Australian Liquor Hospitality and Miscellaneous Worker Union, Queensland Branch, Union of Employees (for Thomas) v Quest Security Pty Ltd [2003] QIRC 151 (2003) 174 QGIG 5

5 September, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Australian Liquor Hospitality and Miscellaneous Worker Union, Queensland Branch, Union of Employees (for Lex Ross Thomas) AND Quest Security Pty Ltd (No. B724 of 2003) COMMISSIONER BECHLY 25 August 2003 DECISION This application results from the termination of Mr Lex Hanley from his employment as a security guard with Quest Security Pty Ltd. Three questions are raised for consideration: • Was Mr Hanley within a period of probationary employment? This question arises as a result of the respondent obtaining the security contract at Century Yuasa, which was previously held by another security provider, Chubb Protective Services which employed Mr Hanley at that site. • Was the dismissal for an invalid reason? The allegation by Mr Hanley is that he was dismissed because of his membership of the Australian Liquor Hospitality and Miscellaneous Worker Union, Queensland Branch, Union of Employees (ALHMWU). • Was the dismissal harsh and unjust? Probationary Employment – Transferred Employee Century Yuasa decided to seek tenders for the security operations at its site at Wacol. Chubb Protective Services was the existing provider and had increased its service charge. Quest Security Pty Ltd won the contract. A term stipulated by Century Yuasa was that it must secure the services of the senior security officer who was familiar with the work required at the site. The work was more than security duties and included plant monitoring and adjustment when it was not in production. Although Century Yuasa preferred that other existing staff be retained, this was not a requirement of the contract. The senior security officer, Mr Hanley and some others agreed to work for Quest. They terminated their employment with Chubb and were paid out all entitlements. They ceased working for Chubb on 28 February 2003 and commenced working for Quest on 1 March 2003. This circumstance seems to fall squarely within the situation dealt with by President Hall in ALHMWU v Wilson Parking Australian 2002 at 171QGIG 323 where he found that employees became transferred employees as referred to in p. 69 of the Industrial Relations Act 1999. The effect is that prior service with Chubb is to be taken into account when determining the length of service for the purpose of assessing whether Mr Hanley was a probationary employee, that is, within his first three months of employment. Mr Hanley’s prior length of employment with Chubb was such that he should not be regarded as a probationary employee. Was the dismissal made for an invalid reason? The allegation is that Mr Hanley was dismissed because he was a member of the ALHMWU. The onus is on the respondent to demonstrate that membership of the Union was not the reason for dismissal. It has adequately done so. When presenting his evidence Mr Hanley demonstrated that he is an aggressive argumentative and difficult person to deal with. This forms the essential reason for his dismissal. Whether this attitude was acceptable or whether it was the result of inappropriate actions of the respondent will be dealt with later. -- 1 of 2 -- 6 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 September, 2003 The basis for the allegation of dismissal for an invalid reason appear to stem from alleged comments by the employer, said to be made to some employees and a union organiser, that the respondent did not like unions. These allegations are strenuously denied by the respondent and lacked evidentiary support, to the extent necessary, from the applicant. The credibility of both parties was tested through various stories of conversations. It serves no point to forensically examine this material. It is clear that, at least in the case of one witness, an existing employee, that there is a highly emotive attitude towards the respondent seemingly emanating from his wife’s employment with the respondent at one time. A further detailed examination may further damage the employment relationship for no purpose. A further aspect I take into account is the uncontested account of a conversation between Mr Hanley and a principal of the respondent, Mr Comblas, at an interview for employment sometime prior to the dismissal. Mr Hanley, at that interview, described his close relationship with the Premier of Queensland and disclosed that he was the campaign manager for a local Labor member of parliament and offered to assist the respondent to secure certain work through his government contacts. The likelihood that the respondent dismissed Mr Hanley because of his union membership in these circumstances is quite remote. I have taken all of the evidence into account on this issue and am unable to conclude that the dismissal was for the reason that Mr Hanley was a member of a union. Was the dismissal harsh, unjust or unreasonable? Three issues were raised by the respondent as being the cause of the termination. The first issue concerned what has been described as an unauthorised shift swap by Mr Hanley. In the circumstances surrounding this matter a different attitude should have been adopted by the respondent. As I understand the facts leading up to this matter Mr Hanley, prior to the transfer of the contract, worked on a roster which enabled him to have a day off on a particular date after the transfer. That date coincided with his wife’s birthday. Prior arrangements, he says, had been made to take his wife shopping on the RDO which was the day before her birthday. Subsequent to the transfer of the contract it was necessary for the previous roster to be dismantled. That roster provided for twelve-hour shifts by way of a certified agreement. The respondent preferred eight-hour shift periods. It is a matter of interest that the respondent had contacted the Union to discuss the making of a certified agreement but that approach did not result in the outcome sought. There was no animosity. The Union would only agree to a six month term to the agreement. The respondent sought a three year term. The roster finally proposed by the respondent that met the award requirements resulted in a change of the RDO desired by Mr Hanley. He approached his supervisor about a shift swap and duly took the day off. Unbeknown to him the respondent had rejected the shift swap request when it was conveyed by the supervisor. While there was some debate about this rejection it is not of particular significance. Mr Hanley simply was not aware of the refusal. On the day in question it was discovered that the supervisor was working on the shift instead of Mr Hanley. Both the supervisor and Mr Hanley received a written reprimand. There then followed an aggressive confrontation between Mr Hanley and the respondents. While there was some basis for Mr Hanley’s reaction to the reprimand, the level of reaction was quite inappropriate. Some little time subsequent to this incident the respondent decided to provide site multi-skilling for five of its security staff. In the case of Mr Hanley this meant traveling from Bellbird Park to Labrador on the Gold Coast. At the hearing Mr Hanley grossly exaggerated the additional traveling time requirement. His response was to ring the respondent and inform it that he was not going to participate in the training unless he was paid $30 extra and then hung up in the respondent’s ear. The following day, at a meeting with the respondent, it was discovered that Mr Hanley had some difficulty with his car. Arrangements were made to defer the training for all staff to enable Mr Hanley to have his car repaired. The third circumstance which led the respondent to decide to terminate Mr Hanley was his adherence to the dress code. Failure to wear a tie and general scruffiness was relied on together with a verbal comment to this effect to Mr Hanley. Mr Hanley’s evidence is that his previous employer, in certain circumstances allowed the tie not to be worn and the circumstance of work on plant, including working near acid plant was such as to warrant non- observance of standing orders about the wearing of uniforms. Decision to terminate It is the evidence of the respondent that on several occasions it sought the advice of Wageline about probationary employment in the circumstance of this matter and was advised that it was able to treat Mr Hanley as a probationary employee and dismiss him as a person with less than three months’ employment. It did so, but in the mistaken belief that it was entitled to do so. Remedy Both parties contributed to the reason for termination, the respondent through its failure to ensure it communicated effectively about the shift swap thus developing a sense of hostility in the applicant and Mr Hanley through his quite unacceptable attitudes on a range of matters. Had the employment been of a probationary nature it would have been reasonable of the respondent to conclude that Mr Hanley should not remain in employment. The employment relations should be recommenced with both parties noting the critical comments contained herein and appropriately reacting to them. Mr Hanley, I am informed has suffered a heart attack, has been hospitalised for a short period and will be unable to resume work for some weeks. The employment relationship should be restarted when Mr Hanley can evidence a medical clearance indicating his fitness to again take up security duties. A reasonable timeframe needs to be adopted. I am informed that the prospect is that this will occur in November/December 2003. Mr Hanley’s prior transferred service is to be treated as service for the purposes of the future employment determined herein and his continuity of service is not to be broken by present absence, subject to him being available for reemployment within a reasonable time. Mr Hanley was paid one week’s notice of termination which disregarded prior transferred service. His entitlement was two weeks’ notice. The respondent is ordered to pay Mr Hanley one week’s wages within seven days of release of this decision to the parties. R.E. BECHLY, Commissioner. Hearing Details: 2003 16, 17, 31 July 19 August Appearances: Mr K. Crank of the Australian Liquor Hospitality and Miscellaneous Worker Union, Queensland Branch, Union of Employees on behalf of the applicant. Mr A. Harding instructed by Gilshenan & Luton on behalf of the respondent. Released: 26 August 2003 -- 2 of 2 --