Boulton v Boyne Smelters Limited, Gladstone [1994] QIRC 309 (1994) 146 QGIG 570

570 QUEENSLAND GOVERNMENT lNDUSTRJAL GAZETTE [ I July, 1994 ####################################################### QUEENS! AND I DUS I RIAL RrI .A 1 IONS COMMISSION lndustr111/ Rela11onJ Aa 1990 s. 174 - application for rcinstatemcr11 Stephen Peter Douglru. Boulton AND 13oyne Smelters Limited. Gladstone (,\o . 8455 of 1993) COM'v!ISSIONI·R EDWARDS 16 June 199-t Reinstatement rermination of Employment - Oism1ssal - Evidence - hhibits Alleged Misappropriation Team Bonding Mone) - Allltude - Communical10n - Emplo)er/Emplo}ee Rela1ion,h1p Accountabihl> Dismissal llarsh, l,11Ju,1 and Unreasonable Relief Available - Rc111stateme111 or Re- bmployment Nol Appropri,llc - Compensation A,,arded REPORT O~ DECI~IO"-1 (as cdned) In giving a decision from the Bench on 8 April 1994, Commissioner I dwards stah:d:- "By application filed on 27 Augu,1 1993 Mr S.P.D. Boulton ~ought reinstatemcm to the position of General Supcrvisor-l'otrooms at Boyne Smelter, Limited Gladstone (the Compan)) Mr Boulton commenced employment with Doyne Smelters L111111ed in 1981 as a "age, emplo}ee and on I January 1982 "as appo1111cd to the staff of the Compan~ Ille circurmtances lcadmg up 10 the dism,,,al eoncemed the alleged misappropriation of Team nonding Money (TBM). Team Bond111g is a ~)stem introduced appro'1matel) SI\ years ago b} \\h1ch the Company makes a,ailable to teams. mone} for use b) the team m pur,uance of ~oc1al activi11e, for the group. Al the lune of the dismissal the Company also expressed eoneem about aspects of Mr Boulton\ attitude. B) affida, 11. Mr Bassett. Potroom "1anager outl111ed that a:. pan of the process each employee 1s allocated $40.00 per year b)_ the Company 10 be used solely for social activity. There are no wnuen guidelines for the use or control of the money and it •~ und~rstood that each team u11h1es the TB\1 in , anous ways for social actl\ 111es The supervisor 1s merely a custodian of the money and as stated b) Mr B,1sset1 ii is the duty of the supervisor to keep his sup cri111ende111 and team informed of the statu~ of the IBM at all time~ n,e Commission ,,a~ mformed by Mr Taylor, Pot Lme Superintendent, 111 evidence, that lhe Company keeps the peuy cash voucher on record but there ,,ould be no details of e,actly how the TBM ,,as spent Jn cross-examination, Mr Taylor stated that in his opinion the guidelines or boundaries arc as follows· the amount of mone} 1s S40 per head for a crew member. such being recorded in Company records; the mone) for an) panicular >car must be ,,11hdrav,11 111 that }Car. there must be a plan for how the money will be spent, which is agreed between the crew: encouragement of people to involve families; and keep crew members and superintendent informed of the status of the mone) Jn addition, Mr Taylor advised that the supervisor is required to l..cep the superintendent mlormed so other members of management ma) be briefed ,f necessat) In relation 10 relllining the TBM 11 "as re, ea led in evidence that !>upervisors ha,e different 111terpre1a11ons on how such money should be held but the witness agreed that any method was acceptable provided the team was aware. TI1us the procedures for holding such mone) ranged from private b.ink accounts to the office dra"er In this regard evidence was gl\cn b}' Messrs Steers and Crool..c who f'unhcr agreed lhtll the syMcm implemented depended upon the honesty of the supervisor. Ihe rBM in question was the 1993 alloca11on for the team previously under the supervision of Mr Boultl)ll. The team recognised that the I992 allocation could not be drawn as there was a clear undcr.;tanding that 1hc money could onl} be ,~11hdra\\11 111 the >car upon \\hich II became a\a1lable. Mr Boulton'~ team agreed LO use the 1993 allocation together \\Ith S200 incentl\e pa}ment for a trip on 10 Jui) 1993 hhibits I0A-10D show that Mr Boulton applied for the money on 6 January 1993 and a manual cheque was drawn on 7 January 1993. He subsequently signed for receipt of the money on behalf of his team. It "as handed to Mr Boulton 111 cash in 1,,0 plastic mone} bogs with a piece of paper in the bag listing \\hat the money represented. J he ere\\ agreed that the day should be cancelled because of the weather and ii \\OS further agreed 10 make altemauvc arrangementS for another trip al a convc111cnt time. Mr Boulton staled that he did not behe\e it \\as necess3T) for him 10 return the mone} 10 the Compan) as he was a supervisor and 11 was quite common for supervisors to retain TBM 1hu1 had not been ~pent at a particular time but used later even II it meant holding mone) from one )Car 10 another. Such a view was supported 111 C\ 1dcnce b) other supen ,sor., I he circu1m.1ances tho11 led to Mr Boulton retainmg the money ind1c:nes that towards the end of Janu3T) 1993 :-.tr Boulton I Jul y, 1994) QUEENS LAND GOV ERNMENT rNDUSTR JAL GAZETTE 57 1 proceeded 10 go on annual lca\C as his "ifc was due to ha,e a bab}. He rctumed to ,~ork in the middle of March 1993. During the period of his leave Mr Boulton was recalled by the Superintendent, Mr Mark Taylor and was transferred from his crew to a position of rchef supervisor. Mr Boulton mformed the Commission that at the ume of the transfer Mr faylor made certain allegauons of a general nature. TI1c ci rcumstances of the tran slc r are considered later in the decis ion. This transfer created an atmosphere of strain and caused considerable d, tress tO Mr Boulton. At the time of the transfer there was no hand over. take o, er or an inventory of Com pan} items and mailers. Accordingly, at no time during the transfer was th e question of the money raised. The concern about the 1993 mone) for the team arose from a conversation between Mr M. Taylor, Pot Line Supervisor and Ms M Po\\Cr, the Potroom Administrative Secretary when she drew Mr Ta) lor's attention to the fact that the 1992 mone> for Mr Boulton's ere\\ had been dra\,11 after December 1992. During examina11on it was confirmed by Mr Taylor that the money 10 which reference was made by Ms Power was the 1993 money not I992. Mr Taylor stated "hilst he was a,\are that tJ1e proposed trip had been cancelled he assumed that the money had never been w1thdra,\11 . I he casual conversation Mr Taylor had with crew member, Mr Ho"burgh and a conversa11011 with a Mr Cottrell confinned that members of the ere,\ were a\\arc that the 1992 monc) had not been dra,~n and in accordance w11h procedure had been los t. In the discussions Mr Cottre ll also confirmed with Mr Taylor nothing had been resolved as lo how the safety prize mone) was 10 be utilised On confinning that the money had been withdrawn in January 1993 by Mr Boulton but not spent, Mr Tay lor mentioned the mailer to the Potroom Manager. Mr Dasseu. In the presence of Mr Taylor, Mr Basseu inteT\ 1e\\ed Mr Boulton on I I Augu~t 1993. \\'hen sho,m the petty cash voucher, Mr Boulton immediately responded ' I've sti ll go l ii at home in a drawer in the original plastic envelope'. \Vhilst the parties disagree on the e,act time that the mone} "as returned to the Compan) II 1s reasonable 10 accept that it \\as retumcd in the bags wi thin a reasonable time. As such the Compan)' 111 e,,idence did not suggest that the en"elope, money and note had been interfered with or altered in an) way dunng the time it was in the custody of Mr Boulton. 'io be it, at the 1111erview on 11 Augu!>I 1993 as recorded in the file notes of Mr Bassett. Exhibit BB 12, the Commission understands that Mr Bassett advised Mr Boulton as follows:- ' Advised B of 111,estiga1ion after aud11 re,ealed ·m1sappropria1ion • of funds.. . • ·1he Commi ssion was in fonned that no audit of a fonnal nature ofTBM \\35 undertaken. In view of the lerminolog) used by Mr llasseu the Commission has given consideration lo th e defini tion of the words misappropriation and misuse. group for reasons outlined. The money rema111ed 111 the possession of Mr Boulton, a supervisor thereafter relief supervisor. The Commission accepts that ii was remiss of Mr Boulton not 10 raise the question of the moneJ "uh the Superintendent or the ne\\ supervisor. The Compan) ho,\e,er, was ,,ell aware of the allocauon of the money as shown in Exhibits I0A • 10D and had the Cornpuny felt th e need lo determine the situation in regard 10 THM held by Mr Boulton it was readil> a"a1lable to them Members of the team indicated that in relation 10 the use of the mone> no de1enn111at1on had been made. As such I refer to the a0idavi1 of Mr Taylor in which he indicates that in discussions with Mr l lorsburgh and Mr Courcll they advised hun that nothing had been resohed as 10 hO\~ 1he mone} was 10 be utilised. At the time of changeover of supervi sor, Mr Taylor did 1101 undertake a hand-over or tukc over of rele,ant items. As such one ,,ould expect that such an llern of monc) would ha, e been included in any such adm1111strative procedures. As already indicated Mr Boulton may have acted in an unusual manner 111 not reminding the supen•isor or superintendent or the mone) . Howe.,,er, as indicated by Mr Bassell and Mr faylor, Mr Boulton had advised them he had no inten ti on at any time 10 steal or unlawfully retain the money. In view of the lack of guidelines or consistency in the ,,ay supervisors retain the mone). the Commission concludes that the method adopted by Mr Boulton was just ano th er variation. So be it , Mr Boulton was remiss in his non- existent communication s tyle. I la, ing considered the question of the TBM the Commission must examine the other reasons given for the dismissal. Mr Taylor advised the Commission that the mect111g on I I August 1993 \\as the first occasion on \\h1ch II was md1cated to Mr Boulton that dismissal was under consideration. Funhcnnore, at the interview between Mr Basscll and Mr lloulton on that date in 1h c presence of Mr Taylor the other issues \\Cre raised. In his affidavit Mr Basseu stated that those issues were lack of pa rt icipa ti on at 1h e training course at Kalori held on 23 July 1993; and uncommumcative allitude. In his notes. Exhibit BBl3, Mr Bassel! 111dicated that the mauer., he rai5ed included • crew relief: • ho" others percei\e him, • co mpletion of tasks; • trip hazard. • expenses claim; • familiarisauon with ne\\ crew. The definition of 'misappropriate' 1s 'apply anothcrs mone> 10 wrong especia ll y ones own use'. (P696 The Concise Oxford Dictionary of Current English. 'ii"<th Edition). from the evidence and submissions the Company accepted the reasons provided by Mr Boulton for the ex penses claim and accordingly such \\as not an issue. The ~efinition of •misuse· 1s ·use \\rongl}'. appl) 10 \\Tong purpose, 111-treai'. (P699 The Concise Oxford Dictionary of Current English - Sixth Edition). The use of such terminolog_> '"itbin these definition~ clearl) hil!> not been supported in any way by the evidence before the Commission. The money was withdrawn correctly. The occasion for wtuch the monc} "as intended to be u~ed \\as cancelled b) the In considering Mr Boulton's general at111ude the Commiss ion acknowledges that by the evidence of Mr Basse ll the Company made significant change~ 10 its management st)'le m 1987. The Company changed from an authoritarian management 10 one of m, oh,ement of all emplo}ces. Further, Mr Basscll advised that the accountability for safety had devolved 10 those on the potroom floor. Al the floor level the accountable person is the supervisor of the ere\\. He i~ .. -- 1 of 2 -- 572 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [1July,1994 responsible and accountable for monitoring the overall perforn1ance of his crew and ensur ing that they are working within safe limits. The Company produced numerous documents by way of Exhibits to support the change of aspect and also to show that Mr Boulton had attended extensive training sess ions. I acknowledge the extreme importance which must be placed on safety programmes given the extremely dangerous nature of the work undertaken. As such, Mr Ba sseu by Exhibit BB 11, provided a collation of memoranda of various dates ou tlining potential fatal causes. These included sp ill s of molten metal or both, electrocution, gas explosions and fires, any amount of wet material coming into contact with molten metal or molten electrol y te . Mr Boulton was given many oppo rtu111tt es to attend and did attend training courses however Mr Bassett advised in his affidavit that at a seminar on 23 July 1993 wh ich he addressed and at wh ich Mr Boulton was in attendance that Mr Boulton made no contribution and showed complete lack of interes t in the proceedings. On one occasion he directed a question to Steve Boulton and as a result of his dis interest he did not r ea li se the question was for him, and anoth er supervisor called "Steve" responded to the request. Even though Mr Bassett and Mr Taylor were concerned about Mr Boulton's attitude there was no written evidence presented to the Commission that it was of such concern to them that they had reprimanded Mr Boulton or warned him of the consequences if improvement did not result. In this regard Mr Bassett and Mr Taylor were well aware of the importance of maintain ing file note records and this is recognised by the material presented as Ex hibit BB 12. Mr Taylor by his affidavit and evidence was concerned about the poor communication style and attitude of Mr Boulton. In his aflidavil. Mr Taylor stated during discussions with Mr Boulton he had commented as follow (paragraph I I 6(c) of Mr Taylor's Affidavit): ' I said to Steve Boulton words to the effect that I was not happy wi th the way that he was treating one of the operators as that operator was not being treated fairly as he was not being given a go at the pot co ntroll ing role. Steve Boulton sa id words to the effect that they were not serious and did not need to be brought to a superintendent's attention.•. In his affidavit and evidence there is no ind ication that Mr Taylor advised Mr Boulton that the co ncerns could lead Lo a reprimand or eventual dismissal. The Commission wou ld expect that in addition to stating his concerns Mr Taylor would have concluded the discussion by adv isi ng the consequences rather than the possibility of im plications which did not eventuate. The aflidavits and evidence indicate that the concerns were conveyed and responses were recei ved but no conclusions reached. So be it , Mr Taylor eventually transferred Mr Boulton to a re li ef position but on reading the affidavit Mr Boulton was not given any opportunity to show cause why he should not be transferred to a rel ief position. As such Mr Taylor stated • •1 preferred to discuss the matter with him personally and to give him the opportunity of commenting on the change rather than to effect a change whilst he was on ho liday.'. Thus irrespective of the res ponse by Mr Boulton the decis ion to transfer had already been made by Mr Taylor. Mr Boulton had attended numerous training courses and obviously must be well aware of Company po li cy and practice. The Commission does not believe that such permits the Company from de nying Mr Boulton the opportunity to be heard if any matter detem1ining his status within the Company is under consideration. It seems that the Company adopted a policy of organ isi ng additional training and was not prepared to face the real problem of inforn1ing Mr Boulton o f the consequences of h is fai lure to respect policy and improve his attitude especially when the Company was attempting lo implement a new management style. In relation to the TBM the Commission has decided that Mr Boulton failed to comply with the Company po licy of open communicati on ethic. Al the same time the Company showed little concern for accountabi li ty as it does not conduct audits on TBM after the money is issued. /\s already indicated there are no guide line procedur es or consistencies of approach for the ho lding of money. By the evidence the methods adopted by Mr Boulton were another variation to the method followed by him and his colleagues. The evidence before me reveals that at no time was the money to be used for any purpose oth er than that intended by the Company. The other matters raised at the meeting on 11 August 19 93 revea led that the Company recognised that Mr Boulton had problems in a number of areas. Mr Tay lor advised him of the concerns bo th fonnally and informally but from the affidavi t Mr Taylor accepted the responses by Mr Boulton and the Company did not follow through with any fom1al cautions or reprimands. The first time formal commen t of substance was made was on 11 August 1993. On recognition of the problem the Commission believes that the Company shou ld have followed a more direct and personal approach in an attempt to extend assistance in the areas of spec ial concern, i.e. attitude and communication. As such the Commission is not expressing any views on the success of such a pr ogramme but rather the Company's failure to adopt a method to deal with a special problem. I have reviewed on a number of occasions the evidence, exhib its and submissions and have given thorough cons ideration to all aspects even though specific reference may not have been made in the dec is ion. I have decided that in view of the procedures followed by the Company in respect to attitude and in re gard to TBM, Mr Boulton was on ly remiss in failure to communicate and that the dismissal is harsh. unjust and unreasonable. If the parties desire I am available to proceed to hear argument in relation to relief ava ilable under section 17 5 of the Industrial Re lations Act and other matters as a consequence of this decision. I order accordingly.". In giving a further decision (as edited) on 3 May 1994. Commissioner Edwards stated:- "On 8 April 19 94 the Commission dec ided that the dismi ssa l of Mr Boulton was harsh, unjust and unreasonable. As a result of that decision the Commission gave the parties the opportunity to make submissions on relief available. With the concurrence of the Commission. the parties decided to make written submissions in accordance with the timetable recorded on the transcript. On 22 April 1994 Freehill Hollingdale and Page, Solicitors for the Respondent made submissions through the Registrar. On 29 April 1994 the Union on behalf of the Applicant communicated their submissions by fax and on the same date Freehill Hollingdale and Page forwarded their response. On consideration of these submissions the Commission has decided that as ne ith er party wishes to restore the employer/employee relationsh ip that reinstatement or re-employment is no t appropriate. The Commission must now tum its attention to other relief available. l July, 1994) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 573 Section l 75(1)(c) of the lndus1rial Re/a1ions Act 1990 (Reprint No. I) states:- ' if the _Comm ission cons iders that an order under paragraph (a) or (b) 1s mappropriate_ - that the employer pay the employee an amount of compensation determined by the Commission.·. T~e Commission acknowledges the long term work historv and the circumstances leading to the dismissal. Mr Boulton, was em~loy~d by Boyne _Srnel~ers for a period of 12 years. During a substan tial part of ~his period he enjoyed an excellen t relationship ~v1th(h1s employer. Smee the company changed its management sty le m I 987 the evidence revealed that Mr Boulton had difficulty in acceptmg the_ change. So be it, the company representatives held 1~any d1s_cu~s1ons with Mr Boulton regarding their concern but they fa!led to m_d1cate th~ consequenc_e~ of his atti tude. Jn this regard they extended fu rther_ assistance by in1t1a1ing his attendance at training courses and bnefmg sess ions and arranging transfers etc. The C~mmission has placed considerable weight on the fact that for the maJonty of his emp loyment Mr Boulton was conscientious and worked m a manner commensurate wi th his responsibilities and leve l m the managemen t structure. For the balance of the period of employment the Commission recognises the concern expressed by management with spec ial weight being placed on lack of detai l to important_ safety matters. In rela ti on to Team Bonding Monev the Comm1ss1on found that the only misdemeanour was fai lu~e 10 communicate. Management has a c lea r responsibility to communicate to their employees the consequences of their not reaching the Company s'.a~dard. P: standard which any Company must revise on a regu lar basis to mamtam a contemporary competitive structure . In detennining the level of compensat1·on t·he Co • • • . . . . mm1ss1on 111 appnsmg 1t_self of factors during the period of employment has not placed _weight on the su~gestio_n tl~at the employer/employee ~~a~1onsh1p could contu~ue for an mdefmite ~eriod after 23 August 9J. _Furthe~more, the Comm1ss1on has not given any weight to the fmanc 1al dec1s1ons made by Mr Boulton following his dismissal. The Company suggests that no more than four months 10 be fair and ~casonable given Mr Boulton's length of service. Section l 75(3) provides the means by which the Commiss.ion may ca lculate compensauon. The gross month ly income of $4 596 82 ·s · d r 1 • . . 1. accepte ,or t 1e purposes of the calculation. The an1ount of$36.774.56 is ordered to be paid as compensation ~o Mr Boul_to~ by his former employer. In relation to section 175(4), he Com m1ss1on orders that appropriate remuneration for wages is the payment of wages from the date of dismissal that 1·s 2' A t 1993 • j ugus to 17 December 1993 for wh ich allowance must be made ~ the month's pay in lieu of no tice which Mr Boulton has al rea:yr received. The com~ensation under section 175(3) and the payment in accordance with section 175(4) are in addition to annual leave long service leave and superannuation and any other entitlements ~xcept the month's pay in lieu of notice to which reference has already been d ,~ade_. A ~?mial_order will be issued by the Registrar to cover thi s <.:C1s1on, il required. . The_ Commission orders that payment be made within 14 days of th is dec1s1011 . The Commission sees no reasons why costs shou ld be awarded. Order accordingly.''. Dated this fifleenth day of June , I 994. By the Commission, [L.S.) M.J. CALLEN. Industrial Registrar. Appearances:- Mr A. Stewart for the Federation of Indust ri al, Manufacturing and Engmeermg Employees on behalf of the Applicant. Mr J. Garland of Messrs Freeh ill Hollingdale and Page 011 behalf of the Respondent. Operative Date: NIA Decision - Reinstatement Released: 17 June 1994 ####################################################### -- 2 of 2 --