Dolega v John Holland Pty Ltd [2003] QIRC 105 (2003) 173 QGIG 598

598 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 June, 2003 ######################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Sydney Henry Dolega AND John Holland Pty Ltd (No. B1926 of 2002) COMMISSIONER FISHER 3 June 2003 Application for reinstatement – Employee excluded from contract site – Alternative employment options explored – Employee made redundant – Redundancy found not genuine – Termination, Change and Redundancy Provisions – Performance issues – Applicant found to be dismissed – Final warning – Dismissal found not harsh, unjust or unreasonable – Application dismissed. DECISION This is an application by Sydney Dolega seeking reinstatement to his former position of Cleaning Supervisor with John Holland Group Pty Ltd (John Holland). He was employed in this capacity at the Queensland Nickel Industries (QNI) site at Yabulu. Mr Dolega commenced employment as Cleaning Supervisor on 3 June 2002 and was dismissed on 25 November 2002. The broad facts of the matter are not substantially in dispute. John Holland had entered into a contract with QNI to provide cleaning services at the Yabulu site. In or about mid November 2002 QNI complained to John Holland about aspects of Mr Dolega’s performance and attitude. QNI requested John Holland to take demonstrable action over these matters. In response John Holland issued Mr Dolega with a final written warning on 19 November 2002. Mr Dolega proceeded to take several rostered days off and sought personal counselling in this time to help him address the issues of concern. Regrettably, the issuing of a final warning was insufficient for QNI. They decided to exercise their right under the contract to exclude Mr Dolega from the Yabulu site. Such advice was received by John Holland from QNI on 20 November 2002. On that day consideration was given by John Holland to alternative employment options for Mr Dolega. John Holland only had one other contract in Townsville and it is for maintenance work for which Mr Dolega is not qualified. Accordingly John Holland decided to terminate Mr Dolega’s employment. John Holland did not immediately inform Mr Dolega of QNI’s decision. On his return to work on 25 November 2002, Mr Dolega was advised of QNI’s decision. Mr Dolega was advised that he was redundant as at 25 November 2002 and was paid one week’s pay in lieu of notice and, as an ex gratia payment, an extra week’s pay for being over 45 years of age. Mr Dolega complained that the redundancy was not genuine and that his dismissal was harsh, unjust or unreasonable. His concerns were that the complaint against him from QNI was not properly investigated nor was he given the opportunity to respond. By the time a meeting was held with Mr Dolega and his representative, John Holland had already taken the decision to dismiss Mr Dolega. Doubt was cast over the credibility of the witnesses called by John Holland, viz, David Remilton, Business Development Manager of John Holland and the John Holland Project Manager, Gavin Blaik, especially in relation to the advice of the exclusion from the QNI site. On the first argument, that the redundancy was not genuine, the Commission would agree. A redundancy is normally defined in relation to a position. Moreover, the Commission’s policy on Termination of Employment, Introduction of Changes, Redundancy, [(1987) 125 QGIG 1119] talks about redundancy as being “Where an Employer has made a definite decision that he/she no longer wishes the job the employee has been doing to be done by anyone, and this is not due to the ordinary and customary turnover of labour and that decision may lead to termination of employment . . .”. This definition of redundancy is drawn from the decision of the then Australian Conciliation and Arbitration Commission (ACAC) which, in the Termination, Change and Redundancy Case, considered a range of definitions of redundancy. [(1984) 8 IR 34]. It was particularly attracted to the definition given in the decision of Bray CJ in Reg v Industrial Commission(S.A.); Ex parte Adelaide Milk Supply Co-operative (1977) 44 SAIR 1202 at 1205. In their decision the ACAC said that: “A key element in that definition is that the employer no longer requires to have the work done by anyone.”. -- 1 of 3 -- 20 June, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 599 It is clear on the evidence before me that the job that Mr Dolega had been doing is still being done. Another employee has been employed in Mr Dolega’s position. The termination of Mr Dolega’s employment cannot be classed as a redundancy. A dismissal has been accepted in this Commission to mean “a termination of employment at the initiative of the employer and without the genuine consent of the employee”. [see Dowdell v Sunlite Glass Bricks (1997) 155 QGIG 785]. Mr Dolega did not consent to the termination of his employment. In my view Mr Dolega was dismissed from his employment. Was the dismissal harsh, unjust or unreasonable? The phrase “harsh, unjust or unreasonable” was considered by Sheppard and Heerey JJ of the Federal Court in Bostik (Aust) P/L v Georgevski (1992) 36 FCR 20 at 28. In that decision the following was said: “These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of the decision on the employer. Any harsh effect on the individual is clearly relevant but of course not conclusive.”. It is the case that there was no real opportunity given to Mr Dolega to discuss or refute the allegations that led to the warning being issued on 19 November 2002. Indeed it seems to have been presented as a fait accompli. Reference was made in the letter of warning to other warnings, however, when pressed in his evidence on these matters, Mr Blaik was vague, saying that he understood Mr Dolega’s supervisor to have issued those warnings. I am not satisfied on the evidence that previous warnings had been issued although I accept that some matters of concern about Mr Dolega’s performance had been raised informally with him prior to 19 November 2002. Some issue was made during the proceedings by the applicant’s representative, Mr Scott, about the sequence of events that led to Mr Dolega’s exclusion and ultimately his dismissal. It is a little confusing because Mr Remilton and Mr Blaik had separate discussions with QNI representatives on 19 November 2002 and the correspondence, which was by email, is at times less than clear. However, the evidence showed that a final warning was issued by John Holland to demonstrate to QNI that they were treating QNI’s complaints about Mr Dolega seriously. QNI was not satisfied with the final warning given to Mr Dolega. Although no incident occurred specifically after the issuing of the final warning on 19 November 2002, later that day QNI decided to exercise its powers under the contract to exclude Mr Dolega. Mr Blaik was contacted by QNI who advised of its decision to revoke Mr Dolega’s authorisation to enter the site. Mr Blaik said that he attempted to dissuade QNI from this action but that he was unsuccessful. Mr Blaik then asked that QNI put the direction in writing to John Holland. On 19 November 2002 Mr Remilton also received advice from another officer of QNI of their dissatisfaction with Mr Dolega’s attitude and performance and decision to revoke his authorisation. Mr Remilton also sought to intercede on Mr Dolega’s behalf but to no avail. Mr Remilton then sought written confirmation from the QNI contract administrator of their decision. This was provided on 20 November 2002. At times Mr Remilton was hesitant in giving his evidence and Mr Blaik curt in answering questions in cross examination but based on their demeanour and their evidence as a whole I am unable to draw any adverse inferences about their credibility. On the evidence before me I am satisfied that both Mr Remilton and Mr Blaik genuinely attempted to save Mr Dolega from being excluded. Clause 3.5.3 of the contract between QNI and John Holland provides that “QNPL resumes the right to exclude any person from the Yabulu Michel Refinery . . . This right will not be exercised unreasonably by QNPL.”. (QNPL is taken to mean QNI in the context of this decision). On the basis of the information before the Commission I think that the issue of whether QNI exercised its right of exclusion reasonably is open to challenge. However, that is not a matter for determination by this Commission. The decision of John Holland to dismiss Mr Dolega is the one that must be scrutinised. Mr Scott complained that Mr Dolega was not told of his exclusion and dismissal until 25 November 2002 despite Mr Blaik having contacted Mr Dolega for other work related matters during his days off. In my view John Holland acted appropriately in not advising Mr Dolega of the situation that had arisen while he was on rostered days off. The better practice is to meet with the staff member concerned on their return to work and to discuss the situation then. This is what occurred here. I expect that if Mr Dolega had been told of the situation whilst he was on leave that action would have been open to criticism by the Commission. Evidence was given by Messrs Remilton and Blaik that alternative employment opportunities had been explored before taking the decision to dismiss Mr Dolega. After reflecting on the evidence given the Commission considered that further evidence needed to be before the Commission to establish whether these options had been thoroughly investigated. To this end a further brief telephone hearing was reconvened on 27 May 2003. At this time Mr Remilton provided evidence about the matter of concern to the Commission. Mr Remilton said that when Mr Dolega was dismissed John Holland’s only operations in North Queensland were the cleaning contract with QNI and a maintenance contract with the Townsville Port Authority. Fifteen people were employed under the cleaning contract and three trades qualified staff were engaged under the maintenance contract. The person who replaced Mr Dolega at the QNI site was recruited to the position from outside of John Holland. Mr Remilton also said that he spoke to Gordon Hutchings the Queensland Region Industrial Relations and Occupational Health and Safety Manager for John Holland, and Mr Blaik about alternative prospects for Mr Dolega. Because of the limited involvement of John Holland in the Townsville area, neither person could find or suggest other work. Once this information was available, the decision was taken to dismiss Mr Dolega. I am satisfied on the evidence that Mr Dolega’s dismissal related to the operational requirements of John Holland’s business. The situation in which John Holland found itself as a result of the decision taken by QNI is not unusual in contract operations such as contract cleaning, contract catering and the like. In order to retain the present contract and to hopefully gain a new contract, companies have to respond to demands of their clients in ways that they may not necessarily think is fair and appropriate for their employees. But that is the nature of contracting industries. The decision of John Holland to dismiss Mr Dolega was not taken lightly and also not taken without consideration of Mr Dolega’s situation. I am satisfied that John Holland genuinely attempted to find alternative work for Mr Dolega but as they only had one cleaning job in the Townsville area, alternative placements for Mr Dolega were not available. The Townsville Port contract required trades staff and Mr Dolega was not so qualified. In the circumstances I am satisfied that John Holland had no work for Mr Dolega and this only left the option of dismissal. For these reasons I consider that when viewed objectively the dismissal of Mr Dolega was not harsh, unjust or unreasonable. In reaching that view I am conscious of the impact of the decision on Mr Dolega. In his evidence Mr Dolega admitted to having below average literacy skills and indicated that he wanted to better understand why his performance was considered to be deficient. The Commission commends Mr Dolega for taking rostered days off work to seek personal counselling after having received a final written warning. Mr Dolega was clearly making every effort to improve his performance to make his services satisfactory to both John Holland and QNI. It is not often that the Commission sees an employee take such deliberate and positive steps to improve their performance. John Holland, too, seemed to be impressed by Mr Dolega’s efforts in this regard. -- 2 of 3 -- 600 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 20 June, 2003 The Commission has no doubt that Mr Dolega was distressed by his dismissal, coming so soon after the final warning and given his attempt to improve his performance. John Holland attempted to cushion the impact of the decision by paying a week’s pay in addition to the statutory notice. This was a gesture John Holland was not obliged to make. However, the job of the Commission is to determine whether, in all of the circumstances, the dismissal was harsh, unjust or unreasonable. Given the situation confronting John Holland, where one of its employees had been excluded from the only site where it conducted cleaning operations and there was no other work available for the employee concerned, the Commission cannot conclude the dismissal was harsh, unjust or unreasonable. The application is dismissed. Order accordingly. G.K. Fisher, Commissioner. Hearing Details: 2003 22 & 27 May Appearances: Mr P. Scott for the applicant. Mr C. Burton and with him Mr D. Remilton for the respondent. Released: 3 June 2003 -- 3 of 3 --