Allen v Chubb Protective Services [1998] QIRC 288 (1998) 158 QGIG 417

416 INDUSTRIAL GAZETTE 24 July, 1998 1998 GOVERNI,1ENT INDUSTRIAL Gi\ZETTE tf:::}rkplare N,,;;;,,,,,,,., Act 19.97 ;;, 21g ,_ appl.ir..;:.d_frn\ ior reins1Rten:..;:·-:r1t !997,l t!isE"i.issaJ or aha11.d.:.-rnn1L·i'.1~ _kw.,,atiun Ot::tob~:.r l 997, or brGOJ;h! n:-.rr,ond:c:nc's t:• 1-r;,1n \vh)ch ~:;,ateri :-- 1r:tJ;,;A .t .-:-d <J.n.dant and that th.,0: nntll 24 ~,)dob,:.: J\)97. for vvo_rk tht~r,;:hy -- 1 of 2 -- 418 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 July, 1998 The background to 1his matwr is that the applic«nt had 1nade a dec!Sion TD buiid a house at Esk and lnfomied his employer oi this in early 1997. He advised hi., e-:rnp.loyer of 12 years that hf: wtxdd like to be cousideted fur a po8itiori. in a location het\V{.\t.cn Ipsw.ic.b and Twwuornba. I find that any .rea..sonzhle person wo11l<l have assumed that whc.t he \V;:i...-.: seeking w;tS a fY081rion acce~sihie from his ne\v ho:rne. \\lhen a JKt')ition be.came available at A:\fi-l Beef CilJ' tht: resi-x:indent ha.ri o_f.fert:d it UJ the applicant and d.ir:ecte-d hhTi to phon~ the outgoing Jncu1rtbe.nt to the positi,:m, to ascertain the details ot the fXJSltion i:nduding its location. On the evidt::nce. it W<'-~ cit:-.a:r that the cvn1ff1Hntcation of tt1e offer to tl1e applicant had dearly given the impression that th<, JX'St had been kx:ated in Toowoomba and therefore the applicant had assumed on his own criteria that it wa.s suitable. I find as a 1nattet of facI lhat the onfortunare ••in C\)ITlpa-ny-H habit of n.uning AMH Beef City a_, AMH Toowoomba had meant that the wrong mJunnation had been CGUVi?ft'd to ilk', apphcant This 1,i.-'a.s he.cause it \va::: actuaHy kx:akd approxin1ate]y 34 kLrn.s outside of Too~.,V{)ornha on a winding country road. h was corn.rnon ground that during th\..,, phnne caH to th.-" site super\tisor, the applicant had be;:r:irne ai.var.:.. of his n1isun<lerstanding rcgan.hng the, ltx:at10.n ;)f tht: p,z_'lsihon, The- applicant subrniti~.<l that he h:;.d rc-gard~d hirnsetf as a "cornpany inan'' and H had b.xJt because vf this that instead of turning lhe- offer ddwn irnrned.iately after the 1--•hon.e caH 1 h.::. ha,.1 de,,:jdcd "he'd giv,::. it a go·'. l find :,s a Jact that th,, app}icas:t t<,c,k the 30b ,o ,nit himseli and nnt the company. Evidence ·w·;1_"j gi\'LH that the appik~ant had n1llik nunh':rous req\ie.st:' fnt ~ transter to another po.~ting .sm.ce e.arly 1997. J found it unde.rst2.ndabk that :in !hese circum,tmice,, the applicant initially indic:.:iled tn Mr Maxwe.il that he would take the posting. Abo in these clrcurnBt~1nces\ he wonkl have- found it dilficult to tell his employer !hat the offer was unsuitable, ewn though he n·<X>gnised !hat this was very likely ihe case immediately after rhe phone call infonrJ_ug him of the actual lo-cation of Al\-·fH Bref City. Cm the. evidt'--1Ke- the enipk?yt::r had a number L'lf lssi,1,.::,;: to n.·soh:e ax the t.\me. Tht.::::t: ,vere:- * 1:nd the persistent requests of tilt'. E.n1ployee f()r a p::J,,;;t t(, 0::.1.1it him. n.e;.;1t Esk (hc-twtt'-Jl Ips~'1d1 aud Tc-.J<1.JW()()n1b~,); • Pt0VH.i.:; a place:rnent for ;mothe1 uf the- eight people on the con1rM.ny's redep!•)}Tnent hst who we-rt: then waiting for a 40 bcur J)tTrruu1ent p-t•s1tion to be,~otne- av:1ilabk\ J find that fvir \tiaxwf.'.U 1 tor the r.:spondent: wa...;; quick, even eager) to avr.-ii b.irnsdJ aJH! the corr.ipany of lhe. significam opp1-)rtun1tics presf:ntr::d hy tl1c. apphcanf:- acceptance of the Beef City p~().S}dc,11_ So eager, in fact, that. i11 his haste, he forgot to darify and cop,.:firm the suitability of the posting to the ernployet'. I find there is a strong ekn1e11t 111 the circurr.tstances of this matter, that h{)lh parties had heard what th.:;y wan.ic<l to hear. I am not per~ua.ded b}' th.e restx,ntknfs evidew.x~- that there had tx~en tin1e for U1e i:-lpphc~t to check the oftt'r out sufficicntJy before comrnitting hin:tself _in accon:ianc1'~ wjth th? con11Jany' s short tirne-frarne rt~quirerne-nts. I find th.at the resi:lfJnde-nt t:d1ed to accurately cornn:mnicite the inforrnation initially and tht".cn .showed httJr;_ understanding 01 rt:garJ. fr)f thi~- ne~ds vf it-; employes: by not providing ilie applicant w.i•h an oppoitunily, i)lher 1han a ph;:)n_e .::J.lL to a.-:ce.rta.tn the: suitability of the position, pnor to finalising h.is tran ..::fc.r. The appEcan.t subrnit~:::~d thaJ he had his concerns -~x~•nfirrw.~.d when h~ undt."-_rto.'Jk the drive OIJ the f1rst occasion and encoun.ter.:d he-avy fog on the .road. Ile argued that he tk-eided to dec~lne the rlfer because thf'. country road \Vas <langcrou.s and he h3ici condude.d it would Pe a rii.:k to hi:-. health and saf,tty. 1he, applicant ~mbn1!tted he had ;d.so ht>:'\ll concen1.ed that the Jrive wou.ld be even nK1re dang e-rous at tht- ~nd of a ; 2 hou1 shift~ when he- n1a:y have ha.ti U1ie add,:d n:sk of 1u1ining hno a kanganx, on the roa<l. In evidt\DCt: the- apphcant cited his age and his <:-ye--:siglit as tu~tor-., th<.tt rnarie lhis particular drive n1.ore d.ang-:-.rr,us for hi.rn !h..1.n for othtTS. The resI,100.d.cnt pointed mit in suhmissmns that these special risk factors had never been raised with it _prlor to the hearing. 'TI1.;: applicant argued that \VhGn he inforrnc,d t.'1e res_p::m<le-nt that he would not, in fact C(Rdd .not, return to th.e post a1 A.\1H Be.¢f Cltj\ he expeckd that his qmck rejection of the po,;ting would all.ow him to return to his previous po,1 ai the l\JSZ C,ntre. At tr,e time he had been avm.re that he was .sriE rostere<l on dnty a, i.'1.at post. The applicant sub,nittd that this sho:..1ld have been th~ case bes::aru~ it V/FJ.S i1is understanding that tb.e initial fe,:v days of any nt:-W assigmnent for the re...sr,.•ondc-nt. gave the new appointee. on the job trni ning and an oppo1tunity to decline the posting, if they determined it was un.,mtable. He gave evidence that Ilic trammg period had, on previou., occasions, provided others with the opportumty le decline an offer ivith.out det.rin;cnt to the1nsdvcs" Regarding (he issue of th,, training session, I find that the applicant misrnterpreted his situatmn by choosing to expect he wouid have an opportunity !o rqeel the offer. i\s a. xnatte-r of fact l find th.at the .rcsporn.h.:-nt dc~s not view tb.e initial trainmg perio,J at the commenceme.nt 01 a new posting as a trial period providl11g tl1c, en1ployee with an. opp,;;tiunity tn reject the- posting. It is 1.mderno.anciahle in the eixcumstance.s that Mr MMv1d! whose cc,rnrnurnca.tion of the offer had been sornewhat defici~nt at the out,;;et would have assurned L~at the applicant had accepted t.½e offer and could be relied upon lo ,:k} the con'4-xmy t..Ted~t ·in a Supe-rvlsory n)k at Bct'f City. I do not Ti~ad anythh1g duphdtt"fU.S into l\1r JviaxweU's intentions regarding the. offer. 'The rcspo.ndent subn.d.tk'A..i that it had informed the applicant. at th.e outset of his inquiries that it was going to be difficult to find a s:..~curity guard a po(lt conven;cnt to t?,_;;k I find that v,fa:.J:J the apphcam was finally offrroo the AMH Toowoomba j)Ostitg he incorrectly a~:;.sumed it ;,vould .s.at.isfy :his 0xpe-ctitions. Xfind also that Mr Maxweli behaved expediently when he assumed he had found solurions to ,onie of .l:us pressing business problems. The outcome wa, that neither party chtcCked their ,mderlying assumptions leaving !hem both with a problem when the reality of !he situation was discovered. Both partit,s seem !o have apprnached the problem with 1nc,rdy their own interests in mind and there ls little evidence- of any attitudt>. of a wiJhng.nt'SS to cotnprorui.sc. Fwm the employer's perspective the problem was entirely of the t>mployee·s maLlng and there wa:, nothing they cuul<l or would do. They \.Vould not tmctG the. dec,tshms they had re.ccntly taken in re-fat.ion. t(J tiae trnnsfor and as the JX»ili('ll a1 AM.H Hcoef City w&.s .~ot redundant they would .not co.ttS:ldr.:'r that the- cornbination of the a<,tion..-.: of then, both had giv,en the- e-rnpJeyer 1;n unsought >..1p;)ortu.nity to t~~nninatc the e111ploy:n:1ent of the applicant on tbe grrn.rnds th~,t he was then. su1plus to their c,pc-rational requlren1ents. illst.ead. i:he r:::spondent subrnii.s it had ottered the applicant j)e.rmane-nt p?..rt.-t1nk: ernployrn.ent with at }1:;ast sixteen hours per wc-t·-k assured and the lik,clihood of up to thitty hour,. However, the app!iearr! argued ilia! what had been offered had bec.n cH.sua1. e-rnp]oyrnent with uncr::nain houn, of e!nploytril:nt.. Thi:.sc stJlutions inv\)lv&1 no compronrise or co51 <)n the part of the en-,ployc:1. Had the applicam acccp1ed this otfer he would have suffered a substantial loss of mcorne. l find il was no! appr0p,iatc tor the employer tn hold ihe cmpioyeil t,~.uly resi:ximibk for th:, problem. Mr Ma"twell had no desir"' w rdinquish rhe solutmns he had so quickly ks.,nd and mai,,tained that !he anployee wa, to co:ntinue on at the site- unul ru1oth~:-r pGs:t becarne available-. This p.)sition took no accou.nr of the apphcanfs own conu~rn for his safety and <le-n1011strated a:n unconsciousness on the pan of the en1ployer of its duty tif care to its enlployee. .. I find the apphcant' s decision to .reif)c;\te to Esk presented .significM1t down side aspects to hi.s ,;,mploymem pr(l''lx,cl,<,, Th1s is particularly !he ca<e given his own t:vi<le.-ncc that he: had weak.ne-s.ses including his yue.~tionabk eye,ight a.nd his age. With r,e,.spec~ to !he <1ge facwr, !he appiica~t submitted tha.t tinxlnes;,, art.er vlnrking a fun shift~ could add t\1 the hkdihoo<l of driver i..itiguc. Having rnadt! the wrong dixision tn a,;-.·y.epi th(: post at A~1H Beef Citj\ the applic.::-un i'ia,; urn"iHing to czm...-;;ider ~tnything hut an alternative 40 hour pcist \vhich would not <lisa<lv antage h irn in rdati..:m to his pn:vious position at ;\.NZ Ct:.ntre. 24 July, 1998 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 419 l find Llie employee for his part:- 1. Expected the .respondent to find hirn a posting in a kw-:ation near f11s new home a, fak and phoned regularly to mqurre if one had become available. ;:. Rejected the notion he was partly respon:-ib[e for allowing the respundmt to believe he had accepted the AMH Beef City posting. 1vith.out taking the prec~utkm of doing his own .srtc inspection, even. though he Y~new its location was nv.ire than likely going to be unsuitable after his phone call to the outgomg incumbenL 3. \\'hen it became obvious that a mistake had been made he Wd.< unwilling to accept any responsibility for the error hum,e.lf and sumewhat unreasonably expec1ed the employer !o take full responsibility by restoring him to his prcviou., position or to one equally as suitable to himself immediately or within a ,x,rio<l of three weeks. l finti the .applicant wa~ also nKXivated not to cornprorrrise-. I am not persuaded by the applicant's evidence thal the. proposed solution) wth~rein he ottered to take thrt::e weeks hohday during which tin"'k: he expected his employer to find another suitable fa!l-tirr,e position for him, was reasonable in t11e circtnn.stances or that it. was t-videnc~ of .his \\iHingnt;"-SS 10 con1promise. 1 was persuaded by the responde.:nt1 s evidence that it had plAf:ed someone permanently at ANZ Ceuue afkr the applicant h,ld ostensibly accepled the AMH B~cf City posting, and that the mmpany's policy W"-'< not to juggle people around at silt's. Also that this meant llliit unless m the ur,!ikely event someone resigned, or the cemploycr won •· nv.v contract during the 3 week peri0tl there was always going to hen,> change at the end of that pe!iod. In anv e-vent 1 r consider that a most unu.suai set cl drcurnstancc:s had conspired ~to e,rcate a situation in which the a_r1_.1hrs-0nt had been effectively structured out of employment from both the positions which constituted his employm,,nt contract with the respondent. The respondent's submissrnns were that !hey held him responsible for an enor of judgment m accepting a po.,ition which did not suit him. In evidence it was acknowledged !hat it valued the competence and reliability of the applicant as an employee. In that c(reumstance. it expected the applicant to agre.e to an c,mployrnent ou1con1e which would likely involve a re.duced. ino:..\n1c•. until d suitable position eventuated. I foond it sig.nificant that there, were no assurance:,: givtn by the respo11den1 as lo whelher the applicant would b<' placiltl as a matter of pnority as first on the redeployment list or at the ninth position as a low priority. Conclusion The. applicant's evidence wa~ that h;;, had a house at Zillrn<'re ;;t the time his ernployment with the respondent had bee-n tenninated. .c\.t the ht'..aring he gav<, e~id;nc,:; he was at thattime re.siding at Esk. I find that in respec.t of the applicant. an unintended, though potentially favourable mn.sequer,cc of lhe AMH Beef City experience. was th<> likelihood that the appl!can! would rec-3i\\~ a sev~-rance payment fn)n1his en1ployer prior to his relocation to E:Sk. By comra.st, I find that L'Je respondent ha.a no wL,h to make the applic~nt';; position redundant especially in view ot the fact that !he at-,""J)iica.nt' s own actions had contributed to the situation. I find as fact that the applicant found the joh at AMH lkef City wa, unsuitah!e because of traveiirng difficulties betw,:cn Esk ,md Beel' City. l accept the applicant', evidence that having dedded not to return t,, work at ,\MH Bed City he still made himself available for work. iu an alternative forty hour n{ll-1ime position anywherc: bdwcen the prn;ition at ANZ C.,urre, Brisbane and Toowoomba. l accept the re,pondent' s evidence that within !he applicant's L'i.rct, week amrua.1 leave period, it ,.JJas wiHln.g but unable tu find hhn a fuJl-time IX).sitiou that 1-va.-.:, e-quivaknt to his forn10r positi1.Jn at ANZ Bri:<hane in thz: nornina.tcd ge0graphical spread. In iill ths: circumsrance.s, the dtect ni the tiansfor was to give th,· Employee. a position !hat he could not practically re12in unless he relocated from Rsk to much clo.ser m B~d City. On the facts it could he ar1;ued L'ial the• employer, in suppoiting and sugge,sting the transfeJ to 1-\.\Hl :Beef City, was engaging in th~ consh7J.ctive dismissal of the employee. I find as a fact that \he best that can he said for the respondent'~ behaviour is that, ac< the employer, it was recklessly careless and ncgHgent in relation to the- employees interf'Sti\ whHe purporting to he. acconu-noda.ting of those ~ntc:re,st<;;, ln ~enns of s. 2.2-0 I an1 satisfierl tha.t the actinr.ts of L'1i':; ernpioyer we.re- harah; unjust and 1m.reasonab1e and that the, ~nphcant was not J,;,.xordc.d a "fair gq" in the c]1cun1sta.uces. In terms ci s. 213(d'} l arn bound tn en.sure that a 'tair go ;;iU round" 1$ accorded to both ihe e~loyer and lhe employee in respect of the decision a, to an appropriate remedy in the circumstances. 1 am of the view that the applic1.nt should not have been terminated without the payment of at !ea,t five weeks notice. Therefore, in respect of the issue of compensation. and having regard to me twelve year !engtli of service on !he on<: hand and tlie applican1' s Esk residential address on the other, 1 order 1hat the respondent pay to lhe app!icam an amount equal to five weeks gross pay .le,cs ,he applicant's ta.'l.alion liability within one month frorn the date of this decision. Evidence was given by the resp~nd.-::-nt as to the Jargc size elf its org~1.n1sa.tion. Jn that circun1.s1ance and having regard to the unu~uai circurn..\tance-s !nvol ve-d in tl1is rn.atie-r~ I am not convinced that reinstaten1ent, which ls the prirnary rernedy in thl~ jurisdiction. is not an approprjate re-.rnedy .. ln any event, 1 wi:~h to provide the en1ployer \Vith an opf.101tunjty to remstate. the ;;pplicant. l therefore furth<.cr order the employer !o reinstate the applica11! 10 a position equivalent to the. Bee-J City po.sitit)fl, i11 a geographic:ii location bet\veen Brisbane zt..nd Toowoomha. but at a distance. fiom frw/ c1ty centre no fun.her than within a 5 klm radms of the Brisuar;e and the Toowoomba CB D ar~1.s,, or such other position as the parties n1ight agree is suitahk\ within four 1nonth:, fro1n the dare. of iliis dc.cision, Having regard to the. earnings already lost hy rhe applicant, and his likely fuwre loss shrni.ld he accept other employment without the benefit of redundancy and continuing Jong service leav,c; accrual emitlements, if !he respondent i, unable to provide an acceptable reinstatement position to ilie. applicant within that four month period, then I order the respondent to pay to the applicant a further amount equal to eleven weeks pay at 1he expiry of ,h,, four monili period from !he date of fuis dedslon. Such payrnent i.<; to he made as a gross paynient ies~ the applicable taxation liability deduct.xi on die applicant's behalf. Should the re.~pondent offer the applicam such a position and th,· applicant decline to acct-{}t it 1 then the respondent \ViH havt; satisfied tik~ir t.tlligati.ons under tlxis order. Th,, Comn11!<S1on ouie,s ac,conlingly . D.B, BALDWIN, Cornmissmner. l1ppeamnces:-- Mr. J, J\fartin of tht~ ;1-\1.1straJii.m Llquor, Ho:,,·pit::ihty and Misi..~elh-meous Workers l'nion, Quee.iisiand Bnnch, Union ,A Employees on behalf of the applicant. :\Is. K. 0' Do,mell of the Queensland Cha.mb<>r of Commerce and Industry Litr:Ute-d, In.dusrria.! {)rg;:mi,'-at]on ::.1f Employers on behalf fif the n:sixmde-nL 2.6992_.LDOC -- 2 of 2 --