Constance v CSR Sugar [1999] QIRC 154 (1999) 161 QGIG 194

194 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [2 July, 1999 ###########ll######ffl#######################-#########IHl####-##################11############################################# QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workplllce Rela11om Act /997- s. 218 - application for reinstatement Christopher Michael Constance AND CSR Sugar (No. BI954 or I 998) COMMISSIONER BLADES IS June 1999 Rei nstatement_ Sel f -improvement plan _ Sohcitors advice - Refusal 10 sign letter regardmg work improvement - Allowed insufficient ume lo co_n _SJder - Dismissal har\h dnd unreason,,hle _ Reinst•lement not sought and not appropnate - Compens;1l!0n - Employee would not h�ve accepted conditions_ o� plan_ OulManding issues between applicant and others- Applicant would not have lasted in employment much longer- Applicant had secured on-going casual work - Award of S4,000 ordered. DECISION The issu"s 10 this mall<r ..re m short comp,L�S. The onus of proof remain, throughout the proceedings upon the applicant. There is 1!11le dispute in the .:videnc< aml the following facts are accepted upon the balance ofprobahilitie.•. 2 July, 1999] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 195 The apphcant, Christopher Michael Con�1ance, worked al the CSR Victoria Mill at Ingham as an Evapora1or Allendaut from about Sepcember 1994 until his dismissal on 23 November, 1998. Because of concerns expressed by other workers in regard 10 his manner and treatment of them, Mr Constance anended, on 4 Nov-,mber I 998, a meetmg at Viciona Mill v.,th his Solicitor to discuss the various complaintS. An agreement was reached between Mr Mason, the Process Superintendent and the Solicitor thal Mr Constance would undergo any reasonable self-improvement plan imposed upon him withoot admission of any of the contents of the complaints. �fr Constance also agreed. TI1at meeting was nO! abool his dismissal but about helping him to improve his performance. On I J November, Mr Mason wrote lo \1r Constance semng 001 the improvement prngram. That letter was delivered 10 Constance at the conclusion of his shin at 8.00am on Sunday 15 November. Upon h" enquiry, he was advised that he Jid not have 10 sign the le11er and he did nOI open 1t at that time. The lener was opened later and that afternoon he visited his Doctor and was put off work on stress leave up until 19 l\"ovcmber. He ma de an appointment 10 see his Solicitor on Tuesday 17 November regarding the contents of the leller. The Sohcitor advised him there were a number of mailers of concern in the improvement program and that he would arrange a meeting with Mr Collins the Mill �1anager 10 discuss the issues. Unfortunately, no such meeting was arranged. On Fnday 20 November Mr Constance relUrned to work and did half a shift He was then called into the office and told to sign the lcltcr accepting the terms stated or he would be dismissed. He rang his Solicitor and was advised nol to sign the Jener unul a meeting could he arranged with Mr Collins. The Sohcilor advised Mr Motti, the Human Resources Co-ordinator who was present at that meeting, that Mr Constance neither accepced nor rejected the proposals but a response would be made after the meeting with Mr Collins. Again there was no arrangement made for any meeting with Mr Collins but Constance was taken to Mr Collins' oflic" where Mr Collins asked him 10 sign the letler and that if he did not, he would be dismissed. Mr Constance told Mr Collins that he neither accepted nor rejected the letter hu1 wanted 10 sit down with him and the Solicitor to clarify some issues. Mr Collins did not accept that proposal, being of the view that Constance was trying lo avoid the is�'Uc. The applicant was dismissed. Witnesses hdve testified th..1 the decision 10 re{Juest Constance to sign the dcx:umeot was made because Constance had annoonced he would not agree 10 work under those conditions. I accept the evidence of Mr Davis, the Assistant Process Supcrint.endent, that Constance had told him on 20 November thal he would 110! be returning to work under the conditions s"l oul in the lcucr and that was the catalyst for the requeJ>1 lo sign. There was no other apparent reason for that request. However, I am equally satisfied that Constance had made some attempts to undergo counselling and had bt:en to an Interlock Counsellor on 12 November of his own volnion and before he had received details of the improvement program. Hu Solicitor had advised him at the meeung on 17 November that some issue.� needed 10 be clarified. When the agreement was made on 4 ovember for the self-improvement program, the word "reasonahle" was used so that the ,1greemen1 was for a "reasonable" self-improvement program. 'The program contained some stringent conditions, mcluding that at the end of an assessment period, Constance's progress would be momlored hy his peers. 'Those peers included those persons who had made complaints about him. l think Constance was entitled to query whether the condition., set out in that letter were reasonable. Whilst II m.,y have been unreasonable for CoMance to eventually refu,e to abide by the condiuons of the improvement program, I am satisfied he was not given a sufficient opportunity 10 make a properly informed decision. !le had been off sick, he had been to see his Solicitor who held concerns, his Solicitor had not made :.ny arrangements lo speak with Mr Collins and whilst he h.td uuered statements to the effect he would not work und er those cond111ons, he also specifically told all involved that he neither reje<-'led nor accepted the program without further discussion between the Solicitor and Mr Cornns. l do nOI consider on the evidence that Constance appeared 10 be in1en11onally avoiding the issue. In all of the curum.<tancc,, I am satisfied that the decmon to dismiss was hasty and therefore unreasoMble. The applicant's application sought rein.,tatement only. The applicant in h1.� oral evidence sooght reinstatement. Yet in his sworn statement, he fell that 11 was difftcull for him h) return to work because of threats (which were denied) made by the Process Superintendent. Rems1a1emcn1 woold therefol'e appear to be 1nappropn,1te and Mr O'Donnell conceded in subnussions that in VJew of the evidence in the case that reins1a1emenl was mappropri,tte and was nol sought. As to compensation, it is d1flicull to foretell whether lhc improvement program would have been succ�ssful. On lhe evidence, all po1111ers indicate il would not have been. There were issues bctwee11 the applicant and his fellow workers which remained unresolved. I-le regarded comments made about him as defamatory and il appears uolikdy that he would have accepted the conditions set 0111 in lhe improvement program. He still has concerns with some of those conditions. a,� does his Solicitor. He was considering leg.ii ..e11on agamst some of his workmates. The employer, I am sausfied, would not have been able 10 continue the employment without paying due regard to 1he compla.tnl� which had been made. The employer I am �at1sfied would have insisted on lhe 1mprovemen1 program being adhered to. The failure to accept the input of the other members of the team into the improvement process,. nol without relevance and woold appear 10 m e 10 h,1ve been essentml. On the whol e, I am sauslied that 1he applicant's employment would nOI have continued for much longer . I am satisfied tbat the employment would have come to end wnhin ahoul three months .;nd I propose to assess compensation on that basis. The applicant was paid three weeks rn heu of nol!ce, wa.• unemployed for ahout eight weeks a nd commenced employment at the East Ingha m Hotel on a casual b,,sis. He has been regularly employed since, working about 30 hours on average per week. Estimating his income over l.lldt three month period from figures provided by Mr Lawson and dCcepced by Mr O'Donnell, deducting the period of notice and the moneys "arned over a penod of four weeks, I am <atisfied that the sum of 54.000 1s an appropriate amount to award l order the respondent to pay to the apphcant the sum of $4,000. Order accordingly. 8.J. BLADES, Commissioner. Released: 18 June 1999 App�arm,us:- Mr J. O'Donnell, instructed by Mr J. Waldon of Spina Roati Solicitors, for the applicant. Mr J. Lawson, of J.F. Lawson and Associates. with him Mr E. MOlti, for the responde nt. ::ODMA\URPWlSE\QIRC-OOM.IRO-PO I .GENER.AU :29052.1 QGIG 2f//99 -- 1 of 1 --