Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees v Gold Coast City Council [2002] QIRC 83 (2002) 170 QGIG 196

196 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 June , 2002 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 229 – notice of industrial dispute s. 230(3)(b) – arbitration of dispute Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees AND Gold Coast City Council (No. D31 of 2002) COMMISSIONER BLOOMFIELD 30 May 2002 Dispute – Arbitration of dispute – 2 Council employees – Drinking of alcohol on work site – First written warning issued – Inspections – Employees not in view of public when drinking alcohol – Not in working time – Commission found that verbal warning should have been issued – Written warning to be removed from employees’ files. DECISION On 23 October 2001 two employees of the Gold Coast City Council – a Mr Fillippow and a Mr Househam – were each issued with a written first warning for consuming alcohol at a Council work site at Tugun at approximately 2.40–2.45 p.m. on Friday 12 October 2001. The two gentlemen had been engaged on that day in the laying of concrete at a new round-a-bout which was being constructed at a major intersection at Pacific Parade and Musgrave Street, Tugun. They had apparently worked through their smoko breaks and had been allowed to knock-off for the day at approximately 2.30 p.m. This was some twenty minutes or so before their normal knock-off time. Around the time of their knock-off another Council employee – who had been on leave – visited the worksite to inform his work colleagues that he was being admitted to hospital on the following day for urgent surgery as a result of having been diagnosed with bowel cancer. The employee also brought with him a six-pack of beer. The three employees entered the Council’s work hut and sat down inside it at a table and began to talk about the ill employee’s imminent operation. Whilst doing so they began to consume the beer. -- 1 of 3 -- 14 June, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 197 On that same afternoon the work location was being inspected by the Council’s Occupational Health and Safety Co-ordinator. He entered the work hut and observed the three gentlemen drinking beer. It is unclear what was said to the men at that time but the Co-ordinator subsequently brought the matter to the attention of the Council’s Acting Director Engineering Services on the following Wednesday – 17 October 2001. Each of Mr Fillippow and Mr Househam was called to a meeting with the Council’s Manager Construction Services, Mr Harris, on 22 October 2001 where they essentially confirmed the nature of the incident and explained the mitigating circumstances. On the following day Council issued a letter to Mr Fillippow in the following terms:– “Dear Mr Fillippow CONDITIONS OF EMPLOYMENT WHICH ARE NOT BEING MET – FIRST WARNING On Wednesday 17 October 2001, it was brought to the attention of the Acting Director Engineering Services that the consumption of alcohol had taken place at a Council worksite located at Pacific Parade, Tugun at approximately 2.45 pm Friday 12 October 2001. At our meeting of Monday 22 October 2001, it was confirmed that you had advised the Acting Supervisor that you had finished work early and that you were wishing a work colleague all the best before an operation. Whilst Council appreciates the concern for your work colleague, regardless of the reason it is inappropriate to consume alcohol inside normal business hours or at a Council worksite. As Ganger, there is an expectation of you to demonstrate to other staff members an appropriate work ethic and abide by Council policies and procedures. A copy of Council’s Policy on “Alcohol in the Workplace” is attached to remind you of your responsibilities as a Council employee. Please be advised if an incident such as this occurs again Council will proceed with further disciplinary action. An incident such as this must not occur again and I trust that we can all work together for the benefit of Council and its objectives. Yours faithfully Mr Keith Harris MANAGER CONSTRUCTION SERVICES.”. A similar letter – except for different wording in the first sentence of the third paragraph – was also given to Mr Househam. The Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees (FEDFA) took the matter of the first warning letters up with the Gold Coast City Council with a view to having them removed and replaced by verbal warnings. The approach was unsuccessful. As a consequence, the Union notified the Commission of a dispute. The matter first came before the Commission on 14 February 2002. On that day, the Commission as presently constituted suggested to the parties that they continue to confer about the issue in light of various matters canvassed during the conference. I also indicated to the parties that if the issue could not be resolved between them I would arbitrate the dispute pursuant to s. 230(3)(b) of the Industrial Relations Act 1999. I was subsequently informed that the parties had not been able to resolve the dispute through their own endeavours. FEDFA asked me to arbitrate the dispute in line with my earlier indication. By agreement with the parties I conducted inspections and held a hearing at the Gold Coast on 17 May 2002. The location of the work site at Pacific Parade, Tugun was inspected as was the actual work hut which had subsequently been removed from that site to a Council depot at Carrara. The inspections revealed that the work shed was approximately 6 metres by 3 metres in dimension. In October 2001 it was positioned in an east to west direction in a grassed area between Pacific Parade and Tugun Beach. The entrance doorway to the hut was located at its western end. There was a two- pane window located at approximately the midpoint of the northern (long) side of the hut. Another window was located about a third of the way along from the eastern end of the hut on its southern side. The table and chairs inside the hut were against its eastern wall. A pedestrian pathway runs east to west at a distance of approximately 12 to 15 metres from the northern side of the hut. Council containers – used to store various pieces of equipment – were located near the hut on its southern side. The men and the table at which the men were sitting inside the hut could not have been visible to members of the public passing by the hut unless they came right up to one of the windows or to the entrance door. Ms Bourke and Ms Tatzenko, for Gold Coast City Council, said the incident occurred “at a busy tourist location” at approximately 2.40 p.m. “in full view of the general public”. They said the employees’ behaviour was also inappropriate because two labour hire employees were outside the hut cleaning up for the day. They said that each of the employees had been through a full Council induction and had each received training in regard to work and alcohol in the workplace. Official memorandums about alcohol in the workplace had also been issued by the Chief Executive Officer and the Council’s policies had allegedly been reinforced by the employees’ supervisors. Ms Bourke and Ms Tatzenko said that it was also considered reasonable to expect that Mr Fillippow, who was a Ganger, would have been aware of the Council’s Policy in regard to consumption of alcohol. In support of the Council’s position they also tabled statements from several supervisors which suggested that the two employees would have been aware, or should have been aware, of the Council’s policies. Why the employees would have known, or should have known, of the policies was not stated. One of the supervisors, Mr Patience, attested to having verbally discussed the drinking of alcohol during working hours with Mr Houseman in September 2000. However, a closer examination of the diary note submitted showed that Mr Houseman had been spoken to about the “previous day’s effects of alcohol”. I have placed little reliance on the statements because they do not contain any matters of fact. They only express opinions and appear to be somewhat self-serving. Ms Bourke and Ms Tatzenko also referred to various workplace, health and safety induction programs and the Council’s “Alcohol in the Workplace Policy” adopted in 1996. They said the Policy had been made known to all employees – including Mr Fillippow and Mr Houseman – most particularly by posting it on notice boards. -- 2 of 3 -- 198 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 14 June , 2002 However, that position was rejected by each of the employees in signed statements. They said they had never been made aware of the Council’s Policy. FEDFA’s Organiser, Mr Spinks, said there had been a number of disputes between the Union and the Council as a result of the failure of various supervisors to post Council notices. A closer examination of the Council’s Policy disclosed that whilst it dealt generally with the issue of consuming alcohol on Council work sites, it also appeared to contain a number of inconsistencies. For example, whilst prohibiting the keeping of alcohol in certain work areas the Policy nonetheless permitted alcohol to be consumed in those same work areas after usual knock-off time provided that it was not in view of the public. Further, a closer consideration of some of the subject matter canvassed through the Council’s induction and other training programs does not lend support to the submissions made by Ms Bourke and Ms Tatzenko that each of the employees was clearly made aware of Council’s expectations regarding the consumption of alcohol. For example, one of the programs which they claimed would have led to the employees knowing about Council’s Policy was a training program dealing with confined spaces. Whilst the issue of consumption of alcohol was probably covered in that training program in a general sense, it requires a long bow to make the link between that training program and Council’s Policy. In addition, I am not satisfied on the evidence produced, including the statements of the various supervisors referred to above, that the employees were made aware of Council’s Policy and how it might have related to the type of incident which occurred on 12 October 2001. There is no evidence that the employees received the Policy nor is there any evidence that they were put through a program which explained its purpose and intent. Even if they were, there are so many inconsistencies in the Policy that it is difficult to state with any certainty that the events of 12 October 2001 were fully captured by the Policy and were outside it. Whilst the employees might have been drinking alcohol within a Council hut (which is dealt with in Council’s Policy) they were not drinking alcohol during working time (certainly not “inside normal business hours” as alleged in Council’s letter of 23 October 2001). Nor were they drinking in a place which would have been within view of the public. In the absence of any solid evidence that the Policy was given to the employees – and its contents explained – I have decided to approach the matter on the basis that commonsense dictates that the employees knew, or should have known, nothing more or less than it was inappropriate to consume alcohol during working time and/or in view of the public. They did neither of those things. After considering the material presented in the case and the very special extenuating circumstances on the day in question I have decided that the Council’s decision to issue a first written warning to each of Mr Fillippow and Mr Househam was not justified based upon the events, and circumstances, of 12 October 2001. In so deciding I have noted the following points:– • The Council’s warning letter has been framed on the premise that the employees consumed alcohol within normal business hours. • The Occupational Health and Safety Co-ordinator who observed the incident did not report it immediately but waited for a number of days before taking the matter to a higher level. • Council’s Alcohol in the Workplace Policy contains a number of inconsistencies, some of which are referred to above. • The employees in question consumed the alcohol in the hut out of the view of the public after they had completed work for the day. • There is an exceptional mitigating circumstance involved – namely, the attendance of the third employee with the beer who wished to discuss with his work colleagues his diagnosis of bowel cancer as well as the fact that he was to undergo an urgent operation on the following day. In considering those matters I have also noted the fact that the employees did not, for example, simply move away from the Council’s work huts to one of the covered benches located further along Pacific Parade. It would have been an interesting test of the Council’s Policy if the two employees, having knocked off work, sat down as members of the general public at one of the benches and consumed the alcohol. In my view, having regard to the employees’ previous work history and the events of the day, the appropriate disciplinary action would have been to have given the employees a verbal warning. The first warning letter should be removed from each of the employees’ personnel files and be substituted with a verbal warning. The Commission so determines in accordance with the powers vested in it at s. 230(3)(b) of the Industrial Relations Act 1999. A.L. BLOOMFIELD, Commissioner. Appearances:– Mr C. Price and Mr D. Spinks for the Federated Engine Drivers’ and Firemens’ Association of Australasia Queensland Branch, Union of Employees. Ms K. Bourke and Ms M. Tatzenko for Gold Coast City Council. Released: 30 May 2002 -- 3 of 3 --