Cooper v Hamilton Island Enterprises Pty Ltd [1999] QIRC 202 (1999) 162 QGIG 118

118 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE l October, 1999 ################################################################################################ #########################11# QUEENSLA\JD INDUSTRIAL RELATIONS COMMISSION Industrial Rela11011s Act 1999- s. 74- application for rein statement Tre,·or Stanley Terence Cooper AND Hammon Jsland Enterprises Ply Ltd (No. 13634 of 1999) COMMISSIONER SWAN I 5 September I 999 Application for rernscatemcnt - Dismis�al wic.h notice - High quality work, but complaints of low productivit)' - Natural justice afforded - Employer went to s ome le ngths to ke ep applicant in employ - Employer did not ac t unfairly or hastily- Application dismissed. DECISION :-.1r Trevor Cooper has lodge d a reinsw.tement application with the Commission seekin1; relief against his allegedly unfair dismissal by his forme-r employee, Hamilton Islan d Enterprises Ply Ltd (the employer). Mr Cooper commenced hts employ melll with the employer on 16 June 1994 as a carpenter/handyman within the employe r's maintenance department and ceased employment on 29 April 1999. Jn gen eral, the r easons behmd the dismissal, according to ,v!r Allan Young, the staff Accommodation M anager for the employer, was that the applicant took a dispr oportionate amount of time to comple te basic and other dutie s. There was no question, according to che employer, that the quahty of Mr Cooper's work was very good. Jn order 10 assist the applicant to perform his dutie s mo re productively, Mr Young stated that he undertook the followrng .mategies:- Mr Young spoke to the applicant about - .. • Talking up the job. • Explain ing that he was gelling further behind an d must stop con11nual talking and get on with the job. • Kidding him, joking with him. Growling at him and advising him of my d1sappomtment with him . • Confidential discussions with Trevor's wjfo Liz. Constanlly reminding him to be aware ofome wastag e.". Mr Young stated that he'd undertaken those strategie s becaus e he did n01 want 10 for malise warnings to the appltcant as the re would be adverse material pem1anently on his file. Mr Young had given to Mr Cooper daily work sheecs s o that Mr Cooper could sign off on dutie s when complete d. These duties were not completed s ati sfactor ily. Mr Young believes chat, despite his various stra1egic0s. there was no noticeah le progression in Mr Cooper's perfor mance, and a first warn ing was given to him on 2 February 1999, follow ed by a further warning issued oo 16 February 1999. Mr Young staled that Mr Coop er. following these warnings. thought he might be be11er suiced 10 work in another area of the island, but was unsuccessful in this quest. · B"1we"n J 7 February and I J March 1999 Mr Coo per wa s occasionally absent from wor k due to illness. Later dunng '.',.larch 1999, Mr Cooper returned IO work on light duties. NotwithStanding thi s altere d status, Mr Cooper 's productivity faltered again, according 10 Mr Young. Mr Young claimed thac ·Tr evor's a11itude showed us tha1 he had paid no serious all.,ntion 10 the mauer we had raised and we were leti in n o doubt that he did not intend 10 change his methods in an)' way:·. Mr Young claim s that by 15 April 1999 he had no1 s een any "indication from Trevor that he would recognise the validity of an)1hing we had said to him". His s er vice s were 1 hen terminated by .\-lr Young. Mr Cooper had, on many occasions, de bated the issue of his work productivity with Mr Young. M,· Cooper's argume nt was basically that until he actually began a particular job, it re mai ned unknown how long the job rrught take 10 complete. M r Cooper also seated 1ha1 while che work sheets he was required to complete could contain "une xplained'" gaps. what was not recorded were details concerning "travelling cirnc'', "phone time". "looking for <-� acquiring ma terials time'' because Mr Cooper had been told by Mr Young that he was not rnquired to complete such detail. I October, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 119 1 respunse to a complain t made by the employer that it had taken :vtr Coope.r s ome six hou rs to make three notice boards, Mr Coo per went into n siderable detail in order to show thal there were adequate reasons for the length of time he had taken to complete the task. Part of Mr Cooper's co:plaint on this i ssue was that Mr Young. when addressing this issu e at a later stage, had refuse d 10 put on the, table the time sheet which had been co , h d complete d by Mr Cooper on t at ay. Mr Cooper states that, whilst taking his holidays, the replacement employe e working in his posi1ion, according c o Mr Young, had completed aJlotted tasks �ore quickly than Mr Cooper. Mr Cooper refutes that this was the case by saying that the type of job performed by this person was of the non• cradesperson description. Certainly. ac the time when Mr Cooper was on light duties, one would expe.ct his productivity rate 10 have lessened so mewhat. Mr Cooper and his wife were both in attendance at th e meeting of 15 April 1999 when he was handed his final warning. Mrs Cooper-Blumer (the applicant's wife) had made the comment a1 the meeting that she believed the process 10 be unfair in that it appeared that the employer was in tent on replacing her husban d with a less qualified employee. She felt that were her husband's position to be declared redundant, then that would be a more appropriate position 10 take rather 1han to pursue him for lessened produc1iv11y. Evidence from the employer's Senior Handyman was that:- "The resuils Trevor r eturned on a daily basis were certainly of a profe s sional standard, however, the time he required 10 carry out many of these tasks from start to finish ofte n appeared to be excessive, compared to the sta ndards and re<1uiremems of the business. The tim.: spent on indi victual projects is well docu mented in his daily worksheets, where great distTepancies can be found when compared 10 my own. This can be eviden ced by the tre.mendous backlog of work that existed on T revor's depanure, bu1 h as sin<:e been completed by a new team ta king a more efftcien1 approach to the daily work routine. In my opinion, Tre vor's low productivity could be in part a1tributed to inefficient time management, poor use of the available reso urces. excessive time spen t on discuss111g personal issues with co-workers dur ing pa id working hours, and an unusually slow and me1h.odical working style.". Another employee, Ms M. Nolan (who under took supe rvision of Mr Cooper while Mr Young was on leave) claimed that Mr Cooper would often take. fony instead of twenty minutes in his tea hreak and that he would often stay around the office area talking and thereby dismrbing other employees. Ms D. Horne, the Industrial Relations an d Employment Mana ger for the employe r, state d 1ha1 since mid 1998 Mr Young had brought 10 her a11ention difficulties he was e xperiencing with Mr Cooper and hts work produccivity. Ms Horne aue mpted to move !1·1r Cooper 10 the m aintenance sec11on as she belteved that the style of management m tha1 section would be more suitable for Mr Cooper, however. the r equest was refused on the basis that "Trevor'� work rate was too slow when working there before.". The employer claimed to have n0tice d change s in Mr Cooper's allitude sometime around February 1999. Around this time, Mr Cooper was more adamant that his work rate was acceptable. The employer claj med that Mr Cooper· s response to evidence regarding his productivity was that a job "takes as long as it takes". From Ms Horn e's perspectiv e, Mr Cooper performed --Roll s Royce work while Allen on ly wan1ed a Holden". Mr Cooper refused to compromise and appeared unable to adapt to the type or standard of wo rk which was re<Jliired of him. As che afor emen tioned com mentary shows. there is a commonality in th e eviden ce of both parties that Mr Cooper's work was of a high standard, how ever , heyond 1ha1, the pam.:s differ on the question of work productivity . The evidence from the employer shows that Mr Cooper was afforded appropriate assistance and guidance from his employe r regarding his work performance. I have taken into account the illnesses suffered by Mr Cooper and 1he light duties he was to perform for a period of time, but I am una ble 10 accep1 that he responded in an appropriate manner to his employe r's legitimate re quests . The employer put rn place a strategy to assist Mr Cooper in the performance of his duties. The strategy in itse.lf was reasonable from my perspective and encompassed a range of issues from "time wastage" (identifying occasions when time was was1ed) through to morale boosting. It is difficult to i magine what more would have bee n required from the employer. II appears from the evidence that the employer went to some lengths 10 keep Mr Cooper employe d, by giving him ex1ra time after the final warn ing to exhibit altered attitudes and work performance . All of th.is was to no avail. Iaccept tha1 evidence which more than suggests that Mr Cooper was in many re spe.cts a perfoctioni.�t in his work. Whilst this is a commendable trait, in the context of a wo rkplace which is busy (and one which re quires a particular stand ard of work) and where work needs to be performed competently and expedn1ously. Mr Cooper·s work output was deficient and sufficiently so as to c ause justifiable concern 10 his employer. Mr Cooper was. regrettably. u_nable to alter his ways to his employer's requirements. Those requirements, from my perspective, were not onerous and were reasonably required of Mr C00per by his employer . 1 am also conscious of the fact that the employe r would prefer to maintain the services of its trained employees because of the associated difficulties of auraetmg competent em pl oyees 10 the island. Conside ring aJJ of the evidence, I am unable to find that the employer has in any way acted unfairly or ha stily towards Mr Cooper. There has been no breach_ of the dismissal legislatio n by the employer. It appropriately warned, c-0unselled and assisted 11s employee, Mr Cooper. The fact 1ha1 these sua1eg1es failed rn no way i mpinges upon the process adopte d hy the employer. Mr Cooper appropriately pur.�ue d his claim before the Commission and hts case was n0t without s ome merit. I would 1101 co nsider any claim f or costs againSt him. 1 dismiss the application. Order accordingly, D A Swan. Commissioner. Released: 16 September I 999 Appearcmces:- Mrs E. Cooper-Blomer on behalf of 1he Applicant. Mr R. M. Bryce, with him Ms D. Horne, for Hamilton Island Eoterpnses Pty Ltd. ::ODMA\GRPWISE \QIRC-DOM.JR O-POJ .GENERAL I :29622. l QGIG 1/J 0199 -- 1 of 1 --