Bailo v Hardie Iplex Pipeline Systems [1994] QIRC 310 (1994) 146 QGIG 573

572 QUEE S LAND GOVERNMENT IND US TRIAL GAZETTE [I July, 1994 I July. 1994] QUEENSLAND GOVERNMENT INDUSTR I AL GAZETTE 573 ###1#1################################################## QUHNSIAND INDUSTRIA i RELAllO~S COM"1 1SSIO"-1 lndus1rial Rela1ions Ac/ /990 s. l 74 application for reinstatement G1110 Bailo AND I lard1e lplc>. Pipeline Systems (.Vo. R/8/ of199-IJ CO MMISSIONER EDWARDS 16June 1994 Rcmsta1emcn1 - Tcm1mation of I mplo}mcnt - D1sm1ssal - Union Delegate - Evidence - Alleged Misuse Company Telephone - Final Warning -\pplicant Did Not Ac1 in a Responsible Manner Commission Not Prepared to Interfere ,,nh Management Decision - Application Refused. REPORT Q:,.: DI CISIO~ (as edited) "This matter is nn app li cat ion by The Federated Storemcn and Packers· Union of I mplo}ees of Australia (Queensland Branch) (the l nion) for remstatcmcnt of (11110 Bailo to his fonncr pos111on of Storeworkcr at Hardie Jplex Pipeline S}slems (the Company), Comer Struthpine and Johnstone Roads. Strathpine. The Statement of I ,1cts and l s~ ues are: •1 Gino Bailo commenced ,,ork al Hardie lple, Pipeline s,"cms on 28 Jui) 1989 • 2. Gino Bailo was employed by the Company for a period of appro,imately Ii\ c )Cars un11I his dism1s~al 3. Gino Uailo was adv ised on 25 h:bruary 1994 that his emplo)mcnt with Hardie lpl cx Pipeline Systems ,,a~ tenninated due to an alleged u,c of COnlpJn) telephone for personal use 4. The Union believes that Gino Bailo was unfairly di~rnissed. 5 Any other mauer \\h1ch the l 111011 ma} rel) upon m the cour,,c of the hc,mng. 6 \n} 01her matter ,~h1ch the Commission ma~ deem meei. • Mr Bailu was employed by the Company as .i Leading lland Storc\\orkcr unlll his d1~m1ssal on 25 Februal") 1994 I unhennorc he "a, J t·mon delegate --- -- 1 of 2 -- 574 QUEE SLAND GOVERNMENT INDUSTR IAL GAZETTE 11 July, 1994 Witne,ses called were:- 2. B> taking thi) action you have: Gino Oail o. Leigh Wilham Griffiths: Paul An th ony Durham; Raymond John I .ctte: Raymond William Read: Ann Elizabeth Peters: AndrC\\ James ·1odd: Anthon) l)emard Mull en . Mr Bailo's employment history with the Company could be described as eventful. /\s such the Comm1ss1on 1s entitled to v1c\, the O\·erall " ork s ituation environment and auitudcs and not retlect so lel) on th e incident v.h1 ch finall) led to the dismissal. A chronolog} of events appears to begin m Oecember/fanuar) 1991 "hen a dispute situation arose resulting in a conference before a member of this Commission. This Commission ha~ not examined on n!\ iew all the correspondence on the mailer ho\\e, er by l:,\hibit 8 the Commission understand s that the reinstatement " ~clS subject 10 condiuons "•th this Commission offering no comment on "hether the conditions were imposed b) th e Commission. So be n Exhibit 8 re, eats the conditions of reinstatement to be:- • t That you apologise personall) to the management of our Company in Queensland. and also to Mr Jru, on Wat, on of Ra)m or. 2. That you resign }Our pos111on as the llard1e lplex delegate of the Storemen and Packers' Union and desbt from accepting any such nommauons in the future. 3. Thal you recognise that )OU ha,e. in efTcct. been g1'l'cn a final warning by th e Company as 10 your \,ork at llardie lplex and if there is an) future transgresMon of a serious nature in the cal'I') ing ou t of) our duties at Hardie lplex. the Company will be enlllled to 1em1mate )our services \\llhout further "ammg. 4. Thal you accept the period bemcen 14 Januar)' and 22 Janual). both dates inclusi, e. "ill be regarded as a suspension trom dut). for which no payment of monC) ,,111 be m.ide 10 you by llardie lplcx.' The maner "as subJCCI 10 a further conference on 21 April 1992 (l:xhibll 16) and 11 Ma} 1992 (Exhibit 17). On 23 January 1992 (Exhibit 9) Mr Bado received a written "aming for breach o f Compan) rules. I rom the c, idencc I understand that neither Mr llailo nor the Union accepted the notice (Cxhib11 9) ho"e\er the fact remJins 1ha1 it was deli~ered and it see ms there was only token re sistance from Mr Bailo As a result 1he nouce remains. On 14 October 1993 Mr Tony \lullen. Cu~tomcr Service Manager issued a formal warning lo Mr Bailo Thi, fonnul \\aming (Lxhibll 7) s11.11ed. ' ioormal \\ arnini: - '.\lr G . Daito The auached compan) notice, "hich was affi,cd tn the warehou,e noticeboard. was defaced by :rou with the ,,ord "Bullsh11'' and mi11alled. (a) sh0\\11 a total disrespect to me a;, your Departmental Manager; (b) displayed a complete disregard for company authority m general: (c) demonstrated a ,er} irresponsible attitude. and (d) set an appalling example for the other emp lo)ees in the warehouse. 3 As the Leading I land in the Section, your action~ cannot be co ndoned. You arc hercb) officiall} "amed that an) further mi~emeanours will result in serious disciplinary measure s.'. The incident which lead to the di:.missal of Mr Bailo was the 111troduction of cost cutting measures combmed \\llh the mstallation of a new telephone system which automatically recorded telephone numbers and durauon of calls. B) circular leucr dated 19 October 1993 (Exh1b11 2) commumcated 10 all stafT and employees. measures relating 10 cost cutting "ere outlined. In the circular. reference ,,as made to telephones as follows:- . , elcphones are installed for company business. If you have 10 make emcrgenc:r call~ do so but all others must be kept to a minimum STD calls must not be made unless on company busincs~ or autlioriscd by your departmental manager. 1711s is exist mg poltcy and bemg reinforced Try to use the fa.x instead of getting on the phone. it 1s far cheaper and you have a copy of the detail transmiucd.'. From submissions and evidence the Commission \\~ advised that there was no \\TitLcn existing policy but it was suggested in evidence that emplo)ees had an understanding of the poliC) . Ille Commi~s1on expected 1ha1 in view of the fact that reference was made 10 existing pohc) the Compan) \\Ould be in a position 10 clcarl) advise the content of that pohcy. The Commission in accepting that the existing policy was verbal raised with witnesses Read. Mullen and Peters their understanding of existing policy. llie responses indicated a certain lack of understanding by senior management of the, erbal policy. Whilst lack of a \\Tllten telephone pohC) is of concern 10 the Comm1ss1on. Fxhibit 2 indicates that the Company was anxious to develop a pohcy which recognised the importance of contammg costs. Al the same time the evidence reveals that there was not total compliance ,,ilh I xhib11 2 especially m relauon 10 (Electncal Energy) and from the evidence of Ms Peters the use of double sided copying.. In , ,cw of the concern about telephone costs the Company dc\cloped guidelines and examined all calls outside. The guidelines \\ere :- STD calls over 5 minutes; STD calls not on company business: Local calb over 15 minutes The evidence reveals that emplo) ecs were not aware of the gu1dehncs or the po~sible capa c1t) of the ne" monitoring equipment I accept that II would ha,e been preferable for the Compan) 10 clearly communicate tlicir intentions. howe"cr. in view of the fact I July. 1994) QUEENSLAND GOVERNMENT TNDUSTRIAL GAZETTE 575 that on!) calls which could be regarded as . I h·1 . e,ce,~,, e \\Cre e,ammed • ve gi,en appropriate \\eight to th at factor. • rhe cxam1nallon of the material revealed that M B 'J hud made call, as listed in Exhibits IOA and 108 r a1 o In I • . e,p anauon the Comm1ss1on "as advised of fam1lv circumstances which were supported b d. I • • 3) rrom th 'd y me ica evidence (Exhibit .' e e, • cnce the Compan} ad.no\, led cd the f: circumstances and would not proh ibi t tlic u f g . am1l> C\. ide.nce \.fr Read ad, ised th C . se o the telephone In d c omm1ss1on that Mr Bailo \\as 11 1 1s1111sscd so lely bccausc of' a breach of I' . t 0 of the disregard po IC) )ut more the degree l he Commission accepts the e\ idencc of Mr Read that th Company whilst being conccmed about the . fth e · d II · use O e telephone onl) ac1e on ea_ s "h1ch ,ho"ed total disregard for the use f C funds and lime. In this regard Mr Bailo "as the onh o ompan) calls which far e:>.ceeded a r•a bi , person 10 make • c sona e lime frame Ob 1 reasonable would be considered in light of a ' • v1ou:.} h1stor} and other relevant factors persons cmplo)ment d . ~e CCompan} _also suggested that Mr Bailo made th e ca ll s unng ompany ume Yet "hen questioned 'lilc ssrs Read d Mullen and :vi s Peters acknowlcd d I • an were flexible and th. • g~ 1181 Mr Bailo's lunch breaks I h h d . c~ \,ere uncertain of the time he had partaken of unc on t e a:rs 111d 1ca1cd. E,en though Me ssrs R• d d . • • ea an Mullen and Ms Pete • f; ·1 d c,ainme the_ mailer m detail prior lo mal..ing the :1a~~e t~~ tomm1ss1on is sa 11sfied that it would have been unwis' for M O· ·1 10 \\Ork a 12 hou~ shift \,ithou1 a lunch break at an c • r a1 o rather than tO\\ards the end of the shdl. appropriate lime Havmg decided that the Company would allow Mr Bailo an opportun11~ to g1\e further explanation the Commission noted )uch mcctmg was a1Tanged for friday 25 J:cbruar:r 1994 b that ~1c )~ ;\lullen: Bailo. I cue. Gntlith and l\ls Peters. At this ;~~';~~n ;~rte-her d1scuss1on ~cgarding Lh e telephone calls evolved. /\:. a re u~ e ompan} d1~m1sscd \1r Baifo. ) The ('omm1\s1on ackno\,ledges that Mr Ba I h made a s1gnilica111 contribution to the o~ration lo~ thad ;n occa.~1ons such I am satisfied th. C e ompan) /\s c ompan} would not have acted had M B I made shorter telephone calls Mr Oailo "as \ ell r f a1 o Compa • • . ' aware o the n) s mstrucuons as <)utlined Ill Exh1b11 2 , d • f past employment historv he should ha, c be • .in 111 v!ew o /11~ responsibilit hen ll • en more con,c1ous of his Februarv 19~8 hd io~~h I acc~pl that the fonnal warning of 2 • 3 c,pircd the Commission is entitled 1 itself and g1,e cn:dence to all emplo}ment factors. o appn)e A rev1e\, ol his emplo •n • t h emplo)ee who acted. 1 > ,en. isior:r does 1101 in d icute an held I:. d . n a responsible manner lor the position he , . \~n cons, enng this hislor) the Company appointed I • t nt:\\ pos111on In , ie\1 of th • 11111 o u Com an . at recent appomtment 11 •~ ob\lOU~ the "er/ y recodgn1s~d his organi sational and supervisor> skills and prepare 10 g1\-e him opport • not accept the cha II un11? to impro, c him,clf. fie did rcpre,emed th • I en~e given lo 111 111. From a union aspect he was ol ass1st:i1:~p O) ces 111 ~ mann~r that he had their respect and Mue) So ~ . he ~n ~1cgo 11 a11011s with management on industrial ace b IL ~ a a rcspons1b1lit) to act m accordance \\1th a epto le 111dustnal relations environment. 11 ComOn consid~ration of all the material. e\·idcnce and statements the m1ss1on is not prepared to mtcrfore \\ ith h ., management made on 25 Februal) 1994 I e vec1s1on of The application is refused l order according!) " Dated th1, ~ixteenth day of June. 1994. 8) the Comm1~s100, [L.S l M .J CAI I.EN. lndu-,trial Registrar. Appearances:- Ms R Ke) s with her M~ D Shanahan and Mr J. Brahim f Th Federated torcmen and Packers' Umon of Em 1 . 0 _c (Queens land Brooch) for the Applicarll. p O)ees of Australia Mr J.R. Jones for Hardie lplc~ Pipeline Systems. Openiti-,e Date: NIA Deci,ion - Reinstatement Released· 17 June 1994 ##########/1.####################################II####### -- 2 of 2 --