Black v Gladstone Regional Council [2024] QIRC 285

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Black v Gladstone Regional Council [2024] QIRC 285 PARTIES: Black, Trevor (Applicant) v Gladstone Regional Council (Respondent) CASE NO: TD/2023/90 PROCEEDING: Application for reinstatement DELIVERED ON: 19 November 2024 HEARING DATES: 18 and 19 November 2024 MEMBER: McLennan IC HEARD AT: Gladstone ORDERS: The orders are in the terms set out at paragraph [51] of the Reasons for Decision. CATCHWORDS: INDUSTRIAL LAW – OTHER MATTERS – APPLICATION FOR REINSTATEMENT – unfair dismissal – where the applicant was employed as a team leader – where the applicant sent text messages to a fellow team leader of an inappropriate nature regarding his manager – where the applicant used a council device to send the text messages – where the respondent initially proposed a written warning as the disciplinary penalty for the conduct – where after receiving the applicant's response on the proposed penalty the respondent changed the proposed penalty to termination – whether there was procedural fairness afforded to the applicant – whether the termination of employment was harsh, unjust or unreasonable – where the applicant had no -- 1 of 12 -- 2 prior disciplinary history – whether there was a loss of trust and confidence – order for reinstatement LEGISLATION AND INSTRUMENTS: Industrial Relations Act 2016 (Qld) s 320 Local Government Regulation 2012 (Qld) s 282 Gladstone Regional Council Certified Agreement 2021 CASES: Ball v State of Queensland Corrective Services [2021] QIRC 116 Byrne & Frew v Australian Airlines Ltd [1995] 185 CLR 410 Laegal v Scenic Rim Regional Council [2018] QIRC 136 Maher v Workers' Compensation Regulator [2021] QIRC 313 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Weaver v State of Queensland (Queensland Corrective Services) [2021] QIRC 413 APPEARANCES: Mr J. Donaghy of the Queensland Services, Industrial Union of Employees for the Applicant. Mr P. Krebs of the Gladstone Regional Council for the Respondent. Delivered ex tempore, revised from transcript Reasons for Decision Introduction [1] Mr Trevor Black (the Applicant) is a 52-year-old married gentleman with two children, one of whom is school aged. Mr Black began working at the Gladstone Regional Council (the Respondent; the Council) as a labourer in January 2017 and was promoted the role -- 2 of 12 -- 3 of Team Leader soon after. For more than six years, Mr Black worked diligently for the Council as is evidenced by his unblemished work record. He was never performance managed. [2] However, restructures involved changes at Council which created something of a 'pressure cooker' environment. [3] There was a disconnect between the 'role defined' and what was happening 'on the ground'. Mr Black's evidence was that he was being left to "fend for himself", whilst being responsible for a team of about 15 employees. Issues of workload, work intensity and work pressure were deeply felt by Mr Black, as is evidenced by him raising the matters contemporaneously with his union organiser, and as supported by his colleague team leader, Mr Peter Scott (with whom he shared the same workspace). [4] Against that backdrop, the idiosyncrasies of Mr Black's supervisor, Mr Bboyd Newton, were amplified. Some irritations were blown up into matters of some enormity in the mind of Mr Black. Things such as failing to reply to email inquiries or including several others in a response to Mr Black's email inquiry, took on a significance that was not perhaps deserved. [5] Finally, on the evening of 6 June 2023, at home on leave with a bout of sciatica, feeling in his words "flat and anxious to be back at work the next morning", Mr Black had something of a brain snap. [6] In response to Mr Newton's advice that there's no need to attend to work emails whilst on leave, Mr Black texted Mr Scott on his work mobile phone stating, "Seriously I'm going to punch on with Bboyd" followed by, "He is a rude cunt!". [7] Subsequentially, the Respondent was made aware of the text messages and conducted an investigation, which resulted in the termination of Mr Black's employment on 27 July 2023 after the following allegations were found to be substantiated: Allegation 1 That you participated in inappropriate behaviour when sending a text message to Team Leader Operations Roads Central A, Peter Scott. Your text said, 'Seriously I'm going to punch on with Bboyd' in response to your Manager, Bboyd Newton, indicating to you that there is no need for you to attend to work emails whist on leave. You then participated in name calling/derogatory comments about Bboyd and texted 'He is a rude cunt!'. … Allegation 2 That you used council's electronic resources in an inappropriate manner; to threaten and make derogatory comments regarding your Manager, Bboyd Newton. Council's electronic resources should always be used in a professional and courteous manner and messages should not include any threatening or disparaging material. … Allegation 3 -- 3 of 12 -- 4 That you failed to raise the concerns, tabled at the meeting on 13 June 2023, that you were having in the workplace in a timely and respectful manner with your Manager Bboyd Newton, or your General Manager if you could not discuss these issues with Bboyd. You failed to participate in effective teamwork, which is an essential part of a productive workplace culture.1 Legislative scheme and legal framework Harsh, unjust or unreasonable [8] Section 316 of the Industrial Relations Act 2016 (Qld) (IR Act) says that a dismissal is unfair if it is harsh, unjust or unreasonable. The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.2 [9] In Byrne & Frew v Australian Airlines Ltd, 3 McHugh and Gummow JJ explained that: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. [10] Section 320 of the IR Act sets out the matters to be considered by the Commission in hearing an application under s 317 (emphasis added): 320 Matters to be considered in deciding an application In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider – (a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to – (i) the operational requirements of the employer's undertaking, establishment or service; or (ii) the employee's conduct, capacity or performance; and (c) if the dismissal relates to the employee's conduct, capacity or performance – (i) whether the employee had been warned about the conduct, capacity or performance; or (ii) whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and (d) any other matters the commission considers relevant. Witnesses [11] The following witnesses were called by the Applicant: 1 Exhibit 1, Document 16, 1-2. 2 Laegal v Scenic Rim Regional Council [2018] QIRC 136, 17 [63]-[65]. 3 [1995] 185 CLR 410, 465. -- 4 of 12 -- 5 • Mr Trevor Black, the Applicant himself; and • Mr Chris McJannett, former Central Queensland Organiser for the Queensland Services, Industrial Union of Employees. [12] The following witnesses were called by the Respondent: • Mr John Tumbers, General Manager of Operations from the Council; • Ms Gail Griffiths, Human Resources Business Partner from the Council; • Mr Bboyd Newton, Operations Manager from the Council; and • Mr Peter Scott, Team Leader, Roads from the Council. Evidence and submissions [13] The parties made their closing submissions orally on 19 November 2024. [14] The evidence of the witnesses and exhibits tendered at the Hearing, together with the oral closing submissions made by the parties were all considered in delivering this Decision. Consideration Was the decision to terminate Mr Black's employment procedurally fair? [15] On 7 June 2023, the text messages Mr Black sent to Mr Scott became known to Mr Newton. This was because Mr Scott expressed his concern for Mr Black's welfare and wellbeing, due to the escalation. [16] Mr Newton was shown the texts on the work phone by Mr Scott. Mr Newton reported the incident to Mr Tumbers, the General Manager, who instructed him to text Mr Black at 4:48 pm to attend a meeting at 10 am the following day, 8 June 2023. [17] Mr Black called his union organiser, who advised him to ask about the agenda for the meeting and if he could bring a support person. Mr Black then responded in those terms to Mr Newton's text. It was only at that point that Mr Newton – on Mr Tumbers' instructions (according to his evidence but not to Mr Newton's) – offered that a support person could accompany Mr Black to the meeting. Though by that time, Mr Black was unable to arrange it with his union at such short notice. [18] Mr Black's inquiry about the meeting agenda was not adequately responded to, only that "the agenda is to speak with Mr Tumbers". The meeting on the 8 June 2023 went ahead. In addition to Mr Tumbers and Mr Black, Ms Griffiths from Human Resources was also in attendance. They encouraged Mr Black to write out the 'pressures and tensions' that -- 5 of 12 -- 6 may have led to the uncharacteristic text messages and a follow up meeting was organised. Mr Black was given a letter suspending him from duty with immediate effect. [19] Whilst characterised as a "Notice Investigation and of special paid leave", an employee suspension from duty on pay whilst an investigation is being carried out is permitted under s 282 of the Local Government Regulation 2012 (Qld) in such circumstances – and that is what this was. [20] The letter to Mr Black dated 8 of June 2023 refers to the meeting held that day with Mr Tumbers and Ms Griffiths regarding: … commencing an investigation in relation to serious allegation/s against you. It has been reported that you allegedly sent inappropriate text messages, on your work mobile, to another team leader, using derogatory language in relation to, and threatening to physically harm your Manger Bboyd Newton.4 [21] Further, that: … no decision will made about the allegations until an appropriate investigation has been undertaken and you have been afforded an opportunity to formally respond to the allegation/s.5 [22] Mr Black was placed on special paid leave effective immediately on 8 June 2023, whilst the investigation was undertaken.6 While Ms Griffiths' response to the union organiser was that Mr Black had been put on special leave to reduce the risk of exposure to work pressures at this time,7 the oral evidence of both Ms Griffiths and Mr Tumbers at the hearing was that Mr Black was removed from the workplace because a threat was made that may be carried out. They could not know, so the safest course was to place Mr Black on paid suspension and investigate the matter. [23] Mr Black's evidence was that he contacted his union organiser immediately after being stood down as he had some process concerns with what had occurred. In my view, Mr Black's instincts were correct. [24] Clause 2.2 of the Gladstone Regional Council Certified Agreement 2021 (the Certified Agreement) states: 2.2 Investigations and Disciplinary Processes 2.2.1 The parties acknowledge that all disciplinary processes and investigations must be open and transparent, ensuring that the parties involved in the matter are provided with natural justice and procedural fairness. Accordingly, the processes shall follow a set procedure and decision-making methodology to ensure consistency and fairness for the parties involved. 2.2.2 Where appropriate an investigation will occur to determine the root cause, before there is any consideration regarding potential disciplinary outcomes. The purpose of the investigation shall not be to find fault with an individual but rather objectively consider, 4 Exhibit 1, Document 3. 5 Exhibit 1, Document 3. 6 Exhibit 1, Document 3. 7 Exhibit 1, Document 27. -- 6 of 12 -- 7 based on all relevant evidence, what caused the issue and identify recommended outcomes to prevent the issue occurring in the future. 2.2.3 Investigations will occur as soon as practical. Prior to any meetings Employees involved in an investigation will be provided with detail of what the meeting is about and why the Employee’s attendance is required and that they have a right to have a Union representative present or other representative. 2.2.4 If an Employee is required to attend a meeting in relation to a disciplinary process, they shall be provided with at least 24 hours’ notice in writing of the requirement to attend the meeting. Such notice shall include the detail of what the meeting is about and why the employee’s attendance is required and shall also make it clear than the employee has a right to have a Union representative present or other representative. [25] Clause 2.2 of the Certified Agreement clearly applied to the meeting on 8 June 2023 and was not complied with. [26] Mr Black was not given 24 hours' notice of the meeting, informed of his right to have a union representative (or other representative) present, nor was he provided with detail of what the meeting was about and why his attendance is required (quoting from the clause). [27] As I held in Maher v Workers' Compensation Regulator,8 failure to advise an employee what the meeting is about and that they can bring a support person does not afford procedural fairness to the worker. [28] In the case of Maher v Workers' Compensation Regulator,9 as in this case, the Respondent argued that the reason they did not advise beforehand what the meeting was about was because they were concerned about how the worker might react. In Maher v Workers' Compensation Regulator,10 as in this case, I am of the view that is an argument for building in further support measures, like the advance notice of the meeting agenda and having a support person in attendance (as required by the certified agreement in any case) – rather than an argument to diminish those supports.11 [29] I would observe also that Mr Tumbers and Ms Griffiths clearly both understood the importance of having a support person in such meetings, given there were two of them present at the meeting for management. [30] The Respondent has argued otherwise, but the documentary evidence of the letter dated 8 June 2023,12 does contain the allegations at the second sentence of the document. The letter goes on to state that "In accordance with the principles of natural justice, no decision will be made about these allegations until an appropriate investigation has been undertaken and you have been afforded the opportunity to formally respond to the allegations." 8 [2021] QIRC 313. 9 Ibid. 10 Ibid. 11 Maher v Workers' Compensation Regulator [2021] QIRC 313 [60]-[63]. 12 Exhibit 1, Document 3. -- 7 of 12 -- 8 [31] Foundationally, therefore I find that the procedural failings of Mr Black not being provided with prior notice of the meeting or its purpose, coupled with no opportunity to arrange for a support person in advance of said meeting is more than a "mere blemish". [32] While it was appropriate to take the decision to suspend Mr Black until Council could investigate the matter of the texts, the way it went about it was procedurally unfair. Was the decision to terminate Mr Black's employment harsh, unjust or unreasonable? The inclusion of Allegation 3 [33] Council's decision to terminate Mr Black's employment was "harsh, unjust or unreasonable" for the following reasons. [34] In my view, the third allegation should never have been included. Ms Griffiths' evidence was to the effect that it was hoped Mr Black might learn from that, about the correct process he should use to raise any concerns earlier in the future. There are other methods of educating workers on such processes and formal disciplinary processes are not that. [35] Mr Black had every right to feel blindsided by the outcome of that meeting held with Mr Tumbers and Ms Griffiths, given the calendar invite wording and express purpose of the meeting so stated, which was for Mr Black to explain the stresses and pressures that had led to his outburst so management could do something about the problem. It was specifically said that the meeting was separate to the matters raised in the first meeting. Mr Black was encouraged to itemise the work pressures – and did so. Mr Black had a reasonable expectation that it was a safe space to discuss his concerns, as he was invited to do so in a constructive way. Consequentially, Mr Black did so honestly and openly, bringing forth his struggles with workload and other issues. [36] It was most unfair and unreasonable for management to raise it as a further third allegation for his response. The proposed penalty was initially a written warning [37] Right at the beginning of the process, Ms Griffiths' evidence was that the relevant factors had been considered, such as length of Mr Black's service, his unblemished employment record and the like. While Ms Griffiths' evidence was that termination of employment was considered at the very beginning of the process, ultimately the respondent ended up proposing a written warning instead, for the very reason that it was the appropriate and proportionate response, given the other relevant factors. [38] That was the correct course to take in this matter, and it is highly regrettable the Respondent strayed from its original considered path. In my view, a written warning in all the circumstances of this case was the correct course. -- 8 of 12 -- 9 [39] Mr Black's letter dated 17 July 2023 clearly changed the Respondent's mind as to the appropriate disciplinary penalty, but it should not have because the allegations had not changed. They had already determined that the appropriate and proportionate response those allegations was a written warning, at its highest. [40] Mr Black had not resiled from accepting the written warning. He had apologised, expressed remorse and undertaken not to repeat the behaviour. Mr Black just went further in that letter to emphasise that he never had an intention to commit a violent act against his supervisor. [41] The wording of the letter dated 17 July 2023 was unfortunate, but notwithstanding that, Mr Black's intent ought to have been clear. It was clear to me on reading the letter dated 17 July 2023. I do not think it could be misunderstood. Mr Black never intended to hit Mr Newton – it was a vent. It is also clear that Mr Black never intended for anyone other than Mr Scott to see the text. [42] The reason Mr Scott brought the text to Mr Newton's attention in the first place was because he wanted the Respondent to provide help and support to Mr Black. The Respondent focused on their duty to Mr Newton, but in my view, neglected their duty to Mr Black and Mr Scott, whose motive in sharing the text was to obtain help for his colleague. [43] Right at the beginning of the process, when Mr Scott was interviewed by Mr Tumbers and Ms Griffiths, his evidence was that Mr Scott had raised the text because he was concerned about Mr Black's welfare. Mr Scott agreed with the proposition put, that he had tears in his eyes when showing the text to Mr Newton, but said he was mainly concerned based on his concern for Mr Black. Therefore, the respondent knew early on in this whole process why Mr Scott was upset by the texts – not because Mr Scott was fearful about Mr Newton being hit or frightened of Mr Black. The tears he had in his eyes were because he was taking the action he did to try and get help for his colleague.13 Unfortunately, things took a different turn.14 [44] The decision to terminate Mr Black's employment was harsh, unjust or unreasonable due to the matters considered (or considered in part) by Ms Griffiths at the beginning of the process, being that Mr Black: • Had a long, lengthy work history with the Council • A clean, unblemished work record and disciplinary record • His personal and economic situation including: 13 T 2-28, line 16. 14 T 2-27, lines 37-45. -- 9 of 12 -- 10 His age; He was married with two children, one of which was a school-aged dependent; He had financial commitments, including a home loan for a home in the region; and His wife was not the primary breadwinner during his time at Council. [45] The impact of Mr Black's termination was extremely harsh. Following his termination, Mr Black only obtained a fixed term contract, which he was employed in at the time of the Hearing. Mr Black also had to buy a car as he formerly used his work vehicle which was an unexpected and significant expense for the family. [46] In my view, the dismissal was harsh for those reasons. [47] The Applicant submitted, and I accept, that the dismissal was unjust because the Respondent was willing to issue a written warning as the penalty until the Applicant provided his response. That suggests that the employment was not terminated because of the conduct in question relating to the text, but it was in fact terminated because of his response to the initially proposed penalty. [48] Finally, the Applicant submitted, and I agree, the dismissal was unreasonable because it was a disproportionate response to his unblemished employment record, he was under pressure at the time, and the text messages were out of character. [49] The Applicant had worked successfully for a lengthy period at Council despite the challenges he faced. Following the incident, he showed remorse, expressed willingness and commitment to improving, and the conduct was uncharacteristic. Trust and confidence [50] As I cited in the case of Weaver v State of Queensland (Queensland Corrective Services),15 Vice President O'Connor previously considered the effect of a loss of trust and confidence on the question of practicability in Ball v State of Queensland Corrective Services.16 In Ball v State of Queensland Corrective Services17 his Honour cited with approval the Full Court of the NSW Industrial Relations Court in Perkins v Grace Worldwide (Aust) Pty Ltd:18 Trust and confidence is a necessary ingredient in any employment relationship... So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. 15 [2021] QIRC 413. 16 [2021] QIRC 116. 17 Ibid. 18 (1997) 72 IR 186. -- 10 of 12 -- 11 … It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable.19 Orders [51] I order accordingly. 1. Pursuant to s 321(2) of the Industrial Relations Act 2016 (Qld), Mr Black is to be reinstated to his former position on conditions at least as favourable as the conditions on which he was employed immediately before dismissal. 2. Pursuant to s 321(4)(a) of the Industrial Relations Act 2016 (Qld), Mr Black's continuity of employment shall be maintained between the date his dismissal took effect on 27 July 2023 and the date of reinstatement (the relevant period). 3. (a) Pursuant to s 321(4)(b), (c) of the Industrial Relations Act 2016 (Qld), the Respondent shall pay to Mr Black: i. the remuneration lost by Mr Black because of the dismissal in the relevant period; Less: ii. the monies earnt by Mr Black in the relevant period; and iii. the monies paid by the Respondent to Mr Black, by way of notice upon the termination of his employment; and iv. any monies paid by the Respondent to Mr Black for any accrued entitlements upon the termination of his employment (provided those accrued entitlements are now to be reinstated). (b) The gross amount shall be taxed according to Australian law. (c) Should the parties, within 21 days of date of reinstatement, be unable to agree on the amount of remuneration lost, either party has liberty to notify the Registrar and I will list the matter for further Directions to determine the amount of remuneration lost. 19 Ibid 191. -- 11 of 12 -- 12 4. Mr Black is to be reinstated within 22 days of the release of the date of this Order. 5. A written warning for substantiated Allegation 1 and Allegation 2 (only) will be placed on Mr Black's personnel file at Council. -- 12 of 12 --