Briskey v James Hardle Industries Ltd [1999] QIRC 165 (1999) 161 QGIG 257

256 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 July, 1999 23 July, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 257 ########################ffl#################################################ll##########################ffl###############ltlt QliEENSl.A� r:-. Dl;STRIAL RELATJO:-.s CO�fMISS(()'I; Workplace R,lation.r Act 1997 -s. 218 -applicauon for rei nstdtcment l.:rnrtnc:e Briskey AND James Hardlt Industries Umitcd (No. BJ 666 of 1998) COMMISSIO �R BL<X>"1AELD 8 July 1999 Remstatement - Dismi\ul - Terminauon of Employment - Opcrator/�aintamer -Employee perfonnancc -Verbal abu•e of employee• and supervisou - Absent wuhout perm1s\lon -Firul warning given - Arb11Tated Matter - Applicant failed to pre.,cnl material which could �pport allegat100 that termination was harsh, UnJust or unre..u011able - Re.<pondcnt no case to dnswcr -Apphcat1on dismissed from Bench - Cost• awarded to Respondent. REPORT ON DECISIOl\ (as edited) In giving h1< decision from the Bench on 8 July 1999 C-omnussioner Bloomfield sa1d:- "Mr Bnskey, you said this morning in your evidence that you had brought tlm matter to the attemion of the Queensland Industrial RcI,d1ons Commi<.•100 because you feh lb.at it "ould gnaw al you until you went 10 the grave. You also said that"-' a Comnu..toner I have probably hCdfd e,·er:,, �xc:u.•c unda the sun about terminat1on.s and wh) people allege that therr pamadar ternunauon was unfair. Thai u pa.mally ll\lc aod the cxpencoce about which )'OU refer has ,ss1stcd me 10 .ur1ve at an early decision on what to do III your case. In the normal course ol events it would be necessary for lhe Commission to hear evidence from both the applicant and from the re<pondeni so th,t any d1ff«enccs in their eVJdencc could be uplored and the duputed facu determined by the Comnussion. lo this case 111s not nece,.,ary for that to ooc:ur. The essential facu are not 1n dispute. You have subsi,rntially agreed to the vanou< propos111on• pu110 you by Ms Asbury about lhe occasions and 1he circumsiances under which you abused other employees, your leadm11 hands, your coordinatOI' and Mr Florakll. 208626-24 ::O DMA\GRPWISll'QIRC-D0\.1.IRO-POI GENERALl.29168 IQGIG 23nl99 -- 1 of 2 -- rIij 258 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 23 July, 1999 You ack nowledged that you had received several warnings about that abusive behaviour and that you understood the implications for your future employment if the behaviour persiste d. You agreed under cross-e xamination that you left I.he site on 12 October 1998 at approximately 11.50 a.m. wilhout le1ting anyone know, when you kne w that you needed to, and that you didn't reu1rn until app{oximately 1.20 p.m. on lhat same da y. You also agreed that you abused your coordinator when he started to accompany you to lhe manager's oflic.-e so that they could talk to you about your late return from lunch. You have, however, disputed whether you acted in an unsafe manner when you climbed over the safety rails ne ar Number 5 machine on 23 July 1998. have left that m atter out of conside ration and have only considered the other allegations against you in reaching my decision. I have decided, based upon your own admissions, that you did abuse Mr Sdrolias on the afternoon of 12 October 1998 in the full knowledge that any abuse of another empl oyee, Jet alone your supervisor or coordinator, could lead to your dismissal. I accept that you did experience a very traumatic event in De cember of 1996. However, the employer, on the material provided, ha s made quite a number of allowances in the way that it has handled your various behavioural problems as a result of that incident and its aftermath. In my view, !he stage had been reached on 13 October I998 when the employer could no longer continue to deal with you with cotton-wool gloves. It wa s entitled to take those cotton-wool gloves off and w treat you like any other employee who continued to openly and repeatedly breach its policies. On you r own admissions about your behaviour you have failed to discha rge the onus placed upon you by section 221 of the Workplace Rdations Act /997 to establish that the employer 's action on 13 October 1998 to ternunate your services was harsh, unjust or unreasonable. Your own repe ated actions caused the employer to lose patience and, despite your obvious views to the contrary, I think that they have been very accommodating of your problem and very tolerant of your behaviour. Ultimately, however, they decided that enough was enough a1\d terminated your employment. Mr Briske y, I accept that you genuinely believe that you have a duty to raise issues of concern which you have a bout the employer's activities and the way that you believe that you've been dealt with. This is simply the wrong place to pursue those types of grievances. This jurisdiction is a jurisdiction where people who allege that lhei.r termination has been harsh, unjust and unfair can come and have their allegat.ions dealt with. Your claimed remedy of a safety audit of the employer and an audit into the company's management practices could never ha ve been awarded . As I've indicated, there is no foundation on what I've heard which would enable you to support your allegation lhal your termination was harsh. unjust or unreasonable. J believe that as a judicial officer I have an obligation to ensure that the Courts are nol tied up in expensive and time consuming litigation where it is clear !hat an applicant has no chance of success. Accordingly, l propose to act at this early stage to di smiss your application on the basis that you have failed to convince me that you have even a prima facie argument that your ternunation was harsh, unjust and u.nfair. The employer wrote to you before the trial and requested that you withdraw the application because of tack of merit. It also put you on notice that it would seek to recover its costs if it was required to de fend itself against your allegations. My decision to curtail the hearing at this point is designed, as much as anything, to obviate the incurring of additional costs. Lt would in any even t, leaving aside the issu e of co5tS, have heen futile 10 continue lo hear more from the employer because its undisputed file notes and memoranda would simply have reinforced lhe absolute lack of me rit in your case. During the short re ces s I had a moment ago 1 arran ged for my associate to obtain the envelope which was prepared by Commissioner Nutter in connection with the conference proceedings. The envelop records that the Commissioner recommended to you, on the occasion of the conference, that the application be di scontinued on the basis that it had ahsolutely no chance of succe-ss. The envelope also suggests that the Commissioner warned you about the likelihood of costs being awarded against you if the maner was taken to trial. In addi11on to that the employer's representative wrote to you, putting you on notice about the issue of costs. In my view your pursuit of the matter, based upon the absence of merit and the warnings given to you, amounted to an unreasonable act on your part. Making allowances for what you s ay was your understanding of what Commissioner Nutter might or might not have put to you, J propose to act, without he aring from the employer about the extent of its full costs, to award the sum of $400 in costs againsi you. That amount is to he paid to the respondent employer within a period of four months. I have knowledge of the, likely costs associated with the defeoce of the application, including the preparation of the material associated with the applicatiou, and I acknowledge that $400 will not provide full nor proper recompense to the employer. However, in the circum�tances, as I've described them above, where Mr Briskey came here on a parti�"Ular understanding, notwithstanding the strong recommen dation which Commissioner Nutter said that he gave to the applicant, I have decided on the amount of $400. Jn those cirt-umstances I formally record that I dismiss application B1666 of 1998 and I order an amount of $400 in costs against the applicant to be paid to the respondent within four months from today's date. The Commission so de termines and orders. 1be Commission may he ad3ourned.". By the Commission, [LS.]E.EWALD, Industrial Registrar. Released: 12 July I999 Appearances:- Mr L. Briskey conducted his own case. • Ms I. Asbury, of Australian Industry Group, lndu�1r ial Organisation of Employers (Queensland), with Mr B. Parley for James Hardie Industries Limited. 23 July, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 259 -- 2 of 2 --