Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland v Brisbane City Council [2003] QIRC 180 (2003) 174 QGIG 649

24 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 649 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland AND Brisbane City Council (No. B755 of 2003) DEPUTY PRESIDENT SWAN 13 October 2003 DECISION This application is made by the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland (the Union) on behalf of its member Mr Kallum Trass who claims to have been unfairly dismissed by his former employer, the Brisbane City Council (the respondent/Council). Mr Trass had been employed, full time, as a Coach and Motor Body Builder by the Council from October 1999 to 11 April 2003 under the Engineering Award – State (the Award). Prior to that period of employment, from 1989 to 1993, Mr Trass had completed an apprenticeship with the same employer. During the second period of employment and at the time of his dismissal, he was also the Health and Safety representative for his particular work area. The material facts of the application disclose the following information: In March 2003, Mr Trass had been counselled by his employer for being suspended on the roof of a bus with a safety harness which had been incorrectly “tied off” with cable ties. The applicant says he had done this because he had been uncomfortable with the retractor pulling him back with a force of approximately 3.5 kg. He states that his actions on this occasion did not impede the safety effectiveness of the harness. However, when the matter was brought to his attention by his employer, he claims to have rectified the situation immediately. On 1 April 2003, the employer alleged that the applicant was aloft without a proper safety harness in that it had not been connected to the retractor off the roof, but instead connected to ropes suspended from the roof of the workshop. The applicant denied that this had occurred and says that at all times he was properly suspended using the retractor. The employer also states that the applicant, upon being discovered in this situation, was told not to remove the ropes from the roof of the workshop as it would be unsafe. The applicant denies that he was told this. The applicant proceeded to remove the ropes using hooks provided for that purpose, but states that at no time did he act in an unsafe manner. On the following day, the applicant was asked to respond to the allegations which had been made by the employer concerning the events of 1 April 2003. The applicant provided a written response and was dismissed from his employment on 15 April 2003. In its letter of termination to the applicant, the Council made reference to the following matters: • that the applicant’s behaviour and actions constituted both serious misconduct and poor performance; • that safety procedures had been ignored and the applicant had wilfully failed to obey reasonable directions from supervisors; • that through the applicant’s actions, he had exposed himself to danger of serious injury; • that: “On Tuesday 1 April you were observed by your supervisor, Mr Garth Thom, working on the roof of a bus at the Toowong Workshops without the height safety equipment correctly fitted. Specifically, the static line safety retractor was not fitted to the harness. In addition two ropes suspended from the workshop roof support were secured to the safety harness that you were wearing. You were later instructed by Garth Thom not to remove the ropes from the workshop roof support as he was concerned that this action may create a further safety hazard. The instruction not to remove the ropes was again given to you by your Leading Hand, David Bowden. The following morning Garth Thom observed that the ropes had been removed.”. • that two supervisors had observed the actions of the applicant and, on the balance of probabilities, the Council determined to accept the statements of the two supervisors as representing an accurate description of events; • that the Council also referred to the fact that in March 2003, the applicant had been counselled on the correct operation of the Static Line Safety Retractor and advised that in no circumstances was safety equipment to be altered in any way; • that because the applicant was the nominated safety representative in his work area, the Council was satisfied that the applicant possessed the appropriate training with regard to Brisbane Transport Workplace Health and Safety Policies; and • that the applicant was in direct contravention of clause 36(c) of the Queensland Workplace Health and Safety Act 1995. In support of its claim, the Union called Mr Christopher Blades who is the Workplace Health and Safety Co-ordinator at Brisbane Transport. This position has been held for approximately two years. Mr Blades stated that, after Mr Trass’ employment had been terminated, the Union had raised concerns generally regarding the use of the Safety Line Retractor System but that the manufacturer had been unable to identify any particular problems which required remedial action. The issues raised centred upon the basic concept that in the case of an employee falling, that person would be caught prior to hitting a lower surface. The first incident involving Mr Trass, as witnessed by Mr Blades, occurred on 11 March 2003 when Mr Trass was observed incorrectly wearing his protective equipment. Mr Trass was told to rectify this situation and did so. The ramifications, had there been a fall, were that the applicant would have hit the concrete floor prior to the fall arrest system becoming active. A further incident involving Mr Trass related to the allegation that he had attached ropes to the “D” rings on the side of the fall arrest harness. This practice was in direct conflict with safety requirements. Were a fall to occur, in this instance, then the likely outcome would result in personal damage to the applicant. Mr Garth Thom, the Bus Build Supervisor at the Toowong Bus Workshop, gave the following evidence. He had occupied the abovementioned position for approximately two years. He had also been employed by the employer for approximately 10 years and had held the positions of Coach Builder Tradesman and Leading Hand. In all, with prior employment considered, Mr Thom had some 26 years experience in the bus building industry. It was claimed that, approximately once per month, Mr Thom would have to raise issues of concern with the applicant. Mr Thom stated that: “He was not a model employee and would often push the envelope of what was appropriate behaviour.”. -- 1 of 3 -- 650 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 October, 2003 All employees were required to comply with safety requirements when working on a bus roof. This involved correctly wearing a safety harness at all times. In March 2003, a Safety Audit was conducted at this site and Mr Thom had been advised that there had been a breach in the use of a retractor by Mr Trass. Mr Trass had acknowledged this and it had appeared that the problem had been appropriately addressed at that time. On 1 April 2003, whilst observing a bus bay where the applicant was working, Mr Thom noticed that ropes had been attached to the internal roof structure of the building. The ropes were hanging down either side of the bus upon which Mr Trass was working. Upon enquiry, Mr Thom had been advised that the ropes were being used for the purpose of keeping the airlines out of the Sikaflex sealer which was being used by the applicant. Mr Thom accepted that explanation. Later that same day, Mr Thom said that: “I saw Mr Trass standing on the bus facing towards the front of the bus with his back towards me. I immediately saw that he did not have the retractor hooked onto the harness in the centre of his back. I also saw that he had one rope hooked to his right side securing D on his safety harness and he was trying to either connect or disconnect the other rope to his left hand side securing D of his harness. These ropes are not part of the safety retractor system, but are the ropes he had indicated were to keep the air-hose out of the Sikaflex.”. Upon observing this, Mr Thom told Mr Trass to remove the ropes from his harness and from the roof. Some moments later, he realised that the ropes were too high and he decided to tell Mr Trass to leave the ropes secured to the roof until the following day when a scissor lift would be used to remove them. The same directive was given to Mr David Bowden, (Leading Hand of the Paint and Panel, Bus Build Section). On the following morning, 2 April 2003, Mr Thom discovered that the ropes had been removed. Mr Trass did not inform Mr Thom why he had failed to follow instructions. Mr Thom subsequently wrote a report of the incident and provided it to his Manager, Mr Gary Moroney. That day a meeting was convened at which the Human Resources Manager, a Human Resources graduate, the applicant, the Union representative and Mr Thom were present. Mr Trass denied that the events so described above had occurred and alleged that Mr Thom had a grudge against him. Mr Thom believed that the applicant adopted what could be described as a flippant approach to issues, stating, at various intervals during the interview that it was okay to “fuck about” at work. The applicant also had attached to his belt a bell which rung whenever he lent over. Mr David Bowden gave evidence to the effect that, after Mr Thom had advised him that he had told Mr Trass not to remove the ropes, he had observed Mr Trass getting a long hook and removing the ropes from the roof. Mr Bowden approached Mr Trass and told him that he was not permitted to remove the ropes, but Mr Trass said that he was aware of that, but continued to do so nonetheless. Mr Bowden told Mr Trass that his actions would cause trouble, but that Mr Trass seemed more concerned about Mr Welsh (Workshop Manager at the Toowong Bus Workshop), seeing the ropes than he was about Mr Thom’s instructions. Evidence given by Mr Gary Moroney (Bus Build Manager at Brisbane Transport) related to discussions he had with Mr Thom concerning Mr Trass’ behaviour. Mr Moroney states that: “During the morning it appeared that Mr Trass showed no concern that he had breached safety standards or disobeyed a directive. I was advised by workshop staff that Mr Trass was walking around the section with a bicycle bell attached to his belt and occasionally honking a small horn in his pocket.”. A further incident which had occurred immediately after the termination of employment had occurred, was referred to by witnesses for the respondent. It related to Mr Trass taking with him, upon leaving the employer’s premises, his tools which were contained within a Council tool trolley. Mr Trass had been advised not to take Council property with him upon leaving the workplace, however, this instruction was ignored. Sometime later, Mr Blades intervened and the trolley was retuned. Mr Michael Welsh made reference to Mr Trass’ behaviour and dress on the occasion of one counselling session where Mr Trass: “…had wetted and combed his hair in a strange style, and had the comb protruding from his pocket. He also had glasses with eyeballs on the lenses in his top pocket, and wore a makeshift tie fashioned from a piece of scrap material.”. Given that Mr Trass had recently been counselled regarding the wearing of safety harnesses, Mr Welsh was concerned that a further incident had occurred around a similar type of incident. After the meeting previously referred to, a process was followed by the employer whereby Mr Trass was provided with a show cause letter to which he responded. Mr Welsh, after a discussion with Mr Greg Newman (Human Resources Manager for Brisbane Transport), formed the view that the response was not sufficient. The matter went to the Divisional Manager of Brisbane Transport for final determination. That final determination endorsed the views held by Mr Welsh and Mr Newman. There are a number of difficulties facing the applicant in this matter which have not been overcome after considering the totality of the evidence given. The first relates to the applicant’s belief that he could adjust the safety rules in order to facilitate his particular concerns. The applicant held the position of Workplace Health and Safety Representative and was more than aware of health and safety requirements when using particular equipment. He had been on warning regarding one infringement in this area. The fact that the second incident occurred so quickly after the first, quite rightly gave the employer cause for concern. The weight of evidence goes against the applicant in terms of the second incident. While Mr Thom had seen the second incident (regarding the manner in which the ropes were being used), there is compelling evidence that immediately after seeing this incident, Mr Thom related a similar version of events to others. There is more than Mr Thom’s evidence that the applicant was directed not to remove the ropes after the incident. I have no reason to disregard that evidence. There is sufficient corroboration of events as to persuade me that these witnesses were telling the truth. From the evidence before me, it appears that the applicant displayed a somewhat cavalier approach to his employment, especially when it came to direction. In terms of his personal habit of displaying and using bells and whistles on his person around the workplace, he appears not to have been reprimanded for this and, irrespective of the employer’s “after the event” concern, the reality is that the employer condoned this practice. In any event, it might have provided light relief from the arduous task of bus building. The “cavalier” approach I refer to relates more to an apparent disregard for clear direction from the employer and certainly a disregard for applicable safety rules. Section 36 of the Workplace Health and Safety Act 1995 states that “A worker or anyone else at a workplace has the following obligations at a workplace – … (c) not to wilfully or recklessly interfere with or misuse anything provided for workplace health and safety at the workplace…”. This provision of the Act was not adhered to by the applicant. The applicant, who, in conjunction with his normal employment duties, was the Workplace Health and Safety Representative for his section of the workplace, was in the position to be more than aware of his responsibilities. To have his work behaviour seriously questioned by his employer on two occasions, over a short period of time, is telling. -- 2 of 3 -- 24 October, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 651 The matters in question were not trivial – they related to serious health and safety issues. To further compound the applicant’s problems, I accept that he deliberately ignored a direct instruction from his supervisor not to remove the ropes on the occasion of the second incident. There is little in the evidence of any other witness to support the applicant’s actions. There were processes in place for the applicant to raise any concerns he believed he had with regard to the equipment which he was required to use. He states that he had done this, but there is no documented record that the matter was raised at appropriate Workplace Health and Safety meetings. The actions of the employer in terminating the employment of the applicant have not been harsh or unreasonable. I dismiss the application. Order accordingly, D. A. SWAN, Deputy President Appearances: Hearing Details: 2003 28 and 29 August Mr E. Moorehead and with him Ms K. Allen, for the Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees, Queensland on behalf of the Applicant. Ms K. Odgaard and with her Mr B. Miers for Brisbane City Council. -- 3 of 3 --