountered. The second respondent was entitled to question why a poor and inconsistent outcome had been achieved by the five hours of spraying recorded on the job sheet. I have no reason to doubt the second respondent's evidence that, even in high temperatures, "roundup" had proven to be reasonably effective and that the results of spraying when investigated after the event were strongly suggestive that work performance was not consistent with standards. [294] I also have a reservation about Irvin's interpretation of the regulatory regime. In none of the evidence did he make appropriate concessions or acknowledge the complexity of the regime, preferring in most instances to assert that Council's practices were unlawful and that spraying must stop if fixed cut off points were reached. This approach was demonstrated when, on the second respondent's evidence, he sent Irvin off to see Jones on 17 January 2017 because Irvin was still maintaining that spraying must stop if temperatures exceeded 28 degrees Celsius. Irvin and the applicant's consistent requests that spraying stop once particular limits are reached is not consistent with the regulatory regime nor the manufacturers' guidelines and does not adequately recognise local conditions nor the use of low risk spraying methods. -- 50 of 74 -- 51 [295] In terms of Irvin's absence from work to meet with the WHSQ inspector, the applicant submitted the same defence that it submitted in response to the allegation made against Sewell. [296] Similar to my reasoning in respect to Sewell's absence, I do not accept the applicant's submissions in this regard. The central issue is whether Irvin was entitled to absent himself from the workplace during working hours without permission. The consistent response provided by the respondents was that there was no such entitlement. What workers' entitlements were during the smoko break and what practices applied to the parks and gardens crew as they moved from job to job, were peripheral or side issues which do not need to be determined. Contrary to the applicant's view, Irvin's absence did not occur during the smoko break, but for the most part occurred outside the smoko break. Irvin's absence from the worksite without notification or permission for twenty- five minutes of what would otherwise be normal working time, clearly constituted an unauthorised absence and warranted admonishment. Irvin should have sought permission to leave the worksite and Council was entitled to warn him in respect to his conduct. [297] Jones' evidence does not assist the applicant. His evidence was given in response to the question "if, for example, Mr Irvin returned to the depot at 9 o'clock or 9.10, he wouldn't have needed to tell Mr Smith?". In circumstances where Irvin did not return to work until 9.45 am which was well outside of the end of the smoko break at 9.20 am, Jones's reply has no application. Further, Jones had made it clear in his earlier evidence that it was only if Irvin's absence fell within the smoko break, that the requirement to notify the supervisor did not apply. [298] In terms of performance concerns associated with laying turf, there is insufficient information upon which I could rely to reconcile the differences in the evidence. In circumstances where the second respondent said that he did not discuss the work failure with Irvin on the day, notwithstanding that he worked with Irvin for part of the day, I decline to enter a conclusion adverse to Irvin. [299] I am wary of Irvin's response to the allegation that he failed to collect rubbish and his reliance on a proposition that the photographic evidence was fabricated. On Galvin's statement that the date stamp on the photos were discoverable and that there was no fabrication, I prefer the Council evidence. Further, I accept the respondent's explanation that good reasons existed why co-worker Horne did not attract criticism. [300] The applicant submitted that the last two allegations were disputed by Irvin and, even if made out, related to relatively minor issues, which did not warrant the commencement of a formal disciplinary process. Again I accept the applicant's view that these incidents, if they had occurred in isolation, may not have warranted the start of a formal disciplinary process. However the process was not started because of a single event but because the respondents believed that a pattern of inappropriate behaviour had emerged which required correction. It was the collective view of the incidents or pattern of behaviour which was said to have justified the commencement of the disciplinary process, not a response to any single incident. [301] The evidence is sufficient to satisfy me that the respondents' reasons for commencing the disciplinary process were genuine and were founded on concerns of unsatisfactory work -- 51 of 74 -- 52 performance. The evidence does not support a conclusion that Council fabricated the allegations or concocted scenarios for the purpose of justifying disciplinary action. [302] While, to varying extents, the factual basis of the allegations was challenged by either Irvin or Sewell, I am satisfied on balance that the second respondent's instructions or procedures in each of the instances were reasonable. I do not consider that the allegations were vulnerable to attack on the basis that Irvin and Sewell had been set unreasonable tasks or that unreasonable or different expectations were applied in respect to work performed by either Irvin or Sewell. While the evidence did not address any of the allegations forensically, prima facie views formed on the evidence do not support a claim of victimisation or differential treatment. [303] The decision to commence a disciplinary process against Sewell was consistent with his past employment record which included a number of previous warnings. Sewell's work ethic continued to be questioned and while the allegations against him could not be characterised as single instances of serious misconduct, they did provide further evidence of malingering and inefficiency. It was reasonably open for the respondent to conclude that Sewell had not heeded earlier warnings nor had he responded constructively to the outcome of the performance appraisal. [304] While Irvin claimed that he had not been verbally warned in respect to any of the incidents, he had been put on notice in his performance appraisal that an improvement in his work was required. If the respondent's version of events is accepted in the majority of the allegations, it could not be claimed that it was unreasonable for the respondent to exercise its right and impose a formal warning in respect to a pattern of unsatisfactory work performance. Reprisal [305] In the application, adverse action was defined as the issuance of a notice of proposed disciplinary action and the imposition of a formal warning without good cause. In the proceedings the applicant drew attention to particular events and incidents which were said to demonstrate the presence of animosity and bias in the second respondent's and Galvin's treatment of Irvin and Sewell and which supported an inference being drawn to the effect that both the second respondent and Galvin were motivated by a prohibited reason in causing the disciplinary process to be started. [306] The applicant said that the second respondent and Galvin treated Irvin and Sewell differently and prejudicially because of an increasing annoyance and frustration at the complaints made about spraying practices, and because of resentment over Irvin and Sewell's involvement in the WHSQ audit of chemical storage facilities and investigation into Council's spraying practices. Annoyance and Frustration [307] The applicant submitted that the second respondent demonstrated annoyance and frustration in relation to the spraying complaints in the following circumstances: (a) The second respondent accepted in his evidence that he was annoyed about the complaints about spraying. His annoyance was demonstrated early when he "had -- 52 of 74 -- 53 words" with Clem Smith after the meeting on 29 November 2016 and he was annoyed that the issue of spraying was still being raised in mid-January 2017 when he told Irvin on 17 January 2017 to prove his contentions to Jones. (b) In the discussion with Irvin on 17 January 2017, the second respondent accused Irvin of recording conversations between the two men; and (c) During Sewell's performance appraisal, the second respondent told Sewell that everyone was sick of listening to his complaining about spraying; [308] The second respondent accepted that he was getting annoyed about the complaints about spraying. He also admitted that he "had words" with Clem Smith about spraying on 30 November 2016 and that he also referred Clem Smith to Jones. The second respondent said however that his annoyance was related to the fact that Clem Smith "was butting in" on a matter where he had no right to. I take this evidence to refer to the fact that Clem Smith was part of the rural services crew, and not part of the parks and gardens crew. On this explanation, I am not disposed to find that the exchange with Clem Smith makes any material contribution to the determination of the application. [309] The second respondent's instruction to Irvin to prove his contentions about spraying is to be understood in a context where there was evidence of some disharmony with the parks and garden crew over the issue and where Irvin remained dissatisfied with the outcome of his earlier representations to Council in respect to the matter. I accept that in directing Irvin to resolve his differences with Jones, the second respondent wanted to bring matters to a head and he wanted the differences over spraying procedures to be resolved. No inference should be drawn adverse to the second respondent in relation to this comment. [310] The second respondent accepted that he asked Irvin if their conversations were being recorded. I accept that the question implies distrust and provides an indication of the fractious nature of Irvin's relationship with the second respondent. [311] The effect of the respondents' evidence was that Irvin and Sewell's co-workers had complained about Irvin and Sewell's persistent discussion about spraying practices. The views of co-workers led the second respondent to tell Sewell that everyone was sick of listening to his complaining. To the extent that the discussion was causing dissention within the crew and diminishing team work, the second respondent was entitled to pass on his displeasure to Sewell. Irvin and Sewell's right to make a complaint does not extend to imposing their views on co-workers or encouraging co-workers not to comply with Council procedures. If this were occurring, the second respondent was entitled to address the offending behaviour. Different and Adverse Treatment [312] The applicant submitted that different and adverse treatment was evident in the following circumstances: (a) Despite concerns about performance across the parks and gardens crew, only three employees, including Irvin and Sewell, were given an unsatisfactory assessment as a performance appraisal outcome; and (b) While the second respondent and Galvin actively supported the taking of disciplinary action against Sewell, they did not take the same action against his -- 53 of 74 -- 54 co-workers, despite the second respondent accepting that, in each incident of alleged poor performance, Sewell's co-worker was equally culpable. Similarly, while Irvin was disciplined for failing to pick up rubbish at Gilbert Oval, his co- worker Horne was not. [313] There is insufficient evidence upon which I could base a finding about whether the allocation of scores in the performance appraisal process was undertaken in a fair, consistent and equitable manner. It can be said however that both Irvin and Sewell were given positive scores in six out of eight dimension and there is no suggestion of unfairness in this part of the appraisal. The concern arose from the "overall assessment" rating where a score of two was allocated. But in a context where there were areas of improvement to be addressed, there was no other option in the scoring system but to allocate a "2". Given Sewell's prior history of unsatisfactory performance, it was predictable that the outcome of an annual appraisal process would mirror this history. [314] In terms of the respondents' decision not to discipline co-workers, I have already concluded that such an approach was open on the evidence and that there were reasonable grounds to distinguish between Irvin and Sewell's performance on the one hand and the performance of co-workers on the other hand. Resentment associated with WHSQ investigation [315] The applicant said that both the second respondent and Galvin were apprehensive about the WHSQ visit and the implication of any adverse findings by WHSQ inspectors. It was this apprehension or anxiety about the audit and its possible consequences that explained the animosity shown by the second respondent in his decision to deduct pay from Irvin and Sewell relating to the meeting with the WHSQ inspector, in his public criticism of Irvin in front of the parks and gardens crew in respect to the same issue, and in his earlier comment to Irvin that someone had dobbed him into WHSQ. The apprehension also explained bias on Galvin's part when she noted that the applicant had "owned up" to asking WHSQ to conduct the audit. [316] The applicant also submitted that resentment held by the second respondent because of Irvin and Sewell's involvement or perceived involvement in the WHSQ visit was demonstrated by the following considerations: (a) The applicant submitted that the use of the pejorative "dobbed in" revealed the second respondent's antipathy towards the complaints; (b) The second respondent's belief that Irvin was "wasting time" in talking to WHSQ inspectors (T1-123) revealed an underlying resentment towards Irvin for taking the time to talk to the WHSQ inspector; (c) The probability that the proposition about employees having to constantly report their location during the working day was a concoction invented after the event to justify the second respondent's behaviour; (d) Irvin and Sewell were only absent during their smoko break and were entitled to leave the workplace during the break; and (e) Galvin's admission in her evidence that she was unhappy that a complaint had been made to WHSQ (T1-75), and her statement in an internal email that the applicant had "owned up" to making that complaint. This choice of words indicated that Galvin believed that the applicant had done something wrong by -- 54 of 74 -- 55 reporting the Council to WHSQ and discloses an underlying animosity toward Irvin and Sewell for their continued agitation about spraying practices. [317] The applicant argued that the specific incidents or examples relied on supported the drawing of an inference that Galvin and the second respondent were motivated by a prohibited reason in actively supporting the taking of disciplinary action against Irvin and Sewell. Further, the inference explains why no positive denial was offered by either Galvin or the second respondent. The absence of any express denial was telling in circumstances where it would have been a simple matter for the respondents' witnesses to describe their reason for acting and to deny that the complaints made by Sewell and Irvin had any role in their decision. [318] I accept that when the second respondent told Irvin that someone had dobbed him in, it was likely that the second respondent was insinuating that Irvin had done the dobbing, and that inferences could reasonably be drawn from this. [319] The second respondent's reference to "wasting time" was subject to differing interpretations. On the second respondent's evidence, the expression related to the fact that in talking to the inspector when he should have been performing work, Irvin was not using his time productively. The applicant considered that the statement reflected a belief that Irvin should not be talking to the WHSQ inspector, and that it was wrong to do so. A third possibility was that, in circumstances where the second respondent knew that Council's arrangements were not in contravention, there was no purpose in Irvin pursing a complaint. I accept that the second respondent's reaction to Irvin's conduct could have been more appropriately expressed and was likely to have been misinterpreted. [320] Council officers denied in their evidence that they were unduly concerned at the prospect of a WHSQ investigation and while preparatory steps were taken in respect to chemical storage there is no evidence that Council exhibited any significant doubt about the legitimacy of its spraying procedures or contemplated any significant change to procedures. On the evidence, following Irvin and Sewell's allegations of unsafe practices toward the end of November 2016, Council had made its own investigations and satisfied itself that its arrangements were not in contravention. After being notified of the visit on 1 March 2017, Galvin did give consideration to scheduling toolbox talks and acknowledged that some procedures may not be up to date, but there was no other evidence of concern about the consequences of the audit. [321] I accept that the second respondent had become weary of the persistent complaining and would have seen it as counterproductive to team work and productivity. Further it is clear that his relationship with Irvin was fractious and that he did not appreciate Irvin challenging his authority. His insinuation that Irvin had dobbed him in to WHSQ, his attack on Irvin in the parks and garden crew meeting, and his refusal to pay Irvin are indicative of resentment held against Irvin in relation to his involvement in the WHSQ visit. The determinative question in this proceeding is not however whether Irvin was treated inappropriately by the second respondent but whether the decision to commence disciplinary proceedings and impose disciplinary action was made because Irvin and Sewell exercised a workplace right or engaged in an industrial activity. [322] The applicant considered that Galvin's choice of words in noting that the applicant had owned up to making a complaint to WHSQ demonstrated that Galvin thought that the -- 55 of 74 -- 56 applicant had done something wrong in complaining to WHSQ and its view in this regard was reinforced by what it regarded as Galvin's ineffective defence of the proposition in her evidence. The respondent on the other hand suggested that the applicant had taken Galvin's expression out of context in that the significant part of the communication involved Gavin's identification of the important issue which was that Irvin had not told his supervisor that he was leaving the work site. In her email dated 26 April 2017 Galvin had relevantly written: In item 3, the CFMEU own up to reporting GRC to WHS which resulted in the audit of chemical storage. Barrie claims that he was contacted by the inspector for an interview, however Steve Scott was present when the inspector received the phone call from Barrie. Regardless of who made contact first, Barrie has not addressed the issue, in which he failed notify his supervisor that he left the work site. [323] I do not think that there was anything remarkable or controversial about Galvin's observation. In general terms, it would not be unexpected that Galvin suspected that the WHSQ visit was prompted by a complaint from either the applicant or a Council employee and her matter of fact observation to this effect was not significant. More specifically however she linked her comment with a reference to Irvin's claim that he did not initiate his meeting with the WHSQ inspector. I do not think that the irony was lost on her that the applicant was trying to reinforce a misrepresentation to the effect that it, not Irvin, was responsible for the WHSQ visit. In its correspondence to Council dated 21 April 2017, the applicant said that it had asked WHSQ to conduct the inspection, that the WHSQ inspector contacted Irvin and asked him to make his way to the depot, and that Irvin had no prior knowledge of the visit. Galvin knew or suspected that the last two propositions were false and that Irvin did know that the inspector would be on location and that Irvin contacted the inspector, not vice versa. [324] The proposition that it was normal for employees to leave the worksite without permission was flawed in circumstances where both Irvin and Sewell absented themselves from the workplace during working hours without permission. This was not a case where a worker was expected to self-manage and to move from job to job without reporting in or seeking permission. Nor was it correct for the applicant to say that Irvin and Sewell were only absent during their smoko break. After the smoko break had ended Sewell elected to stop work and drive to the depot and return without any recourse to a supervisor. For his part, Irvin did not get back to the job until 9.45am and was absent from work without permission between 9.20 am and 9.45 am. Decision Making [325] The decision making process adopted by the first respondent in determining whether to issue show cause notices was consistent with its approach to dealings with the applicant in other matters. This is evident in the development of responses to Taylor's 7 December 2016 email, the development of the response to Taylor's complaint about the performance appraisal outcomes, and in the preparation of a response to the applicant's responses to the notices of proposed disciplinary action. The decision making process can be correctly characterised as collaborative and a process in which a number of checks and balances or points of review came into play, including recourse to an external advisor. [326] In terms of Taylor's communication on 7 December 2016, as I follow the email trail in DME-2, Elliott received Taylor's email on 7 December 2016 at 10.20 pm. Elliott -- 56 of 74 -- 57 forwarded the email to Jones at 9.43 am on Friday 9 December 2016. Jones in turn sent the email on to Galvin at 8.44 am on Monday 12 December 2016. Galvin provided Jones and Elliott with her input into Taylor's email on Monday 12 December 2016 at 10.55 am. At 2.55pm on Wednesday 14 December 2016, Elliott emailed Jones with a draft response proposed to be sent to Taylor. Jones reviewed the draft and suggested an alteration to part of the response, subject to Galvin's advice. The response was then finalised and sent by Elliott to Taylor on Friday 16 December 2016 at 2.37 pm. [327] In terms of Taylor's complaint about the performance appraisal outcomes, the email trail in the evidence as DME-6 shows that the email was sent to Elliott at 11.14 am on Tuesday 14 February 2017. The next day at 4.21 pm Elliott forwarded the email to Tanner and Jones and asked if they wanted to draft a response. The email was also copied to Manton. Tanner responded the next day at 3.33 pm and provided a draft response. He emailed the draft to Elliott, Jones and Galvin and copied Manton. Tanner asked Elliott to prepare the final draft for despatch to Taylor. Elliott subsequently sent her final draft to Tanner on 23 February 2017 and copied Manton and asked Manton whether he was "okay" with the content. Tanner endorsed the draft later in the day and copied his reply to Manton and Jones. [328] The first respondent's consideration of the applicant responses to the show cause notices was similarly co-ordinated by Elliott and the approach is disclosed in DME-14. In the first instance, Manton who had received the applicant's responses on 21 April 2017 distributed them to Newman, Elliott, Jones and Tanner. Subsequently Elliott emailed Manton and informed him that Newman had advised that line managers ought to be asked to provide responses to the applicant's material. Elliott then emailed Tanner and Jones and asked that they arrange for the district engineer to meet with the supervisor to discuss the applicant's response, and to provide Elliott with their feedback. Elliott said that Galvin responded on 26 April 2017. [329] Tanner said that he provided the second respondent and Galvin with a copy of the responses on 26 April 2017 and arranged to meet with them. Tanner said in this meeting Galvin provided additional and specific comments, summarised the collective discussion points, and then forwarded the content to Elliott. Tanner also said that he discussed the applicant's responses with Manton. [330] It was the second respondent's evidence that he was aware that the applicant had made a complaint about the performance appraisal outcomes of Irvin and Sewell, but that he was not involved in responding to the complaint. This evidence would appear to be consistent with a view that while Galvin might have discussed the relevant issues with the second respondent, Galvin was responsible for the drafting and shaping of the response to Tanner and Elliott. [331] It is to be noted that the views of the second respondent were only overtly sought in the third instance. It seems reasonable to conclude that, from senior management's perspective, Galvin was the key operative. In the first matter, Jones clearly had a role to play while in the second matter Tanner was the principal player but Galvin, Jones and Manton were also informed and given the opportunity to contribute or comment. In the third matter Manton, Tanner and Jones provided the executive input while Galvin and the second respondent were asked to provide the operational input. -- 57 of 74 -- 58 [332] The second respondent did not have authority to hire or fire; he had no capacity to commence a disciplinary process; he did not have authority to issue a written warning; and he would only issue a verbal "written" warning after consultation with Galvin who was his direct supervisor. He did not have the authority to issue any further warning and considerations of such a course of action were passed up the chain of command. The evidence of the second respondent, Galvin and Tanner was consistent in saying that the second respondent did not act independently or autonomously in formulating a response to performance issues. He would discuss performance issues with Galvin and that Galvin in turn would discuss matters with Tanner. [333] Galvin said that she met with the second respondent at 7.00 am each day at the Council depot to discuss work for the parks and gardens crew and to discuss any issues that have arisen with the crew. Galvin in turn liaised regularly with Tanner about the same issues. It is probable in my view that Galvin had a very good understanding of the relative contributions of members of the parks and gardens crew and that this understanding would have been derived not only from the second respondent's reporting but also from her own observations and interactions relative to the parks and gardens crew. [334] It was Manton's evidence that performance issues associated with Irvin and Sewell were raised in a meeting on 4 April 2017 which he had been convened to discuss a range of industrial relations and human resource issues with an Industrial Advocate of the Local Government Association of Queensland, Mr Greg Newman. On the evidence, the meeting extended across most of the day, but not everyone attended for the full duration of the meeting with some agenda items relevant to some, but not others. [335] Newman said that his participation in the meeting followed a discussion that he had with Manton on 15 March 2017 in which Manton "expressed a desire to build the understanding and capability of his management team in a number of employment related areas including performance management". Newman said that Manton wanted him to deliver some training and coaching in these areas. [336] The effect of Tanner's evidence was that he had discussed performance issues related to Irvin and Sewell with Manton on a number of occasions prior to 4 April 2017. Tanner said that Manton decided that the performance issues should be addressed, and that they would be discussed with Newman in the meeting scheduled for 4 April 2017 meeting. An agenda item reflecting this intention was added to the proposed meeting agenda. The agenda was provided to Newman by Manton in an email dated 29 March 2017. The agenda identified six items for discussion, one of which was described as "performance issues". [337] Newman said the 4 April 2017 meeting covered a number of agenda items including performance issues, supervisory training and the enterprise agreement. The performance issues included a discussion with Galvin and the second respondent and other Council officers regarding Irvin's and Sewell's performance. [338] Newman said that during the 4 April 2017 meeting Council officers detailed concerns about the performance of Irvin and Sewell and a discussion ensued about how the unsatisfactory performance should be managed. It was Newman's evidence that he advised that a reasonable option would be to commence a disciplinary process in accordance with Chapter 8, Part 3, Division 1 of the Local Government Regulation 2012 -- 58 of 74 -- 59 (Qld). Newman said that he briefed Council officers on "the benefits and risks of issuing a notice of proposed disciplinary action". Newman said that he assisted the Council officers with the drafting of the notices of proposed disciplinary action. [339] Tanner said that he joined the meeting around midday when it was time to address the performance issues that were occurring with Sewell and Irvin. He said that Newman, Manton, the second respondent and Jones participated in the discussion. It was Tanner's evidence that each of the performance issues associated with Sewell and Irvin had been discussed in detail and that Newman assisted in the drafting of the notices of proposed disciplinary action. He said that by the time that the meeting concluded in the afternoon, the drafting of the notices had been completed and the notices were ready to be issued. [340] It was the second respondent's evidence that he had not initially been scheduled to attend the meeting and that he was only requested to attend on the morning of the meeting. The effect of his evidence was that he only participated in part of the meeting and that he was not present when the notices of proposed disciplinary action were drafted. The agenda prepared on 29 March 2017 did not list either the second respondent or Galvin as an attendee for the purpose of the discussion about performance issues. The attendees identified were Manton, Jones, Tanner and Elliott. [341] The effect of Galvin's evidence was that she did not attend the entire meeting. She said that she was called into the meeting when discussion turned to the agenda item dealing with performance issues relating to Irvin and Sewell. She said that she was asked to explain the circumstances associated with each issue. She said that following her explanations she was asked to provide additional information relating to the issues, including photographs. [342] Jones said that he was involved in the meeting and the discussion about performance issues. He said that the meeting was attended by Manton, Newman, Elliott, Tanner, Galvin and the second respondent. He said that the meeting discussed whether particular performance shortfalls justified the issuing of disciplinary notices to Irvin and Sewell. Jones said that the notices of proposed disciplinary action were drafted and finalised after the meeting, but he was not involved in this process. [343] The effect of Newman's evidence was that during the 4 April 2017 meeting none of the Council officers introduced for consideration "an inappropriate purpose" for issuing the notices. He said all the matters raised were associated with performance in the workplace and the completion of the employee's normal duties. I take Newman's evidence in this respect to mean that no one at the meeting raised anything in the meeting that conveyed the impression that the disciplinary action was taken in reprisal at Irvin or Sewell's complaints in relation to spraying activities. [344] It was Manton's recollection that he left the 4 April 2017 meeting early but that he understood that performance issues associated with Irvin and Sewell were discussed and that notices of proposed disciplinary action were drafted. He said that he reviewed the notices, and the performance issues which were addressed in the notices, after the meeting had concluded. He said that he was satisfied that the appropriate course of action was to issue the notices to Irvin and Sewell. [345] The applicant responded to the show cause notices on behalf of Irvin and Sewell and -- 59 of 74 -- 60 the responses were emailed to Manton on 21 April 2017. Elliott co-ordinated the gathering of input to assist in the formulation of the first respondent's decision about disciplinary action. She emailed the applicant's responses to Tanner and Jones and asked that the views of Galvin and the second respondent be sought. Galvin's email to Elliott on 26 April 2017 included a line by line review of the applicant's response to the notices of proposed disciplinary action. Galvin noted that a significant part of the response was unrelated to the allegations and related to chemical spraying issues. She also noted that the response to some allegations was limited to general denials. [346] Tanner also discussed the matter with Manton and he said that he and Manton formed the view that the applicant's responses did not sufficiently dispute the factual basis for the allegations and primarily involved blanket denials. [347] When Elliott received feedback, she proceeded to draft the warnings and sent the drafts to Manton and Newman on 27 April 2017. In her email to Newman she asked for feedback on content and invited Newman to make any changes he considered necessary. Elliott said that she provided Manton with the final draft of the warning letters on 2 May 2017. She copied Tanner and Jones in on this email. [348] Newman confirmed that he had reviewed the drafts provided by Elliott. He said that after reviewing all relevant information, he concluded that it was appropriate for Council to issue formal warnings, and he provided assistance with the final draft of the warnings. [349] Tanner said that Manton emailed him with a copy of the draft formal warnings on 28 April 2017. It was Manton's recollection that the Council's human resources department reviewed the responses to the notices of proposed disciplinary action, and subsequently prepared formal warnings. He signed the formal warnings. [350] Tanner said that when Manton received the applicant's request that the warnings be rescinded, he met with Manton and discussed the applicant's request. Tanner said that he and Manton agreed that Council had not erred in issuing the formal warnings and that the warnings were justified. [351] Manton declined to accommodate the applicant's request to withdraw the warnings. Manton said that he did not believe that the union had provided any reasonable justification for such a course of action. Elliott's evidence was that Manton asked her to draft a response to the applicant's request that the notices be rescinded. She said that she provided the draft to Manton on 18 May 2017. [352] The applicant relied on the reasoning of the Full Court in Elliott v Kodak6 in submitting that "in circumstances where there has been a collaboration between officers and that the collaboration has been an indispensable part of the decision making process, it will be necessary for each of those officers to give evidence as to their reason for acting and that the prohibited reason played no part in their reason for acting". [353] The applicant submitted that the facts in the current proceedings were consistent with the facts and circumstances in Kodak. The effect of what was put was that the evidence in 6 Elliott v Kodak (2001) 129 IR 251 -- 60 of 74 -- 61 this matter established that multiple officers of Council were engaged in the drafting of the notices of intention to take disciplinary action, the Council response to the show cause response, and the ultimate issuing of the warning letters. The applicant's position was that the reasons of the second respondent, Galvin, and Tanner, as well as the reasons of Manton need to be examined and considered in determining why the adverse action was taken. [354] The applicant submitted that without the involvement of the second respondent, Galvin and Tanner, the disciplinary process could not have proceeded, and that Manton's decision should be seen to be giving effect to the recommendations of these officers. The applicant stated that the second respondent and Galvin were the only Council officers with firsthand knowledge of the alleged poor performance and that the second respondent and Galvin's reporting on the performance issues at the 4 April 2017 meeting formed the basis of the show cause notices. Finally, when the applicant provided a response to the notices, the second respondent and Galvin were requested to review the responses and Galvin subsequently prepared an email setting out her and the second respondent's perspective. [355] The respondents however argued that that the second respondent and Galvin should not be considered to be indispensable contributors to the decision to take adverse action in circumstances where: - Neither the second respondent nor Galvin made the decision to commence the disciplinary process; - The information supplied by the second respondent and Galvin did not extend beyond a factual reporting of events related to the performance considerations; - The input of the second respondent and Galvin did not involve any formal evaluation of the conduct or behaviour complained about, nor did it involve deliberative activity associated with the formulation of a response; - The second respondent did not contribute to the decision making process after his participation in the meeting with Newman on 4 April 2017; - The determinative evaluation was completed by Newman. Newman concluded on the information provided by the second respondent and Galvin that notices of disciplinary action could be issued and he presided over the drafting of these notices; and - While Galvin reviewed the applicant's response to the show cause notices and provided input, the decision to issue the warnings was made by Elliott, Newman and Manton. [356] The respondents submitted that only Manton made an indispensable contribution to the decision to take adverse action. The respondents' drew attention to the fact that Manton was not required for cross-examination and relied on the following propositions to support their view that Manton should be considered the sole decision maker: - Manton makes multiple, unambiguous references to his role as the decision maker in his affidavit; - Section 197 of the Local Government Act 2009 (Qld) provides that only the chief executive officer is authorised to take disciplinary action against a local government employee; -- 61 of 74 -- 62 - Manton was first aware of the performance issues on 4 April 2017, and there is no evidence that Manton was aware of any the background matters, including the complaints made by Irvin and Sewell, or the potential for any resentment on the part of either the second respondent or Galvin toward Irvin or Sewell; and - Manton's decision making was not tainted in that the facts presented to him were factually sound and he looked only at these facts in determining whether to issue warnings. [357] In my view, Council's decision making on issues relevant to these proceedings was two tiered. At the operational level, the second respondent and Galvin discussed relevant issues and presumably formed opinions about action that should be taken. Galvin discussed issues with the second respondent each morning, and separately canvassed matters of concern with Tanner on a regular basis. Once this group came to some form of consensus, the issues were escalated for consideration by Tanner, Jones and Elliott. In so far as the matters in contention in the proceedings were concerned, Elliott took more of a co-ordinating, communicating and point of contact role. In terms of human resources or employment law issues, Newman exercised the key role in influencing and shaping the outcome. At the executive level Tanner, Jones, and Newman exercised the most influence over the decision making process while at the operational level the decision makers were the second respondent, Galvin and Tanner. [358] The respondents role in the decision making process is understood in a context where he did not have the authority either to decide whether changes should be made to spraying procedures nor the authority to start any formal disciplinary process. While he had to deal with the operational disharmony caused by Irvin and Sewell's complaining, he could not fix the problem and this was a cause of frustration to him. He had to send Irvin off to Jones to try to get a resolution of the spraying differences while in terms of performance shortfalls he had to persuade Galvin to accept his point of view. Once Galvin agreed to progress the matter, the second respondent's evidence, which I accept, was to the effect that he was out of the picture. [359] At the executive level, the character of the decision making was different and it would have been preoccupied with two issues. Firstly, was there sufficient evidence to support the commencement of a disciplinary process and secondly, what risks were associated with the commencement of a disciplinary process. [360] Significantly, Jones and Tanner were the senior officers who needed to weigh up both the risks and benefits of taking disciplinary action upon receipt of Newman's advice and to take responsibility for delivering a recommendation to Manton. Risks are to be understood to include the possibility of the commencement of litigation by the applicant alleging unlawful conduct by Council. I accept that the decision to commence disciplinary action would not have been taken lightly. [361] Significant checks and balances operated in the decision making process. Newman acted as a significant filter to the engagement in any unlawful action and Manton had to satisfy himself that the recommended course of action should be followed. Jones had no direct knowledge of the particular incidents the subject of the allegations. Jones' lack of direct knowledge was balanced by Tanner more developed understanding of the issues in contention. Galvin reported directly to Tanner and Tanner was familiar with events as they unfolded following his regular discussions with Galvin. Jones had -- 62 of 74 -- 63 demonstrated his capacity to intervene where necessary in questionable decision making at the operational level by instructing the second respondent to pay Irvin and Sewell for the complete day on 8 March 2017. [362] Having listened to all the evidence in the proceedings, it is my view that the second respondent's version of events would not have been accepted by senior Council officers without reasonable scrutiny and review. The second respondent presented as a mature, unsophisticated man with a very direct supervisory style. He spoke his mind and was task oriented. He saw his principal responsibility to secure productive outcomes from his crew which were consistent with senior management direction and rate payer expectations. He understood the limits of his role and deferred to the authority of his direct report and senior officers. In my view while the second respondent, in consultation with Galvin, supported the starting of a disciplinary process, it was unlikely that he had any significant input into the decision to be made about whether a show cause notice should be issued. [363] While the applicant acknowledged that Manton had made the final decision, it was submitted that the disciplinary process could not have started without the involvement of the second respondent, Galvin and Tanner. To the extent that Jones, Tanner and Elliott had recommended to Manton that the notices be issued, the applicant argued that their reasoning was unable to be disassociated from prohibited reasons because they relied on a factually distorted version of events provided by the second respondent and Galvin. [364] In this regard, I accept the applicant's submission that if at the source of the allegations it could be shown that the second respondent or Galvin provided embellished, exaggerated or inaccurate accounts of what it was that Irvin and Sewell did wrong, and if the effect of the embellishment or inaccuracy was to cast Irvin and Sewell in a poor light, then it was more likely than not that the decision making process at the executive level was tainted with a proscribed reason and even if senior Council officers did not believe they were taking adverse action for a proscribed reason, this was the effect of their endorsement of the conduct of the second respondent and Galvin. [365] The applicant believed that decision makers such as Manton, Newman, Elliott and Jones relied on a set of facts which were tainted by a proscribed reason. The applicant submitted that, in accepting the views of Galvin and the second respondent, the decision makers relied predominantly if not exclusively on facts and circumstances about which they had no direct knowledge. The applicant maintained that decision makers such as Manton, Jones, Elliott and Newman did not know: (a) That, in the case of Sewell, another employee was present with Sewell on each occasion that the alleged misconduct occurred, and that despite acceptance that the other employee was equally culpable, no action was taken against the other employee; (b) That, in the case of Irvin, the complaint about whipper snipping in the town park in January 2016 had already been dealt with in the performance appraisal; and (c) That, in the case of the allegation against Irvin relating to spraying at the aerodrome, neither Galvin nor the second respondent identified that Irvin had a perfectly legitimate excuse for the poor kill rate of the weeds on the basis of the temperature exceeding 35 degrees Celsius. Indeed, when confronted with Irvin's response which identified that explanation, neither the second respondent, Tanner, -- 63 of 74 -- 64 nor Galvin, all of whom had no relevant spraying experience or expertise, sought advice in respect of that response, but rather chose to ignore it. [366] From my perspective nothing turns on these propositions in that these factors would not have altered the decision making outcome. Firstly, the second respondents and Galvin's reasons for taking action against Irvin and Sewell, but not against their co-workers was adequately explained in their evidence. The decision not to institute disciplinary proceedings against the co-workers was reasonable and did not demonstrate the presence of bias against Irvin or Sewell. [367] Secondly, because the complaint about Irvin and Sewell's performance related to a pattern of inappropriate behaviour, it was appropriate to include the January 2017 incident involving Irvin and it would also have been appropriate to include mention of Sewell's prior history. The fact that Irvin was put on notice in the performance appraisal that particular behaviour was inappropriate, does not prevent its inclusion in a formal disciplinary notice which alleged a pattern of inappropriate behaviour. Rather, the fact that the issue was canvassed in the performance appraisal, and that corrective behaviour was not evident after the event, warrants its revisitation. [368] The evidence about whether Tanner, Elliott or Jones had direct knowledge of the facts and circumstances underpinning the allegations disclosed that Jones was aware that there had been performance issues but he was not aware of the specifics, and that he relied on the second respondent, Galvin and Tanner to inform him about the specifics. Tanner said that he had first hand knowledge of some of the issues, but not all of the issues. He did not accept that he was entirely dependent on the second respondent and Galvin for information. He said job sheets and time sheets provided some objective evidence, and that these documents had caused him to question rates of production. Elliott was not required for cross-examination and it is not known what level of direct knowledge she held, if any at all. [369] In terms of the aerodrome incident I am reticent to conclude that Jones and Tanner would have been completely in the dark about the matters in contention in circumstances where the dispute was about spraying practices or spraying procedures. While the applicant alleged that neither Jones nor Tanner would not have known that the outcome of Irvin's spraying work was entirely explained by the high temperatures, I prefer a view that Tanner and Jones would have readily understood that there was a potential for a disagreement around spraying in high temperatures and that these considerations would have emerged when Newman facilitated a review of the allegation and the drafting of the allegation. The effect of the decision making process on 4 April 2017 was to review all the available information and to make a decision about whether the information justified the commencement of a disciplinary process and the taking of disciplinary action. [370] It is also relevant that if Irvin's defence had not been adequately anticipated, there was no evidence to the effect that, upon receipt of the applicant's responses to the show cause notices which disclosed Irvin's defence, Tanner or Jones accepted Irvin's version of events in preference to the second respondent's or Galvin's version of events. This aside, when it came to the decision on whether to impose disciplinary action, the available information included the applicant's responses to the show cause notices. -- 64 of 74 -- 65 [371] Finally, I do not accept the applicant's claim that the second respondent, Galvin and Tanner had no "relevant spraying expertise" in circumstances where they were responsible for at some level or other for spraying operations and demonstrated their understanding and knowledge of the issues in their affidavits and evidence in the proceedings. The fact that Irvin held the relevant operator's licence is not determinative of the issue. [372] The applicant also submitted that disarray in the decision making process at the senior level was demonstrated by the unconvincing and inconsistent evidence given by Council officers about rights and obligations associated with Irvin's absence from work to speak to the WHSQ inspector. There was a level of inconsistency and uncertainty about both the law and practice in terms of Irvin and Sewell's ability to leave the work site during a smoko break. However despite the inconsistency, the applicant cannot take the matter very far because there was consistency around two central factors. Firstly, that Irvin and Sewell should have informed their supervisor and got permission to leave the worksite, and secondly, not all of the absences from the worksite coincided with the smoko break. Express Denial [373] The effect of the applicant's position was that for the reverse onus prescribed by s 306 of the IR Act to be discharged it was necessary for decision makers to expressly deny that the reasons for taking adverse action included a prohibited reason. In circumstances where s 306 of the IR Act is in materially the same terms as s 361 of the Fair Work Act (FW Act), the relevant authorities are to be found in decisions of the federal jurisdiction where s 361 of the FW Act has been subject to considerable judicial attention. The leading authority in relation to the sections 360 and 361 of the FW Act is Board of Bendigo Regional Institute of Technical and Further Education v Barclay.7 An earlier authority which was discussed in the proceedings was General Motors Holden Pty Ltd v Bowling.8 [374] The applicant submitted that the authorities supported a conclusion that in order for a respondent to discharge the reverse onus imposed by s 306 of the IR Act, the decision makers must give evidence of their reason for taking adverse action; evidence that those reasons were their only reasons; and evidence that the prohibited reasons played no part in the taking of the adverse action. It was then submitted that the reverse onus will only be discharged if the decision makers' evidence is accepted. [375] The specific matter in issue for the applicant was that it considered that the respondent's witnesses did not provide any specific rebuttal to the central question in that none of the witnesses denied acting for prohibited reasons. The submission was that while it would have been a simple matter for the decision makers to deny that the prohibited reasons had any role to play in their decisions, no such denial was forthcoming. The failure to make express denials meant that the respondents had not discharged the reverse onus and that consequently, the respondents' defence of the proceeding must fail. [376] The respondents did not accept that Bowling was authority for such a proposition. It was submitted that the passage relied on by the applicant did not support the submission about 7 (2012) 248 CLR 500 8 (1976) 12 ALR 605 at 617 -- 65 of 74 -- 66 a compulsory explicit denial. Rather, the passage offers observations about how an explicit denial might have swayed the Court to a different conclusion if the denial had been accepted. On the respondent's understanding, the determinative principle was to be found in Barclay where it was concluded that the central question to be determined was one of fact and was "why was the adverse action taken?" [377] The principal judgment in Bowling was given by Mason J with Stephen and Jacobs JJ concurring. Barwick CJ dissented. In a short judgement concurring with Mason J, Gibbs J said that his conclusion was supported by two factors – (a) the notice of dismissal stated reasons which were not the real reasons for dismissal and (b) the two directors who made the final decision to dismiss were not called to give evidence. He also said that "the onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities". Finally he hypothesised in the following terms: If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.9 [378] In his judgement, Mason J noted that a finding of the Court below, that the dismissal did not occur for the reasons specified by the employer, was not challenged on appeal. Mason J stated that the: … existence of this finding makes it difficult, though not impossible, for the appellant to succeed". To succeed the appellant has to show on the evidence that he was not actuated by the consideration set out in s 5(1)(a).10 In his reasoning, Mason J distinguished between what he said was "the principal reason for the dismissal" and a "comprehensive expression of the reasons for dismissal" which were dissociated from the circumstances that the worker was shop steward. The effect of what he said was that such a comprehensive expression of the reasons might be made if the employer had given the following evidence and that evidence had been accepted: 'We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward'.11 [379] In so reasoning, Mason J offered a similar hypothesis to that advanced by Gibbs J. Mason J however went to say that such "evidence was not given and, even if it had been given, there may have been a question as to its reliability". In terms of reliability, the effect of Mason J's conclusion was that it would be difficult to disassociate the reasons given for dismissal from the office of a shop steward which endowed a special capacity to influence others and an ability to set an example to others, without more evidence being given that the decision had nothing to do with the worker being a shop steward. In circumstances where there was an unexplained failure to call two key decision makers to give evidence, and no inference being able to be drawn about what motivated the two decision makers, Mason J concluded: 9 General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, 612. 10 Ibid, 617. 11 Ibid. -- 66 of 74 -- 67 We are left, then, with a reason for the dismissal which does not exclude the possibility that it was associated with the circumstance that the respondent was a shop steward. If this was no more than a slender possibility the circumstance might be discarded as one which was not a substantial and operative factor in the dismissal. … It is sufficient if the circumstance is a substantial and operative factor. And it does not cease to be such a factor because it is coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the section.12 [380] From this reasoning, it can be accepted that in Bowling it was difficult to disassociate the reasons given for dismissal from the normal activities of a shop steward without evidence which established that the adverse action was unrelated to the workers role of shop steward. Further, other very significant considerations supported the decision made including the conflict in the respondent's evidence in terms of the real reasons for taking the adverse action, and the failure of the key decision makers to give evidence. It was in this context that the Court was confronted with a reason for dismissal which did not exclude the possibility that it was associated with a prohibited reason. Notwithstanding this it was acknowledged that there was a possibility, albeit slender, that a proscribed reason might not be a substantial and operative factor in the decision to take adverse action. It follows that Bowling is not authority for the proposition that in every case an express denial would be necessary to discharge the reverse onus [381] In Barclay, the majority decision was given by French CJ and Crennan J. In their judgment they said: The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. This appeal was concerned with identifying the correct approach to that task.13 [382] The primary judge had found that the decision maker provided "convincing and credible explanations of why it was that she took the steps that she did" and that she denied having "acted against Mr Barclay for any reason associated with his union membership, office or activities". The primary judge concluded that he was satisfied that the decision maker "did not act for any proscribed reason" and rather, "she acted for the reasons which she gave".14 [383] In enunciating the principles relevant to "the correct approach" French CJ and Crennan J stated inter alia: Clearly a defendant employer interested in rebutting the statutory presumption in s 361 can be expected to rely in its defence on direct testimony of the decision-maker's reason for taking the adverse action. (43) … … The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or 12 Ibid, 619. 13 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, [5]. 14 Ibid, [32]. -- 67 of 74 -- 68 purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?". This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.15 [384] In none of these approaches am I able to discern a principle that if a decision maker does not articulate an express denial, the reverse onus can never be discharged. What the Court said was that direct evidence from the decision maker "may include positive evidence that the action was not taken for a prohibited reason". [385] In turning their minds to the decision in Bowling, French CJ and Crennan J said that Bowling remained authoritative in relation to a number of the arguments raised on the appeal. The reasoning about Bowling included the following: It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee's union position or activities. … … The onus of proving that an employee's union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence. … … it is appropriate for a decision-maker to give positive evidence comparing the position of the employee affected by the adverse action with that of an employee who has no union involvement.16 [386] In their judgment, Gummow and Hayne JJ noted that, in Bowling, Gibbs J accepted the "substantial and operative factor" criterion adopted by Mason J. Their Honours then referred to the following part of the decision of Gibbs J, and chose to add the emphasis shown: The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.17 15 Ibid, [43]-[45]. 16 Ibid, [62]-[63]. 17 Ibid, [88]. -- 68 of 74 -- 69 [387] After referring to the explanatory memorandum to the Fair Work Bill 2008, where it was stated that the phrase used in s 360 of the FW Act had been interpreted to mean that the reason must be an operative or immediate reason for the action and having noted that the phrase "operative or immediate reason" was relevantly indistinguishable from the phrase "a substantial and operative factor", Gummow and Hayne JJ stated: In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.18 [388] Gummow and Hayne JJ conclusions included the following: In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry. Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out. This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an irrebuttable presumption at law in favour of the employee.19 [389] The applicant maintained that any contest over what was intended in Barclay or Bowling had been resolved by the decision of Gray J in NTEU v RMIT where the applicant's perspective was shared by his Honour as disclosed in particular passages of his judgment set out below. The applicant said that these conclusions were reached in response to arguments led by the respondent that Barclay was not to be read to mean that an express denial was not required. … Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption. So much is evident from passages from judgments in General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605, which are set out in the judgments in Barclay and with which no issue was taken in Barclay. For instance, in Bowling at 612, Gibbs J, expressing agreement with the reasons for judgment of Mason J, added: If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged. [Italics added]. 18 Ibid, [104]. 19 Ibid, [127]-[128]. -- 69 of 74 -- 70 This passage was cited in Barclay by French CJ and Crennan J at [56] and by Gummow and Hayne JJ at [88]. In Bowling at 617, Mason J (with whom Gibbs, Stephen and Jacobs JJ agreed) referred to the possibility that the employer in that case could have succeeded: if officers of the appellant had said in evidence: "We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward", and that evidence had been accepted. [Italics added]. This passage was referred to in Barclay by French CJ and Crennan J at [58]. It is clear that nothing that their Honours said was intended to suggest that it is unnecessary for evidence to be given that the proscribed reasons alleged were not reasons that operated on the mind of the decision-maker in making the decision.20 [390] When Gray J stated that there was nothing in the authorities to suggest that it is unnecessary for evidence to be given that the proscribed reasons alleged were not reasons that operated on the mind of the decision-maker, it might also be fairly stated that the same authorities did not unambiguously state that that in any or every case the absence of an express denial will result in the collapse respondent's defence. Indeed in NTEU v RMIT, Gray J did not elect to find against the respondent solely because of the absence of an express denial and he identified many other reasons for his conclusion: My conclusion that RMIT has not satisfied the onus of proving that the reasons alleged in the statement of claim were not among the reasons for the dismissal of Professor Bessant is based not only on the failure of Professor Gardner to give explicit evidence that none of those reasons was operative in her decision.21 [391] The other reasons supporting the conclusion reached were significant factors in their own right as is demonstrated by the following descriptions included in the judgment: Professor Gardner's own evidence contains indications that she had reasons other than those to which she referred explicitly; The absence of any clear expression of a connection between the financial deficit in the Youth Work discipline and the choice of Professor Bessant as the one who should be made redundant. This includes the absence of the expression, or the application, of any criteria by reference to which the making of that choice occurred. The refusal of Professor Gardner to confront the reality of the position Professor Bessant was occupying as a result of the Settlement and Release Agreement of 29 April 2011 and the unconvincing insistence, that although her connections with the Youth Work discipline had been severed, her salary was irrevocably attached to the budget of that discipline. The apparent determination of Professor Gardner to ignore her knowledge of Professor Hayward's animosity towards Professor Bessant, which was based on Professor Hayward's views as to Professor Bessant's conduct, which included the making of various complaints against him, and to attempt to confine herself to the financial case. Professor Gardner's apparent determination to retain control of the process and to minimise the impact of the defects in that process to which the report of the Redundancy Review Committee drew attention, so that she could ensure that her own decision prevailed. On the fact that Professor Gardner's decisions would not have been made without decisions on the part of each of Professor de la Harpe and Ms Gough to forward to Professor Gardner the 20 National Tertiary Education Union v Royal Melbourne Institute of Technology 234 IR 139, [20]-[23]. 21 Ibid, [131]. -- 70 of 74 -- 71 memorandum of 28 June 2011, without which Professor Gardner would not have been called upon to make any decision at all. The failure to call either Professor de la Harpe or Ms Gough to give evidence means that RMIT has failed to demonstrate that their decisions, which were an essential part of the decision to make Professor Bessant redundant, were not made because of the reasons alleged in the statement of claim.22 [392] Ultimately, whatever conclusions are to be drawn from Gray J's reasoning, it is relevant that his decision preceded the decision of the Full Court of the Federal Court of Australia In Victoria (Office of Public Prosecutions) v Grant where the principles relevant to determinations made under s 361 of the Fair Work Act were enunciated in the following terms: As the trial judge recognised the leading authority on the operation of ss 360 and 361 of the Fair Work Act in the context of Part 3-1 of that Act (which includes s 351) is Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500. The principles which informed this decision were recently reaffirmed by a majority of the High Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41. Relevantly, these authorities establish that:  The central question to be determined is one of fact. It is: "Why was the adverse action taken?"  That question is to be answered having regard to all the facts established in the proceeding.  The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.  It will be "extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer."  Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.  If, however, the decision-maker's testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361. Barclay at 517 (French CJ and Crennan J); 542 (Gummow and Hayne JJ); 545-6 (Heydon J) and CFMEU at [19]-[22] (French CJ and Kiefel J); [85]-[89] (Gageler J).23 [393] These principles do not contain any proposition to the effect that, absent an express denial, the reverse onus cannot be discharged. [394] Further, when the issue of an express denial was canvassed in both Bowling and Barclay, the proposition was articulated conditionally in that it was acknowledged that, despite the express denial, its value was subject to the respondents' evidence being accepted. It may follow that if the respondents evidence either in stating the reasons for the adverse action or in making an express denial were found to be unreliable, the respondents' prospects would be substantially diminished, and the express denial would stand for nought. [395] It must also be recognised that in Barclay, French CJ and Crennan J stated in accepting that Bowling remained an authority for various propositions and stated that: It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason 22 Ibid. 23 Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, [32]. -- 71 of 74 -- 72 for adverse action must be entirely dissociated from an employee's union position or activities.24 [396] In this regard the Court is acknowledging that the reasons for taking adverse action could bear some association with a proscribed reasons. It appears to me that the applicant's view on the compulsory nature of an express denial is not consistent with this proposition. It is accepted of course that the association referred to could never be a substantial and operative factor in the decision to take adverse action. [397] Conversely, if very credible evidence were given by decision makers, then the weight attached to any failure to provide an express denial would be diminished. Limited weight must be expected to be attached to an express denial that was not consistent with all the evidence in the proceedings. [398] It needs to be said that while it is clear that the satisfaction of the reverse onus dealt with in ss 305 and 306 of the IR Act would ordinarily involve or should desirably involve a denial that the reasons for taking adverse action did not include a proscribed reason, there is a difference between the articulation of such a principle on the one hand, and, on the other hand, a principle which mandates that, notwithstanding the credibility and reliability of the evidence given that the adverse action was taken for non-proscribed reasons, a defence must fail if an express denial were not included in the evidence given. [399] The respondents submitted that there was no requirement for a decision maker to give evidence that their stated reasons were the only reasons, nor was there a requirement for the decision makers to expressly state that the alleged prohibited reasons played no part in the taking of adverse action. If there were any such requirement it had been dealt with in the pleadings. [400] In this regard it was submitted denials were amply ventilated in responses filed in the Industrial Registry on 28 June 2017 by the first and second respondents, and on 31 August 2017 by the first respondent. In paragraph 11 of the second respondent's response he said that he denied that any action taken was because of a workplace right exercised by Sewell or Irvin. The amended response of the first respondent includes at paragraph 39(b) a statement that the first respondent denied that the conduct particularised in paragraph 38 of the application was adverse action by the first respondent because there was reasonable cause for the proposed action and this was not taken because of Irvin's workplace rights or industrial activity. In paragraph 24(c) of the amended response the first respondent stated that it denied that the conduct particularised in paragraph 23 of the application was adverse action because there was reasonable cause for the proposed action and this was not taken because of Sewell's workplace rights or industrial activity. [401] While the pleadings have put the applicant on notice of the case to be prosecuted by the respondents, they are not evidence in the proceedings and the respondent cannot rely on the pleadings as if their content were evidence in the proceedings. [402] The respondent said that Newman's involvement in the disciplinary process demonstrated objectivity in the process, an absence of bias, and an absence of proscribed reasoning. The respondent submitted that Newman’s testimony was to the effect that he suggested or recommended that the disciplinary process be commenced, and that Council had not 24 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, [62]. -- 72 of 74 -- 73 proposed such a course of action. Upon being briefed on performance issues, it was Newman who first initiated the idea of a disciplinary process. The importance of this state of affairs was emphasised by Newman's evidence that the allegations contained in the notices were the only issues in play and that no other matters were raised with him that caused him concern about the legitimate connection of the warnings to workplace performance. [403] Newman's evidence is significant in circumstances where it is unlikely that the disciplinary process would have happened without Newman's endorsement or recommendation. The effect of Newman's evidence was that the allegations contained in the notices were the only issues in play and that no other matters were raised with him that caused him concern about the legitimate connection of the warnings to workplace performance (paragraphs 8 and 12 of his affidavit): The performance issues were to do with the employee's failing to perform tasks in a timely fashion and failing to work as part of a team. When these issues were discussed I requested the Council officers to provide details and history of concerns which were focussed solely on behaviour in the workplace associated with the performance of the employee's duties. The Council officers provided details of events and we discussed options to manage the concerns. Based upon the matters raised and information provided I advised that in these circumstances based upon my professional opinion and experience that it would be a reasonable option to commence a discipline process in accordance with the requirements of the Queensland Local Government Regulation 2012 - Chapter 8 Part 3 Division I. … At no time were any matters discussed with the Council officers that caused me concern that they were raised for to [sic] any inappropriate purpose as had this occurred I would have cautioned Council of the implications of such action. I had no need to offer any caution as the matters raised were all associated with performance in the workplace and the completion of the employee's normal duties. [404] This evidence does not exclude the possibility that the second respondent or Galvin were motivated by a proscribed reason. But, in terms of Newman's decision making, it is evidence that he did not believe that the reasons included a proscribed reason. To this extent, Newman's evidence supports a conclusion that the reasons for taking adverse action were for the reasons stated in the notices, and that the making of the complaints were not a substantial and operative factor in the reasoning to take the adverse action. Conclusion [405] I accept the respondents' argument that nothing could be found in the reactions of any of the Council officers to the making of complaints by Irvin and Sewell on 29 November 2016 which demonstrated hostility or antagonism toward Irvin or Sewell because they brought forward their concerns about Council's spraying practices and procedures. Rather, by its immediate responses on 29 November 2016, Council demonstrated a willingness at all levels of management to listen and discuss employee complaints. Further Irvin and Sewell were not discouraged from revisiting their concerns and Irvin's request for a further meeting on 19 January 2017 was accommodated without apparent rancour or hesitation. [406] The WHSQ investigation in early March 2017 should be seen to have brought an end to the differences of opinion about spraying practices and procedures. The WHSQ -- 73 of 74 -- 74 investigation took place in circumstances where there could be no doubt that in reaching its conclusions that WHSQ were not fully conversant with either the applicant's or Irvin's concerns. The applicant's concerns were expressed in writing and included in Taylor's affidavit, while Irvin's evidence was that after he met with a WHSQ inspector on 8 March 2017 he was invited to attend a further meeting with other inspectors the following day. Irvin's concerns would have been fully ventilated prior to the meeting with Council officers on 10 March 2017. [407] It is unlikely that senior Council officers would have been motivated after the complaints had been resolved and effectively closed, to engage in reprisal behaviour related to the making of the complaints. There would appear to be no logical basis for Tanner, Jones, Elliott or Manton to conduct themselves in such a manner, nor did the evidence suggest that they would be disposed to act accordingly. [408] While Tanner did not witness the incidents, his evidence was that Galvin had raised performance concerns relating to Irvin and Sewell with him on a regular basis and that he had been motivated to bring the issues to Manton's attention. Further, as Galvin's supervisor, Tanner would have had a broad understanding of the relevant facts and circumstances. I don’t accept that Tanner would have been susceptible to fabrications or misrepresentations had they been a feature of Galvin's or the second respondents reporting. Nor did the evidence establish that Galvin would be minded to mislead her direct report and other senior officers. [409] The deliberative nature of the discussion facilitated by Newman ensured that while Jones may not have had direct knowledge of the incidents related to the allegations, and Tanner would have relied to some extent on Galvin's version of events, it is more likely than not that the competing considerations associated with the incidents would have been surfaced and evaluated. It would be inconsistent with the evidence to conclude that the 4 April 2017 meeting involved blind acceptance of versions of events provided by either the second respondent or Galvin. [410] I accept that the process facilitated by Newman would have been sufficiently robust to ensure that the reasons of any of the decision makers in commencing the disciplinary process would not have been infected by a prohibited reason. The making of complaints by Irvin or Sewell was not a substantial and operative part of the decision making process. I accept that the reasons for commencing the disciplinary process and for taking the disciplinary action were the reasons stated in the notices. There was no contravention of the relevant sections of the IR Act. [411] It is unnecessary that I decide the respondents' argument that the making of a complaint by the applicant or Irvin to the WHSQ could not have amounted to the exercise of a workplace right under the IR Act. Order 1. The application is refused -- 74 of 74 --