Ahwong v Queensland Nickel Pty Ltd [1999] QIRC 140 (1999) 161 QGIG 160

r 160 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 25 June, 1999 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION COMMISSIONER SW AN Workplace Relatioris Act }997 - s.218 - application for reinstatement Robut Keith Ahw011g AND Queensland Nickel Pty Ltd (No. B1878/98) 11 June 1999 Applicati on for reinstatement - Applicant unrepresented -Appropriate assistance from the Bench -Allegations by_ applicam of denial of natural justice - Prolonged history of poor work history and absences from work - Continual counselling by employer -Apphcant fails to satisfy onus - Costs not awarded - Application dismissed. DECISION Mr Ahwong was employed by Queensland Nickel Pty Ltd, at Yabulu, North Queensland, for a period of some 11 years. Sometime before his dismissal, Mr Ahwong was employed as a Crew Le ader on a salary of $53,400 per an num. On N ovember 13, 1998 Mr Ahwong was dts1TUssed with notice. Mr Ahwong, assisted by his wife, represented himself at the hearing. The employer was represented by Mr Livingstol)e of R. J. Living;,tone & Associates Pty Ltd. lo his final submissions. Mr Ahwong was under the misapprehension that the employer was represented by a lawyer. This was no1 the case. Mr Living.Hone is an industrial relations advocate, but not a lawyer. 25 June, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 161 Before analysing the evidence, it needs to be said that the applicant was given appropriate assistance from the Bench with regard to the conduct of his case. The applicant was prepared to accept affidavits from employer witnesses without challenge despite being advised that in s o doing he was accepting the veracity of such statements which occasionally contained views which were adverse to him. This case centres upon the applicant's view that he was not appropriately warned by the employer regarding any perceived work deficiencies and, at the time of dismissal, was not afforded the opportunity to properly defend himself against the allegations which had been made against him. Mr Ahwong also challenges the allegation that his work perfom1ance was deficient. Mr Ahwong states that, despite the employer "thanking him for his efforts" during the 12 months prior to his dismissal, it maintained that his performance during that period had been poor. About that time, Mr Ahwo ng had taken lo ng service leave, holiday leave and sick leave and he believes that these factors should have been taken into account when the employer alleged that his work attendance was poor. .\1r Ahwong complained that his work superintendent was "continually interrupting and cau.sing ...(me) to leave jobs midway through to ask questions - causingjobs to take longer". Mr Ahwong Stated tJ1at on all occasions his superiors had thought that his work performan ce was satisfactory. He also states that at the time of his termination of employment, 1he employer did not follow its own dismissal procedures. In support of his case, Mr Ahwon g called Mr M. Appleton to give evidence. Mr Appleton is currently employe d by the respondent company an d has worked in the same crew as the applicant. Mr ApplelO n embarked upon an analysis of the Superintendent's (Ms Le Po1devin) role at the workplace. He claimed that Ms Le Poidevin's leadership was very poor, her instructions mnfusi ng and her directions inconsiStent. He also believed that her knowledge of the Cobalt Plant (where the applicant's crew worked) was deficient. In this context, he believed that it wa s more the <.-ase that Ms Le Poidevin's deficiencies were a contributing factor in Mr Ahwong· s perceived poor work perfocmance. Against these claims, the employer chronicled the applicant's work history in order to highlight the degree to which the employer had counselled and assisted Mr Ahwong in the performance of his employment contract. A number of Performance Reviews had been performed -some of these reviews iden tified what were categorised as "major problems" within Mr Ahwong's area of responsibility. Examples of such problems are as follows:- "No solid tests done; Filter bags not changed; No stage 1 densi1y tests were do ne ; No PHs recordings ma.de in the leaching log; No dct readings do ne on either shift -tank wa s full overflowing and dirty; Rocculant not changed back from kettle; Pre-boil still was not operating properly and crew had not emptied the adueous from tank 1916; Stage 2 organic turned off for half hour but stage not tur ned off, causing severe impurity problems." (see Exhibit 7). Exhibit 7 also made reference to the number of times t!\at the applicant was absen t from his work area without any record of leave or absence. This period was significant. The aforementioned Performance Reviews were undertaken over a considerable period of time - 1997 through to the period of dismissal. There is little doubt that the Reviews were undertaken. All were record ed within the Company personnel records and all were sufficiently detailed. At one stage, during a meeting held on 22 October 1998, lhe applicant was advised that his employment with the company was in jeopardy unless his poor auendance at work was addressed. Despite repeated commentary concerning the applicant's poor work attendance record, it appears that these concerns were never appropriately addressed by the applicant. I acknowledge the difficulties faced by Mr Appleton (a curre nt employee of the respondent company) in giving his evidence. I accept that Mr Appleton believed that what he was conveying to the Commission was an appropriate analysis of what was occurring at the workplace. lo considering that evide nce, fo r reasons detailed later in this decision. J prefer Ms Le Poidevin's account of events. Ms Le Poidevin' s evidence is as follows. Ms Le Poidevin is a well credentialled employee - she holds the degree of Bachelor of E ngineering, Chemical and :vtaterials Engineering and has had prior pra<.tical experience and employment in work areas similar to those of the respondent co mpany. Ms Le Poidevin States that in late 1997 she had occasion to discuss with the applicant his excessive sick leave. Arrangements were made through the Occupational Health and Safety nurse to have Mr Ahwong medically examined. The result of such examination was that the company doctor stated that ··the cause of the sick leave were minor illnesses". The doctor, however, found no evide nce of a11y serious illness. either physical or psychological, likely to interfere with :vtr. Ahwong's work performance. Also, during this penod, a number of meeti ngs were held between Ms Le Poidevin and the applican t concerning difficulties she had perceived in Mr Ahwong' s work performance. From my perspective, the type of conce rns previously raised and m entioned in Ms Le Poidevin·s affidavit (Exhibit 5) were of sufficient s eriousness as to warrant disciplinary action being brought against the applicant. Of equal concern, was the evidence of Ms Le Poidevin, which I accept, that only rarely did Mr Ahwo ng au empt to explain his position. On his own ad1TUssion, Mr Ahwong stated that, at the time of his dismissal:- "When asked if I had any reason for my poo r performance I from giving -reframed from giving any explanations as I felt l was bei ng unfairly treated and did not feel that my performance was of the -the standard Queensland Nickel was claiming. On 13 November 1996 [sic} my position at Queensland Nickel was ierminated.''. Ong oing concerns were raised with the applicant (and appropriately logged by the Company) during I 998. Such c oncerns went not only to issues co ncerning Mr Ahwong's prolonged absences from work, but also to his work performance and that of his crew. In order to provide an insight into the number of occa sions matters of concern were raised with Mr Ahwong by his employer concern ing either himself or the performance of his crew, the following period in time has been cho sen to give an indication of the freq uency of these discussions - 21, 22, 23, 27, 28. 29 October l 998 and 4_. 5, 13 Nove mber 1998 and up until the date of dismissal. Evidence from other Company witnesses covered the areas raised by Mr Le Poidevin. I understand that it was difficult for :vtr Ahwong lo present his case as well as he might. What was clearly difficult for him LO do was to overcome the sheer weight of evidence, and documented materials, which showed a lengthy history of problems related to !\is work performance generally. The onus was on the applicant to prov� Lo the Commission that his dismissal was sufficiently harsh that the Commission should intervene to overturn the decision of the employer (see s. 22l(a) of the Workplace Relarion.s Acr 1997). Mr Ahwong has been unable to do this. The employer has no case to answer. The employer had nOlitied Mr Ahwong of the reasons for his dismissal; his dismissal related to his "co nduct, capacity or performance"; Mr Ahwong had been n0tified from September J 998 that there were serious conce.rns held by the employer regarding his work performance; at all times when concern s were raised and when the applicant'� termination of employment was discussed, he was given detailed i nformation and the opponuni.ty to question ancl respond. Of that, there 1s little doubt. ::ODMA\GRPWlSE\QlRC-DOM.JRO-POJ .GENERALI :29015.1 QGIG 25/6/99 -- 1 of 2 -- I 162 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 25 June, 1999 This is nol a situation where, because of the applicam's difficulties in presenting his case, he has been unsuccessful. Rather, thts is a case where the employer has taken ils responsibilities seriously - has counselled Mr Ahwong and has given him every opportunity to improve his performance. Mr Ahwong continually failed to respo nd satisfactorily to these legitimate requests. His claim should fail. I dismiss the application. I believe that both parties should bear their own costs. While I have found that Mr Ahwong had little merit in his claim, he appeared to genuinely believe that he had be en unfairly dismissed. The Commission record shows that Mr Ahwong, at the conciliation confer ence, was not advised to discontinu e his claim and was not warned about costs. I dismiss the application. D.A. SWAN, Commissioner. Released: 11 June 1999 Appearances:- Mr R.K. Ahwong on his own behalf. Mr R.J. Livingstone of Livingsto nes Ausualia on behalf of Quee nsland Nickel Pty Ltd. ####################################################################-####################################################### 25 June, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 163 -- 2 of 2 --