Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch v Brisbane City Council

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Australian Rail, Tram and Bus Industry Union of
Employees, Queensland Branch v Brisbane City
Council [2014] QIRC 070
PARTIES:	Australian Rail, Tram and Bus Industry
Union of Employees, Queensland Branch
(Applicant)
v
Brisbane City Council
(Respondent)
CASE NO:	D/2013/71
PROCEEDING:	Action on Industrial Dispute
DELIVERED ON:	17 April 2014
HEARING DATES:	29 and 30 January 2014
3 March 2014 (Applicant's submissions) 24 March 2014 (Respondent's submissions)
MEMBER:	Industrial Commissioner Thompson
ORDERS :	The Brisbane City Council was justified in
issuing Bennett Roche with a formal warning dated 13 February 2013
CATCHWORDS:	INDUSTRIAL LAW - ACTION ON INDUSTRIAL DISPUTE - Union Delegate - Difficult working relationship with Depot Manager - Mediation - Paid time for Union Delegates for union business - "Please explain" letter - Formal warning - Warning justified.
CASES:	Industrial Relations Act 1999, s 7, s 77, s 230, Schedule 1
Brisbane City Council Enterprise Bargaining Certified Agreement 2010
Jones v Dunkel [1959] HCA 8
Re Ivor Terrence Wheeler v Philip Morris
Limited [1989] FCA 230 Briginshaw v Briginshaw (1938) 60 CLR 336 Browne v Dunn (1893) 6 R. 67 (H.L.) Spelleken v Darling Downs Foods [2002] 171 QGIG 185
Selvachandran v Peteron Plastics Pty Ltd (1995)
62 IR 371 Queensland Transport v Steel [1999] 160 QGIG 196 Byrne v Australian Airlines Ltd [1995] HCA 24
APPEARANCES:	Ms C. Jones for the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch, the Applicant.
Ms K. Garner, Counsel instructed by Brisbane City Legal Practice for the Respondent.
Decision

Background
[1]      On 3 May 2013 the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (ARTBU) lodged with the Industrial Registrar a Notification of Dispute between themselves and the Brisbane City Council (BCC).
[2]      The dispute between the parties was in relation to a formal warning issued to Bennett Roche (Roche) (a member of the ARTBU) on 13 February 2013 regarding alleged inappropriate behaviour towards the Bowen Hills Depot Manager.
[3]      The correspondence identified that Roche had specifically breached the BCC's Code of Conduct, specifically in the following terms:
"THE FIRST PRINCIPLE - Integrity and impartiality (a) and (b)(i) Behaviour
towards each other;
THE THIRD PRINCIPLE - Commitment to the system of government (a) and
(b)(i) Acting within the law; and
THE FOURTH PRINCIPLE - Accountability and transparency (a), (b)(i)
Diligence, care and attention."

[4] The correspondence further informed Roche that:
"Your continued employment with Brisbane City Council is dependent upon you ensuring that you comply with all Council policies, procedures, guidelines and the Code of Conduct at all times, specifically:
 Demonstrating the values and principles outlined in the Code of
Conduct;

 Behaving towards others in a manner that is respectful, sensitive and
dignified; and
 Contributing towards building a workplace that is free from
intimidation, bullying and harassment.

In addition you are also hereby directed to undertake Code of Conduct training. You will be notified of when the Code of Conduct training will take place."

[5]      The ARTBU forwarded correspondence (undated) to the BCC in which they raised significant concerns with the treatment afforded Roche indicating "we fear that this is as a direct result of his union involvement".
[6]      The question for determination was agreed to be "Was the Brisbane City Council justified in issuing Bennett Roche with a warning dated 13 February 2013" [Exhibit 12].
ARTBU
[7]      The following witnesses gave evidence on behalf of the ARTBU:

 Roche; and
 David Matters (Matters).

[8]      An affidavit was filed on behalf of Charles Buttenshaw (Buttenshaw) which was entered into the proceedings by agreement of the parties with Buttenshaw not required for the purpose of cross-examination.
Roche
[9]     Roche, an employee of Brisbane Transport, a division of the BCC, had been employed as a Bus Operator for the past six years and the ARTBU Delegate at the Bowen Hills Depot since May 2012. He gave evidence of the relationship he had with Sally Briggs (Briggs), Depot Manager at Bowen Hills.
[10]   There had been difficulties from the time Briggs took up her role at Bowen Hills and, despite giving her the benefit of the doubt in the early stages, it became apparent to him that she did not like him for reasons unknown although it may have been due to his union involvement with the relationship deteriorating to the point where Briggs was going out of her way to obstruct his duties as the Union Delegate.
[11]    Roche indicated that Briggs had:

 shown no regard for anything union related;
 refused to accept that a larger proportion of her workforce were union
members; and
 no respect for the role of the union within the depots.
[12]    He had made a request to the Divisional Manager, Alan Geyer (Geyer), to facilitate mediation between Briggs and himself which took place in or around September 2012. Geyer restricted Roche's participation in the mediation to an extent it made it impossible to resolve the issues. This led to further claims from Roche for an independent and properly trained mediator to become involved, which were repeatedly denied.
[13]    Roche had no intention of putting his job at risk, speaking privately to a counsellor and psychologist about the situation where it was explained nothing he did could possibly change the way Briggs interacted with him.
[14]    As depot Delegate he was allowed paid time to review and audit run prints so that it could be ensured that the hours and overtime were being evenly distributed throughout the depot. This practice had been in place for approximately four years and was advantageous as it freed up the roster clerk from being left to fight roster disputes with drivers and was described by Roche as a "win-win situation". There was an arrangement in the previous workplace agreement which allocated two shifts per month for the Delegate to perform union related tasks with the run print role being additional time.
[15]   The run print task would take about two days to review 275 rosters with generally 60-80 challenged and as he was allocated only half-day shifts it meant he would do the rest in his own time. He had requested the roster clerk to be allocated time to complete the task prior to the incident that led to the formal warning and also spoke to Briggs to no avail, leading to him sending a text message to Geyer seeking his assistance but things remained the same. In frustration he spoke to a more experienced Delegate from another depot who advised him that he "should just advise Ms Biggs when I was checking the run prints and take the time" however in following that advice his evidence was that this did not go well.
[16]    On 6 December 2012 Roche was rostered to work two half shifts to cover morning and evening peak periods and at 10.30 am that morning on his return to the depot he spoke to Briggs (who was on her morning tea break) about not being allocated the time he had requested to review the run prints advising her he would utilise his afternoon shift to perform the task to which Briggs responded telling him he would not be allocated any time.
[17]    When he was due to sign back on at 1.52 pm he remained in his office reviewing the run prints and shortly thereafter he was paged to the main office where he informed a front counter staff member that he would not be driving a bus that afternoon and then returned to his office. He continued the task uninterrupted until 2.15 pm when he called the ARTBU Delegate at the Virginia Depot who advised him that his run prints had changed and a number of drivers had been underpaid. Roche went directly to the counting room where he found that drivers at Bowen Hills had been underpaid in the same method as those at the Virginia Depot.
[18]    Roche approached Darren Sharp (Sharp), the Roster Clerk, querying whether he was aware of the underpayment problem and as Sharp was showing him a "pile of run prints" Briggs was alleged to have stormed up to Sharp and "grabbed him by the arm and dragged him away". About 15 to 20 minutes later he returned to Sharp's desk with the intention of finishing the conversation only to be informed Sharp was not able to speak to him because he was "AWOL" which meant "absent without leave".
[19]   At about that time Briggs (whose office was located near Sharp's desk) began yelling at him from her office that he needed to leave the property because he was AWOL at which time he told her in a "voice raised slightly" with a tone not angered, if she had a problem with him he would see her in the Commission. Roche asserted he was not "aggressive or intimidating". Roche was upset by Briggs's immature attitude and thought it was inappropriate for Depot Manager to act in that manner which resulted in him saying "I told her to grow up and start acting like a Manager". A little later when he took the run print to Briggs's office with the intention of explaining the underpayment, Briggs began yelling at him as he entered her doorway at which time he left the office.
[20]   A further exchange occurred that was described at paragraph 41 of Roche's first affidavit [Exhibit 1]:
"While I was sitting on the chair beside the photocopier, waiting, Ms Briggs came out of her office to continue her rant at me. She was yelling at me that I looked like a fool. I returned the compliment by telling her to take a look in the mirror and start acting like a manager. Again, my voice was raised and we were arguing, but I was not acting in a manner that was 'aggressive and intimidating'."
Roche admitted he had argued with Briggs as mentioned previously but at no time did he yell, lose his cool or act in a manner that was aggressive or intimidating.
[21]    The Depot Supervisor, who was quite agitated, angrily directing Roche to leave the premises and whilst he went outside he did not leave the premises, going back to the union office on site. While in the office, Matters, Secretary of the bus division of the ARTBU, rang and advised he had just spoken to Geyer who had alleged there was footage of Roche being aggressive towards Briggs. At 3.54 pm Briggs, Gavin Woodcraft (Woodcraft) and Sharp arrived at his office and requested that he leave the property which Roche refused informing them he was to continue working on the run print review. Together the three of them "stood over" him telling him to leave, he was AWOL, not entitled to be there and not welcome.
[22]    Roche contacted Matters who advised him he was entitled to do the run prints as it was part of his job whereby Roche requested they vacate his office. As they were leaving he noticed Briggs was holding her mobile phone towards him in a way that made him think he was being recorded and despite challenging Briggs, he has never been provided with a copy of any recording nor has he had the opportunity to view any alleged CCTV footage which would have confirmed "they" were aggressive towards him and not the other way around. Roche claimed he was the victim of aggression and this is why the CCTV footage was never made available to the ARTBU.
[23]   Roche questioned the investigative process undertaken by the BCC and, in the company of Matters attended a meeting on 19 December 2012 with Shirley Dale (Dale) and Briggs who, from the outset, appeared to be "stand-offish". Matters had raised a number of concerns including Briggs being part of the team investigating the allegation of wrong doing on 6 December 2012. Requests were made for the production of CCTV footage at which time Dale was alleged to have said the meeting was not about having discussions around the incident of 6 December 2012. Dale was said to have thrown a "please explain letter" on the table and shortly thereafter Dale and Briggs left the meeting. Roche at no time provided a response to this letter because he was unable to understand what he should be responding to and there was no evidence presented to him.
[24]   Roche, who had been unable to attend a meeting scheduled for 14 December 2012 due to being unwell, had to wait some seven months to be paid sick leave which he said showed "the depth of Ms Briggs's unprofessional hatred towards me".
[25]   On 13 February 2013 Roche was issued with a formal warning letter of which the content was said to be confusing to the point he had no idea how it had been determined that he was aggressive and intimidating and he had never been given a fair opportunity to respond to any allegations that had been levelled against him, therefore denying him natural justice.
[26]   Roche filed an affidavit in reply [Exhibit 2] whereby he offered a response to affidavits filed by Briggs, Dale, Geyer, Richelle Neilsen (Neilsen), Woodcraft, David McKean (McKean) and Sharp with the common theme of the response being he had been unaware of witness versions of events until 15 November 2013 which indicated he had "no opportunity whatsoever to respond to their assertions prior to receiving the warning".
[27]    In terms of Briggs's affidavit, Roche raised issues that included:

 disputed her version of events;
 he did not close a door in her face;
 audio recording was "absolutely demonstrative of his demeanour towards
Briggs";
 abuse of power for receiving a warning for simply disagreeing with her;
 photographs of CCTV cameras do not show all camera locations; and
 bias regarding Briggs involvement in the investigation process.
[28]    Roche disputed the assertion by Neilsen that he "threw a tantrum".
[29]   Under cross-examination, Roche acknowledged awareness of his employment obligations including the BCC Code of Conduct that required adherence to a number of principles that included:

 integrity;
 impartiality;
 trust;
 respect;
 honesty;
 fairness;
 sensitivity; and
 dignity [Transcript p. 1-13].
[30]   Roche however evidenced he was unfamiliar with the BCC grievance procedure [Transcript p. 1-14]. Whilst accepting the relationship with Briggs was challenging, he denied he was overbearing and rude towards her and others or that he failed to accept her authority as the Depot Manager. The allegation that he referred to Briggs as "just a woman" at a district consultative meeting on 28 August 2012 was said to be a fabrication [Transcript p. 1-15]. The mediation between him and Briggs in September 2012 had been an object failure due to Geyer refusing to focus on historical matters [Transcript p. 1-16]. Roche, in his role as Depot Delegate, dealt with disputes on a weekly basis and understood that the provisions of the Brisbane City Council Enterprise Bargaining Certified Agreement 2010 (EBA 7) allowed for two shifts per month to be allocated to him to conduct union business without loss of pay [Transcript p. 1-19]. Roche disagreed this time was for checking run prints and accepted he had been granted additional paid time to check run prints although 90 percent of the checking was done in his own time. The checking was a union role rather than part of his employment duties [Transcript p. 1-20]. Any additional paid time beyond the EBA provisions was approved by a Manager and Roche had no entitlement to demand unilaterally to take time off at short notice, nor did a Union Delegate have the right to refuse to perform allocated rosters so as to check run prints [Transcript p. 1-21]. Roche did not accept his evidence regarding the check of the run prints was misleading [Transcript p. 1-22].
[31]    Regarding the events of 6 December 2012 Roche denied he had approached Briggs and demanded time to check the run prints indicating his approach would have been made as a request. He did accept that when Briggs had said "No. We won't be covering your shift this afternoon" that he asserted he would be taking that time [Transcript p. 1-23]. He accepted he did not have approval to do the run prints that afternoon. Roche denied that he had "stood over" Briggs on that day or that he had interrupted her [Transcript p. 1-24] or that he was angry when McKean had directed him to perform his rostered run [Transcript p. 1-26].
[32]   At around 2.30 pm Roche entered the administration area at which time McKean asked him to leave whereby Roche accused him of being rude [Transcript p. 1-27]. Roche entered into a conversation with the Roster Clerk which was interrupted by Briggs who screamed at him from her office at which time Roche ceased the conversation and entered Briggs's office and placed a run print page on her desk. Roche denied he was aggressive or in an agitated state, although there was a point when his voice "was higher than normal" [Transcript p. 1-29]. He admitted he had told her "it was time she grew up and starting acting like a Manager" [Transcript p. 1-30]. Roche accepted that at various times Briggs and Woodcraft had told him to leave the administration area. On the recording of his conversation with Briggs it was accepted that it was an accurate recording, although Roche disputed there were 11 separate occasions where he was instructed to leave [Transcript p. 1-33], although later he acknowledged there were 11 occasions [Transcript p. 1-36]. Roche conceded he had refused to leave and that he had told Briggs her "behaviour is unacceptable" [Transcript p. 1-37]. Later, Briggs and two others had approached him in his office "literally standing over him" [Transcript p. 1-38] and although he felt harassed, he did not feel threatened.
[33]    Roche's recall of the meeting with Dale and Briggs on 19 December 2012 was that he had not objected to Briggs's presence but his support person (Matters) had raised an objection [Transcript p. 1-40]. Roche denied he had been disrespectful to Briggs at that meeting, nor did he interrupt Dale or Briggs in the course of the meeting [Transcript p. 1-41]. Roche went on to deny that he effectively sabotaged the attempts of the BCC officers to discuss the specific details of the allegations against him [Transcript p. 1-43].
[34]   Roche gave evidence of a letter being presented to him by Dale at the meeting on 19 December 2012 which allowed him the opportunity to respond to the allegations by 27 December 2012, but he did not respond following advice from Matters [Transcript p. 1-44].
[35]    In re-examination, Roche gave evidence on his expectations regarding the mediation and his failure to respond to the BCC correspondence of 19 December 2012.
Matters
[36]   Matters, the Assistant Secretary of the ARTBU (Qld) and Secretary of the Bus Division of the same union, had worked as a Bus Driver with the BCC prior to assuming his union position some 25 years ago.
[37]   Matters gave evidence of having been involved in extensive discussions with BCC Human Resources representatives where it had been agreed that all evidence including CCTV footage should be made available to an employee accused of any wrongdoing prior to any interview being conducted. At a Joint Consultative Committee meeting in August 2012, this agreed procedure was accepted as being applicable for use in matters of poor performance and misconduct and had been incorporated in "new procedures" which had come into force on 1 September 2012 and forms part of the most recent enterprise agreement.
[38]   His recollection of the incident involving Roche was that on the afternoon of 6 December 2012 he had received a series of calls from Geyer informing him of a problem with the Union Delegate (Roche) at Bowen Hills and that he had asked management to remove him from the depot as he was being aggressive towards the Depot Manager (Briggs). Geyer had gone on to say that he was fearful for his staff and that Roche was refusing to leave the depot. Geyer alleged that CCTV footage would confirm intimidating behaviour to which Matters suggested "that we should work through the issues and that this was at worst a situation where the manager was out of her depth and over-reacting". Matters had indicated to Geyer he would speak to Roche to gain his side of the story and asked that a meeting be convened so the CCTV footage could be viewed.

[39]    A short time after he was contacted by Roche seeking advice on whether he should leave the depot as there were three people telling him to leave the depot but he had not (at that time) had the opportunity to review and audit the run prints. Matters advised Roche that he had a right to do the run prints because of an agreement with Geyer which entitled delegates to carry out this task. Matters formed the view that as people were acting aggressively towards Roche in telling him to leave the depot, it was appropriate to ring Geyer and ask him to call off his management team until they had a chance to view the CCTV footage, however Geyer was angry, responding he was going to have Roche removed from the depot that afternoon.
[40]   At this time Matters contacted a liaison person in the office of the Lord Mayor advising that a situation had arisen that would cause industrial tension in the Bowen Hills Depot. A call was received from Geyer who expressed concerns that the Lord Mayor's office had been contacted and was advised that the management team had been sent home early with the situation to be addressed at a later date. Approximately two days later Geyer advised that the BCC was going to proceed with disciplinary action against Roche as there had been other incidents involving Roche and this was the one "that broke the camel's back". Matters again requested access to the CCTV footage at which time Geyer informed him it did not show Roche clearly and he was not going to be allowed to view it even though they were proceeding with disciplinary action.
[41]   It became clear to Matters that he would not be given access to the CCTV footage which raised his suspicions having previously been allowed access to such footage. On 13 December 2012 correspondence was sent to Briggs requesting any evidence in support of the allegations against Roche be forwarded to the ARTBU prior to any mediation between the parties.
[42]   The disciplinary meeting held on 19 December 2012 was described by Matters as "nothing short of bizarre" and was most certainly not in accordance with the procedures in the "Managing Poor Performance and Misconduct" procedure which had been recently agreed to by the BCC. It was particularly inappropriate that Briggs as the "accuser" was a participant in the disciplinary meeting. Neither Dale nor Briggs responded to concerns raised by the ARTBU instead they placed a letter on the table and left slamming the door behind them. Matters, after the meeting phoned Geyer and requested that further discussions be held off until he returned from annual leave which was agreed, however on his return Matters found the matter had been taken over by the ARTBU Bus Division Organiser (Buttenshaw).
[43]   Under cross-examination, Matters' evidence was that the meeting of 19 December 2012 was to provide Roche with the opportunity to put his side of events as there had been no formal interview conducted prior to the meeting. Dale and Briggs were said to have been quite aggressive whilst Matters did not accept Roche had been argumentative or disrespectful in the meeting [Transcript p. 1-50]. Matters had raised the issue of CCTV footage and found it difficult to accept the footage was not available [Transcript p. 1-51]. Matters spoke more than Roche in the course of the meeting but denied that he consistently interrupted Dale and Briggs when they were speaking [Transcript p. 1-52]. Matters acknowledged Briggs had held out the disciplinary letter to Roche but did not recall Roche refusing to accept the letter. Dale eventually read the contents of the letter out loud [Transcript p. 1-53] and after taking telephone advice from an ARTBU Industrial Officer the letter was accepted by them [Transcript p. 1-55].
Buttenshaw
[44]    Buttenshaw, an Organiser with the ARTBU, became aware of the incident involving Roche when he returned from annual leave on 29 December 2012 as a result of phone calls from union members at the Bowen Hills Depot who were upset about what was happening to Roche. He immediately made contact with Roche after which he took it upon himself to contact Briggs and arrange a meeting.
[45]    He met with Briggs on or around 2 January 2013 at which time he sought access to the CCTV footage of the alleged incident with Briggs advising she would seek permission to show him the footage. Briggs made no comment to the effect that there was no footage and it was only after he contacted Geyer he was informed there was no CCTV footage available. Buttenshaw was "very suspicious" at the lack of CCTV footage.
[46]    Buttenshaw, in early to mid 2012, was involved in various meetings that focussed on improving the process applied by the BCC in disciplinary and performance management matters. There was eventually a document (approved by the BCC) that led to a new policy becoming operative from 1 September 2012 which led to CCTV footage being provided to prove allegations against members of the ARTBU and the failure to provide footage in the Roche matter caused him to question whether they were being honest about the lack of CCTV footage.
BCC
[47]    The following witnesses gave evidence on behalf of the BCC:

 Briggs;
 Neilsen;
 Sharp;
 Dale;
 McKean; and
 Geyer.
[48]   There were affidavits filed on behalf of Woodcraft and Jason Vickers (Vickers) which were entered into proceedings by agreement of the parties with neither of these witnesses required for the purpose of cross-examination.
Briggs
[49]    Briggs, a Depot Manager at the Eagle Farm Bus Depot, held a similar position at the Bowen Hills Bus Depot in November 2011 where she first met Roche who was a bus operator attached to that depot. She noticed that when Roche became a union representative, the role enhanced his sense of self-importance and he believed that the position entitled him to disregard common courtesies that people generally extend to each other in the workplace.
[50]   As her position made it necessary to have more dealings with Roche, that working relationship was characterised by:

 his overbearing attitude;
 rudeness; and
 his constant anxiety.
[51]   At one point he chided Briggs about the cancellation of a Workplace Consultative Committee (WCC) meeting at a time when he was on annual leave, on the basis that he would wish to attend the depot whilst on such leave [see Exhibit 6]. There had been issues between them regarding a failure to provide minutes of team meetings to Roche which occurred as a result of a change of staff and was not as alleged by him a concerted campaign against him. In previous employment Briggs had worked effectively with four different unions and she acknowledged the important role that unions play in the workplace, but at the same time her role was to run the depot, making sure the buses ran on time which inevitably led to decisions being made that sometimes were not popular with union officials. On one occasion Roche had, in front of union officials and senior Brisbane Transport management, dismissed her with the words "she is just a woman".
[52]   There was mediation arranged at the instigation of Geyer for the purposes of communicating to Roche the BCC expectations on how he should conduct himself towards depot staff and to remind him of BCC values of respect. Roche was disappointed with the process seeming to think it was to be about Briggs's running of the depot and of criticisms he had levelled against her. When the focus was put on his behaviour he refused to accept his behaviour was a problem.
[53]    BCC allow Delegates in each depot to have a half a day per week to attend to union business which includes the checking of run prints and Briggs had no problem providing additional paid time in excess of the allowed time to check run prints if circumstances demanded. In October 2012 Roche had been given extra time to check the November and December run prints, however this was not an automatic right. Briggs held the view that with university runs and school services tapering off due to the end of the year, there was not a pressing need for Roche to receive additional paid time over his entitlement.
[54]    On the morning of 6 December 2012 Roche approached Briggs whist she was in the company of Vickers and Sharp warning that she would need to cover the second half of his shift as he would be checking run prints. On being informed that his shift would not be covered, Roche said words to the effect "That's what I'm doing. Do what you have to" and then walked off. Roche was very confrontational at the time standing over her as he spoke. Roche did not sign on for the second half of his shift as scheduled (1.52 pm) and around 3.20 pm Roche barged in to Briggs's office and threw a run print across her desk stating loudly and in an aggressive manner "you are short paying this run". Briggs was not prepared to engage him on the matter when he was so confrontational which had Roche leaving her office, returning some ten seconds later and stating to her in a loud voice with an aggressive tone "You are immature and to grow up, this is my job and its about time you realised this". Roche was instructed to sign on for his rostered work which he refused. About five minutes later when at the printer Roche started a tirade of abuse at her stating "You are immature, inexperienced and I will see you in the Commission".
[55]   Briggs informed him that he did not have the authority to be in the administration area and he was requested to leave, also being told he would not be paid for not undertaking his rostered Bus Operator duties. He was told he did not have the authority to check run prints and that his behaviour was totally out of order. At one stage Roche "invaded her personal space" to the extent she felt intimidated and feared that her personal safety was threatened. Roche said he was not going anywhere prompting Briggs to contact Geyer who directed her (in the company of another person) to ask Roche to leave the depot.
[56]    Briggs and Sharp went to Roche's office and requested that he leave the premises to which Roche was alleged to have defiantly replied "I'm not going anywhere". Briggs had openly recorded the exchange on her mobile phone although she was unsure if the conversation had been successfully recorded as she made no attempt to retrieve it later. Despite evidence from Roche to the contrary, he had never sought to obtain a copy of the recording.
[57]    Briggs and Geyer met on 7 December 2012 and discussed steps to obtain any CCTV footage, however it turned out there was only one camera in the administration area and its view had been obscured by a partition. Being aware that CCTV is recorded over after 30 days, she instructed Vickers to ensure the footage taken from 6 December 2012 was identified and preserved should it be required in the future.
[58]   On 12 December 2012 correspondence was sent to Roche advising a meeting had been convened for 14 December 2012 to discuss events of 6 December 2012. Roche on 13 December 2012 requested CCTV footage of the incident be made available to him. On 14 December 2012 Roche contacted counter staff at 4.48 am telling them he would not be at work although he did not contact her directly to either cancel or reschedule the meeting.
[59]    A meeting was finally held on 19 December 2012 attended by Roche, Matters, Dale and Briggs in which Roche displayed angry outbursts and at times insulted Briggs. Both Dale and Briggs had attempted to focus on the purpose for the meeting being a performance meeting and not an investigation. Matters raised issue with Briggs's involvement which she regarded as another attempt to deflect attention away from the true purpose of the meeting. Matters had requested access to the CCTV footage and became argumentative when informed that footage of the incident was not available as the camera's view was blocked by a partition.
[60]   Under cross-examination, Briggs confirmed her view that Roche had disregard for other employees, was rude and full of self-importance. Her working relationship with Roche had been characterised by his overbearing attitude [Transcript p. 1-58]. Briggs acknowledged she had kept extensive file notes of her interactions with Roche [Transcript p. 1-59]. Briggs had, according to her evidence, told Roche in the six weeks prior to 6 December 2012 that he had no entitlement to additional paid time to do the run prints [Transcript p. 1-61]. Briggs, whilst claiming Roche had levelled a tirade of abuse towards her on 6 December 2012, accepted he had not used any profanities [Transcript p. 1-62].
[61]   There was significant questioning of Briggs around the location of CCTV cameras in the administration area at the Bowen Hills Depot on 6 December 2012 (as depicted in Exhibit 7) with Briggs accepting that Roche would have been "partially obscured" rather than total obscured [Transcript p. 1-69]. Briggs at no time viewed any CCTV of the 6 December 2012 incident [Transcript p. 1-69] but agreed CCTV footage would have cleared up discrepancies regarding Roche's behaviour [Transcript p. 1-70].
[62]    Briggs's evidence was that she acted as the BCC Delegate for the procedures leading to the meeting of 19 December 2012 and that prior to Roche's attendance at the meeting she had prepared "please explain" correspondence stating:
"Because of the nature of the conduct-misconduct, a more formal opportunity would be provided for him to respond to as part of the investigation process" [Transcript p. 1-72].

[63] Briggs evidenced she was familiar with the Managing Poor Performance and Misconduct Procedures and agreed that Roche could well have misconstrued the meeting of 19 December 2012 as being a disciplinary meeting [Transcript p. 1-73]. At that meeting, Briggs conceded that:

 she had a show cause letter typed, printed and all ready to go;
 the CCTV footage was not brought to the meeting; and
 Roche never got a chance to put his case forward [Transcript p. 1-74].
[64] Briggs acknowledged that in terms of BCC policy on Managing Poor Performance and Misconduct Procedures there was a bias rule that stated:
"Ensuring that the decision maker act fairly and without bias, including not having a personal interest in the outcome and is not otherwise perceived to be biased" [Transcript p. 1-76].

Both Roche and Matters had perceived she was biased against Roche [Transcript p. 1-77].
[65]   In re-examination, Briggs confirmed that in relation to the allegations concerning Roche the decision maker in the process was Geyer who based his decision on information provided to him by herself [Transcript p. 1-80].
Neilsen
[66]    Neilsen, a Network Scheduler with the BCC, was present at the Bowen Hills Depot on 6 December 2012 (although that was not her usual place of work) and saw Roche enter the administration area without knocking or seeking permission to enter. He appeared to be agitated and "walked quickly purposefully to the Depot Manager's Office". Neilsen heard Roche yelling loudly at Briggs and of Roche being told to leave the office which he did, slamming the door as he left. Roche reappeared about 10 minutes later where he once again yelled at Briggs.
[67]   Neilsen was concerned that Briggs may have been in danger and at one point contemplated calling on male staff members to intervene. She had never previously witnessed such bad behaviour in the workplace. Roche was known to her and she recalled him throwing tantrums previously.
[68]   Under cross-examination Neilsen maintained her view that Roche had slammed the door when leaving the administration area despite being shown a photograph of the door in question which showed a pneumatic door opener attached to the door. Neilson's evidence was Roche closed the door with force [Transcript p. 1-82].
[69]    In re-examination Neilsen stated that she had not embellished the way she perceived the situation and that the way Roche had closed the door she considered "that to be slamming the door" [Transcript p. 1-83].
Sharp
[70]    Sharp, a Team Leader at the Eagle Farm Depot, was previously a Roster Clerk at the Bowen Hills Depot. At Bowen Hills he had a number of dealings with Roche in his role as Union Delegate where he found him to be a "strong willed person, always determined to get his own way with scant regard for the feelings of others". He would constantly challenge decisions made by Briggs even when she provided him with good reasons for those decisions.
[71]    Under EBA 7, delegates were permitted half a day per week (paid) to attend to union business and if there were a large number of changes, the delegates were allowed additional time to check run prints. The delegate, previous to Roche, had requested additional time when required and worked with the Depot Manager to take time off work that was not inconsistent with operational demands.
[72]    Sharp disputed Roche's evidence regarding the need to review 275 run prints stating that on occasions the number of run print changes were as little as six. Roche seemed to be of the opinion that they should have been allocated additional time on a routine basis, regardless of the number of changes and there were times when he had been allocated additional time to check the run prints and could not be found at the depot. The final approval of any additional time was in the hands of the Depot Manager (Briggs).
[73]   On 6 December 2012 Sharp witnessed Roche approach Briggs at morning tea time and told her he would be taking time off that afternoon to review the run prints and became angry when she did not agree, walking away indicating he intended to defy her direction. Whilst he could not recall every detail of the conversation, his recollection was Roche was aggressive and intimidating towards Briggs.
[74]   Sharp said to Roche at the time "I believe that you have been asked to leave and I think you should just go" which was ignored by Roche. He later accompanied Briggs and Woodcraft to the union office (on site) where Roche was asked to leave the property but he refused.
[75]   Sharp considered Roche's "insubordinate behaviour" on the day unjustified and whilst Roche attempted to portray himself as blameless, in reality the situation would never had arisen if Roche had exercised basic courtesy and respect.
[76]    Under cross-examination, Sharp believed that whilst Briggs and Roche disagreed on a regular basis, they did have a working relationship [Transcript p. 2-3]. Briggs had never raised with him that she disliked Roche. The number of run prints could vary depending on circumstances although on a Monday to Friday scenario there were about 150 prints. Sharp's role was to check the run prints and if there was a need for extra time to be allocated to the Delegate, Briggs would always approve the time (Transcript p. 2-4). Sharp could not recall the number of run prints on or around 6 December 2012 [Transcript p. 2-5]. Sharp confirmed that Roche was aggressive and intimidating towards Briggs on 6 December 2012 although Roche never raised his voice at Sharp [Transcript p. 2-6].
[77]   In re-examination, Sharp confirmed that Briggs had always approved extra time to check run prints if required.
McKean
[78]   McKean, a Counter Officer with the BCC, was working at the Bowen Hills Depot on 6 December 2012 when at approximately 2.00 pm Roche informed him he would not be performing the second part of Run 1301 which he had been rostered to perform and instead he would be checking run prints. The bus run was due to commence at 1.57 pm.
[79]   Being aware that Roche was not authorised to check run prints he directed him to perform his rostered run at which Roche became extremely angry. Whilst not being able to recall what exactly was said, he recalled Roche was "very forceful in his response and made it clear he had no intention of complying with my direction". At about 2.20 pm Roche entered the administration area and McKean asked him to leave as it was standard practice that any bus operator who refused to perform his rostered work without good reason is required to leave the depot and not be paid for that time.

[80]   Roche proceeded to accuse him of being rude and was in a highly agitated state, engaging in a conversation with Sharp at times raising his voice. Roche continued to behave in a similar manner verbally abusing the Depot Manager (Briggs) in a very loud and aggressive manner to the extent that he became concerned for Briggs's welfare and thought he may have to intervene to protect her. He noted Roche left the depot at 6.30 pm.
[81]   Under cross-examination, McKean revealed earlier that day (6 December 2012) Sharp had informed him that Roche had no authorisation to check the run prints on the day in question [Transcript p. 2-8]. A Counter Officer has the authority to direct a Bus Operator to go out on the road [Transcript p. 2-9] although he conceded it could still be regarded as an argument and that an argument was a "two-sided event" [Transcript p. 2-10]. McKean acknowledged he did not intervene to protect Briggs and that at times both Briggs and Roche were yelling [Transcript p. 2-11].
Dale
[82]   Dale, a Senior Employee Relations Consultant with the BCC, knew Roche through her unsuccessful efforts to assist Roche develop a better working relationship with supervisory staff at the Bowen Hills Depot. The efforts had been unsuccessful in Dale's opinion because of Roche's argumentative style and his apparent inability to accept that his behavioural style needed to change. Dale recalled attending a meeting with Briggs, Matters and Roche to discuss the performance of Roche on 6 December 2012. Along with Briggs she attempted to follow clause 5.3 of the "Managing Poor Performance and Misconduct" but the process was frustrated by the actions of Matters and Roche. Clause 5.3(vi) provides for a discussion to take place whereby the employee has an opportunity to offer possible reasons for identified poor performance with clause 5.3(vii) allowing for discussion of strategies and options available to address that poor performance.
[83]   The way in which Matters and Roche behaved gave Dale the impression that they never intended to discuss the issue of Roche's performance with Roche at one point standing up and pointing at Briggs and herself before stating "we're not here to discuss my performance" and "we are her to discuss her [Briggs] behaviour". In Dale's opinion Roche's behaviour was not only disrespectful to his Depot Manager but deliberately objectionable to her on a personal level. Both Matters and Roche were loud and argumentative, constantly speaking over each other not allowing Briggs and herself to "get a word in".
[84]   The issue of CCTV footage was raised with Matters and Roche refusing to accept responses given. Dale denied that Matters ever objected to Briggs being in attendance at the meeting. Dale instructed Briggs to read the contents of the "please explain" letter, but she was unable to do so due to being constantly interrupted and spoken over by Matters and Roche. Dale took the letter off Briggs and handed it to Roche who refused to accept the letter. The letter was then handed to Matters upon which Dale and Briggs left the room and she did not, as suggested by Matters, slam the door.
[85]   Roche had actively sabotaged the very process that was designed to inform him of the specific details and allow him the opportunity to offer his explanation.
[86]   Under cross-examination, Dale confirmed she was well aware of core performance and misconduct procedures. Her involvement in the process involving Roche began and ended with her attendance at the meeting with Matters and Roche on 19 December 2012 [Transcript p. 2-12]. Dale's evidence was that Roche was absolutely clear on the purpose of that meeting [Transcript p. 2-13]. Dale agreed there was no discretion available for the non-following of natural justice, procedural fairness (including the bias rule) when addressing misconduct or lack of performance procedures was not an option available [Transcript p. 2-14].
[87]   Dale conceded that Briggs was the complainant in the matter involving Roche and that the "please explain" letter given to Roche on 19 December 2012 had been signed by Briggs. In terms of Briggs's role once the "please explain" letter was issued, Dale's evidence was that "her role then is the decision-maker, her role, she would consult with Mr Alan Geyer in that Mr Alan Geyer would review the response" [Transcript p. 2-16]. The "please explain" letter had informed Roche that Briggs would be the person who considered what action may be taken against him, that included disciplinary outcomes. Dale continued to have no recall of Matters raising concerns in respect of Briggs being part of the investigation [Transcript p. 2-18] and as a Senior HR person, if such a concern had been raised she would have given consideration to such a concern [Transcript p. 2-20].
[88]   On the issue of the CCTV footage, if such footage had been available, Dale could see no reason why Matters and Roche could not have seen the footage and the failure to have access to the footage was reason for legitimate concern. Dale was aware the CCTV footage was destroyed 31 days after the incident [Transcript p. 2-21].
Geyer
[89]   Geyer is the Chief Operating Officer (COO) of Brisbane Transport and had known Roche from his role as Union Delegate for Bowen Hills. In the COO role he is responsible for the day-to-day functioning of Brisbane Transport and meeting the obligations imposed under the terms of its contractual obligations to provide public transport for the residents of Brisbane. At the time of hearing there were currently seven bus depots that have the Depot Managers report to him.
[90]   At the time of the incident involving Roche on 6 December 2012, the terms and conditions of all BCC employees were set out in EBA 7 which required all employees to comply with the Code of Conduct. EBA 7 also provided for procedures for resolution of disputes and adopted procedures for the making of grievances and resolution of grievance procedures.
[91]    Under EBA 7, Delegates are entitled to spend half a day per week attending to union business which includes the checking of run prints. The relevant provision was at Schedule 10 "Passenger Services Employees":
"3.7.2 Rostering
…

(b) The parties recognise that the smooth operation of Brisbane Transport requires a consultative approach to employee relations. The nature of Brisbane Transport's operations and associated shift structure creates challenges for consultation and representation. In order to overcome these challenges and to ensure designated employee representatives, as agreed between the parties, can be effectively engaged in consultation, Brisbane Transport will release these designated employees in each depot for two shifts per month without loss of ordinary earnings. Time for these designated employees to attend Work Unit Consultative Committee (WUCC) meetings will be in addition. No additional release without loss of ordinary earnings will be provided to these designated employees except with the agreement of the local Manager."

[92]    The arrangement is flexible in that Delegates can elect to take one day per fortnight subject to the operational needs of the Depot taking priority. Each Delegate is provided with an office and they are allowed time off work to attend union meetings and other union related business. On occasions when there have been a large number of changes to run prints, additional paid time is granted to the Delegate, however this is an exception rather than a regular occurrence and is subject to negotiation between the Depot Manager and Union Delegate. The practice applies in all depots and does not allow for a Delegate to unilaterally demand to take time off at short notice regardless of work responsibilities. The expectation is that the checking of the run prints can usually be performed in the half-day per week allowed. This final decision on approving additional time rests with the Depot Manager who is best placed to manage the operational demands of the depot.
[93]    Geyer was aware of a troubled history involving Roche and Briggs, however Geyer did not accept that there are any circumstances where another employee is justified in acting rudely towards a co-worker, particularly when the co-worker is in a position of authority.
[94]   Geyer was involved in a mediation process in response to disquiet about Roche's treatment of work colleagues (including Briggs) and of his refusal to accept direction. Geyer had discussions with Matters on how to address the situation with mediation being an alternative to adopting a formal performance management procedure. Mediation and other interventions ultimately failed.
[95]   On 6 December 2012 he received a series of telephone calls from Briggs which firstly informed him that Roche had refused to carry out his rostered work for that afternoon and demanded to stay in the depot to check run prints despite being refused permission. Roche was said to have become aggressive towards Briggs and other supervisory staff in the depot and had refused to leave the depot at the direction of Briggs. Geyer directed Briggs to take another BCC officer with her and again direct Roche to leave the depot.
[96]   Briggs further contacted Geyer informing him that Roche had been loud and aggressive towards staff and maintained his refusal to leave the depot. Such was Geyer's concern for the safety of staff, he directed Briggs and other supervisory staff to leave the depot prior to their usual finishing time.
[97]    It appeared to Geyer that on the information provided to him, Roche's behaviour was unacceptable and contrary to the Code of Conduct. On 7 December 2012 Geyer attended the Bowen Hills Depot where he had a conversation with Briggs about CCTV footage of the incident later advising Matters that the CCTV footage did not assist as a partition obscured the view. He had said words to the effect that he had "run out of patience" with Roche who had been given ample opportunity to improve his working relationships in the depot.
[98]    On 12 December 2012 Geyer had further discussions with Matters advising that the Council would be following a formal disciplinary process and issuing a "please explain" letter to Roche which would enable him to outline his version of events. On 21 December 2012 Matters called him seeking an extension of time for replying to the "please explain" letter which Geyer agreed to. In response to the evidence of Buttenshaw claiming to have had a conversation with him on either 4 or 7 January 2013 in which Geyer's aid he would arrange for the viewing of the CCTV footage, that was denied, with Geyer's evidence being that on 8 January 2013 he had a conversation with Buttenshaw who requested the "please explain" letter be withdrawn.
[99]   On or around 18 January 2013 when Roche's response was due, Geyer was approached by Matters and Roche seeking a further extension which was moved out to 21 January 2013. There was no response provided by Roche and consequently a warning letter was issued on 13 February 2013. Having failed to provide a response to the "please explain" letter, Geyer found it curious that the disciplinary decision was now being challenged on the grounds they were denied natural justice.
[100] The focus of the union on CCTV footage was, in the view of Geyer, a diversionary tactic as they had been aware from 7 December 2012 the footage was not relevant in proving or disproving the allegations that were made against Roche.
[101] Geyer was satisfied he had sufficient information about the events of 6 December 2012 to make a decision about the disciplinary action he imposed. Roche was treated in the same manner as any other bus operator.
[102] Under cross-examination, Geyer accepted he was, at times, hands-on and from time-to-time the Secretary or Organiser of the Union would contact him regarding disputes. Additional time was provided to check run prints subject to business needs and discussions with the relevant Line Manager [Transcript p. 2-29]. Geyer had no knowledge of individual arrangements regarding checking run prints at the other depots [Transcript p. 2-30]. Geyer was taken to a meeting he attended at the Toowong Depot in early 2013 over a dispute relating to a Delegate taking additional time off beyond the EBA 7 entitlement and, whilst he recalled the meeting, his notes contained no mention of run prints [Transcript p. 3-31].
[103] Geyer accepted that a print out of text messages between himself and Roche on 29 November 2012 was accurate in that Roche was seeking his intervention so as to receive additional paid time off to work on run prints. Geyer had advised him to resolve the matter in the appropriate manner (locally) and refused to intervene [Transcript p. 2-32]. Geyer confirmed that he had never viewed CCTV footage of the incident involving Roche [Transcript p. 2-33].
[104] Geyer concluded his evidence by stating that as the ultimate decision maker, he took into account the failure of Roche to respond to the "please explain" letter [Transcript p. 2-34]. Geyer acknowledged that Briggs had brought the complaint against Roche and he had heard her version of events before making his decision.
Vickers
[105] Vickers, a Team Leader at the Eagle Farm Depot, was asked (on 7 December 2012) by Briggs and Geyer to view CCTV footage of an incident that had occurred the previous day at the Bowen Hills Depot. On viewing the footage, he was able to identify the incident from the movements of staff, but clear vision was obscured by a partition.
[106] Briggs had asked him to save the footage (as it is taped over after 30 days) and despite following his usual procedures to preserve the footage, he was unable to retrieve it at a later date.
Woodcraft
[107] Woodcraft, a Depot Supervisor, was working in that capacity at Bowen Hills Depot in December 2012. In his role as Depot Supervisor, he had regular contact with Roche who was, at times, difficult to deal with and did not readily accept authority or direction. He was on occasion abrasive in his dealings with co-workers at the Bowen Hills Depot. Once he became a union representative, those previously mentioned character traits became more pronounced.
[108] On 6 December 2012 he was in the lunch area when Roche approached Briggs and announced he would be checking run prints that afternoon. Briggs was clear in telling him he was rostered on a run that afternoon and was expected to perform that work. Later that day he became aware of a commotion which he assumed Roche had some involvement. He spoke to Roche saying words to the effect "Bennett [Roche], it might be a good time for you to leave the office".
[109] He denied he was agitated or angry, indicating that he spoke calmly and in a non-threatening tone. Shortly after he was requested by Briggs to accompany her and Sharp to Roche's office to inform him that he was required to leave the depot. Woodcraft denied allegations they had "stood over" Roche.
[110] Woodcraft identified the working environment as sometimes robust, however Roche's behaviour on 6 December 2012 went well beyond the boundaries of what should be tolerated in the workplace.
Submissions
ARTBU
[111] Extensive submissions (130 paragraphs) were provided on behalf of Roche, initially describing him as a Bus Operator of some six years with the BCC and prior to 13 February 2013 had "a clean employment record".
[112] The relationship between Briggs and Roche was said to have been difficult from the outset with obvious tensions that were not helped by frequent disagreement around numerous matters. Roche had identified early on in the relationship that Briggs disliked him and had sought out private counselling to assist in addressing the relationship difficulties.
[113] It was not of dispute there was a failed mediation undertaken prior to the incident on 6 December 2012 and it was Roche's view that the mishandling of the process led to the erosion of his confidence in the BCC's ability to deal with relationship problems in a professional manner. Geyer had an opportunity to intervene but in not doing so failed Roche in addressing his concerns. Pursuant to clause 9 of EBA 7 due to Roche being in dispute with Briggs, Geyer absolutely became the "relevant Line Manager".
[114] Briggs did not like Roche and the submission provided seven examples of events said to be supportive of the claims, which included:

 refusal to pay him for a sick day on 14 December 2012 with no
reasonable excuse or investigation into the matter; and
 falsely accusing him of acting in a manner that was aggressive and
intimidating.

[115] On examination of Briggs's evidence in the proceedings, there were numerous examples of where she was said to have embellished her evidence. Examples of which included:

 evidence that Roche started a "tirade of abuse" when it was apparent
there was no tirade; and
 Briggs describing Roche as "physically imposing" yet under
cross-examination stating "He is slight".

[116] The problems that arose on 6 December 2012 leading to the warning given to Roche on 13 February 2013 was because of implicit bias towards Roche and not due to any intimidation, aggression or overbearing actions by Roche.
[117] As Union Delegate, Roche had a duty to ensure that work was distributed fairly in the depot with Briggs failing to set aside sufficient time for him to examine the run prints. There was a common practice in all of the other six depots for delegates to receive additional paid time off over and above that allowed for at clause 3.7.2(b) of Schedule 10 of EBA 7. Briggs disallowed Roche the additional time because she did not like him and she wanted to abuse her power as Depot Manager to demonstrate her dislike of him. The Commission was encouraged to discard the evidence of Sharp on Roche's checking of the run prints as Sharp's assertion that Roche had misled the Commission could not stand.
[118] There was no denial by Roche that on 6 December 2012 he had argued with Briggs, however there was some question over the degree of the argument. Nielsen in her evidence, portrayed the actions of Roche in the worst light but her evidence cannot be relied upon as she clearly embellished the events, particularly her claim that Roche had "slammed the door as he left" when in fact the door had a pneumatic door closer. Under cross-examination, the word "slam" was said to mean "swing the door with force". McKean firstly implied that Roche was the only participant in argument on 6 December 2012 however in cross-examination, freely admitted Briggs was yelling and it was a two-sided argument. Given the failure of any of the witnesses to intervene despite giving evidence of being concerned for Briggs should cause the Commission to question the accounts of those present.
[119] On 6 December 2012, Roche and Briggs encountered each other on four occasions with Briggs only identifying the incident said to have occurred at the photocopier as the one where he invaded her personal space. This incident was the only one in the vicinity of the CCTV camera and Briggs agreed that if Roche was standing behind the partition, the camera would have picked up a view of him. Roche was entitled to view the CCTV footage which Dale admitted was in existence at the time of the 19 December 2012 meeting.
[120] The evidence of witnesses for the BCC regarding alleged fears for Briggs cannot be borne out by evidence and the audio recording [Exhibit 9] of the incident in the ARTBU office at the depot does not display any of Roche's alleged "aggression or intimidation" with his demeanour judged by a stern voice, perhaps even frustrated but not aggressive or intimidating. Roche was never requested to leave the depot because his actions were intimidating or aggressive, but for reasons of being "AWOL" or "not authorised to be there". Geyer's concerns for Briggs's safety was not due to his actual witnessing of the incident but on information provided by others which was described as "misinformation".

[121] In terms of the CCTV footage, there were said to be two critical pieces of evidence being the testimonies of Matters and Dale.
[122] Matters recalled a conversation on 7 December 2012 with Geyer where he was told the CCTV footage did not show anything clearly because of the partition but a request from Matters to see the footage was declined.
[123] Dale, in cross-examination, admitted the CCTV footage was destroyed 31 days after the incident, admitting the footage was still in existence at the time of the 19 December 2012 meeting and that it was appropriate that Roche and Matters ought to have been allowed to see the footage.
[124] It was submitted that the sequence of events pursuant to the BCC witness evidence
makes it very unlikely that Briggs did not see the CCTV footage and given Geyer's
attendance at the depot on 7 December 2012 it is not at all a quantum leap to infer
that both Geyer and Briggs viewed the CCTV footage. Geyer had informed Matters
that the CCTV footage did not show anything. If the CCTV footage had shown
Roche acting aggressively, the BCC would have been quick to show the footage.
With it known that the CCTV footage was in existence at the time of the
19 December 2012 meeting, it is not unreasonable to draw the conclusion that the
footage did not support the allegations against Roche. Inference was drawn with the
1

case of Jones v Dunkel that in this case the footage showed something that was
unhelpful to the BCC case against Roche and was withheld for that reason.
[125] In August 2012 the BCC adopted a new policy to increase the transparency of investigations into poor performance and misconduct following a process that involved officers of the ARTBU. The procedures included definitions of:

 Delegate;
 Natural Justice;
 The Hearing Rule;
 The Bias Rule;
 The Evidence Rule;
 Duty to Inquire;
 Procedural Fairness; and
 Principles.

None of the above procedural requirements could be said to have been applied in this situation.
[126] There were significant procedural errors of Geyer's role as "Delegate for the Council" which were the subject of commentary to the effect his involvement with the investigation of the matter began and ended with his signature on the warning letter. Prior to that he had no official involvement with the investigation nor did he meet with Roche. Geyer had, on the evidence, made his decision on information he had received from Briggs and the "please explain" letter given to Roche on 19 December 2012 had been signed by Briggs which makes it difficult to dispute that it was Briggs who was the "Delegate for the Council" and Geyer's involvement was nothing more than titular.
[127] There were very serious procedural concerns raised by Matters and Roche with regards to the meeting of 19 December 2012 which were identified as:

 Briggs's involvement in the investigation; and
 lack of CCTV footage.

[128] There was no discussion about the content of the allegations against Roche, rather he was presented with the "please explain" letter without any opportunity to respond which was a breach of the Managing Poor Performance and Misconduct Procedure. The overall handling of events suggest also a breach of the BCC's Code of Conduct.
[129] The failure to provide the CCTV footage denied the opportunity to have the matter cleared up quickly without fuss.
[130] Whilst it was not disputed that Roche had been vocal in his frequent opposition to Briggs, this does not lead to him having a history of being aggressive or intimidating and should be given no weight. Many would argue that the role of delegate is to be in opposition to management. Roche had no history regarding prior warnings in relation to conduct.
[131] It was accepted through well-established law that not every disciplinary matter which is deficient in terms of procedural matters should be withdrawn. However in this instance the procedural errors were of such a grave nature and detrimental to the BCC's case that the warning must not be allowed to stand. It was impossible for a fair and complete investigation to ever occur now that the footage had been destroyed.
[132] The first matter to be determined is whether the BCC was justified in presenting
Roche with a warning bearing in mind how Roche was treated in accordance with
natural justice and procedural fairness. This requires scrutiny of the law
surrounding unfair dismissals as termination of employment is a disciplinary matter.
At s 77(c) of the Industrial Relations Act 1999 (the Act), it must be considered
whether an employee was given an opportunity to respond to allegations about
conduct, capacity or performance and this was not the case in respect of Roche who
was not given "a fair go all round". See Re Ivor Terrence Wheeler v Philip Morris
2

Limited .
[133] Further submissions were made regarding the failure to provide the CCTV footage
and of the burden of proof being that of on the balance of probabilities. See
3

Briginshaw v Briginshaw .
[134] In conclusion, the question that was agreed by the parties "Was the Brisbane City Council justified in issuing Bennett Roche with a warning dated 13 February 2013" must be answered in the negative on both substantive and procedural grounds.
BCC
[135] Extensive submissions (119 paragraphs) were provided on behalf of the BCC which were supportive of the Application related to the warning given to Roche being dismissed.
[136] The Notice of Dispute was an "industrial matter" within the meaning of s 7 and Schedule 1 (Item 20) of the Act, in particular "what is fair and just, considering the interests of the persons immediately concerned and the community, according to the standard of the average good employer and the average competent and honest employee in all matters relating to the relations of employers and employees".
[137] A chronology of events regarding Roche's employment and the matters subject of this arbitration was set out in table form.
[138] The Commission was presented with argument that the witnesses for the BCC were honest, forthright and their evidence should be accepted as credible and preferred to the extent of inconsistency with evidence on behalf of Roche.
[139] In focussing on the justification of the warning on substantial grounds the submission addressed Clause 3.7.2 of Schedule 10 of EBA 7 which was the industrial vehicle that provided Union Delegates with two shifts per month without loss of pay to undertake union business. It was clear that additional time beyond the EBA provision was the subject of approval of the Depot Manager which had occurred previously due to an exceptional number of changes to run prints. In this case, no approval was granted for Roche to take additional paid leave on 6 December 2012 and he was specifically directed to work his rostered shift on that day. There was no evidence of Roche activating the dispute settling process in EBA 7 to formally address the refusal for additional paid leave on that day.
[140] In respect of evidence, it was submitted that the witnesses for the BCC had all presented as credible witnesses with reference made individually to their evidence.
Briggs

 evidence of Roche's overbearing attitude, rudeness and refusal to comply
with directions prior to 6 December 2012;
 abusive, aggressive and confrontational behaviour towards her by Roche
on 6 December 2012;
 feeling intimidated with her personal safety threatened on
6 December 2012; and

 Roche's failure to accept lawful directions from Managers to leave the
premises.
Briggs's evidence was neither "embellished" or "emotive" and cross-examination did not reveal evidence of exaggeration. Her evidence was consistent and strongly supported by other witnesses for the BCC.
Nielsen

 witnessed Roche yelling loudly at Briggs;
 worried that Briggs was in danger; and
 never previously witnessed such bad behaviour in the workplace.
Woodcraft

 Roche difficult to deal with;
 on 6 December 2012 he requested Roche to leave the office;



Roche's behaviour went well beyond what should be tolerated in the workplace, even taking into account the robust working environment of a Bus Depot;
 was not required for cross-examination; and
 under the rule in Browne v Dunn[4], assertions regarding his evidence
cannot be accepted having not been put in cross-examination.
Sharp
 additional paid time to review run prints granted when an exceptional
number of changes were made; and



on 6 December 2012 Roche was "aggressive and intimidating towards Ms Briggs" and his insubordinate behaviour on that day was unjustified.
[4]
McKean

 on 6 December he directed Roche to perform second part of his rostered run however Roche became angry and made it clear he had no intention of complying with the direction;
 witnessed Roche verbally abuse Briggs in the administration area; and
 concerned for Briggs's welfare fearing Roche may have become violent.

[141] The recording of the interaction between Roche, Briggs, Sharp and Woodcraft in the ARTBU office on 6 December 2012 should be accepted and given significant weight, as evidence as to what occurred. It was clear (from the recording) that Roche acted in a belligerent, rude and aggressive manner towards Briggs and failed to accept lawful directions to leave the premises.
[142] The recording was consistent with and corroborative of evidence given by the BCC witnesses in regards to Roche's behaviour on that day.
[143] The failure to produce the CCTV footage was adequately explained by the credible (and uncontested) evidence of Vickers in that:

 he viewed the CCTV footage on 6 December 2012 identifying clear vision was obscured and did not record the incident involving Roche to any relevant degree; and
 he was requested by Briggs to save the footage and inexplicably his
attempt to save the footage was unsuccessful.

[144] Vickers had no direct involvement in the events concerning Roche and his evidence
was not challenged as he was not required for cross-examination. Under the rule in
5

Browne v Dunn , assertions regarding his evidence cannot be accepted by the
Commission because they were not put to him in cross-examination.
[145] There is no evidentiary basis for the Commission to infer improper conduct on the part of the BCC in failing to show the CCTV footage to Roche or produce the footage at the hearing.
[146] The evidence of the witnesses on behalf of the BCC generally justified the warning given to Roche with Briggs's evidence overwhelmingly demonstrating that on 6 December 2012 Roche wilfully and blatantly refused to perform his work duties and defied lawful work instructions from his Manager. Further he behaved in an aggressive, overbearing and intimidating manner toward his Manager with the actions being of a significantly serious nature to justify the warning given on substantive grounds.
[147] The warning was also justified on procedural grounds in that Roche was given
procedural fairness and an opportunity to respond to the allegations concerning his
behaviour. All that was required was that the allegations be put to Roche in sufficient detail to enable him sufficient opportunity to refute or comment on them.
6

See Re Ivor Terrence Wheeler v Philip Morris Limited .
[148] The "please explain" letter unambiguously detailed the allegations with the letter clearly stating "If no response is provided then it is assumed that you have no response to the issues raised". Roche was granted two extensions of time to respond to the "please explain" letter with the end date being moved out to 18 January 2013. On 24 January 2013 Geyer contacted Matters to inform him if a response was not forthcoming within 24 hours that a formal warning would be issued.
[149] The evidence was uncontested that at no time did Roche ever provide a response to the allegations prior to the formal warning letter being issued to him on 13 February 2013. Roche, having not taken the opportunity to respond, leaves the Commission with no evidentiary basis to find Roche was denied procedural fairness.
[150] Had Roche formally indicated his concerns around the fairness of the investigation, the BCC would have been procedurally obliged to take those concerns into consideration, but to simply provide no information or response to the BCC, there was no alternative but to make a decision in the absence of any response.
[151] There was no procedural deficiency arising from the meeting held on 19 December 2012 as there was no need for Roche to respond to any of those issues on the day because he had the opportunity to respond in writing within the nominated time period. It was the behaviour of Matters and Roche that effectively prevented any constructive discussion in relation to the allegation and it is disingenuous of Roche to now assert a denial of procedural fairness.
[152] The failure to provide CCTV footage to Roche was not procedurally unfair as there was no evidence which would provide a reasonable basis for the Commission to infer improper conduct on behalf of the BCC. There was, on Vickers's evidence, clear, credible and genuine reasons for the failure to provide Roche with the opportunity to view the CCTV footage and, in any event, the failure to provide the CCTV footage does not constitute a serious procedural deficiency. It is significant that if the CCTV footage had been available, it would not have assisted Roche with a better opportunity to respond to the allegations.
[153] It was simply a nonsense to allege that an investigation could have only been fairly and completely conducted if there was CCTV footage of the event subject to the investigation. Direct witness evidence (including the unchallenged evidence of Woodcraft) was the best evidence available and quite sufficient for the purpose of conducting a fair investigation of the event. It was open for the Commission to rely on the witness evidence to determine what occurred on 6 December 2012, notwithstanding the absence of CCTV footage.
[154] The disciplinary process was compliant with the BCC Managing Poor Performance and Misconduct Procedure and general procedural requirements. Roche was given an opportunity to comment on adverse information contained in the "please explain" letter including two extensions of time. There was not unfair bias in the decision making process and the claim that Briggs was personally bias against Roche was not supported by evidence. To the contrary, the evidence of Briggs was that she attempted to have a constructive working relationship with Roche even to the extent of participating in "mediation" with him. In any event Geyer (not Briggs) was the decision maker in relation to issuing the warning to Roche. Given Geyer at the time was the Acting Divisional Manager, it is beyond doubt that he had the delegated power under the relevant legislation. Geyer was independent and had no personal interest in the outcome nor were there any grounds to allege bias. He had relied upon information provided to him from Briggs and Dale as well as information from Roche's union representative and of course there was an absence of a response from Roche.
[155] Geyer's decision to issue the warning was based on logically probative evidence following enquiry into the relevant issues and the evidence in the proceedings was consistent, supportive of Briggs's version of events being truthful. The warning was procedurally compliant in all respects with the Managing Poor Performance and Misconduct Procedure and general procedural requirements.
[156] In the event of a procedural deficiency it should not be fatal to the warning and such a deficiency if found to exist would only be minor in nature and having regard to all the circumstances the warning being terminated is not warranted.
[157] The Commission has held in relation to unfair dismissal matters that "a defect in
procedure does not necessarily render a dismissal otherwise justified as harsh, unjust

or unreasonable": Commissioner Blades in Spelleken v Darling Downs Foods
8

referring to Selvachandran v Peteron Plastics Pty Ltd ; Northrop J; Queensland
9 10

Transport v Steel; Byrne v Australian Airlines Ltd. It was submitted that similar principles should be applied in relation to any procedural defect that may arise in relation to the warning.
[158] The Commission, in being required to consider the interests of persons immediately involved, must also consider the broader community and the failure to comply with directions, aggressive, intimidating and overbearing behaviour by employees of the BCC could very likely have a detrimental impact on other members of the BCC operation and the even broader community in which the BCC operates.
[159] The fact that Roche had not formally been warned regarding prior conduct cannot be a proper basis for criticism of the warning and the relevance of no previous warnings about such conduct was misconceived. The BCC would have been derelict in fulfilling their duty of care if it had not addressed Roche's behaviour in a clear and firm manner with the warning being an appropriate disciplinary measure having regard to the other disciplinary measures that were available to be taken by the BCC.
[160] The behaviour was of a level that it could have potentially warranted summary termination on the ground of serious misconduct however the penalty ultimately imposed was at the lowest level of disciplinary action provided for in the Managing Poor Performance and Misconduct Procedure. In many other workplaces termination of employment would not only have been likely but justified on such behaviour.
[161] The warning will assist the parties in avoiding repeated inappropriate behaviour in the workplace and termination of the warning by the Commission could implicitly condone inappropriate behaviour and give rise to confusion in the workplace.
[162] In conclusion it was submitted that in the circumstances there were compelling reasons why the Commission should find that the warning issued to Roche was valid and accordingly the Commission should dismiss the application.
Conclusion
[163] In the course of the proceedings, there were a number of matters accepted by each of the parties as being, in the circumstances, factual, thus the Commission was not required to make a determination in respect of the following points:

 Roche had been in the employ of the BCC for a period of five years at
the time of the incident subject of this arbitration;
 in November 2011 Briggs assumed the position as Depot Manager at
Bowen Hills Depot;
 in May 2012 Roche was elected as the ARTBU Delegate at the Bowen
Hills Depot;
 the relationship established between Roche (Union Delegate) and Briggs (Depot Manager) was less than satisfactory being to some extent fraught with difficulties;
 in or around September 2012 Geyer facilitated an (unsuccessful)
mediation process involving Roche and Briggs;
 the Industrial Instrument governing the conditions of employment for Bus Operators (as at 6 December 2012) was EBA 7 and contained the following provision at Schedule 10, clause 3.7.2 (b) "Rostering":
"The parties recognise that the smooth operation of Brisbane Transport requires a consultative approach to employee relations. The nature of Brisbane Transport's operations and associated shift structure creates challenges for consultation and representation. In order to overcome these challenges and to ensure designated employee representatives, as agreed between the parties, can be effectively engaged in consultation, Brisbane Transport will release these designated employees in each depot for two shifts per month without loss of ordinary earnings. Time for these designated employees to attend Work Unit Consultative Committee (WUCC) meetings will be in addition. No additional release without loss of ordinary earnings will be provided to these designated employees except with the agreement of the local Manager."



in essence, ARTBU Delegates were mandatorily provided with two shifts per month to undertake union work on behalf of members without loss of ordinary time earnings. There was a degree of flexibility around when a delegate could utilise such time with consideration given to the current operational needs of the Depot;
 there was no additional paid time for union delegates for union business
unless there was agreement from the local manager;
 Roche, in the course of the union role, reviewed and audited run prints;
 on 6 December 2012 Roche was rostered on as a Bus Operator for the
purposes of operating a bus on two separate runs;



Roche completed without incident the morning run, however on his return to the Depot at around 10.30 am he approached Briggs and advised her that he would not be performing the afternoon shift as he was to conduct a review of the current run prints;



Briggs advised Roche that the shift would not be covered to which Roche provided a response that indicated he would be reviewing the run prints therefore not completing the second shift for the day as a Bus Operator;
 Roche subsequently did not sign on for the afternoon shift as scheduled
at 1.57 pm;



Roche, on 6 December 2012, was directed on more than one occasion by persons in authority to leave the Bowen Hills Depot, refusing such direction on each occasion;



a conversation on 6 December 2012 involving Roche, Briggs, Woodcraft and Sharp was recorded by Briggs [Exhibit 2] and a transcript of the voice recording was also tendered in the proceeding [Exhibit 9];



the BCC failed to provide to Roche CCTV footage from the administration area of the Bowen Hills Depot for the afternoon of 6 December 2012 and any footage that may have been taken on that particular day was no longer available at the time of hearing this matter;



on 12 December 2012 Briggs generated correspondence requiring Roche to attend a meeting on 14 December 2012 to have the opportunity to address his "Failure to Sign on for Second Half of Shift on 6 December 2012";



Roche, due to his non-attendance at work on 14 December 2012 (on sick leave) was unable to attend the meeting on 14 December 2012 with the meeting re-scheduled for 19 December 2012;



on 19 December 2012 Roche and Matters attended a meeting with Briggs and Dale at which time Roche was presented with a "please explain" letter under the signature of Briggs which identified the specific issue he was required to formally respond to by 27 December 2012;



Roche, through representation by Officers of the ARTBU, sought and was granted two extensions of time to enable him to respond to the "please explain" letter. Roche at no time provided a formal response to the issues; and
 on 13 February 2013 a formal warning was issued to Roche under the
signature of Geyer which stated the following:
"After careful consideration of all the information available to me in relation to this matter, I have determined that your behaviour towards Sally Briggs was aggressive, intimidating and overbearing and breaches Council's Code of Conduct, values and behaviours. Furthermore, you failed to follow a lawful direction on several occasions to leave the depot and commence your rostered work. I do not accept that you have provided any extenuating or mitigating circumstances for the behaviour displayed by you towards Sally Briggs and administration staff at the Bowen Hills Bus Depot."

[164] The questions posed for consideration by the Commission is whether the behaviour of Roche at the Bowen Hills Depot on 6 December 2012 was of a nature to warrant the issue of a formal warning by the BCC on 13 February 2013 and secondly if the formal warning was found to have standing was Roche afforded procedural fairness and natural justice in the course of the disciplinary procedure.
[165] The preceding factual points confirmed that at around 10.30 am on 6 December 2012 Roche advised Briggs that in lieu of performing his allocated afternoon shift as a Bus Operator on that day, he was to undertake work by way of reviewing run prints. Briggs had refused to accede to the request for what would have been additional paid time beyond the entitlement in EBA 7, Schedule 10, clause 3.7.2(b) and Roche had in no uncertain terms indicated that despite the refusal he would not be presenting for the afternoon bus run. There was no evidence of Roche contacting Officers of the ARTBU after the refusal for the purposes of challenging the decision of Briggs in accordance with the grievance provisions of the EBA and it is of fact that Roche simply did not present at 1.57 pm to commence his allocated run, although he had remained on site at the Depot. Roche was contacted by McLean and directed to undertake his bus run but refused to comply with the directive as he was adamant he would be working on the run prints.
[166] The failure to undertake the afternoon bus run in accordance with the legitimate rostering in place at the time is in itself evidence of Roche refusing a lawful direction or even has the potential to consider that on 6 December 2012 he had abandoned his employment on that day. There were copious amounts of corroborative evidence that Roche, in the course of that afternoon, was involved in a series of acrimonious exchanges with other depot staff including the Depot Manager (Briggs) with the evidence at the time compelling in respect of identifying his behaviour as aggressive, overbearing and intimidatory.
[167] The Commission had the benefit of an audio recording [Exhibit 2] of a meeting in Roche's work office on the afternoon of 6 December 2012 where he informed Briggs he would not be undertaking his Bus Operator duties that afternoon and where on nine occasions he was lawfully directed to leave the Bowen Hills Depot. On consideration of the audio, I find that the manner in which Roche addressed Briggs and others in that meeting could be best described as:

 condescending;
 aggressive;
 argumentative;
 disrespectful; and
 dismissive.

[168] There is no question that he refused, on numerous occasions, lawful instruction to
leave the premises and the reliance by Roche that he received advice from his union
by way of a telephone call that Briggs had no right to ask him to leave the premises
is of scant benefit in this case as the earlier refusal by Roche to perform his
scheduled roster removed any legitimate reason for him to remain on site. The fact
that Roche was the elected Union Delegate does not distract from the requirements
to meet his primary obligations as a Bus Operator and whilst the Union Delegate
position occupied by Roche allowed him a degree of latitude not available to other
Bus Operators, to attend to union business it does not diminish the responsibilities
associated with the employee - employer relationship. Blades C in Spelleken v
11

Darling Downs Foods stated the following:
"Bechly C in Nicol v Hume Doors and Timbers (Qld) Pty Ltd (1998) 157 QGIG 326 referred to authorities for the propositions that being a delegate does not afford a 'magic cloak' conferring on the wearer immunity from liability for wrongful action and that a delegate may not place himself outside the law, act in gross abuse of his rights and at the same time claim immunity
for his wrongdoings. A delegate’s duty also extends to abstain from bullying
and assaults, as is expected of all employees."

[169] I am satisfied there is sufficient evidence of a corroborative nature that Roche, on 6 December 2012 at the Bowen Hills Bus Depot behaved in a manner that firstly warranted the commencement of a procedure, pursuant to the BCC Managing Poor Performance and Misconduct Procedure and other BCC procedural requirements. Further on the evidence, grounds existed that supported the finding of the Decision Maker (Geyer) to issue the formal warning.
[170] In terms of the procedural concerns, it was argued on behalf of Roche that the BCC had failed to observe a number of rules including:

 hearing;
 bias; and
 evidence.

[171] Additionally there were concerns raised regarding:

 Briggs's involvement;
 lack of CCTV footage; and
 Geyer's role as "Delegate for the Council".

[172] On examination of the procedures undertaken by the BCC in regards to the disciplinary action against Roche, there was, in the first instance, correspondence generated by Briggs on 12 December 2012 that requested him to attend a meeting on 14 December 2012 to discuss concerns regarding his failure to sign on for the second half of his shift on 6 December 2012. Roche was invited to bring a representative or support person to the meeting and was informed it was his opportunity to respond to those concerns. A copy of the BCC Managing Poor Performance and Misconduct Procedure was attached to the correspondence and additionally he was informed that the outcomes of the meeting could include disciplinary action with the option of possible dismissal.
[173] Due to Roche's absence from work on 14 December 2012, the meeting was re-scheduled for 19 December 2012. Of interest was the failure of Roche to contact Briggs regarding his 14 December 2012 absence and as a consequence the need to cancel the meeting.
[174] The meeting on 19 December 2012 was attended by Roche, Matters, Briggs and Dale and by all accounts was a "shambles" without being productive in any way. On the evidence before the Commission, and taking into account the failure of the meeting to provide any reasonable outcome, I am inclined to accept the evidence of Briggs and Dale that there was behaviour exhibited by both Roche and Matters designed to thwart the orderly conduct of such meeting which, in effect, is what occurred.
[175] I do accept the evidence of Matters, a Union Official with significant experience, that he challenged the involvement of Briggs in the meeting on the basis of her being the complainant, however with the meeting not proceeding, Roche was unable to demonstrate how her involvement at that point was of a detriment to him.
[176] The previously identified factual points identify that Roche was presented with a "please explain" letter (signed by Briggs) which required him to respond in writing by close of business on 27 December 2012 to the allegations levelled against him in relation to his behaviour of 6 December 2012. It is of record that two extensions of time were sought on behalf of Roche and subsequently granted, however despite that, Roche did not formally respond to the allegations.
[177] The matter then proceeded to the BCC Officer (Geyer) who had been appointed as the "Delegate for the Council" to determine the allegations relating to Roche's failure to attend his rostered shift on 6 December 2012 after being directed on several occasions to do so following his request early in the day for "union time" being declined. Geyer's consideration was limited to information provided by Briggs in respect of her version of events as the refusal by Roche to respond to the "please explain" letter meant that his version was excluded from the process.
[178] Whilst Geyer had some limited involvement on the peripheral by way of being contacted by both Briggs and Matters about the events of 6 December 2012, I am satisfied that he was removed from the events to the extent that he was able to carry out his functions as the "Delegate for the Council" unencumbered from any direct involvement in the events in question.
[179] In the absence of any formal response from Roche to the allegations, it is difficult to comprehend how Geyer could have arrived at a decision other than the one he reached and from the perspective of his involvement, undertook his role in accordance with BCC procedures that were in place at the time.
[180] On the issue of the CCTV, the evidence of Matters was that if footage of an incident was available there had been an agreement reached with the BCC that such footage would be provided to the employee and the union prior to any disciplinary process being finalised. In this case, there was uncontested evidence from Vickers that having viewed the CCTV footage, there was no clear vision due to a partition obscuring the view and that despite following his usual procedures to preserve the footage, he was unable to retrieve it at a later date.
[181] The decision to allow Vickers's evidence into the proceedings without requiring him to present for the purpose of cross-examination removes from the equation the opportunity for Roche to challenge the authenticity of that evidence and as such, I find that the failure to provide CCTV footage of the 6 December 2012 incident to Roche in the circumstances was not fatal in terms of not providing procedural fairness.
[182] The involvement of Briggs in terms of generating the correspondence of 12 and 19 December 2012 in the form of the meeting advice and "please explain" letter, in my view, had a level of inappropriateness and was certainly a "blemish" in the conduct of the matter.
[183] Aside from the "blemish" regarding Briggs's involvement in the preparation of the two previously mentioned items of correspondence (12 and 19 December 2012), I am satisfied on the evidence and in line with the requisite standard of proof that there was adherence to the proper procedures including the hearing, bias and evidence rules as identified in the Managing Poor Performance and Misconduct Procedure. Also as mentioned previously issue has not been taken by the Commission regarding the non-provision of the CCTV footage.
[184] The question that remains is whether the "blemish" of Brigg's involvement was sufficient in nature to disturb the decision of Geyer to issue Roche with a formal warning on 13 February 2013.

[185] In Byrne v Australian Airlines Ltd [12] the judgement stated:

[12]

"However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable. For example the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in the dismissal of the employee being in breach of cl 11(a). On the other hand, if an employer were to observe the actual misconduct of an employee in circumstances which allowed no innocent explanation, a summary dismissal might not be in breach of cl 11(a). And facts which existed at the time of a dismissal, but which come to light only subsequently, might justify the dismissal when otherwise it would be harsh, unjust or unreasonable."

[186] In this case the Commission has found that Roche engaged in misconduct on 6 December 2012 of a level sufficient to warrant the issuing of a formal warning and whilst Briggs's role in the procedure to a point was questionable it is important to note that at no stage was the determination of the allegations against Roche ever in the hands of Briggs. Geyer determined the complaint against Roche on information provided by Briggs and in the absence of any response from Roche who had ignored the opportunity to provide a response to the allegations that had been levelled against him.
[187] The correspondence generated by Briggs (on 12 and 19 December 2012) contained relevant information to enable Roche to fully participate in the process having been appraised of the allegations that required a response, as well as possible disciplinary outcomes that were likely to be considered by the Decision Maker. The correspondence contained no material to the detriment of Roche's participation in the process undertaken by the BCC and therefore whilst Briggs's involvement was a "blemish", it was not of a standard to have the decision to issue Roche with a formal warning, disturbed.
[188] The question for determination, "Was the Brisbane City Council justified in issuing Bennett Roche with a formal warning dated 13 February 2013" is answered in the affirmative.

[189] I order accordingly.
1
Jones v Dunkel [1959] HCA 8
2
Re Ivor Terrence Wheeler v Philip Morris Limited [1989] FCA 230
3
Briginshaw v Briginshaw (1938) 60 CLR 336

Browne v Dunn (1893) 6 R. 67 (H.L.)
5
Browne v Dunn (1893) 6 R. 67 (H.L.)
6
Re Ivor Terrence Wheeler v Philip Morris Limited [1989] FCA 230
7
Spelleken v Darling Downs Foods [2002] 171 QGIG 185
8
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
9
Queensland Transport v Steel [1999] 160 QGIG 196
10

Byrne v Australian Airlines Ltd [1995] HCA 24

Spelleken v Darling Downs Foods [2002] 171 QGIG 185

Byrne v Australian Airlines Ltd [1995] HCA 24

	shown no regard for anything union related;
	refused to accept that a larger proportion of her workforce were union members; and
	no respect for the role of the union within the depots.

	disputed her version of events;
	he did not close a door in her face;
	audio recording was "absolutely demonstrative of his demeanour towards Briggs";
	abuse of power for receiving a warning for simply disagreeing with her;
	photographs of CCTV cameras do not show all camera locations; and
	bias regarding Briggs involvement in the investigation process.

	integrity;
	impartiality;
	trust;
	respect;
	honesty;
	fairness;
	sensitivity; and
	dignity [Transcript p. 1-13].

	Briggs;
	Neilsen;
	Sharp;
	Dale;
	McKean; and
	Geyer.

	his overbearing attitude;
	rudeness; and
	his constant anxiety.

	she had a show cause letter typed, printed and all ready to go;
	the CCTV footage was not brought to the meeting; and
	Roche never got a chance to put his case forward [Transcript p. 1-74].

	refusal to pay him for a sick day on 14 December 2012 with no reasonable excuse or investigation into the matter; and
	falsely accusing him of acting in a manner that was aggressive and intimidating.

	evidence that Roche started a "tirade of abuse" when it was apparent there was no tirade; and
	Briggs describing Roche as "physically imposing" yet under cross-examination stating "He is slight".

	Delegate;
	Natural Justice;
	The Hearing Rule;
	The Bias Rule;
	The Evidence Rule;
	Duty to Inquire;
	Procedural Fairness; and
	Principles.

	Briggs's involvement in the investigation; and
	lack of CCTV footage.

	evidence of Roche's overbearing attitude, rudeness and refusal to comply with directions prior to 6 December 2012;
	abusive, aggressive and confrontational behaviour towards her by Roche on 6 December 2012;

	witnessed Roche yelling loudly at Briggs;
	worried that Briggs was in danger; and
	never previously witnessed such bad behaviour in the workplace.

	Roche difficult to deal with;
	on 6 December 2012 he requested Roche to leave the office;
	Roche's behaviour went well beyond what should be tolerated in the workplace, even taking into account the robust working environment of a Bus Depot;
	was not required for cross-examination; and
	under the rule in Browne v Dunn[4], assertions regarding his evidence cannot be accepted having not been put in cross-examination.
Sharp
	additional paid time to review run prints granted when an exceptional number of changes were made; and
	on 6 December 2012 Roche was "aggressive and intimidating towards Ms Briggs" and his insubordinate behaviour on that day was unjustified.

	on 6 December he directed Roche to perform second part of his rostered run however Roche became angry and made it clear he had no intention of complying with the direction;
	witnessed Roche verbally abuse Briggs in the administration area; and
	concerned for Briggs's welfare fearing Roche may have become violent.

	he viewed the CCTV footage on 6 December 2012 identifying clear vision was obscured and did not record the incident involving Roche to any relevant degree; and
	he was requested by Briggs to save the footage and inexplicably his attempt to save the footage was unsuccessful.

	Roche had been in the employ of the BCC for a period of five years at the time of the incident subject of this arbitration;
	in November 2011 Briggs assumed the position as Depot Manager at Bowen Hills Depot;
	in May 2012 Roche was elected as the ARTBU Delegate at the Bowen Hills Depot;
	the relationship established between Roche (Union Delegate) and Briggs (Depot Manager) was less than satisfactory being to some extent fraught with difficulties;
	in or around September 2012 Geyer facilitated an (unsuccessful) mediation process involving Roche and Briggs;
	the Industrial Instrument governing the conditions of employment for Bus Operators (as at 6 December 2012) was EBA 7 and contained the following provision at Schedule 10, clause 3.7.2 (b) "Rostering":

	in essence, ARTBU Delegates were mandatorily provided with two shifts per month to undertake union work on behalf of members without loss of ordinary time earnings. There was a degree of flexibility around when a delegate could utilise such time with consideration given to the current operational needs of the Depot;
	there was no additional paid time for union delegates for union business unless there was agreement from the local manager;
	Roche, in the course of the union role, reviewed and audited run prints;
	on 6 December 2012 Roche was rostered on as a Bus Operator for the purposes of operating a bus on two separate runs;
	Roche completed without incident the morning run, however on his return to the Depot at around 10.30 am he approached Briggs and advised her that he would not be performing the afternoon shift as he was to conduct a review of the current run prints;
	Briggs advised Roche that the shift would not be covered to which Roche provided a response that indicated he would be reviewing the run prints therefore not completing the second shift for the day as a Bus Operator;
	Roche subsequently did not sign on for the afternoon shift as scheduled at 1.57 pm;
	Roche, on 6 December 2012, was directed on more than one occasion by persons in authority to leave the Bowen Hills Depot, refusing such direction on each occasion;
	a conversation on 6 December 2012 involving Roche, Briggs, Woodcraft and Sharp was recorded by Briggs [Exhibit 2] and a transcript of the voice recording was also tendered in the proceeding [Exhibit 9];
	the BCC failed to provide to Roche CCTV footage from the administration area of the Bowen Hills Depot for the afternoon of 6 December 2012 and any footage that may have been taken on that particular day was no longer available at the time of hearing this matter;
	on 12 December 2012 Briggs generated correspondence requiring Roche to attend a meeting on 14 December 2012 to have the opportunity to address his "Failure to Sign on for Second Half of Shift on 6 December 2012";
	Roche, due to his non-attendance at work on 14 December 2012 (on sick leave) was unable to attend the meeting on 14 December 2012 with the meeting re-scheduled for 19 December 2012;
	on 19 December 2012 Roche and Matters attended a meeting with Briggs and Dale at which time Roche was presented with a "please explain" letter under the signature of Briggs which identified the specific issue he was required to formally respond to by 27 December 2012;
	Roche, through representation by Officers of the ARTBU, sought and was granted two extensions of time to enable him to respond to the "please explain" letter. Roche at no time provided a formal response to the issues; and
	on 13 February 2013 a formal warning was issued to Roche under the signature of Geyer which stated the following:

	condescending;
	aggressive;
	argumentative;
	disrespectful; and
	dismissive.

	Briggs's involvement;
	lack of CCTV footage; and
	Geyer's role as "Delegate for the Council".

[2014] QIRC 70

17 April 2014