Brown v Elcom Australia Pty Ltd [2002] QIRC 57 (2002) 169 QGIG 800

800 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 April, 2002 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s. 74 – application for reinstatement Arthur James Brown AND Elcom Australia Pty Ltd (No. B1877 of 2001) COMMISSIONER BLOOMFIELD 15 April 2002 Reinstatement – Dismissal – Termination of Employment – Lifter/borer operator – Construction industry – Redundancy – Shortage of work – Arbitrated Matter – No procedural unfairness – Company entitled to utilise services of another multi-skilled employee on lifter/borer – Dismissal not harsh, unjust or unreasonable – Application dismissed. DECISION -- 1 of 5 -- 26 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 801 This decision relates to an application for reinstatement lodged by Arthur James (Jim) Brown. Mr Brown seeks relief regarding his alleged unfair dismissal by Elcom Australia Pty Ltd on 5 October 2001. Issues in dispute 1. Nature of the employment arrangement On or about 12 March 2001 the applicant was interviewed for the position of lifter/borer operator with the respondent. The applicant said he was interviewed by Mr Wayne Dennis, the respondent’s Human Resources Manager. However, Mr Dennis and a Mr Maurice Hutchison, the respondent’s Overhead Reticulation Manager, gave evidence they had both interviewed Mr Brown. I accept their evidence. Mr Brown also said he had not been given a “job and position description” at, or prior to, the interview and had not seen it until the date of the hearing. However, Mr Dennis said it was standard practice for clerical staff in the respondent’s reception area to give all job applicants a job and position description to read prior to their actual interview. This was for two reasons. It helped applicants understand the job and position requirements they were to be interviewed about and it also expedited the explanation process from the company’s perspective. Further, it saved the applicant and the interviewer from wasting their respective time if the applicant was not interested in pursuing their application for the job after having read the job and position description. Neither Mr Dennis nor Mr Hutchison could state with certainty that Mr Brown had been given the job and position description prior to the interview. However, Mr Dennis said the records which he kept of the interview also included a copy of the position description. This indicted to him, based upon past practice, that Mr Brown had brought the job and position description with him into the interview room and that he did not wish to take it away with him. In such cases Mr Dennis usually stapled all the material together and put it in the personnel file. The issue of whether Mr Brown had read, or even seen, the job and position description was relevant because it contains the following notation:– “Probationary period: As stated in your interview this position is based on a probationary period of six months prior to confirmation of full-time employment. In this period either party may, if they choose, cease the employment arrangement without redress or justification.”. The job and position description also provided as follows:– “Wages: This consists of the terms and conditions of the ‘Civil Construction, Operations and Maintenance General Award’ (CW6) this is currently $520.90 for a 38 hour week and is paid on a (19%) loaded casual rate until such time as our EBA is resolved. . . . . . . as there is a loaded weekly pay rate there are no annual holidays, public holidays or sick days paid. . . .”. Further, the interview questionnaire, completed for each applicant by Mr Dennis, contains the following question:– “Are you content to work under the concepts as outlined in the job/position description you read earlier?”. Mr Dennis said he put the above question to Mr Brown during the course of the interview and Mr Brown replied in the affirmative. On that basis it was asserted, firstly, the applicant had received and read the job and position description for a lifter/borer operator (which included the reference to a six months’ probation period) and, secondly, by answering in the affirmative the applicant agreed to a six months’ probation period prior to the commencement of his employment. However, it is clear that neither of the employer representatives stressed the six months’ probation period to Mr Brown during the interview. Other than asking him was he prepared to work under the job and position description he had read earlier, they did not seek his specific agreement that the probationary period would be for six months. That having been said, Mr Brown did know there was a probationary period. Mr Brown said other longer serving employees of the respondent had been made permanent when the Industrial Relations Commission changed the rate for casual workers from 19% to 21% (May 2001). When he made enquiries as to why he had not been made permanent, along with the rest of the workforce, he was told it was because he was still on probation. He was also told, by other staff, the probationary period was for three months. Mr Brown said he was paid at the casual hourly rate until around 25 June 2001 when he was paid an unloaded rate. He also said he was told by persons whose names and identities he now cannot remember that this change in his pay rate meant that he was now a permanent employee. Mr Brown’s contention was supported by a memorandum from the company’s payroll clerk, in response to a number of his pay queries, which noted “reason for drop in motorway loading was because Jim went from being a casual operator to permanent” in the week ending 30 June 2001. Therefore, on Mr Brown’s version of events, he became a full-time, permanent, employee on or around 25 June 2001, notwithstanding what may have been stated in the job and position description. On the company’s version of events, (even allowing for the six months’ probation period to apply in light of the provisions of s. 72 of the Industrial Relations Act 1999) Mr Brown’s probationary period expired on 18 September 2001. In any event, Mr Brown was not on probation when he was advised of his termination on 5 October 2001. He had, by that time, become a full-time, permanent, employee on both his, and the company’s, version of events. -- 2 of 5 -- 802 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 April, 2002 2. Employment related disputes In his witness statement, and evidence, Mr Brown referred to a number of disputes which he had had, and was having, with his employer. Most of these disputes were pay disputes but he also referred generally to other disputes about the serviceability of the lifter/borer and whether it met certain workplace health and safety standards. In particular, Mr Brown highlighted an email to the company’s Managing Director, Mr Lush, on 1 October 2001 in which Mr Brown complained about lack of maintenance on the lifter/borer and problems he was experiencing such as hydraulic leaks, the need to tighten bolts, excessive wear on particular parts of the borer and missing “retaining brackets on the trombone sleeves that have long since disappeared thus allowing the sleeves to rattle and bang together whilst boring in rocky terrain and a myriad of other things that would make the machine more productive, safer, more presentable and user friendly.”. He also told the Managing Director he had four pay invoices to dispute and that he was not getting satisfaction because he was “made to feel like a dog chasing its own tail”. The inference to be drawn from the evidence was that Mr Brown’s termination so soon after the email was a direct reaction by the company to his complaints. However, if that be the inference, it was not pressed to any great degree during questioning of the respondent’s witnesses by Ms Devery, nor in her final submissions. In such circumstances I should be cautious to find a causal link between Mr Brown’s complaints and the company’s decision to terminate his services. Something more than mere assertion or inference is required. However, there is nothing in the evidence which remotely supports any link between the complaints and the respondent’s decision to terminate Mr Brown. Except for Mr Brown’s statement to Mr Lush in the email of 1 October 2001, that he felt like a dog chasing its tail, there was no suggestion Mr Brown’s wages claims were not being resolved to his satisfaction within a reasonable period of time. There was no suggestion the company was not dealing with his claims and responding to them in the appropriate way. Further, and more importantly, there was no suggestion that the company had become upset or concerned about the frequency and/or number of wages queries or the other issues which Mr Brown was raising. In addition, there was very little evidence of any workplace health and safety complaints. Mr Brown may have harboured some concerns but there is no evidence – apart from the 1 October email to Mr Lush – that he ever made any formal complaint. There was certainly no suggestion that anyone from the respondent had criticised Mr Brown for querying his pays, for raising workplace health and safety complaints or for sending the email to the Managing Director. The relevant evidence was that the company came back to him with a response to each and every query, albeit that Mr Brown might not have liked some of the responses, e.g. Mr Lush’s advice to Mr Brown on 2 October that he was unable to address every individual’s need and that he would need to take up his complaints through the chain of command. Mr Brown also attempted to portray that his pay disputes may have contributed to his termination because Mr Hutchison told him he had some responses to his pay queries during the same discussion in which Mr Hutchison advised him of his termination. Through his evidence Mr Brown suggested some implied or actual link. However, my consideration of the evidence leads me to conclude that Mr Hutchison was simply taking the opportunity to answer certain pay queries when the opportunity arose. It just happened the first opportunity occurred at the same time Mr Hutchison met with Mr Brown to advise him of his termination. After considering the evidence in total, I have concluded Mr Brown’s queries about his pays and his concern about the condition of the lifter/borer, and whether it met workplace health and safety standards, was not a reason for his termination and was not a factor considered by the company when it made the decision to terminate his employment. 3. Procedural fairness and shortage of work Ms Devery submitted the company’s decision to terminate Mr Brown lacked merit and procedural fairness. She said the respondent had been aware for some time of an alleged shortage of work for the lifter/borer and that it was going to terminate Mr Brown’s employment. She said the company’s failure to alert Mr Brown to his possible, or impending, termination prior to 5 October 2001 made the whole process procedurally unfair. Further, she said Mr Brown had been told the company was terminating his employment because it wished to utilise a multi-skilled employee on the lifter/borer. She said this contrasted with the Separation Certificate which showed the reasons for the termination as being “shortage of work or redundancy”. She submitted that the reasons given were inconsistent. With respect, I disagree. The evidence disclosed that the company’s management had become increasingly concerned about the availability of work for the lifter/borer. In the ultimate, management decided that the available work did not justify the continued employment of a dedicated person as a lifter/borer operator. Instead, the company decided to revert to the position which applied immediately prior to Mr Brown’s employment viz. utilisation of a qualified linesperson on the lifter/borer whenever the company was required to use the lifter/borer. In my view, the reason given to Mr Brown for his termination and the reason which appears on the separation certificate are not inconsistent. The lack of available work led the company to determine to use a multi-skilled employee to cover those occasions where the lifter/borer was required. The respondent’s witnesses gave evidence about how the lifter/borer was utilised within its operations. Mr Hutchison said that the lifter/borer was only used occasionally within the Overhead Reticulation Division, of which he was the Manager. However, it was available for use by other divisions within the respondent’s overall operation. The evidence was that Mr Brown had spent a considerable time on the Brisbane to Gold Coast motorway, the Inner City bypass project and on the Nundah bypass project working for one of the other divisions of the respondent. Each of such projects has, and had, a limited life. Sooner or later the demand for the lifter/borer would have reduced or become non-existent on each project. The respondent’s witnesses said that was the situation which began to develop around August 2001. The lifter/borer was able to be utilised less and less within the company’s operations. Finally, the available work did not justify the continuation of a full-time lifter/borer operator. The drop off in work was not necessarily evident in Mr Brown’s diary. However, it is clear from Mr Brown’s diary there was no available work for the lifter/borer on 1 and 2 October. On those days he was engaged in labouring duties. Indeed, his assignment to labouring duties on 1 October 2001 was one of the primary reasons why he sent the email to Mr Lush (see above) on that day. -- 3 of 5 -- 26 April, 2002 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 803 After considering the evidence, I accept the respondent’s position that by early October 2001 it was no longer economically feasible to continue to engage a full-time lifter/borer having regard to its available work, and work which was on the horizon. Consequently, I accept that Mr Brown’s termination was for reasons of shortage of work and the company’s resulting decision to utilise a multi-skilled employee to operate the lifter/borer whenever the need arose. Further, after considering all of the evidence, I do not believe that the processes adopted by the respondent to inform Mr Brown of his termination were procedurally unfair. Mr Brown said he was not informed until approximately 10.30 a.m. on Friday 5 October 2001 that his services would not be required from the end of that day. The respondent agrees that that was when they first informed Mr Brown of his termination. Ms Devery, as stated above, submitted the company should have informed Mr Brown prior to that time that it was considering terminating his employment. However, her submission, with respect, fails to recognise the nature of the construction industry and the circumstances under which both companies and employees in the industry must operate. Most companies in the construction industry bid for all available work. Sometimes they are successful and sometimes they are not. The duration of the work depends upon the project. Sometimes it is reasonably long term (2-3 years) but, in the main, it is of short term duration (sometimes only a day or two but usually for several months). Any employee with any experience in the industry recognises that the duration of their employment is solely dependent upon the number, and duration, of contracts obtained by their employer. Further, each employee knows that each project has a limited life. Whether their employment is to be continued depends upon the duration of the particular contract(s) on which they may be engaged as well as the company’s success in winning new contracts. If the current contract is completed and there is no new contract to which the employee can be relocated, their employment is terminated. Further, not all employees are terminated at the one time. The manning requirements for particular projects do not cease at a uniform time. There is usually a gradual rundown in employment depending upon the skills of the individual employee(s). In addition, employees in the construction industry are usually fully and gainfully employed right up to the day of their termination and are paid in lieu of notice. Unfortunately, Mr Brown found himself in the position where he was skilled in a limited number of tasks. He could perform labouring duties and he could also operate the lifter/borer. The company determined it could utilise other multi-skilled employees to perform the tasks that Mr Brown had been performing because there was insufficient work to justify his continued employment. Having made that decision the company had to communicate it to Mr Brown. The evidence is that Mr Hutchison, wrongly as it turned out, thought Mr Brown was still on probation. In that regard, Mr Hutchison seemed to think probationary periods have some flexibility and that he was entitled to review Mr Brown’s continued employment approximately six months after his commencement. Mr Hutchison also said he had attempted to arrange a meeting with Mr Brown over several days preceding 5 October to inform him that his services would no longer be required. Whilst I accept that Mr Hutchison may have attempted to set up a meeting prior to 5 October, I am concerned that the issue was not raised when the two men worked together for several hours on 4 October 2001. That having been said, it does not alter the fact that the available work did not justify Mr Brown’s continued employment and that he would have finished his employment, in any event, on or around 5 October 2001. Accordingly, whilst Mr Hutchison might be criticised for not having raised the issue on 4 October, when it seems to me that there was appropriate opportunity to do so, that fact does not of itself, to me, make the termination process procedurally unfair. It just meant that Mr Brown was told of his termination one day later than he might otherwise have been. 4. Subsequent advertisement On behalf of the applicant it was generally submitted that his services were terminated for some reason other than the alleged redundancy because the respondent advertised a vacancy for a lifter/borer operator shortly after the applicant’s termination. Mr Brown said he had been searching for a new job a few weeks after his termination and noticed an advertisement for a lifter/borer operator placed by the respondent on 18 October 2001 on an Internet job search site. Mr Dennis said he had been asked to see if he could locate a linesperson with lifter/borer qualifications which the company might be able to engage to give it additional flexibility. He said he had placed the lifter/borer operator vacancy on the job search site in the hope that he might attract a suitably qualified candidate. However, Mr Dennis said no suitable candidate had come forward and the company had not engaged any new employee to replace Mr Brown. Further, Mr Hutchison gave evidence that the workforce of his division had reduced from twenty-five employees whilst Mr Brown was employed down to twenty-two at the time of the hearing. All of the current staff, except three trades assistants, were qualified linespersons or electrical fitters or mechanics. One of the latter group, a Mr Cameron, was qualified to operate the lifter/borer. Whilst Mr Brown was certainly entitled to be suspicious about the advertisement I accept that it was simply an attempt by the respondent to widen the possible pool in its search for a linesperson who could perform other functions and give it more flexibility by having an additional linesperson who could operate the lifter/borer other than Mr Cameron. Whilst Mr Dennis might (also) be criticised for simply placing the February/March 2001 advertisement back on to the Internet without including any reference to applicants needing to be a qualified linesperson, I do not think, on the evidence, there was any ulterior motive in the advertisement. The company was not looking for a new lifter/borer operator to be employed as a dedicated lifter/borer operator. It was looking for a person with particular skills who might also be used, if the need arose, on the lifter/borer to give the company more flexibility. -- 4 of 5 -- 804 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 26 April, 2002 Conclusions For the reasons outlined above, I have concluded that there was no procedural unfairness associated with the termination and that the respondent was entitled to make the decision to utilise the services of another multi-skilled employee on the lifter/borer rather than continue to employ a specialist lifter/borer operator when there was not sufficient work to justify that person’s continued employment. It follows that there was nothing harsh, unjust or unreasonable about Mr Brown’s termination. The application is dismissed. The Commission determines and orders accordingly. A.L. BLOOMFIELD, Commissioner. Released: 16 April 2002 Appearances:– Ms J. Devery, of Bennett and Devery, for Mr A. Brown the Applicant. Mr S. Lush for Elcom Australia Pty Ltd. -- 5 of 5 --