Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland v Western Downs Regional Council [2014] QIRC 153

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland v Western Downs Regional Council [2014] QIRC 153 PARTIES: Construction, Forestry, Mining and Energy, Industrial Union of Employees, Queensland (Applicant) v Western Downs Regional Council (Respondent) CASE NO: TD/2013/106 PROCEEDING: Application for Reinstatement DELIVERED ON: 1 October 2014 HEARING DATE: 6 March 2014 20 March 2014 (Applicant Submissions) 10 April 2014 (Respondent Submissions) 17 April 2014 (Submissions in Reply) MEMBER: Deputy President Swan ORDERS: 1. The application is dismissed. CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment - Application dismissed - Refusal to adhere to Council policies - Numerous warnings regarding conduct CASES: Industrial Relations Act 1999, s 74, s 77, s 78 APPEARANCES: Mr A. Cousner for the Construction, Forestry, Mining and Energy, Industrial Union of Employees for the Applicant. Mr S. Blaney, Local Government Association of Queensland Limited for the Respondent. 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 David Keehn against Western Downs Regional Council (the -- 1 of 9 -- 2 Respondent/Council) made pursuant to s 74 of the Industrial Relations Act 1990 (the Act). Relevant Legislation [2] Section 73 of the Act provides as follows: "73 When is a dismissal unfair (1) A dismissal is unfair if it is - (a) harsh, unjust or unreasonable; or (b) for an invalid reason." [3] Section 77 of the Act provides as follows: "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." [4] Section 79(1) of the Act provides as follows: "79 Remedies - compensation (1) If, and only if, the commission considers reinstatement or re- employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission." Applicant Witnesses [5] Witnesses for the Applicant were:  David Keehn;  Darren Marshall (Plant Operator). Respondent Witnesses [6] Witnesses for the Respondent were: -- 2 of 9 -- 3  Tim Low (Utilities Manager);  Anthony Schrag (Utilities Supervisor);  Richard Ingall (Water Treatment Plant Operator);  Leesa Giles (Trainee Water Treatment Plant Operator);  Wayne Giles (Patrol Man);  Scott Bateman (Plant Operator and Labourer). Brief overview of Applicant's claim [7] Mr Keehn had been employed by the Council from late 2009 until the date of his termination of employment on 6 November 2013. [8] Mr Keehn was initially employed in the capacity of a labourer and at the time of his termination from employment, as a plant operator labourer [T1-8]. [9] The grounds for dismissal are set out in the Council's correspondence to Mr Keehn dated 5 November 2011. The reasons were:  "Mr Keehn's failure to comply with a requirement to wear personal protective equipment (PPE) on 17 September 2013 as instructed and acknowledged in a confined entry permit attached to a safe work method statement filled out for that job" [Note - the 'PPE' incident].  "On 18 September 2013 Mr Keehn attended Council's North Cooranga Dump facility without authorization in contravention of a written work guideline signed by Mr Keehn on 16 April 2013, and without reasonable cause" [Note - the 'Cooranga incident'].  "On 20 September 2013 Mr Keehn attended the Albert Street work site whilst he was on sick leave and approached Mr Anthony Schrag, Mr Keehn's direct supervisor, in a hostile manner, which included aggressively "slamming" a rolled up incident report into Mr Schrag's hand" [Note - the 'Albert Street' incident]. [10] Specifically, with regard to the 'PPE Incident' on 17 September 2013, while working for the Council at its Jandowae site, Mr Keehn sustained burns to his nose and throat as a consequence of a Council employee using chlorine near the water tank where he was working. He denied any claims that he had acted inappropriately on that day and in contravention of the Council's PPE Policies. [11] Regarding the 'Cooranga incident', Mr Keehn said he had never been officially informed that he could not use the route he had taken on 18 September 2013 nor was he aware that he had to obtain authorization to attend the Cooranga Facility on that day. His evidence was that he had only stopped at Cooranga for the purpose of going to the toilet. [12] Regarding the 'Albert Street' allegation of 20 September 2013, Mr Keehn rejected the claims made by the Council. -- 3 of 9 -- 4 Brief overview of Respondent's concerns regarding Mr Keehn's work background. [13] Mr Low's evidence was that there had been a history of non-compliance by Mr Keehn with Council's PPE Policies. [14] On 27 August 2013, the Council had written to Mr Keehn, (under the heading of 'Work Place Incident') citing, the following: "This letter is to inform you that Council is in receipt of a workplace incident. The summary of the incident is: That you have not worn your hat on several occasions as outlined below after being advised several times by your Supervisor to wear your hat and other required PPE and after a presentation by Council's Safety Advisor, George Clouston in relation to skin cancers and the need for wearing hats: On 18 February 2013 whilst working and pulling up sewer pump at SP1. On 18 March 2013 whilst working at sewerage operations. On 3 June 2013 whilst meter reading in Jandowae. On 17 July 2013 whilst excavating a manhole. On 18 July 2013 whilst installing a manhole and backfilling job site. On 14 August 2013 whilst working on the blocked sewer main at SPS 2. On 19 August 2013 whilst working at the Jandowae sewer plant operations (No PPE). On 21 August 2013 at the commencement of the working day, your supervisor advised all staff about wearing hats and other required PPE that you were in attendance at. You still continued to not wear your hat. …" [Exhibit 10 - TL5]. Evidence The 'PPE Incident' [15] On 17 September 2013, Mr Keehn and others were working at the Clearwater tank at Jandowae. [16] This work involved Mr Keehn and another employee working within the tank. [17] Before commencing work on that day, employees were required to sign forms entitled "Safe Work Method Statement" and "Confined Entry Permit" which detailed the required PPE to be worn at that time. [18] The forms required a tick from the employee showing that they understood the requirements for that day. The PPE required included foot protection; hand protection; eye protection and protective clothing. These forms were signed by Mr Keehn and others, and overseen by Mr Schrag. -- 4 of 9 -- 5 [19] Under the heading of "Use of Chemical Agents', "Chlorine" was identified as a chemical agent which could be used on that day at the workplace. [20] Mr Bateman, who was a plant operator was also the elected Workplace Health and Safety Representative with the Council. He was present at the worksite on 17 September 2013. [21] Mr Schrag said that PPE was required on that day due to the risk from having skin exposed to the sludge in the tank which "while it did contain trace elements of chemicals such as chlorine it may also have contained pathogens that can cause infection, but more relevantly to protect the skin and in particular eyes from flying pieces of debris inside the confined space [Exhibit 9 - point 18]. [22] The evidence of Mr Bateman was that initially Mr Keehn was wearing the correct PPE but that later that day he had removed his coveralls, mask, gloves and protective eye wear when cleaning the tank with the water spray [T-13]. This was also observed by Mr Schrag. [23] Mr Schrag reported the matter to Mr Low on the following day. [24] Mr Keehn's evidence was that he did not believe that chlorine was to be used on that day, and therefore he had removed his gloves and face mask. [25] Mr Keehn said that when Mr Bateman poured the chlorine mixture near the opening of the tank, the chlorine gas started to pool at the opening of the tank. To avoid the gas, Mr Keehn said that he had moved to the back of the tank. When this didn't work, he got out of the tank and in so doing burnt his nose and throat. [26] Mr Bateman's evidence was difficult to follow, so much so that his evidence was seen as being unreliable. While he stated that he hadn't told Mr Keehn and his fellow worker that chlorine was going to be used that day, he also stated that he had put the work "Chlorine" on the forms which were signed by Mr Keehn for that day. He said he did not believe that the workers needed to wear a face mask because the chlorine to be used was outside of the tank. A further statement from Mr Bateman was that Mr Keehn was wearing the required PPE for that day, contrary to his earlier statement. [27] Mr Bateman's evidence was that Mr Keehn had complained to him about chlorine being used close to the opening of the tank and Mr Bateman moved the container further away from the opening. Mr Schrag confirmed that this had occurred. [28] Upon returning home from work that day, Mr Keehn noticed blistering on his body and his chest was sore. He 'brushed it off' as he did not normally go to Doctors and had never made a Workers' Compensation claim. [29] Mr Keehn reported his condition to Mr Bateman who then passed the information on to Mr Schrag. [30] In relation to the mechanism of his injury, Mr Keehn said he had smelt chlorine when working in the tank. He stuck his head out of the tank and noticed the drum -- 5 of 9 -- 6 containing the chlorine. He believed that the vapour from the mixture was coming straight into the tank and he says his injury occurred when he was exiting the tank. [31] After considering this evidence, I have accepted Mr Schrag's evidence to the effect that Mr Keehn was required to wear his PPE (as previously detailed) on that day whilst working in the tank. I have also accepted the evidence that whilst chlorine was not specifically used in the tank on that day, it was still there on the pipe entering the tank and in the sludge at the bottom of the tank, hence Mr Schrag's instructions. [32] What is clear in all of this is that if Mr Keehn had been wearing the PPE required of him, he would not have suffered the effects of chlorine as he has claimed. [33] With Mr Keehn's history of non-compliance with wearing PPE, I find that the decision of the employer in this regard to terminate his services was warranted. The 'Cooranga Incident' [34] In its reasons for dismissal, the Council had stated that on 18 September 2013, Mr Keehn had attended the Council's North Cooranga Dump facility "without authorization in contravention of a written work guideline (signed by Mr Keehn on 13 April 2013) without reasonable cause. [35] Mr Keehn agreed he had signed a document produced by Mr Schrag entitled "Jandowae Utilities Work Guideline" which relevantly stated, inter alia, that "There is NO going to the dumps in work hours unless advised to do so by your Supervisor" [Exhibit 9-AS 6]. [36] Mr Keehn agreed that he had taken an alternative route from Jandowae to the destination at Cedarvale Road near the town of Bell. However, he believed that the route taken avoided traffic congestion. [37] Mr Keehn advised that he was not the driver of the Council vehicle on that day. Mr Shiels was the ganger and the driver and he stopped at Cooranga for a toilet break. Mr Keehn states that Mr Bateman was driving behind Mr Keehn and Mr Shiels together with the contractor. Mr Keehn agreed that there were no specific toilet facilities at Cooranga but that he was unaware that there were toilet facilities some 50 metres away. [38] Mr Keehn was asked if he stopped at Cooranga to scrounge for materials. Mr Keehn's response was that Cooranga had been closed for some months so that would not provide a reason for stopping. [39] Mr Schrag agreed that there had never been a directive, memorandum or toolbox meeting with employees relating to what would be considered the correct route to take when driving to Bell. Mr Schrag stated that it would not be a problem if workers drove past Cooranga but he believed that the road wouldn't be as good as the one on the other route [T1-128]. Notwithstanding that, there had been a clear instruction that employees were not permitted to stop at the dumps. -- 6 of 9 -- 7 [40] Mr Schrag stated that Mr Keehn and Mr Shiels 'were forever going to the dumps' [T1-130]. [41] There is no evidence that Mr Keehn asked Mr Shiels (who was claimed to be the driver) to refrain from stopping at Cooranga. Mr Keehn's reasons for being at Cooranga are not believable as there were toilets 50 metres away. [42] Stopping at Cooranga was prohibited by the Council and Mr Keehn was well aware of that [see paragraph 34]. [43] Had there not been numerous instances where Mr Keehn had defied clear instructions from the employer, this event may not have warranted termination of employment as such. Combined with the PPE incident, Council was justified in relying on this instance also to terminate Mr Keehn's employment. The 'Albert Street" incident' [44] Mr Keehn had asked Ms Giles to take his Incident Report to Mr Bateman. She had agreed to do this. Mr Keehn had been advised by Work Safe Queensland that he had 24 hours within which to lodge his Incident Report. [45] Mr Keehn's evidence was that on 20 September 2013, Ms Giles handed the report back to Mr Keehn saying that Mr Bateman had been unable to be contacted. Mr Keehn said that Mr Bateman had told him previously that he might not be available on that night because "you mightn't be able to get on to me tonight because I'm going to hit the piss" [T1-19]. [46] Mr Bateman agreed that he had said those words. Mr Bateman agreed that he had problems with alcoholism, but that it was now a thing of the past [T1-96]. Mr Bateman had not been disciplined by the Council for the events of 17 September 2013 [T1-96]. [47] Ms Giles had told Mr Keehn that she would take the form into the workplace but returned it back to Mr Keehn saying that Mr Schrag had determined that Mr Keehn should have personally handed the form to him. Ms Giles said that Mr Schrag did not say that the form had to come back to him on that day. [48] Mr Keehn admits to being irate and upset at having to return the form personally to Mr Schrag. [49] Mr Keehn was on sick leave on 20 September 2013, but stated that he had to get the form to Mr Schrag on that day because of the advice given to him by Work Safe Queensland. [50] It was put to Mr Keehn by the Council that Mr Giles had said that he had sped in his car onto the worksite on 20 September 2013. This was denied by Mr Keehn. While Mr Giles agreed that he would not know exactly how fast Mr Keehn had been driving on that day, he believed that it was over 60 kilometres per hour in a 40 kilometres per hour zone. Mr Keehn had driven further to find Mr Schrag and had 'roared off down the road" according to Mr Giles. When asked to explain further, Mr Giles added "Well he took off quickly to go down the road" [T1-71]. -- 7 of 9 -- 8 [51] Mr Schrag stated that he needed to have the Incident Report given to him personally by Mr Keehn because he was required to complete parts of the Report which he could only do after speaking directly to Mr Keehn [T1-126]. [52] Mr Schrag said that when Mr Keehn had arrived at the workplace and handed the form to him, he had done so by walking "over to his car, grabbed his piece of paper out, come charging over, slapped it in my hand, turned and walked away" [T1-126]. [53] Mr Schrag agreed that the situation was not good, but he also agreed that he didn't make the situation any better [T1-127]. [54] Mr Marshall's evidence was that he observed what had happened and walked over to both men stating "You're both acting like children. You should grow up" [T1-128]. Mr Schrag agreed that this occurred. [55] Mr Schrag wrote a diary note of the event and asked Mr Marshall to sign the document. Mr Schrag said he asked Mr Marshall to sign it on the basis that "If you don't agree with it, don't sign it" [T1-128]. [56] Mr Marshall's evidence was that he signed the form on the basis that he had seen what had occurred. He said he had made it clear at the time, and in later interviews, that he didn't sign the document on the basis that he agreed with the sentiments expressed in it by Mr Schrag. Mr Marshall's evidence was that he believed that both men on that day were 'acting inappropriately' [T1-29]. Mr Marshall elaborated and stated that he had told Council at three meetings that "I was just doing so in relation to the fact that I was witnessing it, not agreeing with what he had written" [T1-3]. [57] The actions on this day by Mr Keehn would not warrant termination of employment in my view. Conclusion [58] In determining whether a dismissal is "harsh, unjust or unreasonable", the Commission must consider: (a) "Whether the employee was notified of the reason for dismissal"; In the circumstances of this case, Mr Keehn was notified of all of the reasons. (b) "Whether the dismissal related to - (i) "the employee's conduct, capacity or performance; (ii) Whether the employee had been warned about the conduct, capacity or performance; or (iii) Whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; (c) and any other matters the commission considers relevant." -- 8 of 9 -- 9 [59] Mr Keehn had been advised on numerous occasions that he was required to adhere to Council's PPE Policies and that failure to do so could result in the termination of his employment. The 'final straw' was the incident of 17 September 2013. This incident alone warranted Mr Keehn's termination of employment. [60] The incident of stopping at Cooranga identifies further disregard for Council's Policies. This incident, coupled with the PPE incident were sufficient to warrant the termination of Mr Keehn's employment. [61] In all, the Council was justified in terminating the service of Mr Keehn. [62] The incident at "Albert Street" would not, on its own, have warranted termination of employment. [63] Regarding s 77 of the Act: Mr Keehn was notified of the reason for his dismissal s 77(a); The reason related to his conduct s77(b)(ii); He had previously been warned about the actual conduct causing his dismissal s 77(c)(i); Mr Keehn had been given an opportunity to respond to the allegations made concerning his conduct 77(c)(ii). [64] The application is dismissed. [65] Order accordingly. -- 9 of 9 --