Clarke v Cairns Regional Council [2010] QIRC 48

CITATION: Peter Raymond Clarke AND Cairns Regional Council (TD/2009/212) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 74 - application for reinstatement Peter Raymond Clarke AND Cairns Regional Council (TD/2009/212) COMMISSIONER FISHER 5 August 2010 Application for Reinstatement - Dismissal - Extension of time granted - Evidence - Grievance - Stress leave - Workers' compensation claim rejected - Contact with employer - Allegations not substantiated - Dismissal unfair - Reinstatement or re-employment impracticable - Compensation - Unused sick leave to be paid - Entitlement to proportionate payment for long service leave. DECISION [1] Peter Clarke has applied for reinstatement to his former position of Laboratory Sampler with the Cairns Regional Council (the Council). Mr Clarke was employed by the Council from 16 July 2001 until his dismissal on 24 July 2009. [2] This application has taken some time to be heard for two reasons. Firstly, Mr Clarke has suffered an extended period of ill health and secondly, he originally filed his application in the federal jurisdiction. The Council did not raise any issue with the application being filed beyond the 21 day time period allowed by s. 74(2)(a) of the Industrial Relations Act 1999 (the Act). In the circumstances the Commission exercises its discretion pursuant to s. 74(2)(b) and grants the extension of time. Evidence [3] Mr Clarke gave evidence in support of his application. [4] For the Respondent, the following witnesses gave evidence: Mark Wuth, Laboratory Manager, Waste and Water Department, Cairns Regional Council; and Michelle Chapman, Rehabilitation Return to Work Coordinator, Cairns Regional Council. The Case [5] The history of the matter is as follows. In or about February 2009, another employee of Council made a complaint against Mr Clarke. The complaint was investigated and found to have been substantiated. On 20 March 2009 Mr Clarke was issued with a disciplinary letter. On 21 March 2009 Mr Clarke submitted a grievance listing five complaints. Shortly after that time Mr Clarke went on stress leave and submitted a workers' compensation claim. He was, however, able to work on a suitable duties program and worked for three days per week predominantly out of the laboratory. [6] Mr Wuth, Mr Clarke's Manager, spoke to Mr Clarke and other employees concerning several minor incidents involving Mr Clarke when he attended the laboratory during the suitable duties program. [7] Following a series of emails sent by Mr Clarke to Council management he was stood down with pay by the Council. Mr Clarke was notified of that decision by letter dated 25 May 2009 from the Manager, Human Resources, Jo Ward. The stand down was to remain until the outcome of the workers' compensation claim had been determined by the insurer, LGW. Ms Ward advised that once that was known then any further action would be determined. Mr Clarke was further advised that his "ongoing discontent in not accepting the grievance outcome appropriately and your perceived lack of respect for work colleagues and management is considered a serious breach of Council's Code of Conduct". Ms Ward said: "I further expect that Council officers and managers will not to (sic) receive any further contact from you in relation to this matter.". [8] Mr Clarke took this admonition literally. He did not contact Council and provided medical certificates to Ms Chapman who was the contact person for his workers' compensation claim. [9] On 22 June 2009 Ms Ward wrote to Mr Clarke advising that "being stood down from your duties does not preclude you from maintaining communications with your employer. As you were advised, you were to be -- 1 of 5 -- 2 available to be notified by Council". Regrettably, this letter was sent to the wrong address and was not received by Mr Clarke until 2 July 2009. [10] A letter dated 30 June 2009 was then sent to Mr Clarke from Ms Ward in very similar terms to the letter of 22 June 2009. Ms Ward also advised: "Peter, upon being advised of the outcome to your LGW claim, you are advised to make immediate contact with Council to arrange for your return to the workplace. You have indicated to Ms Perry that your illness continues. As such, if you are unable to return to work 'fit for duty' you will need to provide Council with medical certification validating your continuing absence from work due to illness. Please be advised that you must maintain communications with Council. Should you fail to do so Council may consider your employment to be abandoned.". [11] Mr Clarke contemporaneously noted on the letter that he had received it on 1 July 2009. He also noted that he had received a detailed telephone call from Ms Chapman and Cindy Perry, from Human Resources, on 30 June 2009 and these were the first contacts he had received from Council since Monday 25 May 2009. He also noted that Ms Chapman called into his home to collect the last and current medical certificates at 8.30 a.m. on Thursday 2 July 2009. The most recent medical certificate covered the period 24 June 2009 until 14 August 2009. Further, Mr Clarke recorded that Ms Chapman told him that he did not need to contact Council until August. In her evidence Ms Chapman denied providing such advice. [12] It appears that Mr Clarke's claim for workers' compensation was rejected on or about 10 July 2009. Following this Mr Wuth attempted to contact Mr Clarke to arrange his return to work. [13] Ms Ward again wrote to Mr Clarke on 14 July 2009 reiterating her earlier advice to him to maintain communications with Council during the stand down period and her advice of 30 June 2009 requesting he make immediate contact with Council upon receiving advice of the outcome of the workers' compensation claim so that arrangements could be made for his return to the workplace. Ms Ward went on to indicate that Council "required" him to contact Council immediately so that such arrangements could be made or alternatively to provide medical certification validating his continuing absence from work due to illness. Ms Ward informed him that: "Should you fail to make contact, Council may consider your employment to be abandoned, and this will take effect 24 July 2009.". [14] Mr Clarke agreed in cross-examination that Mr Booker, from Human Resources, had telephoned him on 21 July 2009. Mr Clarke indicated that he was unable to speak to Mr Booker at that time but that a representative would be in contact. That did not eventuate as the legal firm which he had consulted did not take his case. Mr Clarke confirmed that Mr Booker told him that his workers' compensation claim had been rejected and that he needed to contact the Council to extend his sick leave or arrange his return to work. [15] Mr Clarke believed however that at all times he had provided medical certificates to the Council covering his periods of absence. Moreover, he believed that his contact with Ms Chapman and the Council's Senior Workplace Health and Safety Officer, Jim Deguara, satisfied Council's requirements for contact. He was of the view that by this Council were informed of his situation. It was his evidence that during the period of stand down he had contacted Council 11 times. [16] Ms Chapman agreed that Mr Clarke had provided medical certificates to her while his workers' compensation claim was under consideration. However, once that was rejected she advised him that he would need to submit the certificates to human resources. This was because after the claim was rejected Ms Chapman no longer acted on his behalf as the rehabilitation co-ordinator. [17] On 24 July 2009 Mr Clarke contacted Ms Perry, the person who was nominated as the contact officer on the letter dated 14 July 2009. Ms Perry was not available but Mr Clarke was reasonably confident that he left a message detailing who he was, his issues and that he was contacting Council. Mr Clarke did not receive a return telephone call. [18] By letter dated 24 July 2009 the Acting Chief Executive Officer wrote to Mr Clarke noting his telephone message left at 1.28 p.m. on 24 July 2009. The letter said that the telephone message advising he had made contact was not sufficient in light of Council's requirement that the contact be for the purpose of making arrangements for his return to the workplace. The letter went on to advise that his employment contract with Council had been terminated effective, close of business 24 July 2009. The reason given for the termination of the contract was Mr Clarke's "constant refusal to communicate your intentions in relation to your contract of employment". Because of this Council considered Mr Clarke had abandoned his employment. -- 2 of 5 -- 3 [19] On the morning of 28 July 2009 Mr Clarke attended his General Practitioner and received a medical certificate stating that he was totally unfit for work from 24 July 2009 until 7 September 2009. Mr Clarke posted the medical certificate to Council on his way home from the doctor. When he arrived home he received advice of registered mail awaiting him and on collection found the Council's letter of 24 July 2009 terminating his employment. Conclusion [20] Pursuant to s. 77 of the Act the Commission is required to consider a number of matters in deciding whether a dismissal was harsh, unjust or unreasonable. The first three matters are: (a) whether the employee was notified of the reason for the dismissal: as noted above the letter of termination discloses that the reason was abandonment of employment; (b) whether the dismissal related to the operational requirements of the business or the employee's conduct, capacity or performance: although the Council did not specifically argue its case in relation to s. 77 of the Act, it is assumed that the dismissal related to Mr Clarke's conduct in not contacting the Council to arrange a return to work or to take leave; and (c) whether the employee had been warned about the conduct: the Commission accepts that Mr Clarke was advised in correspondence from the Council and in the telephone call from Mr Booker of the consequences of his failure to contact Council. [21] Finally, the Commission must consider any other relevant matter. I consider the following to be relevant matters. [22] An explanation for Mr Clarke's behaviour lies in the fact that in the lead up to and during his stand down from the Council and for a period after his termination, Mr Clarke was ill. He has been diagnosed with a mental illness which is now being medicated. He is now stabilised and has recently been able to commence work training. However, from February/March 2009, after the incident with the other employee which resulted in the grievance against Mr Clarke, Mr Clarke's behaviour changed. This was confirmed by Mr Wuth who agreed that Mr Clarke became angry and distressed in the workplace around this time. Ms Chapman also commented that in her initial dealings with Mr Clarke he was upset but had periods of clarity. However, as time progressed, he sometimes became very erratic in his thought processes and behaviour. Mr Clarke described the effect of his illness and the stand down as hibernation in that he remained in his flat for extended periods, did not open mail or answer telephone calls. His memory of that period is quite impaired although the notations he made on the letters, when opened, help to overcome some of his hazy recall. [23] The Council only provided limited evidence in support of its case and failed to call a number of witnesses and provide supporting documentation which would have verified the allegations made against Mr Clarke or countered his evidence. Although extracts from pieces of correspondence have been shown above, no one from the human resources section of Council gave evidence. The Commission understands that Ms Ward is no longer employed by the Council but it is apparent from the evidence that she was not the only officer from that section with knowledge or involvement in the matter. I do not draw an adverse inference against the Council for these omissions but note that the Council's case has been weakened because of them. In particular I note the following has not been substantiated by Council: (i) the allegation contained in the letter of 25 May 2009 that Mr Clarke made inappropriate comments, including the possibility of harming his co-workers; (ii) the allegation contained in the letter of 24 July 2009 that Mr Clarke left a simple telephone message stating he had made contact with Council; and (iii) the allegation made in the letter of 24 July 2009 that Mr Clarke had constantly refused to communicate his intentions to Council. [24] In addition I note the content of the emails sent by Mr Clarke to Council management which precipitated his stand down was not disclosed and that the Council did not call evidence contradicting Mr Clarke's claims that he had contacted Council at least 11 times since being advised to do so in Ms Ward's correspondence. [25] I accept that Council was keen to contact Mr Clarke after his workers' compensation claim had been determined by the insurer. Each of the medical certificates Mr Clarke provided during the period of his stand down, including the one of 24 June 2009, recorded that he was fit for suitable duties, that is, restricted return to work. [26] On the evidence before me I am satisfied that Mr Clarke made sufficient contact with Council on 24 July 2009. It may have been at the death and not have been as fulsome as required by Council but nonetheless he contacted Council prior to close of business on 24 July 2009. On Mr Clarke's unchallenged evidence he left a telephone message for Ms Perry, the person nominated on Council's correspondence of 14 July 2009 as the person to whom -- 3 of 5 -- 4 enquiries should be directed. Council complained that Mr Clarke had "made no attempt to speak to other officers you had dealt with in relation to this issue in the Human Resources Branch or other management staff in the Water & Waste Department". Although I accept in the circumstances that this would have been prudent the bare fact is that Mr Clarke made contact with Council and left a message for the nominated employee. In my view he should not be criticised for failing to go beyond the contact he made and it is not reasonable to expect that he search for another employee beyond the nominated contact on the last letter he had received from Council. He could have reasonably expected to have been contacted by Council prior to close of business on 24 July 2009 if it was concerned that his contact was insufficient. [27] I reject the allegation contained in the letter of 24 July 2009 that Mr Clarke constantly refused to communicate his intentions to Council. He had continually provided medical certificates to Council and had been in regular contact with Ms Chapman. I accept that once his workers' compensation claim had been determined Ms Chapman's responsibility ceased in respect of Mr Clarke and that she advised him to contact human resources. However, I am not satisfied that Mr Clarke understood the delineation in her functions especially given her job title would suggest she had broader responsibilities than workers' compensation matters. In addition, Mr Clarke (mis)understood her to say that he was not required to contact Council until the latest medical certificate which he provided to her had expired. I accept Mr Clarke believed that this medical certificate would be conveyed to human resources. [28] I am also satisfied that Council was aware that Mr Clarke was suffering a medical condition that was impairing his functioning. That was evident to Mr Wuth and would have been evident in Mr Clarke's conduct. Mr Wuth had also been made aware by Mr Clarke via email that he was on medication. No allowance seems to have been made by the Council for his health status. Mr Clarke was a relatively longstanding employee and should have been given greater consideration for his condition. [29] In the circumstances the Commission does not accept that Mr Clarke abandoned his employment. For the foregoing reasons, the Commission determines that Mr Clarke's dismissal was harsh, unjust or unreasonable. Remedy [30] Mr Clarke seeks reinstatement to his former position at the Council. [31] The Council opposes Mr Clarke's reinstatement and relies on the evidence of Mr Wuth, as outlined in his evidence above, concerning the conduct of Mr Clarke in the workplace prior to his stand down and since his dismissal. In relation to this post-dismissal conduct Mr Wuth gave evidence that Mr Clarke had: "sent numerous inappropriate emails to me, other members of staff, numerous other members of Council, politicians and the like.* Peter Clarke had also threatened laboratory staff verbally, using very threatening and offensive language, and on both occasions resulted in staff having to lock themselves in the laboratory for fear of harm. On the second occasion the incident involved the smashing of several laboratory windows". [*Note: Mr Wuth was aware that other people and agencies had received the emails as they contained multiple addresses.] [32] Mr Clarke acknowledged in his evidence that he had sent a number of emails to various authorities and politicians in an attempt to have his grievances with Council resolved. He did not accept that the emails were inappropriate. [33] Mr Clarke also accepted the allegations concerning his verbal abuse and use of offensive language and that as a result of his conduct he was charged with certain offences. However, he maintained that his behaviour was out of character and submitted that he was now rational enough to understand what people had suffered. Mr Clarke submitted that as a result of now being properly medicated there would be no recurrence of that behaviour. [34] I am prepared to accept that such behaviour was likely to have occurred before Mr Clarke's medical condition had been properly diagnosed and before he had received the appropriate treatment. However, in the absence of direct medical evidence about Mr Clarke's health and in light of the concern likely to be experienced by Mr Clarke's former co-workers given his past conduct, I consider his reinstatement or re-employment to be impracticable. [35] My view about the impracticability of reinstatement is also strengthened by Mr Clarke's inability to accept that his grievances are at an end. Mr Clarke maintains that his grievances remain unresolved despite the Council having investigated them and said he would seek to reactivate them upon his reinstatement, should that be granted. It is clear that Mr Clarke is unable to accept that Council has investigated his grievances, has closed the case and has no intention of reactivating it. His grievances have not been resolved to his satisfaction, however, this does not mean that they remain on foot. -- 4 of 5 -- 5 [36] The alternative remedy is compensation. Pursuant to s. 79 of the Act, if and only if, the Commission finds reinstatement or re-employment to be impractical, compensation may be awarded. However, where the employee was engaged under an industrial instrument (an award and a certified agreement), compensation is limited to the wages the employer would have been liable to pay the employee for the six months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal. [37] Mr Clarke provided a Centrelink medical certificate issued by Dr Paul Trott, Psychiatrist, certifying that Mr Clarke was unfit for work for the period 24 July 2009 until 20 March 2010. Because of this unfitness to perform work the employer would not have been liable to pay Mr Clarke any wages, except accrued sick leave, during this period, that is, had he not been dismissed. In my view then Council's liability to pay wages is limited to an amount equivalent to Mr Clarke's accrued sick leave, if any, to a maximum amount equivalent to six months wages. [38] Clause 6.14 of the Cairns Regional Council Certified Agreement 2009 provides an entitlement to employees who have accrued more than five years service with the Council or other local governments in Queensland to be paid unused sick leave at the rate of $200.00 per week up to a maximum of $5,000.00. The Commission is unaware of whether Mr Clarke had any sick leave accrued at the time of his dismissal. Acting on the assumption that he did then Mr Clarke is to be paid the difference between $200.00 per week and his ordinary rate of pay for the amount of sick leave he had accrued at the time of his dismissal. [39] Further, because Mr Clarke was employed for more than seven years and the employer has been found to have unfairly dismissed him, then pursuant to s. 43(4)(c)(ii) of the Act, Mr Clarke is entitled to receive a proportionate payment for long service leave. [40] Accordingly, the Commission orders that within 14 days of the date of release of this decision the Cairns Regional Council lodge in the Registry and provide to Mr Clarke a document showing the calculations of the amounts in accordance with the above determinations. Mr Clarke will have seven days from the date of lodgment to advise the Registry in writing of any dispute with the calculations. The Commission will then issue an Order setting out the amount to be paid to Mr Clarke and the time frame for payment. [41] Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2010 5 and 6 July Released: 5 August 2010 Appearances: Mr P.R. Clarke on his own behalf. Mr S. Booker on behalf of Cairns Regional Council. -- 5 of 5 --