Broomham v Hyne & Son Pty Ltd [1995] QIRC 1 (1995) 148 QGIG 176

176 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE (20 Ja nu ary, I995 ####################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industr ial Relations Act 1990 s. 295 - application for reinstatement Allan John Broomham AND Hyne & Son Pty. Ltd. (No. B737 of 1994) COM MISSIONER BECHLY 5 January 1995 Termination of Employment - Dismissal - Reinstatement - Attitude - Arrogant and Abusive - Foul and Abusive Language - Complaints - Morale of Staff - Evidence - Respondent's Witnesses more Re liable - Labour Turnover - Financial Perfonnance of Branch - Occupational Health and Safety - Fairness of Dismissal - Applicant was given Procedural Fairness - Dismissal not Harsh, Unjust or Unreasonable - Appl ication Refused. DECIS ION Mr A. Broomham has sought reinstatement to the position of Manager of the Townsville operation of Hyne & Son Pty. Ltd., an organisation with its head office in Maryborough, Queensland. Mr Broomham was dismissed from that position on 4 July 1994. He was employed by the Company fo r a period of six years, a ll of which ti me he held the position of Manage r. The area of his responsibil ity was expanded during that period to include the truss manufacturing operations as well as the Company's timber and hardware activities. The essential ci rcumstances which led to his dism issal are that, in March 1994, Mr K. Davies, General Sales Manager, situated in Maryborough, received a telephone call from a Mr A. Hartley, Hardware Supervisor at Townsville, complaining of Mr Broomham's attitude to staff. 13731 _ 1.00C 20 January, 1995] QUEENSLAND GO VERNMENT INDUSTRIAL GAZETTE 177 The allegations made were that Mr Broomham was arrogant, would not listen to his staff, had a h istory of throwing things at people around the room and was openly abusive to members of staff. Mr Hanley related personal incidents and stated that most of the staff were very unhappy and that morale was very low. Mr Davies telephoned Mr Broomham and repeated the allegations, without informing him of the name of the complainant, and informed h im that there was a major problem which needed to be addressed qu ickly. Mr Broomham, in his evidence, acknowledged the call and indicated that he had been informed by Mr Davies that there was a serious morale problem within the Tov.nsville Branch to the point where wholesale resignations would be expected at any time. He states that Mr Davies said to him that "if four people suddenly resigned then the Branch could not operate". Mr Broomham set about interviewing each staff member. In his words he "i nvited ful l and frank discussions with respect to the morale of such staff member, the overall morale of the Branch and as to any problems which may exist in the workplace for such staff member including any problems in their working relationship with me' '. Except for two staff members " ... each of the staff members interviewed .. . indicated that they did no t have any personal morale problem, that they did not have any perception that there was an overall morale problem in the Townsville Branch and that they did not have any prob lems in their working relationship with me'' . The exceptions referred to were Ms Penny Betts who referred to an incident where Mr Broomham "l ost his temper" with anoth er staff member in her presence and l'vlr Wayne Butler who informed him that "there had been occasions when you have said things to me that have upset me but I realise that once they are out in the open they are forgotten and we go on" and also that "I (Mr Butler) do not have any problems with you ". Mr Broomham, shortly after, informed Mr Davies that "the morale in the To\\11sville Branch is nowhere as bad as you have been informed". He also indicated that some problems earlier on arising out of the imposition of a new computer system simultaneously with a full blown hardware store and that these issues had been raised with the previous Area Manager, Mr John Travers. However, since then he held the view that "matters had settled down and there was no longer any serious morale problem ". Mr Broomham acknowledged that Mr Davies infom1ed him that ''he was glad that that ( the issue of complaint) was out o f the way because it obviously would have been of great concern to the Company if there was a serious morale problem". In June 1994 Mr Davies received a call from a woman who was quite upset and who stated that her husband came home in a "shocking state", a s ituation which she attributed to the attitude or action of Allan Broomham who she said be littled and trod on her husband. The woman did not reveal her identity. Mr Davies spoke 10 the recently appointed Area Manager, Mr Keith Dunham, about the matter, which he regarded as being of a se rious nature. and determined that both should go 10 Tovmsville to address the situation on a personal basis with Mr Broomham. However, a few days later he received a phone call from Mr Hartley advising that he had resigned, the reasons being:- Mr Broomham had belittled him on too many occasions; that he (Mr Broomham) would pick on him in relation to minor matters; that he would not allow him the au thority to carry out his job in a satisfactory manner; that he (Mr Broomham) was personally degrading him so that his son, who worked for Hyne & Son Pty. Ltd., Townsv ille, could eventually take over his (Mr Hartley ' s) position. Mr Hartl ey further informed Mr Davies that four senior staff were conside ring resignation. Mr Davies contacted Mr Dunham and discussed the detail of this phone conversation and arranged for him to proceed to Townsville on Monday 4 July I 994 to investigate the matter. He did not instruct him to sack Mr Broomham. On Monday 4 July 1994, M r Davies was informed by Mr John Blyth, a staff member who had just returned from supervising a stocktake at the Townsville Branch, that both the Assistant Manager, Mr Wayne Butler, and the Yard Foreman, Mr Des E ll iman, had approached him and requested a transfer to the proposed new Who lesale Branch, the reason being given that they were finding it impossible to work with Mr Broomham. Mr Dunham arrived in Townsville on Sunday afternoon and, on Monday 4 July I 994 , spoke to Mr Butler, the Assistant Manager, and asked him to pick him up from the hotel While Mr Butler initially agreed, he shortly alter contacted Mr Dunham and advised him that he would not pick him up and that he should contact Mr Broomham. Mr Dunham did so and was picked up by Mr Broomham. He states that on arrival at the store he perceived that a great deal of tension was present. He discussed certain business items, unrelated to the issue before me , with Mr Broomham and, a little later, walked out to the yard where he found and spoke to Mr Butler and discussed the problem. He states that Mr Butler was extremely nervous and expressed the view that as Mr Dunham was from Maryborough he would ret um there and then Mr Broomham, knowing Mr Dunham had been talking to him (Mr Butler), would make his life he ll again. Mr Dunham further stated that Mr Butler indicated that he would have little choice but to resign becau se ''his life would not be worth living''. Enquiry by Mr Dunham elicited from Mr Butler that his view of Mr Broomham was that he was arrogant, unapproachable and abusive. Mr Butler related an experience where Mr Broomham had thrown a clipboard in circumstances which he found offensive. He referred Mr Dunh am to othe r staff. Mr Dunham observed that Mr Butler was "obviously very distressed". Mr Dunham took Mr Broomham to lunch and raised the complaint that had been made to Mr Davies in Maryborough. Mr Dunham stated that Mr Broomham's reply was "that must be Tony Hartley - he is a shit stirrer". Mr Broomham on the other hand states that he referred to him as a disaffected past employee. Mr Dunham then referred to the high turnover of staff which he had earlier ascertained and advised that it indicated that a prob lem existed. Mr Broomham gave the appearance of not appreciating what Mr Dunham was talking about. He then advised Mr Broomham that he would spea k to the staff ab out the problem. 1373 1_ 1.DOC -- 1 of 3 -- 178 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [20 January, 1995 Mr Dunham then spoke to Mr Butler again and sought infom1ation as to what the problem was as there had been no official complaints. Mr Butler· s view was that if he complained he would be sacked but that he had spoken to Mr Davies about the matter. Mr Dunham also spoke to Mr Elliman who described Mr Broomham as arrogant and abusive. referred to the absence of staff meetings and no ability to make suggestions and stated that Mr Broomham openly said to staff that they were ·•his underlings". Mr Dunham further spoke to Ms Penny Betts a long term employee of llyne & Son Pty. Ltd. who referred to an incident when Mr Broomham chastised her about alleged personal phone calls and threw a calculator across the room. Ms Betts denied the allegation regarding the phone calls. which she believed was made by Mr Broomham·s son who was employed by the Company. He then spoke to Mr Grey Fisher, the Truss Plant Foreman. who stated that things were OK in his area but he knew it was impossible to work with Mr Broomham. Mr Dunham was informed by Mr Butler that Mr Scott, the goods receivable clerk. was going on leave but wanted to see him the following day. Following these discussions Mr Dunham sat dmrn with Mr Broomham and discussed the issues. His evidence is that he told Mr Broomham that his investigations had revealed that a number of his staff were unhappy. that they had lost respect for him and that the} perceived him as having no respect for them. He referred Mr Broomham to the earlier similar situation and expressed the view that the position had not improved. His evidence is that Mr Broomham then said words to the effect "Who said whatr and that he would address the issue when Mr Dunham left Tmrnsville. His later evidence was that his impression \\as that Mr Broomham would address the matter in a most inappropriate manner. Mr Dunham rejected that course of action being concerned that Mr Broom ham· s method of dealing with the problem would not assist but rather intimidate staff more. This belief appears to have been forn1ed on both the information obtained from stall the outcome of the previous issue raised by Mr Davies and the demeanour of Mr Broomham. Mr Dunham stated that Mr Broomham was a very abrupt and aggressive man and not easy to talk to about anything. lie described his demeanour as "'He speaks with his hands. he throws his hands in the air when he is not happy. He runs short of. virtually. ranting and raving. He runs short of that description. but just.". l\1r Dunham states that, following his investigation and discussion. such as it was, with Mr Hroomham. he came to the conclusion that Mr Broomham could no longer remain as Manager. He considered demotion but concluded that that was not practicable. lie then asked Mr Broomham to resign. Mr Broornham considered his position overnight and on 5 July 1994 advised Mr Dunham that he would not resign. While the versions Mr Broomham and Mr Dunham gave of conversations on 5 Jul1 1994 differ somewhat. the outcome is the same. Mr Broomham was dismissed. The fairness of the dismissal has been challenged. essentially on the im estigation of Mr Dunham and the lack of opportunity of Mr Broomham to defend himself or to change his practices to confonn to the Company's requirements. Mr Dunham has acknowledged that he did not give Mr Broomham the names of those who had complained about him but states that the manner of the conversation precluded that course and appears to have led him to the conclusion that the situation was not recoverable. Whether this conclusion is correct can only be ascertained from the evidence. which was extensive. It is not my intention to detail all of the evidence produced during the hearing. but I will highlight some of the material which I regard as being relevant. Mr Broomham was highly regarded for his technical abilities, both by the Company and the trade and at the final date of hearing a replacement to perform the technical functions has not been found. I le has occupied the position of Manager of the T O\\Tisville Branch with a significant degree of independence. In March 1994 Mr Davies, the General Sales Manager. some levels senior to Mr Broomham, informed him that a "serious morale problem" existed in To\\Tisville. Mr Broomham took steps to enquire of his employees as to the morale problem and subsequently informed Mr Davies that he had investigated the matter and that the problem was ·•nowhere near as bad as you have been informed''. Mr Davies accepted the advice and reiterated that ''it would have been of great concern to the Company if there had been a serious morale problem". Mr Broomham's action to investigate the matter was to, by way of personal interview, ask his staff if they had any problems with him. While it may have been Mr Broomham 's perception that there was little or no problem. that was not the case. All of the relevant evidence suggests to me that Mr Broomham was a man of strong personality, who intimidated his employees, was prone to anger and use of foul and abusive language if upset and intolerant of views which were counter to those held by himself. It is no wonder that employees. when interviewed singly, shrunk from telling him how they felt. There is conflict between the evidence of Mr Broomham on a number of significant issues and that of a number of witnesses for the respondent. After considering all of the evidence I have come to the conclusion that. generally, the evidence of the respondent's witnesses is more reliable. While Mr Broomham denied use of foul or abusive language to his staff. a witness called by him attests to hearing Mr Broomham call another employee a "fucking liar" in a loud voice in the hearing of customers and other male and female staff. His evidence generally supported the opinion which I have formed of Mr Broomham. To further illustrate the point I refer to an incident where the Assistant Manager. Mr Butler. was given approval by the Area Manager. Mr Travers. senior to Mr Broomham. to purchase a refrigerator for use of yard employees. Mr Broomham was present when the discussion took place. When Mr Butler later presented quotes to Mr Broomham he snatched them out of his hand. screwed them up and said ''If that's all you've got to fucking do all day. you can't be too busy. In future. check with me first before doing anything like that again.". 1373l_JDOC , 20 January, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 179 While Mr Broomham states in his evidence that ··1 do not recall the circumstances surrounding the purchase of this refrigerator as being in any way acrimonious'' a later witness Mr Elliman. the Yard Foreman. quotes this as an example of Mr Broomham's behaving in an abusive and contemptuous manner to his staff and confirmed the words and actions referred to above as he was present during the exchange. A range of other issues were raised in Mr Butler's evidence which generally support this allegation. One of these relates to a conversation which Mr Butler states he had with Mr Broomham regarding the Hardware Manager, Mr Hartley. While Mr Broomham states that Mr Hartley performed well in the early stages of his employment setting up the hardware store, Mr Broomham found fault with his performance regarding stock ordering and entry into the computer. Mr Butler states that Mr Broomham instructed him to make Mr Hartley's life a misery so that he would leave. There appears to be a general belief held amongst employees that Mr Broomham wanted Mr Hartley to leave so that his son, Mr S. Broomham, could be appointed to Hardware Manager. Mr Broomham denies both the alleged instruction to Mr Butler and that there was any desire to promote his son to Manager. Nevertheless evidence by a number of witnesses indicates that Mr Hartley was the subject of much abuse by Mr Broomham. Mr Broomham acknowledges remonstrating with Mr Hartley over poor performance. Mr Butler's evidence is that he made several attempts to deal with the perceived poor morale problem but that Mr Broomham did not believe that there was a problem. He states that "It was necessary to almost grovel when approaching Mr Broomham. He was short tempered and unreasonable in his dealing with others. I believe that most of the staff were afraid of him. Eventually. none of the staff at the site were prepared to raise any matter with Mr Broomham because, in my view. they were afraid of his response.". Mr Broomham did eventually call a meeting of all staff in relation to morale and asked staff to speak their minds. It appears that nobody did. In a one on one meeting with Mr Broomham in early 1994. following the call from Mr Davies indicating that a morale problem existed. Mr Butler states that he told Mr Broomham that there was a morale problem and that it related to the way he spoke to people and the way he treated people. He told him that the foul language he used was offensive to many people. Mr Butler states that the situation got quite tense but that he also told Mr Broomham that he recognised that he (Mr Broomham) did not bear grudges and once an issue was over. it was over. Mr Broomham recalls only the second part of that conversation. It would appear that Mr Broomham 's attitude has persisted for a number of years. According to the evidence of the Foreman. Mr Elliman. Mr Broomham · s attitude to employees was evident from when he first started. He described it as speaking down to employees in a demeaning fashion. He also states that "we (employees) couldn't talk to Allan about the way he was because there would be a reaction. and generally not a nice reaction" A variety of incidents were referred to in the evidence of employees, past and present, which highlighted the manner in which Mr Broomham dealt with employees which, in their view, was harsh, unreasonable and unacceptable. I have already indicated that I do not intend to traverse each of these. but one further such incident should be referred to. A witness called for Mr Broomham stated in his evidence that he once saw Mr Broomham kick an employee. The witness's evidence was generally supportive of Mr Broomham describing him as a normal every day sought of character but a bit military. He liked Mr Broomham because he made the place work. He believes his termination was unjust. He describes Mr Broomham as the boss who may have had trouble communicating with people and that it was a case of do it his way or not at all. Disagreeing with him was something to be avoided at all costs. If you didn't do something his way you·d get into trouble. As to the kicking incident he states he saw Mr Broomham "kick another chap sotlly up the bum., apparently to get his attention because he had just "stuffed something up on a truss" and Mr Broomham wanted to talk to him about it. It appears that the employee concerned was quite upset about it. complained to another person, not an employee, that evening, \vho then apparently "revved Mr Broomham up'' over the incident. The witness states that he thinks the employee was put off sometime later. Mr Broomham acknowledges the incident but denies kicking the employee. His evidence is that he merely applied the upper of his shoe to the employee's buttocks to get his attention. Was Mr Broomham given procedural fairness by Mr Dunham 9 believe he was. While it is the evidence that Mr Dunham did not recite details of the complaints he had heard he did clearly inform Mr Broomham that a morale problem existed. Mr Broomham denied that in a fashion which precluded further discussion. He refused to accept that there was a problem, even though Mr Davies told him that, in his view, the problem did exist and that Mr Broomham should accept that by him (Mr Dunham) raising it, that the problem did exist. All to no avail. Mr Broomham ·s response and attitude is consistent with the response and attitude to a range of issues raised by various witnesses during the hearing. Mr Dunham is a man of considerable experience both in practical and theoretical management. He came to the conclusion that it was hopeless to persist further in the face of Mr Broomham's attitude. Mr Broomham himself had time to think about the issues overnight and decided that sacking was better than resignation. At no stage was there any indication that he had given any serious consideration to the issue raised by Mr Dunham, namely, that a number of senior staff could no longer work with him because of his treatment of them and that they were seeking other employment. Mr Dunham's decision is amply supported by the evidence so far dealt with. Pcnneating much the evidence is the belief of the witnesses that Mr Broomham just did not acknowledge that his behaviour was offensive or belittling. Even when told he refused to accept that his behaviour towards employees was driving them to resign. In response to evidence given by the Hardware Manager, Mr Hartley, Mr Broomham made the comment "Respect has to be earned!". It would appear that he did not regard that as applying to him. In that vein the saying "There are none so blind as who will not see, there are none so deaf as who will not hear'' seems apposite. 13731 !DOC -- 2 of 3 -- 180 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [20 Januar y, 1995 Additionally the morale issue had been rai sed previously with Mr Broomham by Mr Davies, the State Sales Manager, in tenns which made it very clear that the Company regarded the matter and any resignations that might fall out of it as being of a very serious nature. Other Issues Mr Dunham evaluated the Branch from information available in the Maryborough head office before he spoke to Mr Broomham. The labour turnover stati stics revealed an excessive labour turnover at 48 per cent and Mr Dunham states that the financial perfonnance of the Branch was poor. This assessment was based on an evaluation of sales growth, net income growth, wage increases and profit growth. A great deal of evidence was also given on the issue of occupational health and safety. Other than the matter of labour turnover, these issues were not discussed with Mr Broomham by Mr Dunham in the conversations leading to his tennination. Mr Dunham states that they were on the agenda to be discussed but, because of the way the events unfolded, the opportunity did not arise. It is appropriate to consider some aspects of the evidence given by both the applicant and the Company regarding occupational health and safety. Hyne & Son Pty. Ltd. places occupational health and safety high on its level of priorities. It employs a corporate Safety and Training Manager who is well qualified and experienced in this area and who has overall but no line res ponsibili ty fo r Workplace Health and Safety generally within the Hyne group of Companies. Mr Broomham was trained in the operation of the Workplace Health and Safety Act, having completed a three day induction course and a five day certificate course which qualified him as a safety officer (manufacturing) under the Workplace Health and Safety Act. He was appo inted Safety Officer for the Townsville operation. The Com pany produced an extensive manual on Workplace Health and Safety which had efTect from 1990 Contrary to express requirements of the Company Mr Broomham refused to establish a safety committee on the site contending that it was not necessary because the size of the site enabled him to communicate with employees and detennine if any sa fe ty issues needed to be dealt with. Some matters raised by the Safety and Training Manager were dealt with by Mr Broomham but some significant issues were not. An item which Mr Broomham refused to deal with was a gu ard on machinery. He was directed to replace the guard because it did not conform to an Australian Standard regarding size of mesh. Mr Broomham was of the view that no-one would put their fingers through the mesh and no-one was likely to be injured. Regardless of the view held by him, Mr Broomham exposed em pl oyees to risk of injury in the belief that he knew better than the Safety and Training Manager and those who established safe guardi ng practices for machinery. In so doing he also exposed the Company to damages from any inj ured person and prosecution for breach of Safety Legislation. Three safety representatives were trained by the Company, one each for the pole yard, truss plant and building material yard. Over a period of time two of these left the Company. No replacements were elected or trained and the building material yard Foreman, Mr Elliman, was the on ly remaining safety representative. Mr Broomham adopted the attitude that Mr Elliman was the safety representative of the whole site, building material yard and hardware store, truss plant and pole yard. However Mr Broomham never infonned Mr Elliman that he was appointed as safety representative for the whole of the Company's operations. It appears from his ev idence that he just assumed that Mr Elliman would take over that responsibility. ·n1at is an astounding assumption considering his evidence as lo the extremely limited involvement which Mr Elliman had with the pole yard and the hardware shop and the limited invo lvement with the truss s hop. Mr Elliman was not in a position to act effectively as a safety representative for the whole of the Company' s operations. On the whole of the evidence on the matter of safety I have formed the opinion that Mr Broomham 's attitude and actions were not in acc-0rdance with the well known requirements of the Company nor were they tho se which could reasonably be expected of a competent manager. Co nclusion The evidence is that Mr Broomham, from a technical point of view, was forward thinking, did a lot of good but that people were not pan of his plan. Mr Elli man, who was regarded as a fair man by Mr Broomham, accepted that as a fair summary of Mr Broomham when put to hin1 by Mr Turnbull, Counsel for Mr Broomham. It is clear from the evidence that Mr Broomham had little regard for the feelings of his employees. While one or two instances were pointed out to attempt 10 show otherwise the overwhelming evidence is that Mr Broomham adopted an attitude to his employees which was demeaning, demoralising and irresponsible. A manager who does not include his employees as pan of his plan cannot claim to be a responsible manager. Mr Broomham claims to be a competent and experienced manager. His actions in dealing with the Compan y's employees under his care arc clearly a significant breach of his management responsibi lities. Having come to the conclusion on the evidence that Mr Broomham was given fair treatment by the Company in its consideration of the issues it remains to be detennined whether the termination itself was harsh, unfair or unjust. It is obvious to me that any altemative position for Mr Broomham within the Townsville Branch would not be a workable solution. It would appear that an alternati ve technical position at another Branch was not available. It was also apparent that urgent action had to be taken to remedy the extraordinary situation at the Branch. I ha ve come to the conclusion, on the evidence, that a reconciliation with staff at the point of tennination would ha ve been unlikely. The evidence is that the situation has now been remedied. Morale has improved considerably and there has been an improvement in the business of the Branch in a declining business environment apparently as a result of the implementation of action previous ly rejected by Mr Broomham when proposed by his sta ff. It was suggested for Mr Broomham that there was a conspiracy by a number of his staff to have him terminated, that much of the material against him was exaggerated or fabricated. I reject this suggestion on the quality of the evidence of the Company's witnesses as well as on the evidence of the employees called by Mr Broomham to suppon hi m. 13731 _ 1.DOC 20 January, 1995] QUEENSLAND GOVERNM ENT INDUS TRI AL GAZETTE On the whole of the evidence before me I cannot find that the dismissal of Mr Broomham was in any way harsh, unjust or unreasonable. R.E. BECHLY, Commissioner. Appearances:- Mr D. Tumbull, with him Mr W. O'Toole (instructed by Connolly Suthers) for the applicant. Mr D. Williams (of Minter Ellison Morris Fletcher), with him Mr K. Dunham and Mr K. Davies for Hyne & Son Pty. Ltd. Operative Da te: NIA Decision - Reinstatement Released: 5 January 1995 ####################################################### 181 -- 3 of 3 --