Baumann v Devine Ltd [1999] ICQ 58 (1999) 162 QGIG 173

172 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 October, 1999 22 October, I 999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE QUEENSLAND INDUSTRIAL COURT Workplace Re/at/ems Act 1997 -s . 360(2) - appeal from decision of industrial commission Karl Baumann AND Devine Ltd (No C34 of1998) JUSTICE MOYNIHAN. ACTING PRESIDENT JUDGMENT 173 13 October 1999 This is an appea l from the decision of the Industrial Commission dismissing the appellant's application for reinstatement or for compen5ation for unlawful dismissal. The two grounds of appeal were tha t the Commission failed to conduct th e appellan t's hearing i n accordan ce with equity, fairne ss and good conscience, and that it erred in law and fact in fin ding that the appellant's behaviour constituted misconduct. The reference in the second ground to error of fact is not without difficuhy given the Coun' s limited appellate jurisdiction. The fi rst ground of appe al was panicularised: "(a) the appellant was not permitted to ten der to the Commission all the exhibits that were anached to an affidavit; (b) the Commission n eglected to en sure that the appellant was aware of his right to summon witne sses; (c) the appellant was not gra nted an adjournme nt on the basis of iate discovery of documents; (d) evidence tendered at an initial hearing before the Commission was not before the Commission at the substantive hearing and this evide nce was relevant; (e) the Commission's application of its observations as 10 the appellant's 'stubbornness' and 'obstinacy'. arising out of the first ground of dismissa l, 10 1he other grounds of dismissal.". The appellant appeared for himself before lhe Commission but was rep resented before the Coun on appeal. The first ground was n ot strongly pressed reflecting a realistic appraisal of the strength of the appellan1's c ase. In dismissing his application the Commission recorded the appellant's complaints about not being able to seek legal advice and not being aware that he could call other witnesses. It went on to record that he had been advised prior to the commencement of the hearing that he could seek an adjournment to ca ll wimesses but thal he made no such applic ation when asked a1 the commencemen1 of 1he hearin g whe ther he was ready 10 proceed. The Commission recorded circumstan ces in the history of the matter when the appellant could have obtained legal advice. It recorded in e ffect that the evidence he regreued n ot calling was apparently not relevant. By way of expanding the fo regoing. the material makes it clear that at a conciliation conference we ll prior to the hearing at which his application was disposed of. the issue of his obtaining legal advice and rep resentation was canvassed a nd his r ights in that respect explained. At the callove r from which his case was allocated a hearing date, the appellant told the Commissioner conducting the callovcr tha t he intended to call a n umber of witnesses. As the. rea�ns of the Commissioner disposmg of the matter indicated on I April he was advised of his rights to seek an adjournment. if he wished to ca ll "itnesscs or was not otherwise ready, but the appellant declined to do so. In the course of an exchange wi1h the Commissioner disposing of the ma tter. the appellant indicated that he had ac ce ss to le gal advice. The record disclosed no basis for concluding tha1 the appellant ought to have be en granted an adjourn men t on the basis of late discover y. The. complai nt about evide nce be ing tendered at the original initial hearing before the Commission but not being before the Commissioner du ring the substantive hearing 1s not rnade out. At most for the appellant. he made unfounded assumptions in respect of material which had been can vas sed earlier, at best 1he Commission declined to receive materia l without it being demonstrated that it ought 10 have done so. or having failed the appellant wants to ignore the basis on which the mat ter was conducted. Panicular (c) does not panic.ularly sit with ground one. In any event it is clear from a perusal of the record that the appellant was ill se rved when he chose to conduct his own case and that the Corrunissioner formed an unfavourable view of him in a case in which the appellant's credibility was crucial. but 11 is not demonstrated 1hat ground (e) is made out so as 10 found 1he intervention of this Coun I turn to ground 2. The reasons for the appellan1·s dismiss al are set out in the Comrntssion's decision: "By letter dated 25 July 1997 from Devine Limited. the a pplicant wa s summarily dismissed. The foll owing reasons (in brie f) were given: I . On 19 June 1997. you made a number of misre.presem ation� 10 a potential Purchaser which ultimately resulted in the loss of that sale. These mis representa tions included the following:- (a) that there was one unit remaining on the top floor of a building on the Ca1hedra l Place site: (b) mdicating by directly pointing 10 the top lloor of the model of the building to be built on the Cathedral Place site 1ha1 the units sought 10 be purchased by the Purchaser was (sic) in fact on the top floor .. Misconduc1 is defined ins. 37 of1he Workpluce Re/11111ms Rexul111um., 1997: ";;. 37. Misconduct of a type mentioned in section 226( I )(b) of the Act includes (a) the employ ee being intoxicated at work; and (b) conduct by the employee that cause s imminent and serious risk 10- (i) a person's health or safety; or (ii) the reputation, viability or profita bility of the employer's business; and QGIG 22/10/99 -- 1 of 2 -- 174 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 22 October, 1999 (c) wilful or deliberate behav iour by the employee that is inconsistent with the continuation of the employment contract; and (d) the employee refusing to carry out a l awful and reasonable instruction that is con sistent with the employment contract.". As to that the Commission found: "The Company relied upon misconduct unde r s. 37 of the Workplace Relations Reg11la1ion 1997 (the Re gulation). I am satisfied that the Devine Group had a high profile in the market place with extensive television coverage. I am satisfie-d that the misrepresentation on 19 June, unintentional thou gh it might have been, could easily have caused serious risk to the Company's reputation. The failure to provide the appropriate Company disclaimer on the negative gearing worksheet on I 9 July could have seriously affe cted the Company's reputation and profitability had something proved 10 be incor rect and had the client suffered some damage. The refusal to return to work on 23 July was wilful and deliberate behaviour that was inconsistent with the continuation of the e mployment contract. I am satisfied that each of the inStances relied upon constirutes misconduct within the meaning of the Regulation. Alone, each instance of misconduct may not ha ve been sufficient to justify dismissal but the cu mulative effect is wha t is relevant, to be viewed in the light of all circumstances including the applicant's relatively shon period of service. As Mr Vandervalk said in evidence, the refusal to return to work was the 'straw that broke the camel's back'. 1 am satisfied that the Respondent had a valid reason for the dismis.sal, that Mr B aumann was extended procedural fairness a nd in all of the circum stances. I am not satisfied that the dism issal was harsh. unju st or unreasonable:·. While it is true that a finding of misconduct in terms of s. 37 has se rious consequences for a worker seeking reinstatement which arc to be reflected in the Commission's consideration of the issue, a finding is not to be equated with a conviction for a criminal offence so as to impon a notion of intent or guilty knowle dge. In panicular, s. 37(b)(ii) does not import an element of intention; cf B011cher v GJ Coles & Co Ltd (1974) 9 SASR 495. The representations found to have been made by the appellant in respect of such fundamental characteristics of the unit being sold as to whether it was on the top floor and which lead to recision of a contract for its sale are quite capable of satisfying the requirements of s. 37(b)(ii). The second ground of dismissal was the appellant's failure to provide the appropria te company discl.ai mer on the negative gearing worksheet on 19 July 1997. The appellant contends that this type of behaviour should attract a reprimand but does not fall into the category of misconduct. He contended in oral submissions that this was an argument a boul what should or should not be on a lenerhead. The failure by the appellan t to put an "Acknowledgement and Disclaimer" onto the worksheet that was then distributed to a client, could have s erious legal implicarion s for the respondent. Moreover, the appellant's conduct in this respect did not fall for consideration in isolation. The Commission found that such behaviour constituted misconduct as it could have seriously affected the company's reputation and profitability if "it proved 10 be incorrect and had the client suffered some damage" (at p. 323). Such a conclu sion is reasonably open on the facts. The third grou nd of dismissal was the appellant's failure to return to work on 23 July 1997. The appellant submits t ha t rather than defying an orde r of the employer. the appellant could not physically return to work due to other circumstances. There was a conflict between the evidence. the appellant and a witness called for the respondent about this. The Commission re jected the a ppellant's evidence a nd conclude d lha1 his refusa l to re turn to work was wilful a nd deliberate behaviour that was incon sistent with the continuation of the employment contra ct. This conclusion thus brings the conduct under the definition of mi�conduct under s. 37(c). It has not bee n demonstra ted that the Commission erred in law in its conclusion. The conside ration being as I have indicated, the appeal is dismissed. Da ted this thineen th day of October. 1999 M.P. MOYNIHAN. Acting President Released: 13 October I999 Appearances:- Mr P.J. O'Brien (of O'Brien and Associates) for the Appellant. Mr Z.D. Bentley (of Thompson Ha nnan Lawyers) for the Respondent. ##################################################### ###################################################################### 22 October, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 175 -- 2 of 2 --