Federated Engine Drivers' and Firemens' Association of Australasia Queensland Branch, Union of Employees v Woocoo Shire Council [1997] QIRC 13 (1997) 154 QGIG 508

508 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 February, 1997 ########################################################## QLiEENSLAND INDUSTRIAL RELATIONS C:OMMISSIOJ\ Indu.Hria! Relation.\ Act !990 ~- 319 notification of dispute Federated Engine Dnver,: and Firemens· Association of Australa~ia Queensiand Branch, Union of Employees AND wooc(X) Shire Council !No. D455 of 1996.• I OCAL GOVERNMENT EMPLOYEES' (EX~~~DING - BRISRANE CITY COUNCIL) A WARD Sl Al F COMMISSIONER HLOOMFIELD 22 January I 996 . sh· C .··1 f"'1•a·der Driver -- Permanem Demotion of_Employce [)p.;pute ire ounu u 1. . 'd -- 11 .• ed Sick l eave Alleged premec Hate Absence of employee on ~ cg. ~ ~ s Wit;es,-, Evidence absence Disruptmn to Council ,oadwork. . . . . C~mmission founrl demotion f>hould be to a different !eve) for~ fixed penod. that employtx should be given final warning and that empioye" should not be paid for d:.iy ahsent. DECISION Thi" n1at1cr comes before the Commission as a di,pute notification 11 ~ · - . . •r .i Io DeceJ11ber ! 996 when the first came before the Commission on ue st ay .· _ _ 1 ; · · · d 1 '· , • As "0Ctat1on ot Au.,,t1 a as.a Federated Engine Dnvers an rJremens , ~ . - .. ' t Queensland Branch, Union of Employees (FEDFAJ expres:c.ed Hs_ c,m1.-en.s .o tht· Commission about the decision of the Woocoo Shlfe Cou~cd to d:mot: M1 Steven Kirby from his position as a Grader O~rator (Fmal frnn) paid, a, · . · E 1 , Le 16 with ,·ertain over-award allowances. a Local Government mp oyec ve , \.- ~ to the po;;ition of Local Government Employee Level L. f II ,- th~ absence of Mr Kirby on 20 The demotion occurred o owmg \.- • _ . _ November 1g96, alkgedly on sick leave. in circumstances where Mr K11by had made wide-spread comment on the prior day _that he would r1ot be reporting for work on the day in que,;tinn .. The action of the Counul was ... __ · M K- ·hy's absence cms;ed swnificant d1srupt1on to_ the work taken ,,ccause r 11 · • ' "" . 0 ,· project with the Council having w seek the services of a Grade1 - pe. ator from a neighbouring Council. 1 I' d bv CounAil that Mr Kirby's absence. and the delays in t was a 1ege ; • \.- · oc bl to be obtaining a replacement, resulted in certain rnadworks not . _mg a ,e readied for scaling on that day when in ordmary c1rcum~tancc~ the} woul~ have been. Thi~ meant that the final bitumen seal whicn was programme for 21 Neve111her could not be undertaken Subsequent wet weather del,1yed the Council's ability to seal the roadworks for a further nine (iays. db th FEDFA that the absence was genuine and, in those It was as-;erte Y e ~ · circumstances, the Council's decision was wrong. In conciliation proceedings on 10 December the Council undertookd nhot . 1 T - o rator it had earlier advertise t e to appoint a replacement Ftna nm pe . , . . ,· vacancv and the Council further agreed to allow the lndustnal ( ommbsion Ill revi;w the appropriateness of its actions. On 16 January 1997 the matter resumed at the prem~ses of the Woocoo , • · · th" esence ot the local FEDFA Sh;re Council when the Comnuss1011, rn ~ P1 · · · . _ . d 11 , • . d the Chief Executive of Wo0<.·<x1 Shire Council, mterv1ewe a, orgamser an ' f 19 ? 'J d ~ l November employees who could shed light on the incidents o ...~-~l an L ,· M; Durin the course of this inquiry process opportumt1<.s we1e pro\ ided to Treml~n (of FEDFA) and Mr Hill (of the Shire Council) h1 quesuon the various witnesses. The program of questioning was extensive and involved an examination of seven witnesses. Four of those witnesses were called by the Woocoo Shlfe Council and three (including Mrs Kuby) were called by FEDfA. It i~ clear from the evidence pre~nted that tvfr Kirby did. indet·d. expre:~ a vie\.\ to a number of employees on 19 November that he, woukl not';;,,. work on the following day in tllat he was gomg to bluw_ the a'. . Statements to thi~ affect were made on at least four ,occasion~ dunng the d~~ On a number of occasion~ the statement was volun,eered to those emplo) who might be within earshot. I 7 February, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 509 Mr Kirby put to me that the statement(s) arose more out of frustration with difficulties that he was expenencmg at the time and that he never had any intention to can-y out his threat. He informed me that he had made similar statements in the past but that he had always attended for work. Indeed. in this regard it is not disputed that Mr Kirby had a fairly good attendance record piior to this incident. A number of the Council witnesses also confirmed that .\1r Kirby had made similar threats in the past but he had not earned them out. Mr Kirby', comment, were viewed so seriously by the supervisor that he alerted the Chief Executive on 19 November that the comments had ocen made and that he did not expect Mr Kirby to be at work on the following day. It was the evidence of Mr and Mrs Kirby that early m the morning on 20 November /approximateiy 4.00 a.m.) Mr Kirby awoke with a m1gra111e headache and that he took three panadeine before returning to bed. It was their evidence that when the headache was still persisting at around 6.00 a.m. Mr Kirby instructed his wife to telephone the work office to inforn1 them that he would not be attending work. Mrs Kirby alleged that she had attempted to phone the oftice from approximately 6.20 a.m. and that the teiephonc was not answered until approximately 7 .00 a.rn. At this time she relayed the mes~age that her husband would nut be in and was met with the general re-.ixmse that "we've already workerl that out" The person who touk the call, Mr Kirby's supervisor. indicated that he was at work for some time prior to 7 .00 a.m. and that the only call made to the depot that morning wa:, the one which he answered, generally as described above. Mr Kirby also advised me that he remained in bed until approximately I 2.00 noon and that he had generally been asleep between giving his instruction to his wife at around 6.00 a.m. and that time. Mr Tremlyn put to me that the key argument in the matter was that Mr Kirby had discharged his obligation under the Award, and his contract of employment, by notifying the employer on the day in question that he would not be attending for work on 20 November because he was ill. He put to me that the only two people who knew Mr Kirby's condition on thai day (namely Mr Kirby and his wife) had both te~tified 011 Oath that he wa~ ill with a migraine_ In those circumstances I was urged to exlt'nd the benefit of the doubt to Mr Kirby Further, Mr Trcrnlyn put to me that the Council had made certain assumptions about Mr Kirby's absence on 20 November and that it had acted on the ba~is of those assumptions to suggest that his absence was designed to cause maximum dismption to the job It was put that these, incorrect, assumptions had caused the Council to act to discipline Mr Kirby. II was further submitted that his immediate demotion, at a cost of the order uf $75 - $80 per week, was a very harsh penalty and that I should o,erturn 11. On behalf of the Council Mr Hill, Its Chief Executive Officer, put to me that the Council had conducted extensive inquiries prior to taking the decision to demote Mr Kirby. It had re<1ched the conclusion, bm,ed upon the evidence which had n,me frnwaid. that Mr Kirby's ah-;encc wa~ premeditated and. in the Council's view. was designed to cause maximum disrnption to the job. In the circumstances the Council had decided that the matter was sutliciently serious to justify Mr Kirby's dismisc;ai Notwithstanding that it had reached this conclusion the Council had nonetheless decided. after consi(leting the matter most carefully, that Mr Kirby should be given a pem1anent demotion rather than be dismissed. Mr Hill informed me that the Council had been prepared to discus~ with the FEDFA, and Mr Kirby, a temporary demotion when its decision was first challenged. This offer had not been availed of and the ciment proceedings had ari\en. Condusion From the evidence presented by the various witnes:c.es. including Mr Kirby himself, I have reached the conclusion that at the cluse of business on 19 November I 996 Mr Kirby had no intentions whatsoever to atknd for work on the following day. I arnve at that conclusion on the ba!-.1s that Mr Kirby made it very clear to a number of employees that he intended to be absent and that he had also urged a number of employees not to make his intentions known to the supervisor. The way in which Mr Kirby made his intentions known i.e. by volunteering them to his workmates at lunch time and again in the vehicle travelling back from the job at the end of the day. convinces me that his intentions were real. Accordingly, in my view. it was co-incidental that Mr Kirby awoke next morning to find that he had a migraine headache ( I am prepared to extend him the benefit of the doubt on this p,1inl) The occurren~·e (or non- occurrence) of such an event would not, in my view, have made one iota of difference to whether. or not, Mr Kirby would have attended for work on that day. In my view he had already made the decision not to attend and, as I have said, the occun-encc of the migraine headache wa~ merely co-incidental. It is quite clear from the evidence presented that Mr Kirby's absence on 20 November 1996 did cause significant disruption to the Job The evidence of Mr Kirby's supervisor, which I accept, is that it was expected that the job would be at the stage where, at the end of that day, a final ~eal could have been applied on the following day. That was not able to be done because of the delay in obtaining a replacement Final Trim Operator, his lesser ahility than Mr Kirby and his lack of experience on the machine in question. The delay that then eventuated was quite ~ignificant and costly to the Council In rny view the ~,age had been reached where the Council could not have ignored the action\ of Mr Kirby in ab:c.enting him),elf on 20 November after he infonned virtually all and sundry that he would he "blowing the day". Had it done so it would have hecn an open invitation to any other employee to do likewise. Mr Kirby was effectively telling the Council. and his work colleagues, that he was bigger than the job and that he could absent himself whenever he wanted, irrespective of the cost. In my view the Council was entitled to take some form of disciplinary action against Mr Kirby in the circumstance~. The disciplinary action chosen was pem:anent demotion. The question for determination is whether the disciplinary action which wa, chosen wa, appropriate. It is clear from the materiai presented in evidence that Mr Kirby is a fairly high-strung and temperamental individual, sensitive to criticism, but who is. immensely proud of the work which he docs. Fwm the evidence he is entitled to he proud of his wrn k effort and performance. He i~ abo comparatively young and is still getting used to handling and dealing with other members of the workforce His workmates_ and his supervisor, told me that they essentially have to treat him with kid gloves and that they have to be exceptionally tolerant of his tx-haviour and outbursts. Takmg all of these considerations into account, including the Council's right to discipline Mr Kirby in the circumstances above described. an appropriate ~nalty is as follows: The demotion from Local Government Employee Level 6 to Local Government Employee Level 3. The demotion to run for a period of three calendar months from 21 November ! 996 to 20 February 1997, inclusive The placing of a fina! warning on Mr Kirby's fiic, with such final warning to remain in place for 18 months after which it should he removed. Non-payment of the claimed sick leave day viz. 20 November 1996. II would he my expectation that the Woocoo Shire Council will now act lo implement lite above fo1ding For his part .\fr Kirby should look at the demotion as a learning ex~rience He is a capable and wcll-crcdcntialled employee who ha:- yet to learn about the highs and lows of working life. !t is to be hoped that this experience leads to more highs and less (ho~ti.Jlly no) lows and that he is prepared to attempt to improve his workmg relationship with other employees. A.L HLCX)MFIELD. Commissioner. 22346_ I .DOC -- 1 of 2 -- 5 IO QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE Mr R Tremlyn and Mr J. C\,ogan for tht: Federat(~d Engine Driver,· anrl Fircme11.s' As,sociation of Australa:-.ia Queensland Branch, Union of Employee~. Mr J. Hili for the Woocoo Shire Council Opcrnti,e Date N/ A Decision - Notification of lk,putc Re: Demotion Rckascd 22 January \ 997 ########################################################## r7 Fehruary, 1997 I -- 2 of 2 --