Byford v Eagleby Community Association Inc [1996] QIRC 875 (1997) 154 QGIG 80

80 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 10 January, 1997 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1990 s. 295 application for reinstatement Ivan Arthur Byford AND Eagleby Community Association Im:. (No. B 1083 of 1995) COMMISSIONER EDWARDS 23 December 1996 Tennination of Employment - Dismissal Reinstatement Evidence Extension of Time Granted Jobskills Participant Plan - Management Committee - Rules of Association - Unsatisfactory Level of Competency - Dismissal Harsh, Unjust and Unrea.c;onable - Parties to Negotiate Appropriate Level of Compensation. DECISION This is an application by Ivan Arthur Byford for relief as follows:- (A) (B) (C) (D) That the applicant be reinstated in his former position (or as nearly can te possible) without prejudice to the applicant's former conditions of employment. That the respondent pay remuneration for lost wages between the date of termination and the date of reinstatement. That the respondent pay the applicant such amount of compensation which the Commission considers appropriate. Such further or other order as the Commission considers appropriate. In view of the fact that both of the parties initially represented themselves the Commission listed the case for hearing on 17 and 31 October and 7 November 1996. The matter was also listed for 28 November and 2 December I 996 for determining preliminary matters. The hearing proceeded on 10 and 11 December 1996. Although the application was filed on 22 June 1995 for a dismissal on 3 May 1995 the matter proceeded with no objection to the Commission granting an extension of time. Briefly the history of Mr Byford's association and employment with the organisation is as follows:- prior to 3 May 1995 perfonned voluntary work for Eagleby Community Association Inc.; 3 May 1995 commenced full-time employment with the Association on cleaning/general duties/bus driver For the purposes of the Industrial Relations Act 1990 the employer is the Eagleby Community Association Inc. Arrangements for the employment were by means of Jobsk:ills Participant Plan. The document (Exhibit l) outlined the employer, broker and participant together with their responsibilities. The respondent called the following witnesses: Mr A. Hill Mr A. Bridges Ms R. Ackermann The evidence of Mr A. Hill related to his telephone discussion with persons who he believed to be were former employers of Mr Byford. His evidence was of no benefit to the Commission as he wac;; unable to name m person with whom he was speaking on the telephone. Even if he had been able to advise and identify the persons he was calling no weight could be placed on his evidence as the former employers were not called. The evidence of Mr A Bridges is of benefit in providing the Commission with an insight into the financial arrangements entered into by the Association. Mr Bridges was not the employer. Accordingly he has no responsibility within the meaning of the Industrial Relations Act 1990. He was not an agent of the employer in accordance with the Rules of Comt of the Industrial Relations Act 1990. The Commission recognises the role of the Beenleigh Chamber of Commerce and the sterling efforts of Mr Bridges to place persons in employment. Mr Bridges advised the Commission that over a period of time he had placed over 50 persons in employment. Mr Bridges outlined in evidence that following signing of the agreement he had observed the employment of Mr Byford and visited the centre on 9 May 1995 at which time no problems were being experienced except for the question of payments directed to the bus driver. Exhibit 24, which was a letter from the Association to Mr Bridges, provided the Commission with an outline of the concerns of the Association. The Association also by this letter requested the Beenleigh Chamber of Commerce to remove Mr Byford from the Job Placement Program. Mr Bridges advised the Commission that contrary to the view of Mr Byford he did not dismiss the applicant during their meeting on 19 May 1995. 22220_1.DOC 10 January, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 81 The evidence of Ms Ackennann was of assistance in outlining the problems she experienced in her efforts to supervise the applicant. The Conunission acknowledges that there is uncertainty as to the line of supervision that existed at the Association. So be it, Ms Ackermann is an experienced and respected professional who as a Community Development Worker has certain supervisory responsibilities. The Commission accepts her as a reliable and honest witness who was able to apprise the Commission of the difficult human resource management agreement practices. The evidence of Mr KW. Knudson related to his role as a member of management committee. He attended a meeting convened on 19 May 1995. The evidence of Miss C. Poole also related to her role as a member of the management committee. She attended a meeting convened on 19 May 1995. The Commission also heard evidence from Mrs K. Byford. The Commission has examined (Exhibit 22) the Rules of the Association together with a document (Exhibit 23) claimed to be the minutes of the meeting of I 9 May 1995. Rule 21 provides the procedure to be followed by the Secretary when calling such a special meeting and Ruic 24 provides the method to be used for the recording of the minutes. The meeting of 19 May 1995 wa,;; not convened in accordance with the abovementioned Rules nor were acceptable minutes prepared. The meeting could only be classified a,; an informal discussion by certain members of the organisation. Following the informal discussion on 19 May 1995 a meeting was held on 22 May 1995 at which certain motions were moved by Mr Byford. The Commission a'isumes the action of Mr Byford was conducted in accordance with his rights as an Association member. Under the Rules the Commission would expect that an aggrieved member is entitled to act in accordance with such Rules. The Commission therefore expresses no view on matters related to conduct of meetings unrelated to the employee/employer matters. Section 292 of the Industrial Relations Act 1990 states:- "(l) An employer may dismiss an employee for reasons related to the employee's conduct, capacity or performance only if the employer first gives the employee a reac;onable opportunity to defend against the allegations made. (2) Subsection (I) does not apply if the employer could not reasonably be expected to give the employee the opportunity.". The employer was the President and Committee of the Association. By Exhibit 24, Mr K. Wiseman advised the Beenleigh Chamber of Commerce to remove Mr Byford from the job placement. The Commission doubts whether the cancellation of this contract was in accordance with agreement as no meeting of the Association was convened even though by that letter Mr Wiseman l>tated:- "Under the present conditions we do not have a job for Ivan, and we certainly do not need the agro. Therefore lhe management committee recommendation is that Ivan be removed from the job placement at the Eagleby Community Centre.". In relation to the employee/employer matter the Commission docs not regard the cancellation of the Job Placement Agreement as automatic dismissal within the meaning of the Industrial Relation Act 1990. The Job Placement Agreement was a contractual instrument to provide for the matters some of which were not industrial. On consideration of the e\-·idence the Commission accepts that Mr Byford did not achieve a satisfactory level of competency in his work Mutters such as: collection of moneys from passengers on certain journeys, not complying with reasonable directions on working hours, reluctance to work outside normal working hours when one could be reasonably expected to are totally unacceptable. The question of the "touching incident" is not gi~en any weight in this decision a<; the allegations were not supported by evidence The Commission appreciates that the Association is community based and us objects are:- "(a) To take a Lease from the Albert Shire Council of a Community hall and to manage such Hall in accordance with the terms of the Lease; (b) To provide playgroup and recreation facilities for the community; (c) To spread information regarding the availability of public transport and community facilities; (d) To encourage a supportive community based on community help." This does not relieve the management committee of its responsibility under the Industrial Relations Act 1990. As the employer, the President and his Committee, did not act in a responsible way. Except for the sterling efforts of Miss Ackermann in her attempt to maintain a reasonable professional approach no effort, were made by the President to comply with the Model Rules. The Commission ha-, given consideration to all of the evidence, exhibits and matters presented even though reference may not have been made to all aspects in this decision. Mr Byford was given no reason for his dismissal by the President or the Committee nor wa,; procedural fairness extended. Furthermore, no meeting was called in accordance with the Rules (Exhibit 22), The dismissal was harsh, unjust and unrea-,onable and not in accordance with the Industrial Relations Act 1990. The evidence of Ms Ackermann clearly confirms that the employer/employee relationship could not be restored. In turning my attention to other forms of relief available the Commission is restricted by the fact that Mr Byford did not provide the Commission with details of the income he received from his attendance at week-end markets. It is customary that an applicant has a responsibility to mitigate losses, As such the Commission needs material on which it may reach a decision. Based on the evidence, in relation to his attendance as an operator at markets and his application for work as a bus driver, the Commission is not satisfied that Mr Byford made reasonable efforts to find alternative employment. In consideration of the level of compensation the Commission has had due regard to Chenery v. Klemzig Nursing Home (1988) 55 SAIR 544, 551-2 except on this occasion the Commission does not accept that Mr Byford has made reasonable efforts to mitigate loss. The Commission therefore orders that the parties negotiate on an appropriate level of compensation. Should the parties be unable to reach agreement within 28 days the Commission will make a decision based on the material available. The Commission orders accordingly. K.L. EDWARDS, Commissioner. Appearances: Mr B. Chung of Hunt and Hunt on behalf of the Applicant. Ms J. Linde of Reidy Tonkin on behalf of the Respondent Operative Date: NIA Decision Compensation Relea..ed: 24 December 1996 22220_1.DOC -- 1 of 1 --