Chehade v Mount Isa Mines Limited [1999] QIRC 118 (1999) 161 QGIG 68

68 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 May, 1999 ########################################################################################################################### QUEENSLA.t�D INDUSTRIAL RELATIONS COMMISSIO;s; COMMISSIONER EDWARDS Workplace Relations Act /997 -s . 218 - application for reinsta tement Redwan Ali Chehade AND Mount Isa Mines Limited (No. B1374 of 1998) MOUNT ISA MINES LIMITED AWARD 3 March 1999 Termination of Employment - Dis missal - Reinstate ment - Evidence - Abandoned Employment - Performance - Poor Auendance - Personal Effectiveness Review _ Excess Labour Separation Agreement - Counselling - Warnings - Final Warning - Dismissal Not Harsh, Unjust or Unreasonable - Application Refused. 28 May, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 69 DECISION This is an appl icat1on by Red wan Ali Chehade for orders a s follows regarding his dis missal from his former position of Labourer with Mount Isa Mines Limited (MIM):- "That the applicant be rem stated in his former position (or as nearly can be possible) without prejudice to the applicant's forme r conditions of employm ent. That the respondent pay remuneration for lost wages between th e da te of termination 05/08/98 and the da te of reinstatemem . Tha t the res pondent pay the applicant such a moum of compensation which the Commission considers a ppropriate. Such ftmher or Olher order as the Commission considers appropriate.". The following witnesses were called:- Sidney Lester Spannagle; Redwan Ali Che hade; Paul Michael Hughes; Keith Allan Richters; and William Edward Scotney. At the end of June 1998 Mr Chehade was notified by MIM management that his employment was to be terminated in accord a nce with the MlM Excess Labour Separation Agreement (ELSA). In evidence Mr Bill ScOlney, Production Superintendent stated that in June 1998 Redwan Chehade (along with others) was advised that his position was 10 be made redundant as a result of restructuring in the Lead Smelter. Mr Chehade was selected for redeploymenVredundancy due LO an accumulation of po or attendance resulting in a final warning and what could be described as a fairly ordinary overall performance. Under the terms of ELSA employees are given one month during which time they can either accept the redund ancy provision s of ELSA, or io conjunction with Human Resources staff, seek to be redeployed into alternative vacancies across the lease. On 28 July 1998 Mr Chehade was offered a position as a labourer in the Lead Smeller and commenced in the position on 30 July 1998. As it wa s th e understanding of Mr Chehade such position would bring him under the control of Mr Pa ul Hughes, Shift Supervisor he expressed concern to Mr SCOlney. Mr Chehade accepted the position in the Lead Smelte r with the understanding that he would consider the offer of moving to another crew if and when a po sition became available. The par:ti es agreed that an incident occurr ed in the final hours of the shift which concluded at 7.00 am on 4 Augu�1 1998. Following t he incident he left his place of e mployment and contacted Mr Sco1ney. A meeting was then arranged. On the night of 3 August 1998 Mr Chehade commenced a shift which was due 10 conclude at 7.00 am on 4 August 1998. During the shift he was left 10 work a lone to monitor the fluxe s and the bins. He experienced some problems with the running of lhe flux and the levels of the bins. Mr Hughes inspected the bins and told Mr Chehade that he wanted them co mpletely empty..Mr Hughes took the airspear off Mr Chehade an d attemp1ed to blow the bins down himself. Mr Hughes' anempts on th e first bin, which lasted about ten minutes, were largely unsuccessful. He then worked on the second bin for approximately fifteen minutes and mad e some pro gress but he had been doing the same job for two hours. Mr Hughes appeared quite agitated at not having been able 10 remove the material from the bins. Mr Chehade explained 10 Mr Hughes that he had been trying to empty the bins for a couple of hours and did not have much success either. It is alleged Mr Hughes started to yell and verbally abuse Mr Chehade. Mr Hughes said words 10 the effect that he was not doing the job right and that he did not know what he was doing. Mr Chehade s aid to Mr Hughes words 10 the effect, "if you want to sack me, you can sack m e now.". Mr Cheha de was upset that there were two m en available, one spare man was in lhe baghouse being trained and the other one was having crib. It was further alleged that Mr Hughes made Mr Chehade feel inadequate and it was th en Mr Chehade said he had had enough and he was going hom e. He took his gloves off. threw them on the floor, walked away and proceeded 10 the change house. Approximately five m inutes later Mr Hughes came down 10 the change house and asked Mr Cheha de what was happening, to which he replied that he was going home. It was the submiss ion of Mr Swan th at Mr Chehade was attempting 10 a void a confrontation with his direct su pervisor and left the MIM premises at approximately 5.00 am on 4 August I 998. On arriving home he contacted Mr Hughes, 10 arrange a meeting. This meeting was held at approximately 9.00 am in the presence Mr Scotn ey, and Mr Hughes. As a result of that meeting the applicam's employment was terminated effective from 5 August 1998. Mr Chehade had been a participant of the "Process to Ensure Effective Personal Behaviour'' on a number of occasions. The evidence indicated the following chronology of events:- Exhibit 4 dated 14 June J 996- "Process 10 Ensure Effective Personal Be haviour Counselling 5. What will be the consequences of failure to improve as required? It could be that Redwan is not cut out to do this kind of work, which could lead 10 him being dropped back to a lower paid job. Exhibit 14 dated 25 June 1997- "Personal Effectiveness Review Stratum 1 Overall Pctformance -- 1 of 2 -- 70 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 28 May, 1999 There has been a noticeable improvement in Redwan's performanc e since his crew change . He must continue to concentrate on his communication and team work skills and show marked improvem ent in his attitude towards the 011...sP shift and to continuous improvement. Exhibit 5 dated J 8 De cember 1997- "Process to Ensure Effective Pei:sonal Behaviour - First Warning What will be the consequences of failure to improve as required? In failing 10 impro ve on his attendance then more severe action ·will have to be taken. Exhibit 8 dated 20 January 1998- "Personal Effectiveness Review Overall Performance Re dwan has made steady progress since his last review and has been signed off on filter floor. He must tackle the issues in sections I and II to impr ove his performance furthei:. Exhibit 6 dated 4 March 1998- ''Process to ensure effective personal behaviour -Final Warning 4. What is expected of him/her? Redwan must demonstrate a genuine concern for his employment by co ntacting his supervisor or superintenden t to discuss any absences. He must also contact the employee assistance program on 47 495555 10 sort out any problem$ that he may have which are affecting his work performance. If he requires any assistance in this he should contact his supervisor or superintendent. 5. What will be the consequences of failure to improve as required? Failure to carry out the above e11.pectations will result in dismissal. Exhibit 7 Dated 30 July I 9 9 8 - "Personal Effectiveness Review Overall Performance Redwan must show a more positive attitude to his job and to improving his performance. He must demonstrate that he can maintain a good attendance record. If he achieves the target se t in section II he will improve his performance LO a satisfactory level. At the tim e the applicant was offered the position in the Lead Smelter he had been selected for redeployment/redundancy due to accumulation of poor attendance and a fairly ordinary overall performance. The flexibility adopted by the Company on this occasion enabled the applicant to continue his employment. The em.otional manner in which Lhe applicant addressed the problem with which he was faced during th e shift resulted in his leaving his place of employment. Such an action was not appropriate especially wh en one considers his employment record. Upon consideration of all the evidence, submissions and exhibits, the Commission is satisfied that the dismissal was not harsh, unjust or unreasonable. The application is refused. I order accordingly. KL.EDWARDS, Commissioner. Released: 3 March 1999 Appearances:- Mr B. Swan of The Australian Workers' Union of Employees, Queensland on behalf of the applicant. Mr N. Hastie on behalf of the respondent. ################################################################################################################It########## 28 May, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 71 -- 2 of 2 --