Beach v Training and Employment Recognition Council (First Respondent) & Australian Country Choice (Second Respondent) [2009] QIRC 73 (2009) 191 QGIG 94

[Extract from Queensland Government Industrial Gazette, dated 12 June, 2009, Vol. 191, No. 5, pages 94-108] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Vocational Education, Training and Employment Act 2000 - s. 230 - appeal to industrial commission against council Gavin Beach AND Training and Employment Recognition Council (First Respondent) and Australian Country Choice (Second Respondent) (AT/2008/4) COMMISSIONER FISHER 28 May 2009 Appeal against decision of Training and Employment Recognition Council - Employer cancelled training contract - Nature of appeal - Council record - Employer obligations - Training contract cancelled other than in accordance with VETE Act - Allegations of misconduct - Two instances established - Council decision to reprimand appropriate - Determined council found impracticable to resume training and to order cancellation of training contract - Appellant decided not to continue in QA back-up role essential to training - Determined does not constitute misconduct - Union membership issue - Compensation determined to be offset against amount already paid - Commission orders training contract be cancelled - Appeal dismissed as it relates to the council decision - Whether a penalty should be imposed on employer - Parties given opportunity to make written submissions. DECISION Gavin Beach has appealed against the whole of the decision of the Training and Employment Recognition Council (the Council) given on 1 December 2008 under the Vocational Education, Training and Employment Act 2000 (the VETE Act) which was to: (a) Make a decision in accordance with s. 65(4) of the VETE Act that the employer has purported to cancel the training contract other than in accordance with the provisions of that Act; and (b) Make an order under s. 65(5) of the VETE Act cancelling the training contract; and/or (c) Cancel the registration of the training contract in accordance with the provisions of s. 66(1)(c) of the VETE Act; and/or (d) Not make an order under s. 71(2)(d) of the VETE Act cancelling the training contract as requested by the employer but in lieu thereof make an order under s. 71(2)(a) reprimanding the trainee. Background Mr Beach initially worked at Australian Country Choice (ACC) whilst employed by a labour hire company, AWX. During that engagement Mr Beach expressed interest in Quality Assurance (QA) functions and underwent some on-the- job training in that area in January 2008 under the supervision of Donna Gode, Quality Supervisor. Mr Beach was offered and accepted direct full-time employment with ACC. He signed an Individual Transitional Employment Agreement (ITEA) on 14 April 2008 and commenced employment with ACC on 21 April 2008. His ITEA recorded that he was employed as a "Butcher/QA Back-Up Officer" in the Retail Ready Department. Mr Beach was subsequently engaged as a Certificate III in Food Processing trainee by ACC on 18 June 2008 under a registered training contract. On 2 October 2008 ACC terminated the employment of Mr Beach whilst he was in his six month probationary period under his ITEA. On the same day ACC applied for the cancellation of Mr Beach's training contract on the grounds of "failed probationary period". On receipt of this advice Mr Beach notified his objection to the cancellation. ACC was advised by the then Department of Education, Training and the Arts Senior Field Officer, Yvonne Schofield, that as Mr Beach was a trainee, they could not terminate his employment before the cancellation of his training contract. On 10 October 2008 ACC submitted an amended application for the cancellation of Mr Beach's training contract on the grounds of misconduct. The Department held several meetings and discussions with Mr Beach, his Union, The Australasian Meat Industry Employees' Union (the Union) and/or ACC in an attempt to resolve the matter. Although no agreement was reached ACC subsequently reinstated Mr Beach to the company payroll but refused all attempts to return him to work to complete his traineeship. On 16 October 2008 Mr Beach applied under s. 65 of the VETE Act for an order by the Council that the employer resume training him under his training contract. Both applications were investigated by Ms Schofield who subsequently issued a Show Cause Notice to all parties in accordance with s. 25 of the Vocational Education, Training and Employment Regulation 2000. Only Mr Beach responded to the Show Cause Notice. After considering his response Ms Schofield, under delegation from the Council, made the decisions set out above. Ms Schofield provided an Information Notice to all parties explaining the reasons for her decisions. Mr Beach now appeals against those decisions. -- 1 of 14 -- 2 Grounds of appeal The Application to Appeal set out the following grounds of appeal: "(a) That the Training and Employment Recognition Council had no grounds to make an order under s. 66(1)(c) of the Vocational Education, Training and Employment Act 2000; (b) That the Training and Employment Recognition Council erred in making an order under s. 66(1)(c) of the Vocational Education, Training and Employment Act 2000 by taking into account irrelevant information; (c) That the Training and Employment Recognition Council erred in making an order under s. 71(2)(a) of the Vocational Education, Training and Employment Act 2000 by taking into account irrelevant information; (d) That the Training and Employment Recognition Council failed to give sufficient weight to the Applicant's submissions in response to the 'Show Cause' notice issued by the Training and Employment Recognition Council on 7 November 2008.". Decision sought The following decisions were sought from the Commission: "(a) That the Commission overturn the decision to cancel the Applicant's training contract under s. 66(1)(c) of the Vocational Education, Training and Employment Act 2000; (b) That the Commission make a decision under s. 65(4)(a) of the Vocational Education, Training and Employment Act 2000 that the Applicant resume undertaking the training; (c) That the Commission overturn the decision to reprimand the employee under s. 71(2)(a) of the Vocational Education, Training and Employment Act 2000; (d) That the Commission make any other necessary order under the Vocational Education, Training and Employment Act 2000 to enable the Applicant to resume his training; and (e) That, if the Commission considers it would be inappropriate in the circumstances for the training to continue, that the Commission make an order for compensation under s. 237 of the Vocational Education, Training and Employment Act 2000.". Nature of the Appeal Section 232(1) of the VETE Act provides that an appeal to the Industrial Commission is by way of rehearing on the record. However, at a Directions Hearing on 5 February 2009 the Commission accepted the submissions of the Union and ACC to hear additional evidence in accordance with s. 232(2). The Council provided the Commission and the parties with a copy of the "Record" in accordance with s. 109 of the Industrial Relations (Tribunals) Rules 2000. Only Mr Beach and ACC led additional witness evidence whereas the Council relied on the Record, cross-examination of the witnesses and submissions. The Council presented its submissions on the basis of the evidence that was before it when the decisions were made and then the additional evidence that was before the Commission. In this decision consideration has been given to the whole of the evidence before the Commission which includes the Record as well as the witness evidence, submissions and exhibits. The Council submitted that after hearing the additional evidence the Commission, whilst not finding fault with the Council's original decision because of the evidence it was based upon, may be persuaded to make a different decision to that made by the Council. Did ACC purport to cancel the training contract other than in accordance with the provisions of the VETE Act? ACC terminated Mr Beach's employment on 2 October 2008. Mr Beach was paid one day's notice under the terms of his ITEA. Later the same day ACC applied to cancel the training contract on the grounds of "failed probationary period". The ITEA entered into between ACC and Mr Beach provided a six month probationary period, however the training contract provided a probationary period of only one month. This latter time period had elapsed by the time ACC applied to cancel the training contract for the reason of failed probationary period. On being advised of this ACC amended its application by seeking to cancel the training contract on the grounds of misconduct. Despite the Application to Appeal stating that Mr Beach was seeking to appeal the whole of the decision, the grounds of appeal and the submissions of the Union make it clear that he does not seek to appeal that part of the decision where it was found that ACC purported to cancel the training contract other than in accordance with the VETE Act. The Union submitted the Commission should uphold this decision. In its opening submissions the Union said that ACC can only purport to cancel the training contract for the following reasons:  by agreement between both parties: s. 61;  on stated grounds: s. 63; or -- 2 of 14 -- 3  for serious misconduct: s. 64. The Union submitted that none of these reasons were advanced by ACC initially as grounds for cancelling the training contract. Further, even when the application seeking to cancel the training contract was amended to show misconduct the reasons given did not amount to serious misconduct. The Council contended that ACC had purported to cancel the training contract in a way other than in accordance with the VETE Act because it had terminated Mr Beach's employment before the training contract was cancelled. The Council provided detailed submissions about the legislative basis for this position. These submissions are found at exhibit 15 paragraphs 91 to 112. The Commission accepts these submissions as accurately setting out the law. A summary of these submissions is as follows. An employment contract underpins a training contract, however, both types of contract can specify a probationary period. Those probationary periods need not coincide. The 30 day probationary period for this traineeship expired on 17 July 2008, several months before Mr Beach's employment was terminated. At the time of his termination the probationary period under the employment contract remained operative. Section 51 of the VETE Act sets out the provisions for the ending of a traineeship in the probationary period and s. 138A of the Industrial Relations Act 1999 (IR Act) sets out the provisions for the termination of employment of a trainee during the probationary period, however, neither of these provisions is relevant as the probationary period for the traineeship ceased on 17 July 2008. Once the probationary period established in accordance with s. 50 of the VETE Act is completed, the only provision for termination of the employment of a trainee is s. 139(2) of the IR Act. That section provides that a trainee's employment with the employer cannot be terminated unless the apprenticeship or traineeship is completed or is cancelled under the VETE Act. Here, the training contract was not cancelled in accordance with the VETE Act until the Council did so on 1 December 2008. Mr Beach was employed under a federal ITEA. The employer believed this prevailed over the training contract by virtue of s. 17 of the Workplace Relations Act 1996 (WRA). However, in December 2006 the Workplace Relations Regulations 2006 (Regulations) were amended by inserting a new provision which made clear that a law of a State or Territory was not prescribed to the extent to which it deals with, or allows arrangements to be made for, the termination of a training contract or a training agreement by a State or Territory training authority and it provides a remedy that arises from that termination of the training contract or training agreement otherwise than by the State or Territory training authority: Regulation 2.1.5(9)(b). A State or Territory training authority is defined in s. 4 of the WRA to mean a body authorised by a law or award of a State or Territory for the purpose of overseeing arrangements for the training of employees. The Council is a "State or Territory training authority" as it is established under s. 167 of the VETE Act and s. 168 establishes its functions including to register and regulate training organisations and training contracts, to declare apprenticeships or traineeships and to decide probationary periods and nominal terms for apprenticeships and traineeships. The effect of Regulation 2.1.5(9)(b)(i) is that the VETE Act provides how a training contract may be terminated (refer ss. 61, 63, 64, 65, 71, 73, 73A, and 74 of the VETE Act). By virtue of Regulation 2.1.5(9)(b)(ii) and s. 65 of the VETE Act, ACC by its actions in terminating Mr Beach's employment on 2 October 2008 purported to cancel (or terminate) his training contract in a manner that was not in accordance with the VETE Act. Section 139 of the IR Act creates an offence and provides for the imposition of a penalty. Section 391(2) of the IRA requires the employer to pay wages until the training contract is cancelled in accordance with the VETE Act. The effect of Regulation 2.1.5(9)(b) is that the termination of employment during probation provisions of the ITEA are subject to the Queensland law that prescribes the way in which employment of trainees can be terminated. Section 139 of the IR Act is that Queensland law and it provides that the employment of the trainee cannot be terminated before the training contract is cancelled under the VETE Act. Although s. 16 of the WRA excludes the application of the IRA, Regulation 2.1.2(7) provides as follows: "(7) Subsection 16 (1) does not apply to a State or Territory industrial law to the extent that the law provides a remedy that arises from the suspension, cancellation or termination of a training contract or agreement in circumstances that are contrary to a law of a State or Territory relating to training arrangements. Note Training arrangement is defined in section 4 of the Act.". Mr Beach's probationary period under his traineeship expired on 17 July 2008 and he was therefore under a registered training contract from 18 July 2008. The effect of the Regulations outlined above means that ACC could not rely on the ITEA to terminate Mr Beach's employment under the probationary provision of that federal agreement. After advice from Ms Schofield ACC reinstated Mr Beach to the payroll but refused to allow him to return to his work and training. The Council submitted that this action only resolved half of the matter. Although ACC's reinstatement of Mr Beach to the company's payroll may have complied with ss. 139(2) and 391(2) of the IR Act it refused to allow Mr -- 3 of 14 -- 4 Beach to return to work and provide him with the training required under the training contract. The employer's obligations under the training contract are: "I agree that I will: (a) Employ and train the apprentice/trainee as agreed in our Training Plan ………………………..; (b) Provide the appropriate facilities and experienced people to facilitate the training and supervise the apprentice/trainee at work, in accordance with the training plan; (c) Make sure the apprentice/trainee receives on-the-job training and assessment in accordance with our Training Plan; (d) Provide work that is relevant and appropriate to the vocation and also to the achievement of the qualification referred to in this Contract; (e) to (i) ………………………..;". By failing to resume the training of Mr Beach the Council submitted that ACC still purported to cancel the training contract otherwise than in accordance with the VETE Act. As the Council's submissions on the interaction of the State and federal legislation show the provisions regarding the termination of a trainee's employment are complex. However, the application for cancellation form used by ACC contains the following note: "It is advisable that you contact the Department of Employment and Training on (telephone) before signing the cancellation agreement.". Although ACC sought advice from the Sarina Russo Industry Consultant no attempt appears to have been made to contact the Department before signing the application for cancellation. Had that advice been sought there is every possibility that ACC would have been alerted to the legislative requirements at an early time and a way forward consistent with the legislation found. Mr Beach was not suspended or stood down from his employment while the Council considered an application for cancellation from ACC, as is permitted by s. 64 of the VETE Act. The situation was that despite continuing to pay Mr Beach his employment contract had been terminated and was terminated in advance of his training contract in breach of s. 139 of the IR Act. ACC failed to fully remedy its breach by declining to resume training Mr Beach during the period that followed the application to cancel the training contract. Accordingly, the Commission accepts the submissions of the Union and the Council that ACC purported to cancel the training contract other than in accordance with the VETE Act. Cancellation of the contract on the grounds of misconduct or serious misconduct The evidence of Peter Milzewski, General Manager Human Resources, was that the primary reason for the decision to terminate Mr Beach's employment was his refusal to do his job, however, other reasons also existed. On investigation of the matter by the Council five allegations of misconduct were made against Mr Beach. These were set out in the Council's submissions as follows: "(a) Mr Beach without approval changed his commencing time for work on 21 and 24 July 2008; (b) Mr Beach took and wore a pair of leather work boots without permission on 23 July 2008; (c) Mr Beach without approval changed his commencing time for work on 2 October 2008; (d) Mr Beach refused a lawful direction of Andrew Le Breton, General Manager Quality and Accreditation, to complete QA duties for the remainder of the shift on 2 October 2008; (e) Mr Beach indicated to the then Senior Supervisor, Retail Ready Department, Rebecca Kelson, on 2 October 2008, that 'he would like to stand down from the back up QA Officer's role' and that he would 'continue with his current Quality Officer roster for at least another 2-3 weeks'.". Allegation (a) - Commencing times July 2008 On 20 July 2008 Mr Beach telephoned Ms Gode and informed her that he was commencing work at 9.00 a.m. the following day and that he would be able to do the QA role from 10.30 a.m. Mr Beach was rostered to commence in the QA area from 11.45 a.m. that day. Mr Beach explained to her that Production liked to have butchers coming on shift at 9.00 a.m. In his response to the Show Cause issued by Ms Schofield, Mr Beach said that he had been told by one of the cutting room supervisors that they would be short of butchers the next day. He volunteered to come in early as his main duties were in the cutting room. Although Ms Gode said she was uncomfortable with Mr Beach's advice as she considered it had not been approved and would disrupt production she did not object. She told Mr Beach she would raise the matter with her supervisor, Rebecca Kelson, Senior Supervisor, Retail Ready Department. Nothing was said by any manager to Mr Beach either on -- 4 of 14 -- 5 21 July or subsequently about his decision to commence work at 9.00 a.m. in the cutting room. Further, no evidence was produced to show that Production had not requested his commencement in the cutting room at 9.00 a.m. On 24 July 2008 Mr Beach was rostered in the cutting room. Ms Gode received a telephone call from another QA employee advising that she would be unable to attend for her 2.30 p.m. shift that day. Her diary note produced as part of these proceedings, but not to the Council during its investigation, reads: "due to Gavin Beach changing his shift to 9.00 a.m. start unable to use him as a backup.". Ms Gode contended that Mr Beach was rostered to commence work at 11.45 a.m. on the week commencing 21 July 2008. As the Council pointed out no QA roster was produced for 24 July 2008 although the time sheet for 25 July showing Mr Beach's commencement time of 11.45 a.m. was produced. The evidence is that the cutting room operated from 9.00 a.m. to 6.00 p.m. prior to 1 September 2008 and even on Ms Gode's evidence Mr Beach was rostered in the cutting room on 24 July 2008. It was also her evidence that he was rostered in the cutting room at 9.00 a.m. on 23 July 2008 but was required for QA back-up duties from 10.30 a.m. The Commission notes that no disciplinary action was taken against Mr Beach if he had altered his starting time on 24 July 2008 without permission. Allegation (b) - Boots Mr Beach said that QA employees are allowed to wear leather work boots rather than rubber gum boots while performing their duties. He had not been provided with a pair of leather boots and complained that his feet became sore while walking around in gum boots on a 12 hour QA shift. Consequently, on 22 July 2008 Mr Beach asked Ms Gode whether he could be provided with a pair of leather boots. She advised that she would need to get permission and would get back to him. According to Ms Gode's diary note from that day she asked permission from Anthony Lee, Manager, Retail Ready, but this was denied. That decision was not communicated to Mr Beach. Ms Kelson also said in evidence that she had informed Mr Beach that she would need to seek permission (from Peter Kennedy, the General Manger) and not to wear the boots until she advised him. It was not made clear why two different approvals were required. On 23 July 2008 another QA employee advised Mr Beach that a spare pair of leather boots had been purchased for her but they did not fit and he could have them. Mr Beach told a supervisor (but not his supervisor) of his intention to wear the boots and when no objection was raised proceeded to wear them. Mr Beach claimed this constituted permission from this supervisor to wear the boots. Ms Gode observed Mr Beach wearing the boots on 23 July 2008 but still did not inform him of the decision not to issue him with a pair of leather boots. Later that day Ms Kelson saw that Mr Beach was wearing the boots and requested he remove them. Mr Beach did so and returned them to the place from where he had taken them. The Council found that Mr Beach had disobeyed a direction to await the decision of management, however, his subsequent compliance with the later direction to return them was noted. Allegation (c) - Changed commencement time 2 October 2008 Mr Beach took leave in September 2008 and returned to work on 1 October 2008. Mr Beach commenced work in the cutting room at 8.30 a.m. on 2 October 2008. His reason for starting at that time given to Ms Schofield during the investigation and in his affidavit was that he was not rostered on for QA that day. ACC did not provide a copy of the QA roster during the investigation, however, for these proceedings the QA roster for that day was provided and it shows that Mr Beach was rostered to commence at 10.30 a.m.. Ms Kelson signed Mr Beach into work at 8.30 a.m. without demur. She said at the time of signing him in she was unaware of his start time and was also responsible for signing in another 40-50 people. Apparently the computer system used to sign on employees does not specify their rostered start time and only records their actual start time. When the roster was produced in these proceedings Mr Beach gave various reasons for starting at 8.30 a.m. rather than his rostered start time. These included that he had just returned from overseas and did not have any specific times and dates so just showed up; that he had transportation issues which meant he had to be dropped off at an earlier time and that he started at 8.30 a.m. "as usual". The evidence is that Mr Beach was given a copy of the Quality Services roster for the period 8 September 2008 to 19 January 2009 prior to his departure on leave. Mr Beach had commenced work on return from leave on 1 October 2008 in QA. He was rostered to work and commenced work on that day at 10.30 a.m. The Retail Ready shift roster was also produced showing that Mr Beach's team was not rostered to work on 2 October 2008. All of this refutes the reasons Mr Beach gave about being unaware of his roster and his usual start time. As Mr Beach was pressed under cross- examination it became clear that the real reason he started at 8.30 a.m. was because transport was available at a time which allowed him to commence work at 8.30 a.m. This was also confirmed by the evidence of Graeme Packer, a co- worker of Mr Beach and a fellow union member. -- 5 of 14 -- 6 After investigating the matter Ms Schofield did not find that Mr Beach had refused to obey a lawful and reasonable direction of his employer regarding his start time on 2 October 2008 primarily because the QA roster was not provided to her. After having had the benefit of the roster and the other evidence about the matter the Council submitted that the additional evidence showed that Mr Beach unilaterally decided to change his hours of work on 2 October to suit himself because of his transportation difficulties. In respect of Mr Beach's proposition that Ms Kelson had impliedly approved his commencement at 8.30 a.m. by signing him in the Council submitted that a reasonable explanation for this - as outlined above - was provided. Allegation (d) - Refusal to obey lawful direction On 2 October 2008 Mr Beach approached Ms Kelson and advised that he wished to stand down from his QA back-up role for personal reasons, that is, the hours he had to work. Ms Kelson said that the change could not occur immediately as she needed to discuss the matter with management and a replacement would need to be found. Mr Beach agreed to continue with the QA back-up role for another two to three weeks. After this discussion Ms Kelson emailed Mr Le Breton advising that Mr Beach had informed her that that he wished to stand down from his QA back-up role due to personal reasons. On receipt of the email Mr Le Breton discussed the matter with Ms Kelson. Mr Le Breton asked her to have Mr Beach fill the QA back-up for that day. On asking Mr Beach to do this he told Ms Kelson that he was unable to work late. (The QA shift would have required Mr Beach to work until 10.30 p.m.). Ms Kelson informed Mr Beach that Mr Le Breton wished to meet with him at 2.15 pm. Mr Beach attended the meeting with Mr Packer as a witness. Mr Le Breton said he informed Mr Beach that he was required to perform the QA duties that day as another employee had not reported for work. Mr Beach replied that he did not wish to continue in the role for personal reasons as it required him to work too many hours. Mr Le Breton's evidence was that he then told Mr Beach that it was a requirement of his position to perform the QA back-up role and that he was giving a lawful instruction to do so. He then said he asked Mr Beach whether it was still his decision not to comply with that instruction to which Mr Beach responded "yes". Mr Le Breton said if he was his manager he would consider terminating his employment but as he was not, he would inform his manager who would determine what further action to take. Mr Beach was subsequently dismissed later that day. As a result of the investigation Ms Schofield found that Mr Beach had refused to obey a direction from his employer to complete the shift in the QA role. However, as a supervisor had signed Mr Beach on to commence work at 8.30 a.m. and Mr Beach had not been spoken to about commencing work earlier than his rostered start time it was considered he had a reasonable excuse for refusing to work late that night. After hearing the additional evidence the Council maintained its position that Mr Beach had refused to obey a lawful direction of his employer but that some mitigation existed because of the lack of action taken in respect of Mr Beach's earlier start time. However, the Council considered that Mr Packer's evidence showed that the true reason Mr Beach could not work late that night was because he had arranged to be picked up at a time that suited him. Allegation (e) - Stand down from QA role Some commentary about this allegation has already been referred to under Allegation (d). However, the following needs to be added. Prior to his proceeding on leave Mr Beach advised Ms Gode that when he returned to work he did not wish to continue with the QA back-up role. Ms Gode said she would discuss the matter with management while he was away. Her evidence was that she had informed Mr Le Breton of this and he had said that the matter would need to be discussed with Mr Beach on his return. According to the diary note made by Mr Le Breton on 2 October 2008 the direction he gave only related to the QA shift that day. The Council said there was no evidence before it that Mr Beach was given or refused any direction to permanently stay in the QA back-up role. The evidence also was that Mr Beach had agreed to continue in the role while a replacement could be trained. In the circumstances the matter was not dealt with under s. 71 Discipline of the VETE Act but under s. 66 Cancelling registration of training contract. In contrast ACC submitted that on 2 October 2008 Mr Beach had refused to continue to work in the QA back-up role. Mr Le Breton said in cross-examination that Mr Beach had told him that he did not wish to do the job any more and thus this was the conversation he was pursuing with Mr Beach. I accept Mr Le Breton was aware of Mr Beach's decision not to continue in the QA back-up role as he had been so advised by Ms Kelson and Mr Beach had confirmed this in their meeting. However, the diary and file notes made by Mr Le Breton at the time, of which the first mentioned was provided to the Council, record that he "requested Gavin Beach to assume the role of back-up Quality Officer for the remainder of the shift". Given that these notes were said to have been made contemporaneously it is more likely the conversation on 2 October 2008 between Mr Le Breton and Mr Beach concerned the QA shift that day. A general -- 6 of 14 -- 7 discussion between Mr Beach and Mr Le Breton about Mr Beach's continuing in the QA role did not occur on 2 October 2008. The Council's conclusions The Council submitted that based on the evidence provided to Ms Schofield it was found that Mr Beach had refused to obey the following lawful and reasonable instructions of his employer: (a) Mr Beach's refusal to comply with Mr Le Breton's instruction to assume the Quality Officer duties for the remainder of the shift on 2 October 2008; and (b) Mr Beach's failure to comply with an instruction of Ms Gode to await the decision of management regarding whether he was to be issued with a pair of leather work boots on 23 July 2008. As a result, she found that those offences were not so severe to warrant cancellation of the training contract and that a reprimand for the misconduct alone was the appropriate penalty. However, the Council submitted that in light of the additional witness evidence that had been given it was open to the Commission to now find that cancellation of Mr Beach's training contract under s. 71 of the VETE Act for misconduct is the appropriate disciplinary action to be taken under the circumstances. Commission's findings The Union submitted that Mr Beach had never committed any misconduct and that the Council erred in determining that he had. Accordingly, no order under s. 71(2)(a) ought to have been made and the Commission was requested to overturn this decision. Based on the evidence presented I am not satisfied that Mr Beach altered his starting time on 21 July 2008 without approval. By the time of these proceedings ACC would have been aware of the assertion made by Mr Beach in his response to the Show Cause notice where he has named particular supervisors, one of whom he thought had made the request for assistance. ACC did not provide evidence from either of these supervisors. In relation to 24 July 2008 the Commission has no evidence that supports the position that Mr Beach changed his start time without approval to 9.00 a.m. In fact the evidence supports the conclusion that his rostered start time was 9.00 a.m. Further, the Commission notes that no action was taken against Mr Beach if ACC had believed he had commenced work earlier on either or both occasions without approval. The second allegation concerns Mr Beach wearing a pair of leather boots without approval. The evidence shows that while Mr Beach sought approval to obtain a pair of such boots, he failed to await advice that his request had been approved. His explanation was that another supervisor (but not his supervisor) had given him approval or that supervisor had not objected when he said he was going to wear the boots. Either explanation is disingenuous. The supervisor to whom Mr Beach referred did not have the authority to grant or withhold permission. Further, the evidence is clear that Mr Beach was told by his supervisor to wait for approval. He did not. However, the evidence also shows that Ms Gode, after being advised by Mr Le Breton that approval would not be given did not inform Mr Beach of this. In addition, she noted in her diary that Mr Beach was wearing the boots and queried who gave him approval but did nothing to stop him continuing to act in breach of the advice he had been given to await a decision. The evidence also shows that Mr Beach, on being instructed to remove the boots by Ms Kelson, did so. The third allegation concerns Mr Beach commencing work early on 2 October 2008. Mr Beach prevaricated about the reasons he commenced before his rostered starting time. The Commission is satisfied that the real reason Mr Beach commenced at 9.00 a.m. is that he had arranged transport which meant he arrived early. He did not seek permission for the earlier start time and knew that he was rostered to commence in QA later that day. On 20 July 2008 Mr Beach at least advised Ms Gode of the change to his start time. He did not do this on 2 October 2008 and simply reported for work at a time convenient for him. There is an issue as to whether management acquiesced to his earlier starting time. Certainly, nothing was said to Mr Beach on sign in and he was permitted to commence work at that time. He continued to work in the cutting room until he approached Ms Kelson at 12.30 pm. Ms Kelson spoke to Mr Beach about his earlier start time and explained to him that he should not do this unless he had made arrangements with his supervisor or had prior authorisation. Mr Beach was not disciplined by Ms Kelson or any other person in management for starting earlier without permission. While this mitigates to a certain extent the actions of Mr Beach on that day it remains the case that Mr Beach altered his rostered starting time and intended to alter his rostered ceasing time without permission and to suit his personal circumstances. -- 7 of 14 -- 8 The next allegation is concerned with whether Mr Beach refused to obey a lawful direction from Mr Le Breton to perform back-up QA duties on 2 October 2008. The Union does not dispute that Mr Le Breton issued a direction, only whether it was lawful. Their argument is that had Mr Beach complied he would have been required to work until 10.30 p.m. that night, making his working day at least 13 hours. To show that the direction was unlawful the Union referred to the hours provisions of the ITEA. The Union submitted that Clause 2.5.1 of the ITEA provides for a maximum of 12 hours per any one day inclusive of unpaid breaks. However, Clause 2.5.3 provides that the employee may be required to work additional hours outside their rostered ordinary hours. As ACC submitted the ITEA does not provide an absolute prohibition on working more than 12 hours per day. In any event as the evidence clearly shows, and as the Commission has accepted, it was Mr Beach's decision to commence work prior to his rostered starting time. Further, the evidence also shows that Mr Beach had no intention of completing his rostered QA hours on 2 October 2008 as he had made arrangements to be collected from work earlier than his rostered ceasing time. It does not appear that the conversation between Mr Le Breton and Mr Beach included any discussion about the hours Mr Beach had already worked that day, how many hours he may be required to work that day or his reasons for not agreeing to complete the QA shift. Mr Beach had only disclosed that personal reasons prevented him from complying. In my view the direction to complete the shift was lawful. It was the shift that Mr Beach had been rostered to work. He had decided as a matter of convenience to himself to commence work earlier than his rostered starting time. An employer is entitled to give a direction to complete a rostered shift and entitled to expect it to be worked unless some emergent or extenuating circumstances can be shown to exist. Mr Beach's explanation did not address such circumstances and in any event his reasons would not have fallen into these categories. The next issue is whether the direction was reasonable. This is considered in the context of the hours Mr Beach had worked that day and the hours he would have worked had he completed his rostered shift. Certainly, given his earlier commencement time Mr Beach would have worked a long day to complete his rostered hours. However, the working of such hours is not prohibited by his ITEA and further, Mr Beach had brought this situation on himself because of his decision to commence work earlier without prior approval and for his own convenience. In these circumstances an employer who gives a direction to an employee to complete their rostered shift is acting reasonably. For these reasons the Commission is satisfied that Mr Beach engaged in misconduct when he refused to obey a lawful and reasonable direction issued by Mr Le Breton to complete his rostered QA shift on 2 October 2008. The last allegation concerns Mr Beach's decision to stand down from the QA back-up role permanently but that he would continue to perform the duties for the next two to three weeks. This allegation raises an issue of whether Mr Beach's QA role was temporary as he suggested or an integral part of his position as contended by ACC. The ITEA under which Mr Beach was employed showed his position as "Butcher/QA Back-Up Officer". The position title was completed by Mr Beach. Mr Beach's rosters show that he was rostered to work as a butcher at certain times and at other times was rostered on for the QA role. From time to time even when rostered in the cutting room Mr Beach would be called upon to perform QA duties in the absence of other QA employees. It was Mr Beach's evidence that the QA role was temporary and a back-up role, i.e., it was not a permanent position. The Union submitted that the QA back-up role was an extra duty which allowed him to gain experience and to apply for a full-time position. His main duties were as a base processor in the cutting room and this was the classification shown on his ITEA. Under the classification definitions section of the ITEA no provision is made in the base processor level for QA duties of the type being undertaken by Mr Beach. Further, the Union refuted any argument that the Classification Flexibility provisions of the ITEA permitted Mr Beach to perform QA duties on a continuous basis. This clause permits an employee to perform tasks in which they are competent outside their classification level without remuneration however this is only on a temporary basis. Mr Milzewski said that commencement classification shown on the ITEA is used for the purposes of determining the hourly rate that applied. The position shown on the ITEA is the position actually undertaken by the employee. Mr Milzewski said the duties undertaken by Mr Beach involved both butchering and QA. Mr Le Breton gave evidence that ACC advertised for a QA Back-Up Officer and Mr Beach applied and was interviewed by him for that position. Accordingly, ACC submitted that the QA role was an essential function of Mr Beach's employment. The evidence shows that Mr Beach's position had dual roles, that is, of butcher and QA back-up officer. This was the position he applied for and to which he was appointed. The QA back-up role was not temporary but an essential component of the job. Whether Mr Beach was correctly classified and paid are not matters within the Commission's jurisdiction in this Appeal to determine. Mr Beach said he made the decision to stand down from the QA back-up role because of the excessive hours he was required to work and the impact of this on his personal life. Evidence was produced of the hours Mr Beach had worked from 16 June to 2 October 2008. This does not support his contention about the number of hours he was required to -- 8 of 14 -- 9 work. In fact, as ACC said it showed that long hours were the exception rather than the rule. The Commission notes however that the QA shift often involved finishing late at night. I am not prepared to characterise Mr Beach's decision to stand down from the QA back-up role as misconduct. The evidence from Ms Gode and Ms Kelson is that Mr Beach was advised that his decision to stand down permanently from the QA back-up role would need to be raised with management. No indication was given by either of these managers that his decision would result in disciplinary action. Further, at no time was the discussion held with Mr Beach about the implications of his decision. Although his decision would have caused him to breach a fundamental term of his employment and training contracts it is not misconduct. The Council submitted that on a review of all of the evidence now available cancellation on the grounds of misconduct can be shown to have existed whereas the Union submits that no misconduct has been evidenced. In my view the following instances of misconduct have been established:  The wearing of the leather boots without approval; and  Refusing to obey a lawful direction to complete the QA shift on 2 October 2008. For reasons given above the alteration of starting time on 2 October 2008 is also considered to be misconduct however it is mitigated by Ms Kelson's actions in signing Mr Beach in to commence work at an earlier time and the subsequent failure to discipline him for this. In my view these instances of misconduct show a pattern beginning to emerge where Mr Beach was ignoring management's authority and behaving in a manner which put his personal convenience above his employer's. However, these grounds are insufficient to warrant cancellation of the training contract especially in circumstances where the VETE Act is directed to continuing trainees in training and employment wherever possible. The decision of the Council to act under s. 71(2)(a) of the VETE Act to reprimand Mr Beach was an appropriate response to the evidence before it. The Commission does not propose to interfere with it, although given all of the evidence now available, an order under s. 71(2)(b)(ii) of the VETE Act directing Mr Beach to comply with the training contract would have also been reasonable and appropriate in the circumstances. The Commission notes that in her evidence Ms Gode raised a new allegation that on 23 July 2008 Mr Beach ceased work before the scheduled completion time for both his cutting room and QA back-up shifts. The Council submitted the Commission is entitled to take that allegation into consideration as well in determining whether or not Mr Beach has engaged in misconduct as defined by s. 70 of the VETE Act and whether any action should be taken as a result. As this allegation was not put to Mr Beach it is not a matter the Commission is prepared to take into account. Did the refusal to obey a lawful instruction constitute serious misconduct under the VETE Act? ACC argued that the Commission ought to find that Mr Beach had engaged in serious misconduct. The corollary of that argument (although not specifically put by ACC) was that ACC had purported to cancel the training contract in accordance with the VETE Act. The Council noted the difficulty with this argument is that specific provisions exist under the VETE Act for serious misconduct: see s. 64. That section provides a definition of serious misconduct of which perhaps the only relevant part is "at work - behaving in a way that is inconsistent with the continuation of a training contract". Although the submissions of ACC attempted to show Mr Beach's conduct could be so described the VETE Act prescribes specific processes for cancelling a training contract where serious misconduct is alleged. These processes were not employed in this case. The Commission has accepted that Mr Beach refused to obey a lawful instruction to complete the balance of the QA shift on 2 October 2008. Although the evidence is that Mr Beach also advised of his decision not to continue in the QA role permanently, the evidence did not establish that Mr Beach had refused any lawful direction about this matter. Further, the Commission has decided that the decision to not continue in the QA role did not constitute misconduct. Thus only his refusal to complete the shift on 2 October 2008 will be considered in the context of serious misconduct. In my view the serious misconduct argument is a belated attempt by ACC to dress up its actions on 2 October 2008 and subsequently. Serious misconduct was not the reason given for applying to cancel the training contract at the time. Moreover, serious misconduct was not the reason given for the termination of Mr Beach's employment. His termination occurred immediately prior to the application for cancellation being made. According to the evidence of Mr Milzewski, while Mr Beach's refusal to obey an instruction to complete his QA shift on 2 October 2008 was a breach of ACC's Disciplinary Policy and regarded as serious and wilful misconduct, a range of matters were taken into account in determining to terminate Mr Beach's employment. Mr Milzewski's evidence was that ACC had made "assessments as to your behavioural and attitudinal performance and commitment to working in a team environment … we assess your performance as unsatisfactory …". -- 9 of 14 -- 10 Arguably on Mr Milzewski's evidence the refusal to obey the direction to complete the QA shift constituted serious and wilful misconduct yet ACC decided not to dismiss Mr Beach on that basis. Clearly the reason for the dismissal was because of performance and not because of misconduct. Moreover, the reason incorporated the refusal to complete the rostered QA shift. The reason given for the dismissal and the payment of notice show that neither misconduct nor serious misconduct was in the mind of ACC both when terminating Mr Beach's employment and when applying to cancel the training contract. Although this Appeal allows the opportunity to analyse the events more thoroughly the Commission is not persuaded to re-characterise the reason for the application to cancel the training contract when an experienced human resources officer was involved in the process. Order cancelling the training contract After issuing the Show Cause Notice and considering Mr Beach's response to it Ms Schofield determined to make an order under s. 65(5) of the VETE Act cancelling the contract on the grounds that an order to resume training would be impracticable. In the Information Notice Ms Schofield decided that it was impracticable for the training to be resumed because from the employer's perspective there had been a total breakdown in the employment relationship and then set out the reasons for that decision as follows: "(a) The trainee's behavioural and attitudinal performance and commitment to working in a team environment was (sic) unsatisfactory; (b) The working relationship has deteriorated to the point that they no longer have adequate trust and confidence that the trainee can be relied upon to fulfil the duties for the traineeship including quality assurance and supervisory roles because of this unsatisfactory performance; (c) Quality Officers are treated as 'staff' managers/supervisors and therefore are less closely supervised than meat processing employees. The employer needs to have trust and be confident that the trainee will back Management up in these roles and they no longer have this necessary trust and confidence in the trainee; (d) There is a reasonable risk that the trainee will be an on-going problem if reinstated and hence they are unwilling to reconcile the working relationship; and (e) The fact they are prepared to continue paying the trainee his wages without reinstating him is an indication of how fractured they believe the working relationship is.". The Council referred to the decision in Liddell v Lembke (1994) 56 IR 447 at 473-4 where consideration, albeit in a reinstatement context, was given to the meaning of the word "impracticable". There it was held: "The word 'impracticable' means 'that cannot be carried out, affected, accomplished or done; practically impossible' (Oxford English Dictionary) or 'that cannot be put into practice with available means': Macquarie Dictionary. Attention is directed to the practicability of the remedy, not to its practicality.". The Council considered that in light of the employer's position and especially their single mindedness in paying Mr Beach but not continuing to train him while the application for cancellation was dealt with an order to resume training was indeed impracticable. Accordingly an order for the cancellation of the contract was made under s. 65(5) of the VETE Act. The Commission considers that faced with the intractability of ACC about the breakdown of the employment relationship and its refusal to resume training Mr Beach the Council had reasonable grounds to find that an order to resume training could not be carried out. An order that ACC under the contract resume training was therefore impracticable and it was open to the Council to order cancellation of the contract. Order cancelling registration of the training contract The Council also made an order under s. 66(1)(c) of the VETE Act cancelling the registration of the training contract. This section allows the Council either on application or on its own initiative to cancel the training contract where "there has been a change in circumstances of the employer or apprentice or trainee that make it unlikely that the contract will be completed". In making this decision the Council relied on Mr Beach's advice that he no longer wished to perform the QA back-up role. This information was provided to Ms Schofield on 16 October 2008 during a meeting with her and in his response to the Show Cause Notice. The Council said that Mr Beach's decision not to continue in the QA back-up role constituted a change in circumstance which would cause a significant difficulty in his ability to complete the training contract. In fact, the Council considered that if Mr Beach did return to the cutting room and only performed butchering work as he desired, he would not obtain the necessary practical work available for him to attain competence in all of the competencies in his training plan. Action was taken under s. 66 because the Council believed that there was insufficient evidence that Mr Beach had disobeyed a lawful and reasonable direction to continue in the QA role. The cancellation of the registration of the training contract under s. 66(1)(c) is one of the decisions being appealed. In the Application to Appeal Mr Beach claims that the Council had no grounds to make such an order and in making such an order it took into account irrelevant information. -- 10 of 14 -- 11 In addressing these grounds of appeal the Union submitted two main lines of argument. The first is that the QA back- up role did not form part of Mr Beach's core duties and that the Certificate III is not only for QA employees. Submissions about the first line of argument have been referred to in the consideration of whether the refusal to continue to perform the QA back-up role constituted misconduct. The Union also submitted that Mr Beach sought the permission of his managers to withdraw from the QA back-up role after making the decision that he no longer wished to continue with it. The evidence of Ms Gode is that Mr Beach raised the matter with her prior to proceeding on annual leave. Ms Kelson also said that Mr Beach informed her of his decision on 2 October 2008 and she replied that she would need to discuss the matter with management. It is true that neither Ms Gode nor Ms Kelson gave any indication to Mr Beach that stepping down from the QA role would impact on his position at ACC or more particularly, on his ability to complete the traineeship. The second argument submitted by the Union is that the Certificate III qualification is undertaken by a range of QA employees, including those in the cutting room, and not just by QA employees. The Union submitted that the evidence of Mr Milzewski was that another employee was performing butchering work only while still engaged on a Certificate III traineeship. Mr Beach still had responsibilities in the cutting room and his decision not to perform QA work did not preclude him from continuing to perform this work or continuing with the training contract. Commission's findings I have previously decided that the QA back-up role was an essential component of Mr Beach's employment with ACC. He was specifically recruited so that he could perform QA duties and the traineeship was a means of assisting him obtain a permanent QA position. Moreover, the Commission accepts the evidence of Mr Milzewski that Mr Beach's position had a dual focus combining both butchery and QA duties. The question of whether it was necessary for Mr Beach to perform QA duties as part of his traineeship is more vexed. Evidence was called from Matthew Barry, a subcontract Workplace Trainer with the Registered Training Organisation, Symbio Alliance. Mr Barry confirmed that the Certificate III in Food Processing traineeship is a trade level qualification and is a good qualification for enabling people to enter into jobs such as leading hands, supervisors, quality assurance, trainers, or occupational health and safety. He said he was familiar in general terms with the work performed by butchers in the cutting room and stated that the relevant qualification for the butchers in the cutting room would be a Certificate II from the Meat Industry Training Package. Mr Barry's evidence about whether it would be necessary for an employee to perform QA duties in order to complete the Certificate III in Food Processing traineeship was less helpful. After considering the evidence from Mr Barry and submissions about his evidence I have formed the view that his position was that whilst it would be useful to have QA experience and training could be provided for employees who were not performing QA work, it was a matter for the employer as to whether QA work was provided. Here, the evidence of a number of ACC witnesses is that QA work was being provided in order for Mr Beach to complete the traineeship with a view to him assuming a QA position in the future. Although the evidence is that the Certificate III qualification is also valued by ACC as a stepping stone into other leadership positions such as leading hand, this is not the career path ACC envisaged for Mr Beach nor was it consistent with his aspirations. The provision of QA work and the traineeship was consistent with Mr Beach's expressed desire to perform QA work. The Council also submitted that Mr Beach had to undertake the QA work in order to develop his competence in the qualification in all specified supervisory or leadership units of competence. Further, ACC was attempting to ensure that Mr Beach did so while complying with its obligations under the training contract which require an employer to provide work that is relevant and appropriate to the vocation and also in the achievement of the Certificate III qualification. In the Council's submission Mr Beach was frustrating the employer's efforts to comply with the training contract and his own obligations under the contract to do his job and work towards achieving the qualification. In those circumstances the Council submitted that the registration of Mr Beach's training contract should be cancelled in accordance with s. 66 of the VETE Act. Without discussing the matter with his supervisors, the training organisation, human resources or the Department, Mr Beach decided not to continue with the QA role. When he approached Ms Gode prior to proceeding on leave and Ms Kelson on 2 October 2008 his decision had been made. He did not seek any advice prior to informing Ms Gode and Ms Kelson about the impact of that decision on his traineeship. Although it is not necessary for all trainees undertaking the Certificate III in Food Processing traineeship to perform QA duties it was necessary for Mr Beach to do so. Not only were these duties part of his contract of employment they were a requirement of his employer to complete the traineeship. The issue to be determined here is whether there had been a change in the circumstances on the part of Mr Beach that made it unlikely that the contract would have been completed. The Union submitted that in making this determination -- 11 of 14 -- 12 the Commission should have regard to the Explanatory Memorandum that was provided for the Training and Employment Bill 2000. Clause 51 gives an example of changed circumstances as "the business may be placed in the hands of liquidators". The Union noted that circumstances are not limited to changed business circumstances such as insolvency but does point to the types of matters within the Legislature's contemplation that would make a contract unlikely to be completed. The Council referred to the decision of the Commission as constituted in Hiku v Training Recognition Council (2004)175 QGIG 122 where the following was said: "In contrast, the purpose of s. 66 is to deal with situations where a party's obligations under the contract may still be able to be performed but it is undesirable or inappropriate to allow the contract to continue and the implications of the continuation are such that not just the contract should be cancelled but the registration of the contract itself should be cancelled. Reference to the types of matters which might lead to the TRC holding a reasonable belief that the registration of the contract should be cancelled are specified in s. 66 (1)(a) and (b), viz., the contract was registered in error due to false or misleading information or a party to the contract has been convicted of an offence under the Act. Section 66(1)(c) would seem to be a general 'catch-all' provision so as not to require specification of all of the types of circumstances that might arise. However, in my view it is the intention that the circumstances are ones that make it undesirable for the registration of the contract to remain 'on the books'." (at p.126). Later in that decision the Commission said that the change in the circumstances must be of some significance as it must be of a type that makes it unlikely the training contract will be completed and noted the serious consequences of not completing a training contract (at p.127). The Council focussed its deliberations about the changed circumstances on the decision of Mr Beach not to continue in the QA back-up role. For reasons given earlier I consider that the QA back-up role was integral to Mr Beach's training contract. I accept that Mr Beach's decision not to continue with this role meant that it was unlikely that the training contract will be completed as he would be unable to perform QA work – work critical to the completion of the training contract. Accordingly, I consider that this constitutes changed circumstances within the meaning of s. 66 (1)(c) of the VETE Act and the Council acted appropriately in deciding to cancel the registration of Mr Beach's training contract under that section. While this was necessary there was also another changed circumstance that had arisen, that is, the decision of ACC not to continue to employ Mr Beach. As mentioned earlier an employment contract underpins a training contract. Here, ACC had terminated the employment contract and although it had reinstated Mr Beach to the payroll it had not reinstated the training contract to the extent that training was resumed. In my view the Council would have been entitled to take into account the changed circumstances that ACC no longer wished to employ Mr Beach. ACC was not amenable to having Mr Beach return to the workplace. While the Commission may have difficulty with ACC's reasons, its refusal to have Mr Beach back on the premises is consistent with the type of changed circumstances within the meaning of s. 66(1)(c) of the VETE Act. Accordingly even were it to be found that the Council did not have enough to act under s. 66(1)(c) in relation to Mr Beach's decision not to continue with QA back-up duties it could have properly acted under that section in light of ACC's decision to terminate Mr Beach's employment, the subsequent refusal to resume training and being adamant that Mr Beach not return to the workplace. Union Membership Issue The Union contended that one of the key players in the decision to terminate Mr Beach's employment was Mr Kennedy and that he had a personal issue with Mr Beach over his decision to become a Union member who was actively recruiting other union members. Mr Beach gave evidence about a discussion Mr Kennedy had with him which was alleged to have been conducted in a threatening manner. It is accepted that Mr Kennedy was not called to give evidence about this incident. However, as the Council submitted the conversation occurred prior to Mr Beach being signed up by ACC as a trainee. The Council further submitted, and I accept, that the conversation is irrelevant to these proceedings because of its timing and it did not prevent ACC from proceeding with signing Mr Beach's training contract. Further, the issue of union activity and ACC's views about this are not relevant considerations for the Council or the Commission under ss. 71, 65 or 66 of the VETE Act, the sections under which the decisions of the Council were made. These matters do not relate to ACC's allegations of Mr Beach’s misconduct, ACC purporting to cancel Mr Beach’s training contract other than in accordance with the VETE Act, or the Council's decision. Decision on Appeal Section 230 sets out the circumstances in which a person aggrieved can appeal against Council decisions or a particular class of decision made by a registered training organisation. Section 233(2) of the VETE sets out the decisions the Commission may make on the appeal. In Murrays Australia v The Training Recognition Council (2002) 171 QGIG 93 at 100 the Industrial Court held that there is nothing to suggest that the powers at s. 233(2)(b) or (c) which deal with -- 12 of 14 -- 13 allowing the appeal and substituting or amending the decision confer power upon the Commission to make an order which might not have been made by the Council itself. Under s. 233 then the Commission is limited to the decisions that were available to the Council. Here, the Commission has confirmed the decision of the Council given on 1 December 2008. In accordance with s. 233(2)(a) of the VETE Act the Commission dismisses the appeal as it relates to the decision of the Council. Should the Commission make any Orders? The Application to Appeal also seeks that the Commission make certain orders under Chapter 8 Part 2 Division 2 of the VETE Act. The orders the Commission can make are discrete from the Commission's powers concerning the decision made on appeal. Section 235 of the VETE Act provides that the Commission can make orders if the appeal is about the cancellation of the registered training contract and the Commission decides the employer has purported to cancel the contract other than in a way allowed under the VETE Act. Both of those preconditions are met here. Accordingly, the Union seeks that the Commission make an order under s. 236 to resume training and consequential orders that Mr Beach maintains continuity of the training and receives compensation for remuneration lost as a result of the purported cancellation. In the alternative compensation is sought under s. 237. Although not expressed precisely in this way the scheme of the VETE Act requires the Commission to firstly consider whether an order to resume training is appropriate and if the Commission considers that it would be inappropriate for training to continue to make an order cancelling the contract and for compensation. The Council has pointed out that the test for the Commission in deciding whether to make an order to resume training is different to the test placed on the Council under s. 65. Under that section the Council has to consider whether the order to resume training would be impracticable whereas the Commission is required to consider whether an order is (in)appropriate. The Council has also submitted that the test imposed on the Commission is of a lower standard than that imposed on the Council under s. 65 of the VETE Act. Reference was made to the Concise Oxford Dictionary definition of inappropriate as "not appropriate". The same dictionary defines "appropriate" as "belonging or peculiar to suitable or proper". Therefore the Council submitted, and I accept, that whilst the use of the word impracticable in s. 65(5) directs the Council to the practicability of the remedy (in other words whether the remedy is able to be achieved) the use of the word inappropriate in s. 237 directs the Commission to whether it is unsuitable or improper in the circumstances for the training to continue. If the Commission finds that is so, it may cancel the training contract and award compensation rather than order the employer to resume training the trainee. The Commission has read Mr Beach's response to the Show Cause Notice and considered the evidence given in the proceedings from both Mr Beach and ACC witnesses. The Commission notes that unsatisfactory performance had never been raised with Mr Beach prior to his termination nor had he been previously counselled or warned about any unacceptable conduct. He had been recognised as having potential leadership abilities as evidenced by the training in QA duties. The instances of misconduct were not considered to be serious misconduct and with appropriate assistance and guidance Mr Beach may have continued as a satisfactory trainee. With this in mind and with a company the size of ACC the Commission would generally consider that resumption of training was an appropriate order to make. However, the circumstances of this case make it inappropriate, that is, not suitable or proper, for training to be continued. My reason for that decision is the same as that given by Ms Schofield in making the decision under s. 65(5) of the VETE Act, i.e., from the employer's perspective there has been a total breakdown in the employment relationship. That reason, while establishing the impracticability of an order, is in the circumstances of this case, sufficient to also establish inappropriateness. ACC certainly adopted an intractable view about their level of trust and confidence in Mr Beach. In my view while there is much of ACC's position that can be cavilled with it is undeniable that ACC are adamant that Mr Beach not return to the workplace. ACC, by it actions in terminating Mr Beach's employment and refusing to continue to train him while the application to cancel was investigated, have made it plain that Mr Beach is not wanted as an employee and that ACC do not want to have any training obligations for him. The resolve of ACC has not diminished since the Show Cause process and was reinforced in its evidence and submissions. It is also inappropriate to make an order to resume training where the trainee has decided to not fulfil an essential component of the work relevant to his training contract. Where the Commission considers that it would be inappropriate in the circumstances for training to continue the Commission may order that the contract be cancelled and the employer pay to Mr Beach the compensation decided by the Commission if the Commission is satisfied the payment of compensation is reasonable in all of the circumstances: s. 237. These orders are discretionary. The idea of compensation is that money is able to be awarded to make up for the loss of the opportunity to resume training. The loss of the training opportunity was limited to the period between the date of the application to cancel the training contract and his decision to only continue with his QA back-up role until a replacement was found. The period mentioned in evidence was two to three weeks. Accordingly, pursuant to s. 237(b) of the VETE Act I order that Mr -- 13 of 14 -- 14 Beach be paid compensation in the amount of three weeks' wages. The amount ordered is to be offset against the amount already paid to Mr Beach by ACC on returning him to the payroll while the cancellation of the training contract was being investigated by the Council. I do not think it is appropriate to order compensation to be paid for the loss of the training opportunity beyond that period in light of Mr Beach's decision not to continue permanently with the QA back-up role and the findings I have made about that. Should it be necessary in order to meet the requirements of s. 237(a) of the VETE Act the Commission orders that the training contract be cancelled. In my view consideration also needs to be given as to whether action should be taken in respect of ACC's purported cancellation of the training contract other than in accordance with the VETE Act and consequential refusal to fully remedy that breach. Section 240 of the VETE Act allows the Commission to make an additional order to that provided for in s. 237 that the employer pay a penalty to the trainee where satisfied the employer has purported to cancel the training contract other than in a way allowed under the VETE Act. The maximum penalty is an amount of not more than the monetary value of 135 penalty units. The Commission also notes that s. 139(2) of the IR Act allows the imposition of a penalty where the trainee's employment has been terminated prior to the cancellation of the training contract. The maximum penalty provided is 40 penalty units. The Commission acknowledges that ACC reinstated Mr Beach to the payroll while the investigation of the application for cancellation of the training contract was undertaken. However, even after being advised of their contravention of the legislation ACC refused to fully reinstate Mr Beach in the sense that he returned to employment and resumed training. The Commission considers that this conduct should not be tolerated. Before making any final decision about whether a penalty should be imposed on ACC and the quantum of any such penalty the Commission proposes to give the parties an opportunity to make submissions on the matter. Written submissions from all parties are invited to be lodged in the Registry no later than 4.00 p.m. on Friday 12 June 2009. Order accordingly. G.K. FISHER, Commissioner. Hearing Details: 2009 5 February 10, 11 and 27 March Released: 28 May 2009 Appearances: Mr C. Newman and with him Mr M. Journeaux, The Australasian Meat Industry Employees' Union on behalf of the Appellant. Mr R. McColm and with him Ms Y. Schofield on behalf of the Training and Employment Recognition Council. Mr J. Franken, Livingstones Australia and with him Mr P. Milzewski on behalf of Australian Country Choice. Government Printer, Queensland The State of Queensland 2009. -- 14 of 14 --