Cochrane v Banana Shire Council [2014] QIRC 19

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cochrane v Banana Shire Council [2014] QIRC 019 PARTIES: Cochrane, Kathryn (Applicant) v Banana Shire Council (Respondent) CASE NO: TD/2012/90 PROCEEDING: Application for Reinstatement DELIVERED ON: 30 January 2014 HEARING DATES: 5, 6 and 7 November 2013 MEMBER: Industrial Commissioner Fisher ORDER: The application is refused. CATCHWORDS: INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment - Dismissal - Reinstatement - Evidence - Allegations unsatisfactory performance - Applicant not warned - Given opportunity to respond to allegations - External investigation - Incident investigation and report - Integrity concern - Absence of evacuation drills and evacuation procedures - Fire safety - Workshop issue - Obligations on small contractors - Show cause letter - Statutory elements satisfied - Dismissal not harsh, unjust or unreasonable - Application refused. CASES: Industrial Relations Act 1999, s 77, s 77(a), s 77(b), s 77(c)(ii), s 77(d) Workplace Health and Safety Act 2011 Local Government Act 2009, s 4(2)(e), s 13(2)(h) Building Fire Safety Regulation 2008, s 34(1) APPEARANCES: Mr A Grant, Grant & Simpson Lawyers, for the Applicant. -- 1 of 8 -- 2 Mr K Watson, Counsel instructed by the Local Government Association of Queensland, for the Respondent. [1] Kathryn Cochrane seeks to be reinstated to her former position of Senior Workplace Health and Safety Advisor with the Banana Shire Council (the Council). Ms Cochrane commenced employment as a Workplace Health and Safety Advisor with the Council in April 2009 and in August 2010 was appointed as the Senior Workplace Health and Safety Advisor following her successful application for the position. Ms Cochrane was dismissed from her position on 4 October 2012 for reasons relating to performance. [2] Section 77 of the Industrial Relations Act 1999 (the Act) sets out matters that the Queensland Industrial Relations Commission (the Commission) must consider in deciding whether a dismissal was harsh, unjust or unreasonable. In respect of the matters set out therein the Commission is satisfied that Ms Cochrane was notified of the reason for her dismissal: s 77(a). The Chief Executive Officer provided a letter to Ms Cochrane dated 4 October 2012 advising that she had breached her "obligations as a Local Government employee, specifically Section (4)(2)(e) and Section (13)(2)(b)(c) and (d) of the Local Government Act 2009 QLD and have not met the requirements of your position description, specifically: 'To develop, implement, coordinate and promote effective Workplace Health and Safety systems and Return to Work programs in accordance with legislative requirements and Council Policies'." [3] The Commission is also satisfied that the dismissal related to Ms Cochrane's performance in her position as Senior Workplace Health and Safety Advisor: s 77(b). Although Ms Cochrane had not been warned about her performance, she had the opportunity to respond to allegations about her performance: s 77(c)(ii). In this regard, soon after her appointment as the Human Resources Manager for the Council on 23 January 2012, Ms Jennifer Goulding, became concerned about whether Ms Cochrane could meet certain requirements of her position. (Ms Cochrane reported to Ms Goulding.) In particular, Ms Goulding was concerned that Ms Cochrane had advised that she did not deal with Rectification Action Plans, which documented the follow up actions required from incidents or hazard identification, or with workers ' compensation liabilities. Further, Ms Goulding was concerned that actions required from a pre-audit report of the Council's safety systems conducted by SAI Global in March 2011 had not been implemented. One issue arising from the report which required attention was incident investigation and reporting. Another issue of particular concern was the identification of the absence of evacuation drills, evacuation procedure documentation and other fire safety issues. Although Ms Cochrane had conducted a self-audit of the Council's safety systems in or around January 2012, the same deficiencies in fire safety were identified as were found by SAI Global nearly 12 months earlier. [4] Over the months to March 2012, Ms Goulding raised her concerns about these matters, with particular focus on fire safety, with Ms Cochrane. Ultimately, Ms Goulding concluded that Ms Cochrane did not have the requisite skills to undertake the work required. This was particularly concerning given that another audit by SAI Global was planned for July 2012 and the Council needed to be compliant in order to continue to honour and tender for new contracts with the -- 2 of 8 -- 3 Department of Main Roads. For these reasons, Ms Goulding sought and gained approval for the appointment of an external consultant to manage the various issues arising from the SAI Global pre-audit report. To this end, in May 2012 Chandra Roulston was appointed as Principal Officer, Projects and Performance and became Ms Cochrane's supervisor. [5] Not long after her appointment, Ms Roulston identified concerns about Ms Cochrane's performance which she raised with Ms Goulding. These concerns were escalated to the Chief Executive Officer who decided to address them by way of a show cause process rather than an annual performance review. As a result Ms Cochrane was provided with a show cause letter dated 16 July 2012. Attached to the show cause letter was a detailed report prepared by Ms Roulston identifying where non-performance on the part of Ms Cochrane had led to the Council being in breach of the Building Fire Safety Regulation 2008 (the Regulations) and the Workplace Health and Safety Act 2011. [6] Ms Cochrane responded to the show cause letter and report with a detailed submission dated 23 July 2012. Ms Cochrane was also provided with the opportunity to present her response at a meeting where her union representative participated by teleconference. The Chief Executive officer was then provided with a report of the outcome. He decided to engage an external consultant to investigate the more serious allegations. The Council appointed the Local Government Association of Queensland to investigate which in turn engaged Gabrielle Walsh, of OHS Consultancy Service Pty Ltd, for that purpose. During Ms Walsh's investigation another issue came to light which concerned Ms Cochrane's investigation and reporting of a motor vehicle accident. Ms Walsh prepared a report of her investigation dated 4 September 2012. As a consequence of that report a further show cause letter dated 6 September 2012 was presented to Ms Cochrane. In that letter Ms Cochrane was alleged to have breached s 4(2)(e) and s 13(2)(h) of the Local Government Act 2009 in relation to her completion of documentation concerning the accident investigation. She responded to that on 19 September 2012 denying the allegations and outlining her actions and reasons therefor. [7] Four major concerns about Ms Cochrane's performance arose during the hearing. These were: (i) fire safety; (ii) integrity concern - Bradshaw accident investigation; (iii) Taroom workshop; and (iv) workplace health and safety obligations on small contractors. Fire Safety [8] At a supervisor's request, Ms Cochrane applied, and was granted approval, to attend an external three day fire safety adviser training course in February 2010. In her application, Ms Cochrane stated that the reason for the training was that it was a legislative requirement. The Regulations had been amended to include provisions concerning the appointment of fire safety advisers for high occupancy buildings. Section 34(1) provides that the person appointed as a fire safety adviser must hold a current building fire safety qualification. An extract from the Queensland Fire and Rescue Service Participant Training Manual, attached to Ms Cochrane's response to -- 3 of 8 -- 4 the Council's show cause letter, sets out eight units of national competency relating to emergency management that are required to achieve certification as a fire safety adviser. The manual also states that "[t]he role of the Fire Safety Adviser is the provision of advice to the occupier and the occupants of buildings on what is required to achieve fire safety." [9] Ms Cochrane received a Statement of Attainment from the Queensland Fire and Rescue Service in the eight competencies. In evidence, Ms Cochrane said that she performed the role of Fire Safety Adviser despite not being appointed to, or resourced for, it. The Council contends that a formal appointment was not required for appointment as a Fire Safety Adviser under the Regulations. The Commission expresses no view about the correctness of this proposition, however, notes that it is usual practice for appointments to be formalised in a government organisation and would be an appropriate step given the important functions to be undertaken by this role. I further note that in her report Ms Walsh recommends that in order to avoid ambiguity, the Fire Safety Adviser be formally appointed via an instrument in writing. The Commission also considers that the responsibility for informing the Chief Executive Officer of the requirement of the Regulations for an occupier of a high occupancy building to appoint a fire safety adviser would have fallen on Ms Cochrane as the person undertaking relevant training and as Senior Workplace Health and Safety Adviser in the Council. [10] The Commission accepts that fire specific duties were not listed in Ms Cochrane's position description, however, her duties included monitoring the Council compliance with workplace health and safety requirements, dissemination of emergency procedures and advising on appropriate controls in relation to risk assessments. In my view, these duties encompassed the responsibilities of fire safety adviser especially when Ms Cochrane had been trained at the Council expense to specifically undertake the role. [11] Under the Regulations, the occupant of a building must ensure certain activities are undertaken, including, fire evacuation plans being in place, annual fire drills, and training in fire equipment. The Council had established an Emergency Planning Committee (EPC) which met a few times a year. Ms Cochrane was not a member of this committee but provided advice to it. [12] In March 2011, the external audit report from SAI Global identified that emergency drills needed to be undertaken. Those drills were not done. Ms Cochrane said that drills were the last step in emergency preparedness. Fire wardens had to be in place and evacuation plans needed to be drawn up before drills could be undertaken. Ms Cochrane said that she had taken steps to have wardens nominated and for the diagrams of evacuation procedures to be produced by another area of the Council but she did not have direct responsibility for the timeliness of these matters. She attributed responsibility to the EPC for ensuring evacuation plans were prepared and fire drills occurred. [13] The Commission does not accept Ms Cochrane's evidence on these points. According to the Queensland Fire and Rescue Service Participant Training Manual, it is the Fire Safety Adviser who has responsibility for these matters and provides unequivocal advice to the EPC of the requirements of the Regulations and what the Council must do to achieve fire safety. Ms Cochrane said she had provided advice -- 4 of 8 -- 5 to HR and other senior managers of emergency preparedness but I do not accept, based on her evidence, that she provided specific advice about the action the Council needed to take to ensure compliance with the Regulations. Moreover, in the meetings held with Ms Goulding from January 2012 it would have been apparent to Ms Cochrane that these matters were her responsibility. [14] According to the evidence of Ms Goulding, she raised either at the meeting with Ms Cochrane on 27 January 2012 or 1 February 2012 the priority to address the Council's compliance with legislative requirements with respect to fire safety. These matters were further emphasised in later meetings by Ms Goulding, however, Ms Cochrane's progress was slow. During February and March 2012, Ms Goulding and Ms Cochrane discussed other issues including the development of evacuation procedures and diagrams and the delivery of evacuation training. [15] A fire broke out in the Council's administration building in May 2012. According to the evidence of David Steeger, who was the Council's Deputy Fire Warden for this building, the evacuation was done but not in an orderly way as there was no evacuation plan or procedure in place and staff had not undertaken fire drills. [16] In cross-examination Ms Goulding said that after the fire, Ms Cochrane failed to undertake the necessary follow up procedures such as debriefing the fire wardens, providing a report and developing a rectification action plan. [17] The tardiness in the development of the evacuation procedures, diagrams and the delivery of fire drills and training in emergency equipment meant that the Council staff were unprepared for the emergency when it occurred. These matters all fell within the responsibility of Ms Cochrane and her performance in respect of fire safety was found wanting. Integrity concern - Bradshaw accident investigation [18] Mr Bradshaw, an employee of the Council, was involved in a serious accident on 29 June 2011. Ms Cochrane was called to the site to commence an incident investigation. Several complaints were levelled by the Council against Ms Cochrane concerning her management of the paperwork and as a result the Council was concerned about her competence and integrity. [19] The Commission accepts that the process used in the Council at the time for handling incident reports was problematic. Mr Rutledge, the HR Manager prior to Ms Goulding, had identified in his performance review of Ms Cochrane in September 2011 that the forms needed reformatting and "go missing during their rounds of obtaining 7 signatures and they take months sometimes to track down." The problems existed at the time of the accident in June 2011, although they were expected to be rectified by the implementation of software, a process that was being managed by Ms Cochrane. [20] Despite this acknowledgement, it is evident that there were deficiencies with the investigation undertaken by Ms Cochrane. The actions of Ms Cochrane also need to be viewed in the context of the SAI Global pre-audit report of 1 March 2011 which stated that "incident investigations needed improvement to ensure that root causes are indentified and preventative measures put in place." The evidence shows that by mid-April 2012 the outcomes of the investigation were unknown as the report had -- 5 of 8 -- 6 not been finalised. This meant that any remedial measures designed to prevent future occurrences had not been implemented. [21] Although I have not descended into the detail of Ms Cochrane's responses to the allegations, I have considered her explanations provided in response to the show cause and her evidence to the Commission. Even acknowledging the difficulties with the process and the delays caused by Mr Bradshaw's lengthy absence from the Council following his accident, the Commission considers that Ms Cochrane was dilatory with respect to completing the report and her explanations for some of the deficiencies were less than satisfactory. In her evidence, Ms Cochrane recognised that the incident report had not been completed to a satisfactory state but refused to take responsibility for that, claiming that it had been done as "per her processes and instructions." [22] In my view, Ms Cochrane failed to understand the significance of timely and accurate completion of the incident report form. The police report had not been obtained. A statement from the other party was also not obtained nor a note taken of the conversation Ms Cochrane had with him on the day of the accident. These omissions, together with the tardy completion of the accident investigation and the unsatisfactory explanations of the management of the paperwork, leads me to conclude the Council's concerns about Ms Cochrane's performance with respect to this matter had substance. Taroom Workshop [23] In October 2010, Robertson's Lifting and Rigging provided a report, following a request by Ms Cochrane, on the inspection and tagging of the Council's lifting and rigging equipment. A further inspection was undertaken and a report provided in February 2012. Attached to the second report was a list of defective equipment which Robertson's recommended be immediately withdrawn from service. Other equipment could not be located or was unavailable. The Council's criticism of Ms Cochrane is that despite being provided with the report she did not act to remove the defective equipment from service or notify senior managers of the issue. It was not until mid-May when Ms Goulding visited the Taroom workshop for an unrelated purpose that the defective and untagged equipment was observed. That equipment was then appropriately tagged before closing the Taroom workshop for a few days to allow for its repair. The closure of the workshop attracted criticism in the local newspaper. [24] Ms Cochrane initially denied knowledge of the 2012 report but later said that she did not believe any one was working at the Taroom workshop. The evidence from Greg Curtis, Manager of Fleet Services, was that the employee who was responsible for the workshop had been on long term sick leave but the Council sent mechanics from Biloela to do the servicing and also had made arrangements with the proprietor of the business next door to do work for the Council using the Taroom workshop. Mr Curtis' evidence establishes that the workshop was available for use before being closed to rectify equipment. [25] The evidence is also clear that Ms Cochrane did not have an appropriate rectification strategy in place. The untagged equipment together with the delay in rectifying the defective equipment meant that the Council, employees and perhaps members of the community were at risk during this period. -- 6 of 8 -- 7 Workplace Health and Safety Obligations on Small Contractors [26] The Council was concerned about Ms Cochrane's knowledge about the workplace health and safety obligations for small suppliers to the Council. In essence the concern was that the Council's documentation for contractors imposed more onerous workplace health and safety obligations than other Councils. In this regard a complaint had been received by the Council from the proprietor of a small business who had for many years supplied equipment and services to the Council. He complained about the excessive amount of paperwork he was required to complete to enable his business to be placed on the register of pre-Qualified Suppliers for the Hire of Plant. Part of the complaint concerned the lack of assistance and response he had received from the Councils' workplace health and safety section. [27] Ms Walsh's investigation encompassed these matters and she made certain findings. [28] Ms Cochrane did not provide evidence to the Commission on this issue however some of the information she supplied to Ms Walsh during the investigation is available. From that the Commission understands that Ms Cochrane has a different view about the interpretation of the relevant provisions of the Workplace Health and Safety Act 2011. [29] The Commission does not find it necessary to determine this matter given the findings on the more substantial matters. Conclusion [30] Section 77(d) of the Act allows the Commission to consider any other relevant matter. The Council raised the matter of Ms Cochrane deleting official emails and not recording them on the Council's electronic record management system. Ms Cochrane did not respond to this allegation in her evidence to the Commission despite having the opportunity to supply a statement in response to those provided by the Council and being asked by the Commission in the hearing whether she wished to respond to the Council's filed Statements. This is a serious omission, and given the absence of her response, the Commission can only conclude that the allegation is not refuted. [31] As part of her defence to the allegations of unsatisfactory performance, Ms Cochrane contended that she was under resourced and had insufficient administrative support to allow her to properly and efficiently undertake her duties. These contentions are refuted by Ms Goulding who had requested her direct reports to keep a daily activity log so that she could better understand how each of their time was spent. She had also undertaken a review of the staffing of the workplace health and safety functions of similar sized Councils. From this information Ms Goulding concluded that Ms Cochrane's arguments could not be sustained. [32] The Commission accepts that Ms Cochrane's position was busy with a number of competing demands made upon her time. However, the evidence provided shows that Ms Cochrane did not understand some key requirements of her role and was unable to deliver outcomes in a timely way on the safety matters which had the potential to have significant ramifications for the Council. These included compliance with the Regulations; implementation of the SAI Global pre-audit report and the second Robertson's report. -- 7 of 8 -- 8 [33] It was contended for Ms Cochrane that she was made a scapegoat by the Council for not having the appropriate systems in place at the time of the fire. Although this was denied by Ms Goulding it is reasonably clear that the deficiencies exposed by the fire prompted the Council to move to a show cause process rather than a diminished performance process. Had the fire not occurred then the evidence from Ms Goulding is that the Council was moving towards a diminished performance process because Ms Cochrane's performance was not improving despite regular meetings where concerns were raised. [34] The evidence from the witnesses called by the Council, including from Mr Rutledge, Ms Cochrane's former manager, suggests that Ms Cochrane had not been performing at a satisfactory level for some time. Ms Cochrane contends that this is inconsistent with the last annual performance review conducted by Mr Rutledge which showed that while some areas needed improvement, in a number of areas she was exceeding expectations. Any criticisms also failed to take into account the geographical area covered by Ms Cochrane, the location of a Workplace Health and Safety Adviser for whom Ms Cochrane was responsible being located in another town and her workload. [35] The Commission accepts that were an assessment of Ms Cochrane's performance to be based solely on the performance review conducted by Mr Rutledge, she may well feel aggrieved by the Council not providing sufficient indication that her performance was not meeting expectations. In particular, Ms Cochrane did not receive clear advice or warning from the Council that her performance was unsatisfactory. However, the evidence before the Commission from Mr Rutledge is that he worked closely with Ms Cochrane to prioritise her work and to develop appropriate systems which were monitored to ensure key performance indicators were met. He coached and provided guidance to Ms Cochrane in an endeavour to achieve these outcomes but did not embark on a formal performance management process. Ms Goulding too regularly met with and provided advice to Ms Cochrane on priority issues to be addressed over the first few months of 2012. Despite these efforts and, except for the fire, a performance management process would have been implemented. [36] In some circumstances an employer's failure to implement remedial measures might lead the Commission to consider that a dismissal was unfair. However, in the circumstances of this case the Commission is unable to come to that conclusion. Ms Cochrane had undertaken significant training with the Council funding including a Diploma of Occupational Health and Safety, a Diploma of Project Management and various short courses including fire safety and leadership. She had been provided with coaching and clear instructions about the key requirements of her position. Despite all of this Ms Cochrane was unable to perform her duties and responsibilities satisfactorily in the senior role leading the Council, employees and individual officers of the Council to be exposed to significant risk. [37] All of the statutory elements have been satisfied. In addition, in considering the evidence and submissions, I have determined that the dismissal was not harsh, unjust or unreasonable. [38] The application is refused. -- 8 of 8 --