Bakhit v Brisbane City Council [2015] QIRC 173

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bakhit v Brisbane City Council [2015] QIRC 173 PARTIES: Bakhit, Osman (Applicant) v Brisbane City Council (Respondent) CASE NO: TD/2014/79 PROCEEDING: Application for Reinstatement DELIVERED ON: 25 September 2015 HEARING DATES: 25, 26 May 2015 29 June 2015 (Applicant Submissions) 17 July 2015 (Respondent Submissions) 31 July 2015 (Oral Submissions) MEMBER: Deputy President Swan ORDERS : 1. Application dismissed. CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - worker did not complete application forms before travelling overseas - worker had previously applied for leave correctly - worker says he was unable to make contact via telephone and email with employer in Australia - employer claimed alleged abandonment of employment - employer had been considerate of employee's family situation in Sudan for some time. CASES: Industrial Relations Act 1990 APPEARANCES: Mr D. Pratt, Counsel instructed by Caxton Legal Centre Inc. Mr M. O'Sullivan, counsel instructed by Brisbane City Legal Practice. -- 1 of 10 -- 2 Decision [1] This is an application for reinstatement made by Mr Osman Bakhit (the Applicant) against Brisbane City Council (the Respondent) pursuant to s 74 of the Industrial Relations Act 1990 (the Act). [2] The Applicant seeks reinstatement to his formerly held position with the Respondent as a full-time construction worker. The Applicant commenced employment with the Respondent in 2007. [3] At that time, the Applicant progressed through probation and up through Grades 2, 3 and into Grade 4. [4] In 2011/12, the Applicant attended a Respondent meeting where he had been told that Urban Utilities was going to subsume the functions performed by the Construction Water branch and that he had two options. He could either take a redundancy payment, or he could be re-employed in another position with the Respondent. He chose the latter option and eventually became a cleaner. Witnesses [5] Witness for the Applicant were:  Mr Osman Bakhit. [6] Witnesses for the Respondent were:  Mr Geoffrey Beck - Divisional Manager of Brisbane Transport;  Mr Glenn Dusha - Works Co-ordinator Urban Cleansing;  Mr Fernando Mesa - Acting Operations Co-ordinator, Water Infrastructure Provider;  Ms Joanne Whiting- Solicitor, Brisbane City Legal Practice;  Mr Glenn Gipson - Construction Manager, Field Services Group, Brisbane Infrastructure. Brief Background to the Applicant's employment [7] In April 2014, the Applicant was on a temporary placement with Urban Cleansing, but his substantive role remained as a full time construction worker with the Respondent. The Respondent said this temporary placement had lasted for 11 weeks as part of a rehabilitation plan. The position ceased on 22 November 2013 when the Applicant commenced a retraining placement which was to continue until 23 May 2014. [8] The Applicant was dismissed by the Respondent on 5 June 2014 when the Respondent accepted the repudiation by the Applicant of his employment contract and his employment was finalized effective on that day. [9] On 13 July 2011, the Applicant says that he injured his back whilst at work and took nine weeks annual and other leave to travel to Sudan, his country of origin, to see his family. -- 2 of 10 -- 3 [10] On 6 September 2012, the Applicant underwent surgery on his back and was absent from work for about 12 months to recuperate before returning to work in September 2013 in the position of a cleaner with the Respondent. Evidence [11] On or about 17 April 2014, the Applicant alleged that he had received a phone call from a friend in Sudan who informed him that his brother had been killed by the Sudanese Government and that his mother had been shot in the head and was severely injured. [12] On that day, the Applicant said he spoke to his immediate supervisor, Mr Dusha, advising him of what had happened in Sudan. The Applicant stated that Mr Dusha appeared to understand that he wished to return to Sudan, but that the Applicant was unable to give any estimate as to how long he might be away from work. [13] The Applicant said Mr Dusha asked him to advise him when he had more information for the period of leave required. [14] The Applicant said that Mr Dusha told him that it wasn't necessary for him to fill out any forms and he was also not required to speak to anyone else in management about his absence from work. [15] The Applicant was in Sudan from 22 April 2014 to June 2014. Upon returning to Brisbane he contacted Mr Dusha. He said that Mr Dusha told him to speak with Mr Gipson who advised him that he was no longer employed by the Respondent. When he queried why his employment had been terminated, he was directed to two letters sent to him at his home address while he was in Sudan. The first letter dated 23 May 2014, notes the Applicant's absence from work as 'unauthorised' and requests that he contact the Respondent by 30 May 2014, as a failure to do this would result in immediate termination of this employment. [16] The Applicant did not have any documentation he could produce to point to the situation in which his family had found itself. [17] The Respondent referred to the Applicant's evidence where he stated "When my father had the incident (when he was shot) and because there is a very restrictive government, we have so. We can't even take her to the hospital, so there is a private doctor who was visiting her and give her the medication… I can't have this document [T1-20]. What was observed by the Respondent was that the Applicant had tied the shooting of his father to the inability to take his mother to hospital for treatment. [18] Within this context, the Respondent referred to a Report from Kathleen Cremer, Psychologist who has seen the Applicant, on 28 February 2013, where she said that the "Applicant's spoken English and comprehension allowed reasonable communication during times when the interpreter was not present" [Page 8 of Report]. [19] Concerning his family's circumstances, the Psychologist noted: "Osman hails from the Sudan were most of his remaining family of origin continue to reside. He stated that during the civil unrest, he was shepherded -- 3 of 10 -- 4 into Egypt by an Uncle at about age 16 or 17 and stated he came to Australia as a refugee. Osman reported considerable disruption with his family of origin due to the Civil War in Sudan. He is the youngest of 7 children and his father died in 2011 due to ill health. His mother is fine but he stated she is elderly and he thought aged around 75 - 80 years old. He discussed that two of his brothers died in the civil war. He stated that he has three remaining brothers who are alive, two remain in Sudan and one resides in Egypt and he has a sister in Egypt. He discussed that his deceased brothers had 7 children between them and his mother assists their widows with childcare" [Page 4 of the Assessment Report of the Psychologist dated 28 February 2013] [Respondent's emphasis]. [20] The Psychologist's Report states that the Applicant advised that in 2013 he had two brothers who were killed in Sudan and his father had died from natural causes (ill health) in 2011. He later stated that his father was killed by the Sudanese Government in 2010 when 'shot'. The Respondent also raises the point made by Mr Bakhit in evidence when he said that, "as his father was shot (the incident) he could not place his mother in care at a hospital. She had to be tended to in a hut by the local doctor (Dr Omar)" [T1-21]. [21] The Applicant denied giving the Psychologist this information. [22] The Applicant stated that when he was told of his father's death, he informed the Council and told them he had to return to Sudan to see him at that time [23] The Respondent submits "That it is respectfully submitted that it is unlikely the Applicant is reliable or truthful when he alleges that another brother was shot in 2014 requiring his return to Sudan." The Respondent claims that consistent with the assertion that the Applicant did not return to Sudan for extreme family reasons is the content of Exhibit 7. This exhibit confirms that the Applicant went for a holiday. The Applicant had advised Vmac Employment Solutions that he had been employed by the Respondent from 2 July 2007 to 15 June 2014 and the reason for leaving his employment was that he "whent [sic] for holiday & came back job is gone." The Applicant said that he had been on a holiday because he did not wish to declare his family situation. Eventually the Applicant agreed that he wrote the words, but then denied that it was his handwriting. [24] The Applicant also said that because his father had been shot, he could not place his mother in care at a hospital. She had to be looked after by the local Doctor [Doctor Omar]. The Applicant raised concerns about Mr Bakhit's credibility where he had told the Psychologist that in 2011 his father had passed away because of ill health, but now says that his father had been shot. [25] The Applicant explained that he was unable to receive or send messages while in Sudan. [26] The Applicant contends that his dismissal was "harsh, unjust or unreasonable" on the grounds that:  his absence from the workplace was due to extreme family circumstances; -- 4 of 10 -- 5  he informed his immediate supervisor, Mr Dusha that he would need leave but was unable to say how much leave would be needed. Mr Dusha accepted this and told him he did not need to complete any forms;  he was unable to communicate with his employer during his absence in Sudan from 22 April to 17 June 2014. [27] Mr Dusha's evidence was that he had one meeting with the Applicant concerning his proposed trip to Sudan. This was held on Thursday, 17 April 2014. Mr Dusha said the following dates of 18 to 21 April were the Easter Holiday dates and he had not worked on those days. [28] Mr Dusha said on an earlier occasion in 2014, the Applicant had sought leave to return to Sudan and Mr Dusha referred the matter to Mr Gipson and ultimately the leave was approved. The process was that Mr Dusha would firstly speak to his Manager and then contact Mr Gipson because he was the construction manager who processed timesheets. Mr Dusha agreed that on that occasion the Applicant had followed the appropriate protocols in seeking his leave. [29] Mr Dusha recalled the Applicant being 'withdrawn and emotional' on 17 April 2014 when he had advised him of the situation in Sudan. [30] Mr Dusha had asked the Applicant how long he would be in Sudan, but the Applicant was unable to respond. Mr Dusha asked the Applicant to contact him with more information and the Applicant had agreed to do so. Mr Dusha said that he "understood I should have pushed for a solid answer on accepting certain types of leave, and more information on that point. However, Osman was very emotional and did not answer any of my questions." [31] Mr Dusha said at no time had he approved the Applicant's leave. [32] Mr Dusha said the procedure he would have followed was "So the situation would be as before, where I would contact managers once I understood the type of leave. I'm not able to approve types of leave. There's many different types of leave in council. Some of those require much higher approval. I didn't know what types of leave had to be approved - whether they would be bereavement leave, carer's leave, annual leave, pro rata leave. These things all require different processes". [33] Mr Dusha said that the Applicant could have called him on his telephone as he was contactable at all times and he did not know the Applicant's intentions after that meeting had concluded - i.e. he did not know that he would travel to Sudan right away. He recalled telling the Applicant on that day that he should go home and sort out the details of what he proposed to do. [34] The Applicant stated that he had come back to work after 17 April 2014, after he had booked tickets to return to Sudan, and had a brief conversation with Mr Dusha. Mr Dusha said that he did not recall that meeting having occurred. [35] The Applicant said the conversation occurred in the smoko area where another supervisor was present when he told Mr Dusha that he had his airline tickets. Mr Dusha said this had not occurred. The day following 17 April 2014 was the commencement of the Easter holiday break and he was not at work. -- 5 of 10 -- 6 [36] Mr Gipson's evidence was that he became aware that the Applicant was not at work and the reason for his return to Sudan. Beyond that, he did not know any more about his circumstances. He determined, because of the Applicant's stated reason for returning to Sudan, and as his leave entitlements were running out, the Respondent would exercise the initiative to place him on annual leave, even though no leave application had been made. Eventually those leave entitlements were depleted. Mr Gipson had then determined to place the Applicant on leave without pay but that appeared to last only a couple of weeks. [37] Mr Beck, who in May 2014 was the Executive Manager of Field Service Group Brisbane Infrastructure said that the substantive position held by the Applicant was that of a team member, construction and drainage. [38] On 23 May 2014, the Applicant (having been absent from work since 17 April 2014) was sent a letter to his last known address [Exhibit B to the affidavit] noting that failure to contact the Respondent by Friday, 30 May 2014 "will be taken as confirmation of your repudiation of your employment contract". [39] By 5 June 2014, the Respondent accepted the repudiation by the Applicant of his employment contract and his employment was finalized effective 5 June 2014. [40] Primarily, the Respondent said that the Applicant had acted contrary to the Code of Conduct by being absent without approval from the workplace. [41] The Respondent said that the Applicant had been absent from work for a period of seven weeks without contacting the Respondent and the Respondent had afforded him every indulgence during the period in question. [42] Mr Mesa said that the Applicant was fully aware of his requirement to notify the Respondent if he could not return to work at the end of his leave. This had occurred in 2012 (where leave had been granted from 22 December 2011 and 23 February 2012) and the Applicant had notified Mr Mesa on a number of occasions saying that he had become ill and was forbidden by his Doctor to travel. This contact occurred only after Mr Mesa had tried on four or five occasions at various times to contact the Applicant. The Applicant then applied for leave from 22 February 2012 to 16 March 2012. [43] This evidence confirmed that the Applicant was aware of the requirements which stated that he needed to keep in touch with the Respondent if circumstances changed. Respondent's protocols relating to the assistance afforded to employees with health issues [44] Under the procedure in Background to Retraining and Placement Procedures - Medical Condition [HRP049B and Brisbane City Council Certified Agreement 2013], clause 1 provides that "A fundamental principle of the program is to facilitate the expeditious placement of employees to permanent roles." [45] Clause 1.4.8 continues: -- 6 of 10 -- 7 "If after six months or such lesser time as may be determined, the manager determines the employee will not obtain the identified competencies and performance standards of the role the employee returns to the placement program. If the employee attains the competencies and performance standards after the trial period they are permanently appointed to the role." [46] Having been placed on the retraining program for a period of six months, the Applicant's position would have become permanent on 24 May 2014. The Applicant's submissions are that on this date the Applicant had "in fact" become a permanent employee in Urban Cleansing. [47] Mr Gipson first became aware that the Applicant was absent from work on 13 May 2014. To that end, the Respondent determined to pay any accrued annual leave and after that expired, some unapproved leave without pay. [48] There had been an unsuccessful attempt to contact the Applicant in May 2014 and the first occasion upon which Mr Gipson heard from the Applicant was on 26 June 2014. At that time the Applicant was advised that his employment had been terminated. The Applicant had advised Mr Gipson that he was unable to be contacted in Sudan as there had been no telephone reception at that time. [49] Mr Gipson outlined why the Applicant would not be entitled to become a permanent employee of Urban Cleansing because that could only occur if a position became available for him. In the event that didn't occur, he would be relocated back to the Field Services Group. [50] As the Applicant had been unable to perform the inherent duties of his substantive role and he was involved in a rehabilitation program, he would have to meet the criteria that "there is a determination that a suitable role exists or is likely to become vacant within the six month period." Only if the employee attains the competencies and performance standards after the trial period, they would be permanently appointed to the role [Clause 4.1.7, 8 and 10]. Only if he was there at the time would they be able to assess his level of competency. [51] Mr Beck said that on 5 June 2014, after noting the Applicant's failure to respond to the Respondent's correspondence of 30 May 2014 advising him that failure to respond to that communication would result in the repudiation of his employment contract, the Respondent accepted the repudiation of his contract effective 5 June 2014. Consideration of the Evidence and Conclusion [52] The Applicant submits that the "Abandonment Letter' sent by the Respondent to the Applicant was written on 23 May 2014, days before the applicant's temporary cleaning position was due to become permanent. The termination letter was written on 5 June 2014. The Applicant says that his dismissal from the position of cleaner was a dismissal from a permanent position. [53] The Applicant submits that:  The Applicant's English was limited in relation to reading and writing. -- 7 of 10 -- 8  The Applicant believed that he had been granted to take an urgent and open-ended leave of absence.  The Applicant stated that when the Respondent became aware that the Applicant had not been at work on 22 April 2014, no disciplinary process was put in place. Rather, the Respondent placed the Applicant on annual leave.  The Applicant said that he had a second meeting with Mr Dusha over the Easter week-end and again Mr Dusha had not required the Applicant to fill out any leave forms.  During his period of time in Sudan, the Applicant was unable to make contact with the Respondent.  In the discrete circumstances relating to the Applicant, the Respondent had the opportunity of granting him three months leave without pay to meet 'family obligations'. [54] I have been unable to accept the Applicant's evidence that he had open-ended approval from Mr Dusha to be absent from work for an unidentified period of time without the need to complete any leave application forms. [55] Previously, his leave applications had been appropriately made by him and, when he was unable to return from Sudan on one occasion, his leave application was dealt with upon his return. However, that was in a situation where he had complied with the requirements to complete leave application forms. [56] The Applicant claimed to have personally seen and spoken to Mr Dusha over the Easter week-end. I have accepted that Mr Dusha was not at work during that period of time, but was available on the telephone if required. I have not accepted that there was any further meeting or communication between the Applicant and Mr Dusha prior to the Applicant returning to Sudan. [57] I accept that Mr Dusha asked the Applicant to advise him of his plans for travel and leave, but that the Applicant did not do this at any time over the long week-end. The only interaction between the Applicant and Mr Dusha occurred on 17 April 2014. [58] From the evidence given, it is clear that the Respondent had previously been sympathetic to the Applicant's concerns regarding his family in Sudan. This is evident from the length of leave previously granted and also from the fact that it did its best to ensure that the Applicant could, if possible, continue to receive some type of payment when all other leave was exhausted. [59] The inconsistency in the Applicant's reporting of various injuries incurred by his family in Sudan during 2014 are also noted. Notwithstanding the Applicant's account of that situation I have found his evidence generally to be unreliable. This is clear from the Psychologist's report and the comparison of the evidence given before the Commission. -- 8 of 10 -- 9 [60] Section 37 of the Act provides that a dismissal is unfair when it is either for an invalid reason or if it is harsh, unjust or unreasonable. An 'invalid reason' for the dismissal has not been pleaded by the Applicant. [61] Section 77 of the Act says: "77 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider:- (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to: (i) the operational requirements of the employer's undertaking, establishment or service; or (ii) the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance: (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and (d) any other matters the commission considers relevant." [62] The Respondent says that the Applicant has not established that the acceptance of his repudiation of the employment contract by the Respondent was "harsh, unjust or unreasonable." [63] The reality of the situation, in my view, was that the Applicant had abandoned his employment. The termination of the Applicant's employment was not a 'disproportionate reaction' to the conduct adopted by the Applicant. [64] If the circumstances in Sudan were as stated by the Applicant (and the evidence is that Mr Dusha did not disbelieve that something terrible had happened in Sudan to the Applicant's family), then certainly sympathy would be extended to the Applicant. [65] In this case, I believe that did occur, by the Respondent extending unilaterally some leave provisions to the Applicant, but at some point, that generosity was expended. [66] Notwithstanding that, however, it is implausible that the Applicant would have been granted open-ended leave by the Respondent to return to Sudan especially so in circumstances where it was clear that the Applicant knew of the requirements for him to complete leave forms. [67] I have not accepted the Applicant's evidence that this is what Mr Dusha permitted him to do, but equally significantly, I have not accepted that the Applicant then approached Mr Dusha again over the Easter week-end (when I have accepted Mr Dusha was not working) and again Mr Dusha did not require the completion of any leave forms from the Applicant. -- 9 of 10 -- 10 [68] I have not accepted the Applicant's evidence generally as truthful. [69] I dismiss the application. -- 10 of 10 --