Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council, Brisbane Transport [2015] QIRC 73

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council, Brisbane Transport [2015] QIRC 073 PARTIES: Australian Rail, Tram and Bus Industry Union of Employees (for Ibrahim Jebreel) (Applicant) v Brisbane City Council, Brisbane Transport (Respondent) CASE NO: TD/2014/56 PROCEEDING: Application for Reinstatement DELIVERED ON: 24 April 2015 HEARING DATE: 23 February 2015 MEMBER: Industrial Commissioner Black ORDERS: 1. Application dismissed. CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment - where continuation in employment was inconsistent with the responsibilities of the role - where suspension in the first instance may have been appropriate. CASES: Industrial Relations Act 1999, s 74, s 77, s 78 APPEARANCES: Mr P. Allen, for the Australian Rail, Tram and Bus Industry Union of Employees. Mr C. Murdoch, counsel, instructed by Brisbane City Legal Practice. Decision Introduction [1] This is an application for reinstatement in employment with the Brisbane City Council, Brisbane Transport (the respondent) made pursuant to s 74 of the Industrial Relations Act 1990 (the Act) by the Australian Rail, Tram and Bus Industry Union of Employees (RTBU) on behalf of their member, Mr Ibrahim Jebreel (the applicant). -- 1 of 7 -- 2 [2] The applicant was involved in an incident at work on 17 March 2014 arising from which he was issued with a show cause notice on 28 April 2014. He responded in writing to the show cause notice on 5 May 2014. He was advised by the respondent that his employment was terminated in a letter dated 19 May 2014. [3] Two days after the workplace incident the applicant attended a meeting with Mr Darryl Brooks (Depot Supervisor) who asked the applicant to explain what had taken place. The next day, Karen McGraa (Depot Manager) met with the applicant and a union representative. Ms McGraa advised the applicant that complaints had been lodged about his conduct. [4] The applicant took planned leave from 28 March 2014 until 28 April 2014. When he returned he continued his employment as normal until 19 May 2014 when he was informed by Ms McGraa that his employment had been terminated. [5] The main matter in contention in the proceedings was whether, on the evidence, the employer should have imposed a lesser disciplinary penalty in responding to the events of 17 March 2014. Issue for Determination [6] The issue for determination is whether the termination of the applicant's employment was "unfair" within the meaning of s 73 of the Act because it was "harsh, unjust or unreasonable". [7] Section 77 of the Act provides that the Commission must consider certain matters in deciding the application: "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." -- 2 of 7 -- 3 Evidence [8] Evidence in support of the application was given by the applicant and Mr Buttenshaw. The applicant's affidavit is in the evidence as Exhibit 3 while Mr Buttenshaw's affidavit is in the evidence as Exhibit 2. CCTV footage of the 17 March 2014 incident was introduced into the evidence by Mr Buttenshaw. The footage is marked Exhibit 1. A document prepared by the respondent providing a chronological written account of what is disclosed by a viewing of the relevant parts of the CCTV footage, was marked ID1. [9] Ms McGraa gave evidence for the respondent while Mr Craig provided his account of what had transpired on 17 March 2014. Ms McGraa's affidavit is in the evidence as Exhibit 8 while Mr Craig's affidavit has been marked Exhibit 9. Mr Geyer provided an affidavit but he was not required for cross-examination subject to some reservation about the factual basis for opinions expressed therein. His affidavit is marked Exhibit 11. Mr Mayerhofer also provided an affidavit and was not required for cross- examination. His affidavit is in the evidence as Exhibit 7. Findings of Fact [10] The facts need not be recited in detail given the availability of CCTV footage (Exhibit 1) and the level of agreement around the basic facts. This is not to say however that the evidence did not surface differences in the accounts given by particular witnesses about how particular events unfolded or about matters of degree. [11] After reviewing the evidence, including the relevant CCTV footage, the witness evidence, and the submissions of the parties I have formed the view that the document marked as ID1 provides, subject to one exception, a fair and accurate representation of the events which ultimately led to the termination of the applicant's employment. The exception relates to a reference in ID1 to a "bicycle lane". The CCTV footage does not establish that the applicant's vehicle entered a bicycle lane as it rounded a corner. In the show cause notice dated 28 April 2014 it was stated that the vehicle "cut the shoulder of the road". While reference was made in some affidavits and during the evidence to a "bicycle lane" I am of the view, based on the CCTV footage and the evidence of Mr Craig, that the correct reference should be to the shoulder of the road, not to a bicycle lane. Applicant's Submissions [12] The applicant did not deny that his conduct was inappropriate but complained that the penalty of termination was disproportionate to the offence and said that insufficient consideration had been given to his previously unblemished service. He had not been subject to any previous disciplinary action nor any performance management process. These views were supported by Mr Buttenshaw who said that while the applicant's actions were regrettable and inappropriate, they should not have led to the termination of his employment. It was his evidence that in deciding to apply a penalty of termination, the respondent had acted hastily and inconsistently. In his experience where similar conduct was involved in other situations, termination of employment had not resulted. -- 3 of 7 -- 4 [13] The following reasons were advanced supporting a conclusion that a penalty of termination in employment was too severe:  The applicant displayed contrition, regretted that the incident had occurred, and admitted that he could have handled the situation better;  The applicant co-operated with the investigation conducted by the respondent and gave an honest account of events;  The applicant admitted that he panicked when the cyclist hit the side of his vehicle and that he reacted inappropriately to the cyclist's actions. He admitted that he should not have tooted his horn for as long as he did, he should not have raised his voice, and should not have pulled up behind the cyclist;  The applicant's anxiety and distress led him to seek permission from his supervisor to shorten his shift and stop driving;  While the applicant's conduct may have been inappropriate it was relevant that the cyclist did not come to any harm and was not put in a situation of danger. [14] The applicant submitted that the respondent's approach to the 17 March 2014 incident was inconsistent and procedurally deficient. The submission was that if the respondent wanted to apply a zero tolerance policy it should have suspended the applicant immediately after the incident had been reviewed. The fact that a suspension was not put in place, and that the applicant was allowed to continue to work normally for about three weeks, demonstrated the uncertainty in the mind of the respondent about the severity of the applicant's actions and suggested that termination was not an appropriate consequence. Further, that these views mirrored the state of mind of the respondent, was established by the content of Exhibit 10. [15] Exhibit 10 comprised an email from Ian Niven, Chief Human Resources Officer, to Darryl Brooks and others. The email states in part that: "While dismissal is never without risk, I consider the risks associated with this case to be relatively low. If the decision was challenged, the Commission may find the dismissal to be harsh given Mr Jebreel's employment record and ability to gain employment elsewhere. Additionally, there is a risk that the Commission may find the dismissal to be unjust if Mr Jebreel (or representative) highlight the similarities between this case and another road rage incident that I provided advice on earlier this week. That incident also involved a Carina bus operator and I believe a more lenient option is being issued – a final warning and a direction to undertake Code of Conduct training. Should the delegate wish to mitigate this risk, or be sympathetic to Mr Jebreel's personal circumstances then another option is to issue a final warning with a performance management plan." Respondent's Submissions [16] The respondent submitted that it was justified in terminating the applicant's employment for the following reasons: -- 4 of 7 -- 5  The applicant's behaviour, as disclosed by the CCTV coverage and described by Mr Craig, was unacceptable. He acted unreasonably in an angry, aggressive, and intimidatory manner. He operated his vehicle in an unsafe manner putting himself and others at risk;  The applicant's behaviour demonstrates that he is an unsuitable person to be continued in the responsible role that he held;  The applicant's conduct has led to a loss of trust and confidence in him on the part of his employer;  The applicant was not a long serving employee and had been employed by the respondent for a relatively short period of time. Further he was engaged on a casual basis. [17] The respondent did not accept that the fact that it allowed the applicant to continue working diminished the validity of its processes. The submission here was that firstly, the investigation had not been finalised and no finding had been made either about conduct or penalty, secondly, despite any risk, natural justice required the respondent to allow Mr Jebreel to continue his normal employment, and thirdly, it would have been harsh, given Mr Jebreel's casual status, to deny him the ability to earn an income pending the resolution of the process. [18] The respondent maintained that it had afforded the applicant natural justice throughout the process and that the process was procedurally fair both in the manner in which the incident was investigated and in the approach taken to decision making. Ms McGraa's evidence on the matter was recorded at T1-58: "So, in Mr Jebreel’s circumstance, he initially meets with his supervisor to discuss the initial outcome. So, that could be of the way he presented to the counter, “Are you okay?” And then in the view of complaints, and I would have to check notes to know the exact dates on this one, but they would also be brought in initially by the supervisor. The supervisor will then bring me the conversation or where we’re at from that. In this case, there is CCTV footage, as you’re aware. So, that will be viewed at some point in the process also to depend on the severity. So he did have that meeting with my supervisor. My supervisor reported his response to me. We then convened the formal meeting, as per Council’s process and procedures, with 24 hours' notice so that he has time to have a support person. And then he meets with me and discusses the incident. At that point after that I determine where it needs to go from there. We view the footage, often together; and it did happen in this case that we viewed the footage. And then we consider what to do from there. So, in this case, I determined that it would require a formal response. And the seriousness of the matter meant it was a show cause; not a please explain. There’s two avenues I can take. Or, none at all, of course. You know, the conversation can end there. In this case, I determined it needed to go to show cause. And then I progressed it up through our avenues; HR, ultimately, the divisional manager’s office." [19] The respondent submitted that given the seriousness of the conduct and given that the offending behaviour was inconsistent with the core responsibilities of the job, a decision to terminate employment should not be regarded as harsh, unjust or unreasonable. -- 5 of 7 -- 6 Section 77 Matters [20] I accept the respondent's submission that the applicant's conduct amounted to a serious departure from the conduct expected of him at law and by his employer. Further, and on the evidence, I agree that the applicant was aware at all material times that conduct engaged in was inconsistent with his employer's expectations. The applicant was given a full opportunity to provide a response in that he met with Ms McGraa and then was provided with the opportunity to provide a response to the show cause letter. While the applicant had not received a prior warning, he was aware of, and familiar with, relevant policies and procedures regulating his conduct. The employee was fully informed about the reason for dismissal which related to his conduct or performance on 17 March 2014. Conclusion [21] I am not persuaded on the facts and circumstances of this case that the employer’s decision to terminate the employment was harsh, unjust and unreasonable. It was neither substantively nor procedurally unfair. The employer has adopted a measured approach to the decision making process. It has not acted precipitously. It has considered the competing arguments and acknowledged that the worker’s case that he should be given another chance was not entirely without merit. The employer's approach in this regard is demonstrated by reference to Exhibit 10. [22] I consider the candid assessment of prospects disclosed by Exhibit 10 to amount to good human resource management practice. The email demonstrates that the employer was not adopting a trenchant or inflexible approach to its evaluation of the applicant's circumstances, nor was it failing to take an appropriately compassionate view of all the circumstances. Exhibit 10 is also evidence that the organisation fairly and inclusively considered whether termination of employment should be the appropriate penalty. The Chief Human Resources Officer did not dictate an outcome based on lofty principles but dispatched a practical analysis and left it to the relevant operations staff to decide what should happen. These circumstances do not support a finding that the Council has acted capriciously in arriving at its final determination. [23] As a matter of consistency, given the first held view about risk, it may have been a more appropriate course for the respondent to suspend the applicant immediately it became apprised of the details. However any such deficiency in approach does not cure the misconduct, nor did it amount to any denial of natural justice or in any way prejudice the position of the applicant. It does not mean that the decision to terminate, when taken, becomes harsh, unjust or unreasonable. [24] The applicant's behaviour was not acceptable and warranted a serious response by his employer. Further the employer did not act harshly, on the facts and circumstances of this case, in assigning insufficient weight to the mitigating factors relied on, such that the penalty of termination was not reduced to some lesser sanction. The behaviour in question was so inconsistent with a continuation of the applicant's employment as a driver, that factors such as his timely reporting of the incident and his co-operation with the investigation, were not sufficient to prevent termination of employment. Further a conclusion that the respondent might have more appropriately suspended the applicant before terminating his employment, or that the respondent entertained a doubt about whether the offence warranted a response of termination of employment, -- 6 of 7 -- 7 does not mean that the applicant was treated unfairly or that the ultimate decision taken to terminate his employment was characterised by harshness, unjustness or unreasonableness. [25] The application is dismissed. -- 7 of 7 --