Granger v Gympie Regional Council - [2023] QIRC 80

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Granger v Gympie Regional Council [2023] QIRC 080
PARTIES:	Granger, Ty Steven (Applicant) v Gympie Regional Council (Respondent)
CASE NOS:	D/2020/3 TD/2021/46
PROCEEDINGS:	Notice of industrial dispute Application for reinstatement
DELIVERED ON:	13 March 2023
HEARING DATES:	6, 7 and 8 December 2021 22 February 2022
MEMBER:	O'Connor VP
HEARD AT:	Gympie (6, 7 and 8 December 2021) Brisbane (22 February 2022)
ORDERS:	1. That applications D/2020/3 and TD/2021/46 be dismissed.
CATCHWORDS:	INDUSTRIAL LAW - QUEENSLAND - INDUSTRIAL DISPUTE - where dispute notification - where applicant employed as roads maintenance supervisor - where applicant obtained railway iron from his employer delivered to his private property using his employer's plant for his own personal benefit - where allegations of corrupt conduct, misconduct and/or inappropriate workplace conduct - where applicant subject to external investigation - where disciplinary process - where employer satisfied on reasonable grounds that substantiated conduct constituted misconduct - where disciplinary sanction in the form of demotion and transfer - whether disciplinary action of demotion was justified - whether sanction harsh, unjust and unreasonable - where applicant seeking compensation - determined decision to demote was reasonable - application dismissed. INDUSTRIAL LAW - QUEENSLAND - DISMISSALS - UNFAIR DISMISSAL - application for reinstatement - where applicant employed as slasher operator - where allegations applicant operated slasher in a reckless manner - where applicant engaged in behaviour which constituted serious misconduct - where applicant causing risk to health and safety of himself and the general public - where applicant failing to operate plant and equipment in a safe manner - where failure to report or identify damage to plant and equipment - where dismissal related to conduct - whether dismissal was harsh, unjust or unreasonable - where applicant seeking compensation - determined dismissal not harsh, unjust or unreasonable - application dismissed.
LEGISLATION:	Employees Relations Act 1994, s 105, s 107 Fair Work Act 2009 (C'th), s 170CD Industrial Relations Act 2016 (Qld), s 261, s 265, s 316, s 317, s 320, s 371 Local Government Act 2009 (Qld), s 13, s 197 Local Government Regulation 2012 (Qld), r 278, r 279, r 280, r 283 Public Sector Ethics Act 1994 (Qld), s 4, s 9 Work Health and Safety Act 2011 (Qld), s 28 Workplace Relations Act 1996 (Cth), s 170CG(3)
CASES:	Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Grivell (1999) 74 SASR 240 Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 425 BHP Coal Pty Ltd t/a BMA v Schmidt [2016] FWCFB 1540 Blair v Chubb Security Australia Pty Ltd [2003] AIRC 1006. Boo Hwa Chan v Christmas Island Administration [1999] AIRC 1371 Byrne v Australian Airlines Limited (1995) 185 CLR 410 Charlton v Eastern Australia Airlines Pty Ltd [2006] 154 IR 239 Consolidated Press Ltd v Thompson (1952) 52 SR (NSW) 75 Costello v Queensland [2020] ICQ 3 Elizabeth Gorczyca v RMIT University [2002] AIRC 1115 G A Stewart v University of Melbourne [2000] AIRC 779 Hermann…

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: [2023] QIRC 80
Decision Date: 13 March 2023

CaseChat Overview and Summary

In the matter of Granger v Gympie Regional Council, the Applicant sought compensation for lost wages following an alleged unfair demotion and reinstatement for unfair dismissal. The Applicant, who was initially employed as a roads maintenance supervisor, was accused of obtaining railway iron from his employer for personal use, an act that was not substantiated as corrupt conduct but was deemed inappropriate workplace conduct. Additionally, the Applicant faced allegations of reckless operation of machinery, causing damage and posing risks to health and safety. The Gympie Regional Council, the Respondent, conducted investigations and disciplinary processes leading to the Applicant's demotion and eventual termination. The Applicant contested these actions, arguing the demotion was unjustified and the dismissal was harsh, unjust, and unreasonable.

The court was tasked with determining whether the disciplinary actions taken by the Council were justified and whether they were harsh, unjust, and unreasonable. Specifically, the court examined if the demotion was appropriate given the substantiated conduct and whether the dismissal was warranted under the circumstances. The Applicant argued that the Council failed to provide a safe workplace, did not investigate the allegations properly, and that dismissal was not a fair option even if the allegations were true.

In its reasoning, the court found that the substantiated conduct of the Applicant, though not amounting to misappropriation, did breach the Public Sector Ethics Act and the Code of Conduct. The court upheld the Council's decision to demote the Applicant, considering mitigating factors such as the Applicant's belief that he was acting with his supervisor's permission and his length of service in a supervisory role. Regarding the dismissal, the court concluded that the Applicant's behaviour, which constituted serious misconduct, warranted the termination of employment. The court dismissed the Applicant's applications for compensation and reinstatement.

The final orders of the court dismissed the Applicant's applications for demotion compensation (D/2020/3) and reinstatement for unfair dismissal (TD/2021/46). The court's decision affirmed the Council's actions as reasonable and justified under the circumstances.

Orders

Orders of the court

1. That applications D/2020/3 and TD/2021/46 be dismissed.

Background

Background to the litigation

The Applicant seeks compensation for lost wages consequent upon the unfair demotion, being from the date of demotion until termination of employment.[5][5] Ibid.Application for reinstatement (TD/2021/46)Facts1. On 13 January 2020 the Applicant commenced employment in the new (demoted) role of Labourer/Operator LGES (Slasher Operator). The new position was at a new depot in Gympie, approximately 75 kilometres from the Applicant's home in the town of Kilkivan. The position at the new depot required the Applicant to operate machinery in a new unfamiliar area, which contains numerous major thoroughfares including the Bruce Highway.2. On 14 January 2020 the Applicant was provided with a comprehensive induction from an experienced operator to the machinery he was required to operate, namely a John Deere 6230 and slasher.3. On 30 April 2020 the Applicant was required to operate a new tractor, a John Deere 6110. This vehicle was an extra 15 horsepower, was a change from manual transmission and clutch to electronic clutch and gear shift, had sixteen extra gears, was considerably longer, taller and had a wider wheelbase, and was equipped with a wider front blade. The Applicant was provided with no operational induction or training on this vehicle. On his first day of operation, through human error, he collided with a light pole and caused minor damage. The damage was appropriately reported.4. The Applicant, in the course of his employment, experienced minor damage to equipment, explicable as fair and wear and tear. All incidents requiring report were reported appropriately.5. The Applicant was spoken to on a single occasion by a supervisor in relation to 'rooster tails' left by the slasher. The Applicant explained that the rooster tails were caused by the larger tyres on the new tractor, in combination with the excessive height of the grass, causing grass to lay down under the slasher and not be cut.6. On 7 January 2021 the Applicant drove the tractor over a broken pipe head concealed in long grass, causing minor damage. The Applicant could not have known the pipe head was broken and the incident was unavoidable accident.7. The Applicant did not, at any stage, operate machinery at excessive speed.8. The Applicant was never cautioned in relation to his operation of machinery.9. On 11 February 2021 the Respondent alleges the Applicant failed to operate machinery in breach of then Safe Work Method Statement (SWMS) in that he operated a slasher without a shadow vehicle. The Applicant at no stage operated the slasher without a shadow vehicle or in breach of the SWMS.10. The Applicant's denial was communicated to the Respondent by way of correspondence from the Applicant's solicitors dated 18 February 2021. The Respondent did not investigate the Applicant's denial.11. On 15 February 2021 the Respondent alleges the Applicant commenced slashing a roundabout prior to traffic control being set up. The Respondent did not slash the roundabout which was in fact slashed by another operator. Neither the Applicant, nor the other operator, commenced slashing prior to the traffic control being in place, and the allegation is completely false.12. The falsehood of the allegation was communicated to the Respondent by way of correspondence from the Applicant's solicitors dated 18 February 2021. The Respondent did not investigate the Applicant's denial.Contentions1. The Respondent may not rely on the damage caused to Council machinery on 30 April 2020 as a basis for dismissal. Council failed in its duty to the Applicant to provide a safe workplace by requiring him to operate machinery on which he had no experience and was provided no training.2. The remaining items of damage are consistent with unavoidable accidents by a skilled and careful operator and do not warrant dismissal, especially in circumstances were the applicant received no warning.3. The alleged incident on 11 February 2021 did not occur. Council failed in their duty as an employer to conduct any, or any proper, investigation of the truth of the allegation in circumstances where the facts had been completely denied by the Applicant.4. The alleged incident on 15 February 2021 likewise did not occur and was denied. Council again failed in their duty to conduct any, or any proper investigation of the truth of the allegation.5. Had the allegations against the Applicant been true, which they were not, dismissal was not a fair option. A fair and reasonable employer would have counselled and warned the employee.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Investigation Report concluded there was sufficient evidence to substantiate that:· on 4 September 2017 the Applicant had a discussion with Mr Adam Whitfield, the Applicant's supervisor at the time, whereby Mr Whitfield told the Applicant words to the effect the Applicant could have the railway iron for his own personal use and benefit;· the Applicant considered Mr Whitfield authorised his personal use of the railway iron;· the Applicant intended to use the railway iron for his own personal benefit;· on 4 September 2017 Troy Taylor, an employee of the Respondent, delivered the railway iron using Council plant during work hours to the Applicant's private property;· the Applicant became 'uncomfortable' with having the railway iron at his property; and· on 10 October 2017 the Applicant returned the railway iron to Council's Mount Olive pit using the Respondent's plant during work hours.[19][19] Respondent's outline of submissions filed 29 November 2021, [13].The Demotion decision The Respondent submits that although the investigation did not substantiate that the Applicant had misappropriated the Respondent's property (and did not make a finding of corrupt or otherwise dishonest conduct), the Investigation clearly found as relevant subordinate facts, that: In considering these factual findings about whether the Applicant's conduct warranted disciplinary action, it was open and in fact required the Respondent to consider such findings. The Applicant's substantiated behaviour was not, it was submitted, in accordance with his obligations as a local government employee. Section 9(b) of the PSE Act requires public officials to be committed to using public resources in an effective and accountable way. The Respondent submits there are many unresolved issues to be explored further in the Applicant's evidence. On the facts, the Applicant's substantiated conduct is in breach of the PSE Act and the Code of Conduct, a code of conduct under the PSE Act, and is a failure to comply with his responsibilities under the LG Act. It was therefore open to Mr Smith as the CEO of the Council at the time to take disciplinary action under r 279 of the LG Regulation.Demotion an appropriate form of disciplinary action The CEO considered termination of the Applicant's employment but ultimately determined that demotion was the appropriate disciplinary action. Mitigating factors were considered including the Applicant believed he was acting under and with the permission of his supervisor at the time; his length of time in a supervisory role and the belief that with support and the relinquishment of supervisory duties the Applicant could remain a valuable employee. All local government employees are subject to the LG Act and the Code of Conduct. The Applicant was aware of his employee obligations under the Code of Conduct because he attended Code of Conduct training on 2 November 2016 (prior to the conduct in question). He also attended Code of Conduct training on 25 October 2018 (prior to the Investigation occurring).[21][21] Respondent's outline of submissions filed 29 November 2021, [27]-[28]; See also Investigation Report, [1.4 (o)].

Ratio Decidendi

Legal Principle Established

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