Black v Gladstone Regional Council - [2024] QIRC 285

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Black v Gladstone Regional Council [2024] QIRC 285
PARTIES:	Black, Trevor (Applicant) v Gladstone Regional Council (Respondent)
CASE NO:	TD/2023/90
PROCEEDING:	Application for reinstatement
DELIVERED ON:	19 November 2024
HEARING DATES:	18 and 19 November 2024
MEMBER:	McLennan IC
HEARD AT:	Gladstone
ORDERS:	The orders are in the terms set out at paragraph [51] of the Reasons for Decision.
CATCHWORDS:	INDUSTRIAL LAW – OTHER MATTERS – APPLICATION FOR REINSTATEMENT – unfair dismissal – where the applicant was employed as a team leader – where the applicant sent text messages to a fellow team leader of an inappropriate nature regarding his manager – where the applicant used a council device to send the text messages – where the respondent initially proposed a written warning as the disciplinary penalty for the conduct – where after receiving the applicant's response on the proposed penalty the respondent changed the proposed penalty to termination – whether there was procedural fairness afforded to the applicant – whether the termination of employment was harsh, unjust or unreasonable – where the applicant had no prior disciplinary history – whether there was a loss of trust and confidence – order for reinstatement
LEGISLATION AND INSTRUMENTS:	Industrial Relations Act 2016 (Qld) s 320 Local Government Regulation 2012 (Qld) s 282 Gladstone Regional Council Certified Agreement 2021
CASES:	Ball v State of Queensland Corrective Services [2021] QIRC 116 Byrne & Frew v Australian Airlines Ltd [1995] 185 CLR 410 Laegal v Scenic Rim Regional Council [2018] QIRC 136 Maher v Workers' Compensation Regulator [2021] QIRC 313 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Weaver v State of Queensland (Queensland Corrective Services) [2021] QIRC 413
APPEARANCES:	Mr J. Donaghy of the Queensland Services, Industrial Union of Employees for the Applicant. Mr P. Krebs of the Gladstone Regional Council for the Respondent.

Delivered ex tempore, revised from transcript

Reasons for Decision

Introduction

Mr Trevor Black (the Applicant) is a 52-year-old married gentleman with two children, one of whom is school aged. Mr Black began working at the Gladstone Regional Council (the Respondent; the Council) as a labourer in January 2017 and was promoted the role of Team Leader soon after. For more than six years, Mr Black worked diligently for the Council as is evidenced by his unblemished work record. He was never performance managed.
However, restructures involved changes at Council which created something of a 'pressure cooker' environment.
There was a disconnect between the 'role defined' and what was happening 'on the ground'. Mr Black's evidence was that he was being left to "fend for himself", whilst being responsible for a team of about 15 employees. Issues of workload, work intensity and work pressure were deeply felt by Mr Black, as is evidenced by him raising the matters contemporaneously with his union organiser, and as supported by his colleague team leader, Mr Peter Scott (with whom he shared the same workspace).
Against that backdrop, the idiosyncrasies of Mr Black's supervisor, Mr Bboyd Newton,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] QIRC 285
Decision Date: 19 November 2024

CaseChat Overview and Summary

Black v Gladstone Regional Council involved an application for reinstatement by Mr Black, who was dismissed from his position as a team leader by the Gladstone Regional Council. The dispute centred on the fairness of the dismissal process and whether the termination was harsh, unjust, or unreasonable. The court examined whether Mr Black's dismissal adhered to procedural fairness and if the termination constituted an unjustifiable breach of employment terms. Given Mr Black's lack of prior disciplinary history and the context of his conduct, which involved sending inappropriate text messages during a period of high stress, the court had to determine if the Council's response was proportionate and fair.

The legal issues before the court were whether the Council acted with procedural fairness in handling the disciplinary process and whether the termination was harsh, unjust, or unreasonable. Specifically, the court had to assess if the Council provided Mr Black with an adequate opportunity to respond to the allegations and if the proposed penalty of termination was appropriate. The court also needed to consider if the Council's actions breached the principles of natural justice by not allowing Mr Black to respond to the allegations in a fair manner.

The court found that while it was appropriate to suspend Mr Black pending an investigation into the allegations of inappropriate text messages, the manner in which the investigation and subsequent disciplinary action were handled was procedurally unfair. The court held that Mr Black's inquiry about the agenda for the meeting was not adequately addressed, and the third allegation, which was added post-meeting, was unfair. The court also concluded that the decision to terminate Mr Black's employment was harsh, unjust, or unreasonable as the proposed penalty of a written warning was appropriate, given the circumstances. The court observed that Mr Black had expressed remorse and had no intention of carrying out the threats made in the text messages.

The orders of the court were for Mr Black's reinstatement to his position as a team leader, with appropriate back pay and compensation for the period of his wrongful termination. The court found that the Council's actions in terminating Mr Black's employment without sufficient procedural fairness and without an appropriate disciplinary response were unjustifiable.

Orders

Orders of the court

The orders are in the terms set out at paragraph [51] of the Reasons for Decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The following witnesses were called by the Respondent:·Mr John Tumbers, General Manager of Operations from the Council;·Ms Gail Griffiths, Human Resources Business Partner from the Council;·Mr Bboyd Newton, Operations Manager from the Council; and ·Mr Peter Scott, Team Leader, Roads from the Council. Evidence and submissions The parties made their closing submissions orally on 19 November 2024. The evidence of the witnesses and exhibits tendered at the Hearing, together with the oral closing submissions made by the parties were all considered in delivering this Decision. ConsiderationWas the decision to terminate Mr Black's employment procedurally fair? On 7 June 2023, the text messages Mr Black sent to Mr Scott became known to Mr Newton. This was because Mr Scott expressed his concern for Mr Black's welfare and wellbeing, due to the escalation. Mr Newton was shown the texts on the work phone by Mr Scott. Mr Newton reported the incident to Mr Tumbers, the General Manager, who instructed him to text Mr Black at 4:48 pm to attend a meeting at 10 am the following day, 8 June 2023. Mr Black called his union organiser, who advised him to ask about the agenda for the meeting and if he could bring a support person. Mr Black then responded in those terms to Mr Newton's text. It was only at that point that Mr Newton – on Mr Tumbers' instructions (according to his evidence but not to Mr Newton's) – offered that a support person could accompany Mr Black to the meeting. Though by that time, Mr Black was unable to arrange it with his union at such short notice. Mr Black's inquiry about the meeting agenda was not adequately responded to, only that "the agenda is to speak with Mr Tumbers". The meeting on the 8 June 2023 went ahead. In addition to Mr Tumbers and Mr Black, Ms Griffiths from Human Resources was also in attendance. They encouraged Mr Black to write out the 'pressures and tensions' that may have led to the uncharacteristic text messages and a follow up meeting was organised. Mr Black was given a letter suspending him from duty with immediate effect. Whilst characterised as a "Notice Investigation and of special paid leave", an employee suspension from duty on pay whilst an investigation is being carried out is permitted under s 282 of the Local Government Regulation 2012 (Qld) in such circumstances – and that is what this was. The letter to Mr Black dated 8 of June 2023 refers to the meeting held that day with Mr Tumbers and Ms Griffiths regarding:… commencing an investigation in relation to serious allegation/s against you. It has been reported that you allegedly sent inappropriate text messages, on your work mobile, to another team leader, using derogatory language in relation to, and threatening to physically harm your Manger Bboyd Newton.[4] [4] Exhibit 1, Document 3. Further, that:… no decision will made about the allegations until an appropriate investigation has been undertaken and you have been afforded an opportunity to formally respond to the allegation/s.[5][5] Exhibit 1, Document 3.

Decision

Reasons for decision

While it was appropriate to take the decision to suspend Mr Black until Council could investigate the matter of the texts, the way it went about it was procedurally unfair. Was the decision to terminate Mr Black's employment harsh, unjust or unreasonable?The inclusion of Allegation 3 Council's decision to terminate Mr Black's employment was "harsh, unjust or unreasonable" for the following reasons. In my view, the third allegation should never have been included. Ms Griffiths' evidence was to the effect that it was hoped Mr Black might learn from that, about the correct process he should use to raise any concerns earlier in the future. There are other methods of educating workers on such processes and formal disciplinary processes are not that. Mr Black had every right to feel blindsided by the outcome of that meeting held with Mr Tumbers and Ms Griffiths, given the calendar invite wording and express purpose of the meeting so stated, which was for Mr Black to explain the stresses and pressures that had led to his outburst so management could do something about the problem. It was specifically said that the meeting was separate to the matters raised in the first meeting. Mr Black was encouraged to itemise the work pressures – and did so. Mr Black had a reasonable expectation that it was a safe space to discuss his concerns, as he was invited to do so in a constructive way. Consequentially, Mr Black did so honestly and openly, bringing forth his struggles with workload and other issues. It was most unfair and unreasonable for management to raise it as a further third allegation for his response.The proposed penalty was initially a written warning Right at the beginning of the process, Ms Griffiths' evidence was that the relevant factors had been considered, such as length of Mr Black's service, his unblemished employment record and the like. While Ms Griffiths' evidence was that termination of employment was considered at the very beginning of the process, ultimately the respondent ended up proposing a written warning instead, for the very reason that it was the appropriate and proportionate response, given the other relevant factors. That was the correct course to take in this matter, and it is highly regrettable the Respondent strayed from its original considered path. In my view, a written warning in all the circumstances of this case was the correct course. Mr Black's letter dated 17 July 2023 clearly changed the Respondent's mind as to the appropriate disciplinary penalty, but it should not have because the allegations had not changed. They had already determined that the appropriate and proportionate response those allegations was a written warning, at its highest. Mr Black had not resiled from accepting the written warning. He had apologised, expressed remorse and undertaken not to repeat the behaviour. Mr Black just went further in that letter to emphasise that he never had an intention to commit a violent act against his supervisor. The wording of the letter dated 17 July 2023 was unfortunate, but notwithstanding that, Mr Black's intent ought to have been clear. It was clear to me on reading the letter dated 17 July 2023. I do not think it could be misunderstood. Mr Black never intended to hit Mr Newton – it was a vent. It is also clear that Mr Black never intended for anyone other than Mr Scott to see the text.

Ratio Decidendi

Legal Principle Established

The evidence of the witnesses and exhibits tendered at the Hearing, together with the oral closing submissions made by the parties were all considered in delivering this Decision. ConsiderationWas the decision to terminate Mr Black's employment procedurally fair? On 7 June 2023, the text messages Mr Black sent to Mr Scott became known to Mr Newton. This was because Mr Scott expressed his concern for Mr Black's welfare and wellbeing, due to the escalation. Mr Newton was shown the texts on the work phone by Mr Scott. Mr Newton reported the incident to Mr Tumbers, the General Manager, who instructed him to text Mr Black at 4:48 pm to attend a meeting at 10 am the following day, 8 June 2023. Mr Black called his union organiser, who advised him to ask about the agenda for the meeting and if he could bring a support person. Mr Black then responded in those terms to Mr Newton's text. It was only at that point that Mr Newton – on Mr Tumbers' instructions (according to his evidence but not to Mr Newton's) – offered that a support person could accompany Mr Black to the meeting. Though by that time, Mr Black was unable to arrange it with his union at such short notice. Mr Black's inquiry about the meeting agenda was not adequately responded to, only that "the agenda is to speak with Mr Tumbers". The meeting on the 8 June 2023 went ahead. In addition to Mr Tumbers and Mr Black, Ms Griffiths from Human Resources was also in attendance. They encouraged Mr Black to write out the 'pressures and tensions' that may have led to the uncharacteristic text messages and a follow up meeting was organised. Mr Black was given a letter suspending him from duty with immediate effect. Whilst characterised as a "Notice Investigation and of special paid leave", an employee suspension from duty on pay whilst an investigation is being carried out is permitted under s 282 of the Local Government Regulation 2012 (Qld) in such circumstances – and that is what this was. The letter to Mr Black dated 8 of June 2023 refers to the meeting held that day with Mr Tumbers and Ms Griffiths regarding:… commencing an investigation in relation to serious allegation/s against you. It has been reported that you allegedly sent inappropriate text messages, on your work mobile, to another team leader, using derogatory language in relation to, and threatening to physically harm your Manger Bboyd Newton.[4] [4] Exhibit 1, Document 3. Further, that:… no decision will made about the allegations until an appropriate investigation has been undertaken and you have been afforded an opportunity to formally respond to the allegation/s.[5][5] Exhibit 1, Document 3. Mr Black was placed on special paid leave effective immediately on 8 June 2023, whilst the investigation was undertaken.[6] While Ms Griffiths' response to the union organiser was that Mr Black had been put on special leave to reduce the risk of exposure to work pressures at this time,[7] the oral evidence of both Ms Griffiths and Mr Tumbers at the hearing was that Mr Black was removed from the workplace because a threat was made that may be carried out. They could not know, so the safest course was to place Mr Black on paid suspension and investigate the matter. [6] Exhibit 1, Document 3.[7] Exhibit 1, Document 27.