Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council [2015] QIRC 4

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland v Toowoomba Regional Council [2015] QIRC 4 PARTIES: Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (Applicant) v Toowoomba Regional Council (Respondent) CASE NO: TD/2014/48 PROCEEDING: Application for Reinstatement DELIVERED ON: 7 January 2015 HEARING DATE: 3, 12 and 13 June 2014 2 July 2014 (Applicant Submissions) 4 August 2014 (Respondent Submissions) 12 August 2014 (Submissions in Reply) MEMBER: Deputy President Swan ORDERS: 1. The Application is dismissed. CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment - s 74 of IR Act - special needs employee - whether employer responded appropriately to those needs - numerous meetings held with employee - assistance provided - performance management plans instigated - training programs - continuation of poor work performance and conduct - ongoing reviews of employee's performance - employer acted appropriately in all the circumstances. CASES: Industrial Relations Act 1999, s 74, s 77, s 78 APPEARANCES: Mr T. O'Brien for the Construction, Forestry, Mining and Energy, Industrial Union of Employees for the Applicant. Mr D. Clifford, Clifford Gouldson Lawyers for the Respondent. -- 1 of 12 -- 2 Decision [1] This is an application for reinstatement made by the Construction, Forestry, Mining and Energy, Industrial Union of Employees (CFMEU) (the Applicant), for their member Mr Brent Weirer against Toowoomba Regional Council (the Respondent/Council) made pursuant to s 74 of the Industrial Relations Act 1990 (the Act). [2] Mr Weirer seeks reinstatement to his formerly held position or alternatively 26 weeks compensation. [3] Mr Weirer had worked in the mowing crew in the Parks and Gardens Division of the Council. [4] He was dismissed on 9 May 2014. [5] Mr Weirer was issued with a Show Cause notice from the Council on 10 February 2014 which contained the following allegations: Allegation 1  "It is alleged that on Wednesday 15th January 2014 after leaving the Clifton depot at approximately 12.30pm for your lunch break, you were observed to be standing at the front of Clifton Food Works, Clark Street, Clifton talking to a local resident for approximately two hours;  It is further alleged that after returning to the Clifton depot at approximately 3.10pm on Wednesday 15th January you brazenly admitted to another employee at the Clifton depot that you had spent the afternoon talking out the front of Clifton Food Works rather than attending to your work duties;  Additionally it is alleged that you have then incorrectly recorded on your timesheet for that day (attached) that you were in fact working during the alleged time you were observed at the Clifton Food Works." Allegation 2  "It is alleged on Thursday, 30 January 2014, between approximately 2.00pm - 2.15pm, whilst mowing at Fisher Street Clifton, you were observed not wearing appropriate personal protective equipment (PPE), specifically ear plugs. When your supervisor, Terry Bailey approached you and questioned you about where your PPE was, it is alleged you replied to Terry "At the depot I guess". Additionally, it is alleged that when Terry Bailey proceeded to question "shouldn't you be wearing them (the PPE)" you allegedly responded with 'I guess" and then continued mowing." [6] Mr Weirer's response to these allegations was as follows: -- 2 of 12 -- 3  Allegation 1: "Yes I was talking outside Foodworks in my dinner time but I don't know for how long. I am sorry for this. I did not brazenly admit to anyone that I had spent the afternoon talking and not attending to my work"  Allegation 2: "As to not wearing the ear muffs on said day this was a mistake on my part. I forgot to get them and when I realized it was too late to go back. For this I am sorry." Witnesses Called to give Evidence [7] Witnesses for the Applicant were:  Brent Weirer;  Amber Moore (Personal West Employment Service);  Vanda Weirer (Applicant's mother). [8] Witnesses for the Council were:  Shane Hounslow (Co-Ordinator Parks Operation South);  Michael Condren (Manager Parks and Recreation Services);  Nicholas Hauser (General Manager, Environment and Community Service). Mr Weirer's Background [9] Mr Weirer commenced work with the Council in April 1998 and was dismissed from his employment on 9 May 2014. [10] Mr Weirer says that he had been accused of two minor disciplinary matters (detailed above) and was effectively then dismissed. [11] The evidence from Ms Weirer, (Mr Weirer's mother) was that the Council was aware that her son was 'slow'. Mr Weirer had not been diagnosed with any particular disability, however, Ms Weirer said he required some special assistance at work for his condition [T3-103]. [12] Mr Weirer's representative submitted that Mr Weirer's evidence should be treated 'cautiously' as he could be inclined to provide the answer he believes that someone wants from him. The Applicant's Case [13] The Applicant's primary submissions relate to the following issues:  That the Council was aware that Mr Weirer was 'slow' and that he required special consideration for his condition.  That Mr Weirer was confused as to the Council's PPE and other Policies.  That Mr Weirer had an "exemplary employment record prior to the latter part of 2013". -- 3 of 12 -- 4  "That the Respondent failed to discharge its duty to consider all of the relevant information that it had or should have known prior to making the decision about terminating the employment of the applicant". Mr Weirer's evidence [14] Mr Weirer's evidence was as follows:  Prior to late 2013, he had not had any disciplinary action taken against him by the Council.  The training which had been undertaken by him was Code of Conduct training together with computer and literacy courses.  He did not believe that this training had assisted him much because he was not doing computer work. [15] Mr Weirer was required to complete "Take 5" Forms. Mr Weirer's description of what was required on those forms was that if the issue related to safety, for example, he would be aware of what was required by responding to the 'true' or 'false' cues. [16] He explained that on occasions he could be convinced to alter an answer because someone else would tell him to do so. [17] Mr Weirer had worked with a Counsellor at the Council for the purpose of assisting his working relationships. [18] Mr Weirer had complained about Mr Bailey (Mr Weirer's new Ganger as from early 2013) as "he was getting up in my face all the time and annoying me and abused me and that" [T3-24]. [19] Mr Weirer said that Mr Bailey had never explained what issues he had with him. [20] In late 2013, Mr Weirer received a number of written warnings. [21] He stated that he did not understand what a written warning was; that no-one had explained to him that breaching Council Policies was a serious matter and that he was never told he could have a representative with him when being addressed by Council concerning these warnings. [22] He also had not fully understood his letter of termination from the Council. [23] Under cross examination, Mr Weirer was taken through the various Code of Conduct requirements and training courses. To all he said he had undertaken those courses. [24] He agreed that he was not to absent himself from his duties without authority and he was to accurately and truthfully record work and leave periods. Having said this, Mr Weirer then stated that he did not know what that meant [T3-29]. [25] Mr Weirer was asked about the disciplinary notices he had been given and responded that one related to his 'talking - outside of Food Works', and that he had filled in a time sheet on that day which had stated that he was at work. Mr Weirer agreed that this was the case. -- 4 of 12 -- 5 [26] Mr Weirer said he had been speaking to a friend outside Food Works. [27] The further allegation related to the non-wearing of earmuffs. [28] Mr Weirer agreed that he had not worn them on that particular day but he was aware that he should be wearing them. [29] Mr Weirer was aware that he had faced disciplinary commentary from the Council in 2013 and he agreed that he had been counselled at different times for alleged infringements [T3-37]. [30] He was reminded, and he accepted that he had weekly meetings with Mr Hounslow to help him with his work performance and that he and his father attended Therapy Work sessions to help him with his social interaction at work. [31] Mr Weirer agreed that he had signed a Performance Management Plan in May 2013. That the Council was aware that Mr Weirer was 'slow' and therefore required special consideration [32] Ms Weirer's evidence was that she and her husband, as from January 2012, had participated in a number of discussions with the Council regarding their son's conduct and performance at work. She had advised the Council that her son had difficulty with comprehending matters. She also said he didn't like "people in his face" [T3-61]. [33] At the time of those discussions Ms Weirer had not known of her son's specific problem which she later said was diagnosed as Autism Spectrum Disorder (ASD). This diagnosis had been made by Dr Goki (Child, Adolescent and Adult Psychiatrist). Dr Goki first examined Mr Weirer on 20 March 2014 and he made the diagnosis of ADS Level 2 with a secondary diagnosis of depression [Exhibit 3, point 6]. [34] Dr Goki stated that, "From my perspective, because the diagnosis is based on the functional capacity assessment it is not obvious to every person who may meet Brent, either on a regular or irregular basis, to assume that he has Autism Spectrum Disorder" [Exhibit 3 - point 10]. [35] Dr Goki also stated that "Based on the information I received from Brent during the examination, I believed that it was during my examination that Brent was first diagnosed with Autism Spectrum Disorder. That is, I believed that Brent had never been diagnosed with having Autism Spectrum Disorder prior to seeing me" [Exhibit 3 - point 8]. [36] Ms Weirer agreed that she had advised Ms Amber Moore from Personnel West (an organization which assisted persons with a disability in the workforce) about her son's diagnosis in March 2014 and she had relied upon her to notify the Council [T3-86]. Prior to that notification of a specific diagnosis, Ms Moore stated that Mr Weirer Senior had explained his son's difficulty was "more of a learning -- 5 of 12 -- 6 disability" [T3-11]. At the time of seeing Ms Moore, Mr Weirer was on notice that his employment might be terminated. [37] Council had stated that the only specific information it had about Mr Weirer was that given by a Medical Practitioner in 2004 where it was said that Mr Weirer was mentally and physically fit for work. Beyond that statement, the Council had been advised by Mr Weirer's parents that he faced difficulties in the workplace and that he was 'slow'. [38] Ms Weirer agreed that at no point throughout Mr Weirer's employment with the Council was the Council informed by her family that Mr Weirer had a particular disability as such and the Council never asked for anything more [T3-88]. Ms Weirer said that this was because "we didn't have a name for it" [T3-88]. [39] What was clear however, to the Council was that Mr Weirer encountered difficulties in the workplace. [40] Mr Hounslow said he was made aware of Mr Weirer's difficulties through discussions with his father. To that effect, he had written an e-mail in March 2013 which included, inter alia, "Provide a work environment that provides a high degree of supervision for Brent who's been identified as an employee with 'special' circumstances". [41] Ms Weirer's evidence was that she had advised Mr Hounslow, amongst other things, that her son was 'scared of heights' - a situation which he found confronting in his mowing duties [T3-62]. Ms Weirer also recalled advising Mr Condren of this issue. [42] Around the time when the Council was considering taking disciplinary action against Mr Weirer, Ms Weirer said the family had contacted Personnel West during late March 2014, for the purpose of ensuring that her son retained his employment with the Council. [43] Ms Moore from Personnel West said she made contact with Mr Condren on 8 April 2014. [44] Ms Weirer was questioned as to why she had not advised the Council herself of her son's diagnosis. Her response was that she thought Ms Moore would do it as it was her job to find positions for persons with a disability. [45] Ms Moore stated that when she advised Mr Condren that Mr Weirer had a disability, he did not enquire as to what it was [T3-17]. There is no evidence that Ms Moore identified the type of disability to the Council and Ms Moore's evidence was that there was no further discussion between herself and Mr Condren in relation to the disability [T3-17]. [46] Ms Moore gave evidence that prior to Mr Weirer's diagnosis of ASD, she had two conversations with Mr Weirer Senior, where she had been told that Mr Weirer had problems, but Mr Weirer did not disclose any more information other than his son had a 'learning' disability' [T3-11]. -- 6 of 12 -- 7 [47] Mr Condren stated that he had felt uncomfortable speaking to Ms Moore about Mr Weirer because he did not know Ms Moore or the Organisation she represented and the discussion had made him feel very uncomfortable. He was not prepared to discuss the issue with Ms Moore until there had been some disclosure to him personally from Mr Weirer or his parents [T4-47]. Mr Condren had advised Ms Moore to speak to People in Organisation Development (a part of the Council) and he passed the information on to that body. [48] I have accepted Mr Condren's evidence on this point. To have a telephone call from a person and organization unknown to him discussing a very personal issue concerning one of the Council's employees would be disconcerting to any employer. [49] Significantly, taking into account the lengthy and continued discussions held between the Council and Mr Weirer Senior, Ms Weirer and Mr Weirer, it would be reasonable for the Council to expect that any such disclosure would have come from Mr Weirer himself and/or his parents. Mr Condren did not act unfairly or inappropriately in referring the matter to another section of the Council for consideration - i.e. the People and Organisation Development Department. It is not the case that he disregarded this information, but rather referred it for further consideration. [50] I have accepted that what was known to the Council on this issue was:  That Mr Weirer was a little bit 'slow'.  From many discussions with Mr Weirer and his family and the information they passed to the Council regarding their son's difficulties, the Council was aware that extra consideration had to be given to Mr Weirer in terms of his work duties.  The diagnosis of ASD was never known to the Council.  Whether or not the Council was aware of this diagnosis does not alter the fact that, having knowledge of Mr Weirer's problems (as identified by his parents), the Council was required to give Mr Weirer extra consideration and assistance concerning the performance of his work duties and an understanding as to what his work obligations were. That Mr Weirer was confused as to the Council's PPE and other Policies [51] The Applicant stated that Mr Weirer was confused as to what was required of him in the performance of his duties. [52] The Respondent has rejected that claim, stating that it had invested "substantial time, effort, resources and money over a lengthy period of time to encourage and assist the Applicant to perform his duties to a level expected of all the Respondent's employees" [Respondent Submissions - point 18]. [53] Mr Hounslow's evidence was that he had a number of conversations with Mr Weirer over time and had been advised that he had his own car and had a level of independence, living separately from his parents for some time. -- 7 of 12 -- 8 [54] The Respondent states that on each instance when Mr Weirer did not adhere to Council Policies he was advised of what he was doing incorrectly. He was also assisted in improving his behavior, performance and conduct at work. [53] It should be pointed out that during Mr Hounslow's period of time as Mr Weirer's co-ordinator, Mr Weirer's day to day activities, his responsibilities and his hours of work had not changed [Exhibit 4 - point 10]. [54] Examples of this action taken by the Respondent can be found in Mr Condren's Statement. He had been informed by Mr Hounslow that Mr Weirer had not been conforming to Council's Code of Conduct which included the non-adherence of PPE policies, and consequently Mr Weirer was sent a letter from Mr Condren on 11 September 2013. [55] In that letter, Mr Condren stated: "It is alleged on Thursday, 5 September 2013, at approximately 10.45am, your supervisor, Terry Bailey approached you in regard to not wearing the required personal protective equipment (PPE). When Terry questioned you about not wearing the required PPE operating the Brushcutter, it is alleged you replied to Terry, "I don't care". Additionally, it is alleged that when Terry proceeded to ask you why you weren't wearing your PPE, you replied "I am sick of this shit". "It is also recognized that the matter of wearing appropriate PPE has been raised with you previously. Specifically, it was raised and noted by you in your Performance Management Meeting of 20 August 2013, which stated "wearing of PPE when brushcutting". I note that in this meeting you signed this expectation, which would indicate you agreed with and understood the instruction" [Exhibit 5- MC1]. [55] This was followed up with discussions held with Mr Weirer and his parents by Mr Condren to explain Council's concerns. Mr Weirer subsequently wrote to Mr Condren confirming that he accepted that Council's concerns were correct and he would try not to repeat that behavior in the future [Exhibit 5- MC 2]. [56] Amongst other things, the Council identified the type of instances for which they had counselled Mr Weirer. These included causing damage to resident property; disobeying Council's health and safety processes; failing to follow lawful and reasonable directions; inappropriate use of Council property; three times for having low work output; three times for failing to accurately fill in his time sheet and three times for being absent from work without authority. There is no challenge that discussions had occurred around these issues. [57] A review of Exhibits provided by the Council show that on the Take 5 Quizzes, Mr Weirer positively responded to questions concerning the wearing of appropriate PPE [Exhibit 6 - NH 9]. [58] Against this background, the Council undertook a range of activities to actively support Mr Weirer in the workplace. -- 8 of 12 -- 9 [59] These include a consideration of the following points:  Mr Hauser first became aware of workplace difficulties with Mr Weirer in early 2012.  Mr Hauser attended a meeting with Mr Weirer and Mr Weirer Senior on 31 January 2012 at Therapy Works (the Council's employee assistance provider) for the purpose of discussing performance issues. Mr Weirer Senior had advised that he had recently been hospitalized and he thought that might have had an effect upon his son in terms of his work. Mr Hauser noted that proposition.  Out of that meeting, one allegation made by Council against Mr Weirer was withdrawn with an apology offered, but the other allegations remained.  Council's expectations were put to Mr Weirer in terms of his future performance.  Mr Hounslow, in January 2012 met with Mr Weirer, Mr Weirer Senior and Mr Lee Zeller (Council Foreman who had responsibility for the day to day management of Mr Weirer up to November 2010) where an agreement had been reached to put in place a process "to manage Brent to ensure that he was aware of exactly what he needed to do each day and to remove any anxiety he had in relation to the work he was required to perform" [Exhibit 4 - point 13].  The Council had formed the view that, rather than impose disciplinary penalties on Mr Weirer, it would be more positive for him to undertake a Performance Management Plan to try to help him improve his work duties.  To this end, the Council: o Created and provided mowing charts for Mr Weirer which set out exactly what he was required to mow (Exhibit SH-2). o Started daily and weekly meetings with Mr Weirer designed to ensure that Mr Weirer knew exactly what was required of him each day to make sure he understood Council's expectations. Those meetings commenced in late January 2012. o Arranged for Mr Weirer to be enrolled in a literacy and numeracy course at TAFE. o Arranged for group sessions with Council's employee assistance provider, Therapy Works to work though the Council's concerns regarding Mr Weirer's attitude towards work. [60] After that process had been determined, Mr Hounslow reported this to Mr Hauser who wrote to Mr Weirer detailing the matters that had been discussed and advising Mr Weirer that there remained a view that Mr Weirer's conduct was not acceptable. That correspondence also noted that Council had committed to working with Mr Weirer and set out a management plan to be utilized in terms of his work performance. -- 9 of 12 -- 10 [61] A further meeting was held on 31 January 2012, where Mr Hounslow attended a Therapy Works meeting with Mr Weirer, Mr Weirer Senior and "Nick". Council reaffirmed its commitment to support Mr Weirer. [62] Mr Hounslow reported on the weekly meetings he held with Mr Weirer. These meetings continued until March 2012. [63] The Council believed that at that time Mr Weirer's performance had improved and they determined to 'stand back' and observe how things were going. [64] At that time, Mr Weirer was doing his TAFE course and his teacher had advised Mr Hounslow that he was doing very well in that course and should be encouraged to do a further course. [65] Notwithstanding those reports, Mr Weirer did not wish to continue with that course. [66] Ms Weirer believed that there was no point in her son doing a TAFE course as his 'condition' did not assist him in learning literacy and numeracy skills. [67] In February 2013, further issues surrounding Mr Weirer's performance at work had arisen and Mr Hounslow and Mr Zeller met with Mr Weirer to discuss these matters. [68] An issue had arisen in March 2013 where it had been alleged that Mr Weirer had falsified his time sheets. When confronted, Mr Weirer agreed that he had only worked a half day, but recorded a full day's work on his time sheet [Exhibit 4]. [69] In April 2013, Mr Weirer was notified that the Council expected him to improve his work performance and conduct [Exhibit 4]. [70] Similar incidents occurred on May 2013. At that time, Council created a performance management action plan setting out Council's expectations [Exhibit 4]. [71] At a meeting held with Mr Weirer in June 2013 Council reaffirmed its determination to work closely with Mr Weirer to ensure that he understood what he was required to do. [72] By August 2013, Mr Hounslow met with Mr Weirer and Mr Zeller to revise his performance plan and the review of these matters showed that Mr Weirer was able to perform at an acceptable level for most of his work, but there remained a slight deficiency in his ability to work without supervision [Exhibit 4]. [73] On 3 September 2013, Mr Hounslow became aware that Mr Weirer had falsified his time sheets again. Mr Hounslow delayed his meeting scheduled with Mr Weirer and sought advice from People and Organisation Development as to how to properly manage the matter [Exhibit 4]. [74] The matter of Mr Weirer's management was then handed over to Mr Condren for his consideration as many of the matters previously complained of had re-emerged. -- 10 of 12 -- 11 [75] In all of this, the only comment Mr Hounslow could recall being made by Mr Weirer Senior regarding his son was that he was "not the sharpest tool in the shed, he's just a bit slow". [76] I have accepted Mr Hounslow's evidence as being accurate. Most of it is recorded in Council documentation which was tendered. [77] I am unable to draw the conclusion that Mr Weirer was not aware of Council's requirements of him in the workplace. [78] It is clear that the Council went to extraordinary measures to ensure that Mr Weirer continued in the workplace with all the support the Council was able to give. [79] Mr Weirer not only had Council support, but the support of his parents who were involved in many of these meetings. That Mr Weirer had an "exemplary employment record prior to the latter part of 2013". [80] The evidence clearly shows that Mr Weirer did not have an exemplary record prior to the latter part of 2013. This is exemplified in the abovementioned consideration. That the Respondent failed to discharge its duty to consider all of the relevant information that it had or should have known prior to making the decision about terminating the employment of the applicant [81] I have been unable to accept the assertions made by the Applicant in this regard. [82] In my view, there could no sustainable criticism of the Council in terms of how it addressed its issues with Mr Weirer. [83] Firstly, it accepted Mr Weirer's parents identified concerns regarding their son. The fact that Mr Weirer's parents attended meetings with him was acknowledged by the Council as being somewhat unusual but not completely uncommon. Employees often had support persons with them. [84] Mr Weirer did not always have a support person with him when discussions regarding his conduct and/or performance was conducted. However, it is fair to state that with the frequency in which meetings with Mr Weirer were held, the absence of a support person (when his parents could not be present) at every meeting has not concerned me for these reasons:  Firstly, there were a very large number of meetings held with Mr Weirer over a lengthy period of time - weekly and over some months on occasion.  I have accepted that the Council did not conduct these meetings with Mr Weirer over a very long period of time within the context of "disciplinary meetings", but rather for the purpose of explaining its position to him and reiterating what was required of him. I have accepted that Council performed this role with Mr Weirer's condition uppermost in its mind. -- 11 of 12 -- 12  Whilst ultimately Mr Weirer was issued with a Show Cause notice, it was only after a long period of poor behavior and conduct on his part. It is reasonable to accept that the Council could do little more for Mr Weirer.  I have previously stated that the Council was never made aware of the nature of Mr Weirer's disability (ASD), but that is not the issue. The Council was made aware of Mr Weirer's problems through his parents and through his own communication. With that knowledge, the Council adopted plans and processes in order to facilitate Mr Weirer's needs. Conclusion [85] Not every incident put to the Commission in this matter has been referenced. However, the significant matters have been considered and referenced. Overall all matters were considered. [86] It is accepted that, pursuant to s 77 of the Act:  The Applicant had been notified of the reason for his termination of employment;  That he had been warned regarding his conduct, capacity or performance;  That he was given an opportunity to respond to the reasons for the termination of his employment. [87] What is to be decided is whether there was a valid reason for the termination of Mr Weirer's employment. [88] I have found that there is a valid reason for the termination of Mr Weirer's employment. The valid reason related to Mr Weirer's conduct and performance at work. [89] I have accepted that Mr Weirer could perform his duties appropriately at times, but that there was a continual practice of poor behavior and performance on his part. So much so, that the Council was unable to continue his employment. Notwithstanding the effort undertaken by the Council over a lengthy period of time, there was no marked improvement in Mr Weirer's behavior. [90] In reaching this decision, I am very conscious of the impact a decision such as this could have on Mr Weirer. I have carefully considered this point. [91] The difficulty in all of this is that the Council did put its best into ensuring that Mr Weirer could continue in the workforce. This did occur over a period of time. However, at the end of all of this, I am unable to see what more the Council could have done to assist Mr Weirer in his position. [92] The dismissal was not harsh, unjust or unreasonable. [93] I dismiss the application. -- 12 of 12 --