Barlow v Mega Holdings Pty Ltd t/a Loves Bus Service Qld [2005] QIRC 170 (2005) 180 QGIG 1133

[Extract from Queensland Government Industrial Gazette, dated 16 December, 2005, Vol. 20, No. 18, pages 1133-1136] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Lionel Barlow AND Mega Holdings Pty Ltd t/a Loves Bus Service Qld (B/2005/779) DEPUTY PRESIDENT SWAN 30 November 2005 DECISION This application is made by Mr Lionel Barlow (the applicant) for reinstatement to his formerly held position as yardman with Mega Holdings Pty Ltd t/a Loves Bus Service Qld (the respondent) which operates its business in Cairns. Initially Mr Barlow was represented by Mr Bruce Shaw of Counsel. The respondent was represented by Mr C Ryall of Counsel. Prior to the formal hearing of the application in Cairns, various preliminary issues required consideration by the Commission. The matter was set down for hearing in Cairns on 26 and 27 October 2005. On 24 October 2005 Mr Shaw advised the Commission that his client wished to add further witness statements to his application. A preliminary hearing was arranged to consider this request. Mr Shaw advised that he had experienced difficulty in contacting his client primarily because he had an incorrect telephone number. Mr Shaw said that he had only been told on 24 October 2005 by his client that he wished to call further witnesses. Under the circumstances, Mr Shaw asked that the matter be adjourned for further Directions Orders to be issued. The respondent opposed this request. Reference was made to the extra costs which would be incurred and a request was made to have the matter struck out. After considering this, messages left with the Commission indicated that although Mr Barlow was suffering a heart condition, Mr Shaw confirmed that his client was in fact ready to proceed to trial on the set dates. The Commission determined that the matter should proceed in Cairns as scheduled for 26 and 27 October 2005 and Mr Shaw was to make contact with the Commission to confirm the presence of his client at the Cairns Court House on 26 October 2005. On 25 October 2005, at a continuation of the mention before the Commission, Mr Shaw advised that while his client was ready to appear in Cairns on 26 October 2005, he (Mr Shaw) was unable to arrange for a flight from Melbourne to arrive in Cairns on that day. Mr Shaw advised, during one of the mentions before the Commission that he was engaged by Mr Barlow on a pro bono basis. Because of these difficulties, it was decided to hear the matter in Cairns on 27 October 2005 in order to ensure that Mr Shaw could get to Cairns in time for the hearing. There was also an expectation on the respondent’s part that the trial would only last one day. In the interim, Mr Shaw telephoned to say that he could only get to Townsville and not Cairns on 27 October 2005. He affirmed that his client, Mr Barlow, was ready to proceed to trial, as did Mr Barlow in a communication with the Commission on 26 October 2005. It is unknown to the Commission whether Mr Shaw and the applicant had discussed Mr Shaw’s continued representation or otherwise at that late date. Mr Barlow says that he was contacted by Mr Shaw the day before the trial to say that he was trying to find another solicitor to represent Mr Barlow but that at such short notice he couldn’t find anyone. At the commencement of the trial, Mr Barlow advised that he was ready to proceed but only for the purpose of asking for an adjournment. The respondent indicated that were this to occur it would seek an order for costs against the applicant. After some discussion around the point Mr Barlow decided to proceed with his application. Mr Barlow (initially representing himself) advised that he had none of his documentation, witness statements, discovered documents or respondent’s statements because they were still in the possession of Mr Shaw. The hearing was adjourned briefly and Mr Shaw was telephoned (at his Townsville chambers) and asked whether he had his client’s files in his possession. Mr Shaw acknowledged that all material relating to Mr Barlow was in his (i.e. Mr Shaw’s) possession and belatedly enquired as to whether he could send the material to the Court House notwithstanding the fact that the trial had commenced. No documents were received at the Court House and Mr Barlow commenced the trial unrepresented and without his file. Normal assistance was afforded to Mr Barlow by the Commission in the conduct of his trial. The trial stop-started for some time as material was photocopied and provided to Mr Barlow. Eventually, a friend of Mr Barlow’s, Mr Paul McGuire (who had been sitting in the Court Room) decided to assist Mr Barlow. Mr McGuire had no prior experience representing an applicant in Court but determined to assist as best he could, having had the basics of evidence explained to him by the Commission. -- 1 of 4 -- 2 Mr Barlow’s statement says that he was employed by the respondent on two occasions between April 2004 and May 2005. The second period of employment commenced at the end of January 2005. He worked as a yardman looking after some fifty buses. His responsibility was to keep the buses on the road and to monitor safety checks and licenses. Mr Barlow was adamant that he had never received any warnings about his work performance. He says that working at this depot was very difficult as there was a lack of facilities one would normally expect at this type of business (e.g. grease pits). Mr Barlow, four days before his employment was terminated, requested that the employer confirm his employment so that he could raise a loan for a car. The respondent agreed to this request and the loan was granted. Some weeks after the termination of his employment, Mr Barlow acquired a casual position with another employer and worked there for several days but then suffered a heart attack and was unable to continue that work. Mr Daniel Love (Director of the respondent business) states that he employed Mr Barlow in 2004 as a casual school bus driver and later, on the second engagement, as a bus driver and yardman. Mr Barlow’s employment was terminated on the first engagement on 4 November 2004 due to a combination of “a lack of work and an inability of Lionel to stay well enough to perform his duties.”. At the end of January 2005, the respondent contacted Mr Barlow and offered him employment. The respondent says that Mr Barlow brought with him a document relating to a 26 week Government wage assistance scheme for full-time employees. Mr Love says that he and Mr Barlow agreed that he would work on a full-time trial basis for the 26 week term of the scheme. Mr Barlow would be employed as the head yardman in charge of the depots. Regarding this “scheme” Mr Barlow’s evidence is that the respondent, Mr Love, “hounded” him for a couple of years (during the first and second engagement) about conducting his employment under this scheme. Mr Barlow says it was Mr Love who obtained the papers for Mr Barlow to sign and not the other way around. I have accepted the applicant’s evidence that the payment scheme was more pursued by the respondent than the applicant. It clearly would have been of benefit to the respondent to have received Government monetary assistance in paying its employees. Mr Love states that Mr Barlow was given two verbal warnings concerning his behaviour and/or performance prior to being dismissed in May 2005. The respondent says that the first incident, which occurred on 10 February 2005 and for which a verbal warning issued, related to a complaint made by Mrs Love to Mr Love that “Lionel was not doing his work properly regarding the preparation of the vehicles for examination and that he had told her that he could not possibly work for the yardman’s award wages that he had agreed to three weeks earlier.”. From this request for better wages, Mr Love believed that Mr Barlow was attempting to “blackmail” him. The respondent agreed to add to his hourly rate, the casual loading. The end result of all of this was that Mr Barlow had an increase in his wages, but his employment status did not change. He remained a full-time employee and nothing was put to the Commission by the respondent to suggest otherwise. The respondent claimed that Mr Barlow was told that if he ever “tried something like that on again” then his employment would be terminated. That was the first verbal warning according to the respondent. Mr Barlow agrees that he requested an increase in his wages but he denied that he had received a warning for this. The respondent says that the second verbal warning issued to Mr Barlow involved an incident which occurred at the Portsmith Fuel Service Station. The allegation was that Mr Barlow had driven one of the buses to the service station to refuel. After refuelling the vehicle, Mr Barlow went into the shop to organise for payment for the fuel. At that time, another of the respondent’s buses had driven in behind Mr Barlow’s bus and the driver was awaiting Mr Barlow’s return so that he could refuel as well. The driver of the other vehicle, Mr Hutchinson, said that he had to wait about 4 or 5 minutes for Mr Barlow’s return. Mr Barlow had walked out of the shop with food in his hands. Mr Hutchinson says that he asked Mr Barlow why he hadn’t come out of the shop earlier. Mr Barlow is reported as responding that what he had done was fairly usual behaviour for bus drivers. Mr Hutchinson says he then advised Mr Barlow that it would have been “common courtesy” for the bus to be moved if Mr Barlow was going to get food. Mr Barlow is alleged to have said “who the f… do you think you are?”. Mr Barlow denies this. He does say, however, that it was common practice for employees to grab food on the run at these stations. Mr Love relayed what he believed to be Mr Hutchinson’s view that the altercation with Mr Barlow could have led to a “violent confrontation”. Mrs Love’s evidence was that Mr Hutchinson had been employed by the respondent for about three weeks. He related to Mrs Love the incident involving himself and Mr Barlow. Mrs Love said that Mr Hutchinson was near to tears when relaying his version of events with Mr Barlow at the petrol station. Mrs Love states that she spoke to Mr Barlow and advised him that he couldn’t talk to people like he had done. Mrs Love believed that constituted a second warning. Mr -- 2 of 4 -- 3 Barlow says that the first he knew of this incident was when he received the response to his application from the respondent. In relation to the incident at the service station, Mr Hutchinson agreed that there was only one console in the service station (although it contained two sections – one for customers paying for their petrol and the other for those paying for diesel fuel) and he was unsure whether Mr Barlow had to wait to be served on the day in question. Despite Mrs Love’s evidence that he had been close to tears when reporting the incident to her, Mr Hutchinson denied that was the case when being cross-examined by Mr McGuire. However, upon re-examination by Counsel for the respondent, Mr Hutchinson said that he had been “probably mentally disturbed, just a bit – yeah, shocked, distraught sort of thing, not – not to the point of crying or anything like that.”. I have found Mr Hutchinson’s evidence to be completely unreliable. If there was any reporting done to Mrs Love regarding the incident it was not of the magnitude as described. In my view, it has been grossly exaggerated. Mr Hutchinson’s evidence is that, if anything, Mr Barlow was absent from his truck for between 4 to 5 minutes and Mr Hutchinson did not know if there was a queue inside waiting to make payments. The fact that Mr Barlow grabbed some food at the time seems reasonable in the circumstances. It is hardly surprising that Mr Barlow doesn’t recall the matter. I am more inclined to believe that any conversation between Mrs Love and the applicant around the point was relatively low key. Certainly, Mrs Love’s own evidence of her comments to Mr Barlow came nowhere near constituting a warning and could easily have been forgotten by the applicant. The respondent’s final submissions were that the applicant was employed on a trial basis only for about six months. Where this submission leads to I’m not sure. Although the Commission was not presented with any documentation relating to the Government wage assistance scheme, it appears from the limited material before me that the respondent had either received payment for 26 weeks of Mr Barlow’s employment in full or was being reimbursed on a regular basis. Mr Barlow had actually worked 16 of the 26 weeks for which the scheme apparently operated. I do not accept that Mr Barlow was on a 26 week trial at all, although it may well be the case that somebody was receiving wage assistance for a period of 26 weeks. Under s. 72 of the Industrial Relations Act 1999 (the Act), the probationary period for an employee is of three months duration unless s. 72(b)(i) applies which is as follows: “72 Who this chapter does not apply to (1) Section 73(1) does not apply to – … (b) an employee serving a period of probation that is longer than the probation period, if – (i) the period decided, by written agreement between the employee and employer before the employment started, is a reasonable period having regard to the nature and circumstances of the employment…”. There was no written agreement between the parties. Mr Barlow had, for all intents and purposes, completed his three month probationary period in late April 2005. The respondent is adamant that Mr Barlow received two verbal warnings. I am not so convinced. I do not believe there was ever a bona fide first warning. Mr Barlow was perfectly entitled to ask for more wages – as is anyone. Whether the respondent was prepared to yield to that request was up to them. Provided they were paying him the appropriate Award rate, the respondent had nothing to fear from such a request. In any event, they agreed to pay him more and for this he should not be warned. The respondent describes the request as “blackmail”. The respondent was entitled to continue paying him his Award rate – they chose not to. Their acquiescence to this request can’t be, in some obscure manner, visited upon Mr Barlow. There is a third issue which was raised by the respondent as the trigger for Mr Barlow’s dismissal. The respondent’s submissions are as follows. The respondent has an obligation imposed upon them by Queensland Transport that each of its 47 registered school buses undergo a complete machinery inspection every six months. Inspection times are preset by the parties. These inspections involve a two stage process. The first stage is undertaken by employees for whom Mr Barlow was responsible and the second stage is undertaken by a firm called Clarke Diesel. A particular bus (no. 264) was booked to undergo an inspection on 3 May 2005. Mr Barlow had been off work sick on Monday, 2 May 2005. At the appointed time for the inspection it was found that the bus was not ready in that chin guards were missing, seats were torn and headlights didn’t work. Queensland Transport were phoned and the inspection was cancelled with the respondent losing its $55.70 inspection fee. The respondent stated that “upon finding this out I phoned Lionel and told him that he was finished up.”. Mr Barlow’s response to these allegations was that bus 264 was at Clarke Diesel for a few weeks awaiting air bags to arrive from Japan. Mr Barlow said that he didn’t address the issue of bus 264 in his original statement because he was not -- 3 of 4 -- 4 aware of any issues surrounding the bus until he saw the respondent’s affidavits. He does say that it was his belief that the bus was not due for inspection until 6 May 2005, not 3 May 2005. The evidence around this third issue has been rather confused and difficult to determine. Some of the problem lies in the fact that it arose as part of the respondent’s response to the applicant’s claim of unfair dismissal. It was then not addressed by the applicant in any response and the applicant says that this was because he ceased to be represented and he did not have any of his documents before him. In any event, there is no evidence before me that the respondent raised the issue of bus 264 with the applicant prior to dismissing him. The respondent merely says that when he became aware of the situation with bus 264 he told Mr Barlow that he was dismissing him. After considering all of the evidence in this case I have formed the view that the applicant has been harshly treated by the respondent (see s. 73(1)(a) of the Act). It may well have been the case that the respondent was concerned about some of the applicant’s actions, but the manner in which they chose to deal with these issues did not give any clear indication to the applicant that he had been warned (see s. 77 of the Act). Even if the applicant had been warned, the incidents as relayed to me in this case did not warrant a warning such that the applicant’s job should have been in jeopardy. Further, the applicant’s evidence (which was unchallenged by the respondent) that the respondent assisted the applicant by giving him papers to apply for a loan to buy a car some four days before the termination of his employment, also suggests, but is certainly not definitive, that there were never any warnings given to the applicant. The respondent, in its cross- examination of Mr Barlow questioned him as to whether he was intimidating towards Mrs Love in his request for assistance in getting this loan, however, no direct evidence was given by the respondent witnesses around this point. On this third occasion (bus 264) any version of events that the applicant may have had around the issue of the bus was left unheard by the respondent. In its final submission to the Commission, the respondent presses the point about the “trial period of six months” being applicable to the applicant’s employment. The respondent asked the Commission to consider, in the event that the Commission found in the applicant’s favour and determined to award compensation, that the “appropriate compensation” to be paid could reflect any relevant notice payment. As well, or alternatively, the respondent says that: “The final point is that the applicant had been paid for the better part of 14 weeks of his agreed trial period of 26 weeks. In considering the question of compensation, at best the applicant had an entitlement to no more than 3 months of continued employment.”. Reinstatement would be an “impracticable” solution to this problem. I view it as being impracticable because of the applicant’s continued illness and also the fact that the employment relationship has clearly broken down. Any concerns expressed by the Commission with regard to Mr Shaw have not played a part in my determination to find in the applicant’s favour. The decision to find in the applicant’s favour has been based solely on the case as presented to the Commission on the day of the hearing. I have determined to award to the applicant an amount of compensation. I propose to award to the applicant a global sum which approximates four months payment of $11,200, subject to normal Taxation requirements. I accept that the applicant has attempted to mitigate his losses and there is nothing before the Commission to show that the applicant has received any financial assistance or wages since the date of the termination of his employment. This amount is to be paid to the applicant within 21 days of the release of this decision. Order accordingly. D. A. SWAN, Deputy President. Hearing Dates: 2005 25 and 27 October Released: 30 November 2005 Appearances: Mr B. Shaw, Counsel originally for the applicant. Later, Mr P. McGuire for the applicant. Mr C. Ryall instructed by Mr C. Rose of Cameron Price Lawyers, with him Mr D. Love on behalf of the respondent. Government Printer, Queensland The State of Queensland 2005. -- 4 of 4 --