Lamb-Miller v Maranoa Regional Council
[2016] QIRC 70
•9 June 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lamb-Miller v Maranoa Regional Council [2016] QIRC 070 |
PARTIES: | Lamb-Miller, Michael Shane v Maranoa Regional Council |
CASE NO: | TD/2015/131 |
PROCEEDING: | Application for reinstatement |
DELIVERED ON: | 9 June 2016 |
HEARING DATE: | 9 June 2016 |
MEMBER: | Deputy President Kaufman |
ORDERS : | 1. Application dismissed |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - HARSH, UNJUST OR UNREASONABLE - Section 331 Industrial Relations Act 1999 - where the Commission may, in an industrial cause, dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers further proceedings by the court or commission are not necessary or desirable in the public interest |
LEGISLATION: CASES: | Industrial Relations Act 1999 (Qld), section 331 Wayne Smith AND GSM (Operations) Pty Ltd (No. B687 of 2002) 172 QGIG 1686 |
| APPEARANCES: | Mr M. S. Lamb-Miller the applicant Mr J. C. Dwyer of counsel, instructed by McCullough Robertson, lawyers for the respondent |
Ex Tempore Reasons for Decision
On 9 June 2016 I heard an application for reinstatement made by Mr Michael Shane Lamb-Miller. At the conclusion of the applicant's case, Mr Dwyer, counsel for the respondent, made an application under section 331 of the Industrial Relations Act 1999. The relevant parts of section 331 are as follows:
"Decisions Generally
The court or commission may, in an industrial cause —
…(b) dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers —
(ii) further proceedings by the court or commission are not necessary or desirable in the public interest…"
I considered the application and the following paragraphs comprise a slightly edited transcript of my ex tempore reasons for decision delivered on 9 June 2016.
Mr Lamb-Miller has applied for relief by way of reinstatement, claiming that the termination of his employment by the Maranoa Regional Council was unfair. In accordance with a directions order, the applicant was required to file and serve statements of evidence from all witnesses, including himself, to be called in support of his case. He complied with the directions and filed a witness statement of his own evidence, as well as several attachments thereto. He filed no other material and did not seek to call any other witnesses. Pursuant to the directions order, the respondent filed and served three affidavits, together with numerous exhibits thereto. The applicant filed and served an amended witness statement purporting to respond to some matters in the respondent’s affidavit. The respondent didn’t object to that, and that amended statement is exhibit A1 in these proceedings.
Mr Lamb-Miller responded to an advertisement for the position of Coordinator IT Operations Systems Software with the Council. The position was based in Roma and he commenced his employment there on 11 May 2010. There were many difficulties for him arising from being required to work at Roma, both financial and personal. He has a disabled daughter who requires constant care and treatment, usually in Brisbane, and her condition is apparently also aggravated by the climatic conditions in Roma. His wife is also unwell. As a consequence of his personal difficulties, Mr Lamb-Miller requested that he be permitted to work remotely from Brisbane, or at least remotely; not to work in Roma. It is uncontroversial that many IT functions can be performed in that way without the necessity for a person to be physically at the location requiring the IT assistance.
The applicant was part of a very small team ranging from three to five people at different times. In September 2011, he applied to work remotely. This was declined by the then Chief Executive Officer. It appears that Mr Lamb-Miller had previously also made a similar request. In August 2012, a new CEO was appointed, Julie Reitano, and in May 2013, Mr Lamb-Miller again requested that he be allowed to telecommute. His wife and daughter had already relocated to Brisbane. He proposed that he spend one week in every six to eight weeks in Roma.
On 25 June 2013, the new CEO approved his request on a six month trial basis, under certain conditions. There was to be a review of the trial at the end of the six months. On 19 December 2013, Ms Reitano advised the applicant that the trial had been reviewed and it had been found to be unsuccessful – they are my words – and that he was to return to Roma from 3 February 2014. He responded to this letter and explained that due to his daughter’s and wife’s medical conditions, as well as the cost of living in Roma, he was unable to work there in a full-time capacity. His reply was lengthy and complained of the manner in which the decision to end the trial had been taken. He said he felt that he had effectively had his employment terminated, given his inability to work from Roma. He indicated that if the decision stood, he would seek employment in Brisbane and resign.
At a meeting with the CEO on 10 January 2014, she told him that the trial would continue until Council could consider the issues that were raised in Mr Lamb-Miller’s letter of 29 December 2013, and the trial did indeed continue. On 28 January 2014, the CEO extended the trial until March 2014. On 12 February 2014, Council approved the creation of a new position; Manager IT Solutions. Mr Reuben Broom was appointed to that position on 23 April 2014. As it eventuated, Mr Broom became responsible for conducting and supervising the review, which resulted in the continuation of Mr Lamb-Miller working remotely. It seems that Mr Broom was, in effect, restarting the review of the feasibility of Mr Lamb-Miller working remotely.
On 12 May 2015, the CEO wrote to the applicant, advising him that the outcome of the review was that the flexible work arrangements would be discontinued and he would be required to work from Roma from 8 June 2015. There had been a lengthy delay between the time of the initial extension of the review until March 2014, and him being informed in 2015 that the trial was to cease. This was due to several factors, the most significant of which being the appointment of Mr Broom and his taking over the review, and the alleged busyness of the CEO in dealing with other matters and thereby delaying a further response to Mr Lamb-Miller.
Be that as it may, the consequence of that was that the working arrangements - the remote working arrangements - continued for a considerable period of time. This was obviously to Mr Lamb-Miller’s advantage. Albeit he complains of the inefficient process, the inefficiency worked in his favour, it seems to me. On 8 June 2015, Mr Lamb-Miller sent an email to Mr Broom objecting to the outcome of his consideration of the review and his decision to terminate the remote working arrangement. That email attached a letter dated 6 June in which the applicant reiterated that he could not live in Roma, complained of the process, including the review, and asserting that Council gave him no choice but to resign or refuse to relocate and be fired.
He indicated that after having consulted a lawyer, he considered that he was being constructively dismissed. He invoked Council’s dispute settling procedure which required the maintenance of the status quo. Mr Lamb-Miller concluded that letter of 6 June by putting five proposals to Council. He remained working remotely under the trial conditions prevailing at that time. It was not until September 2015 that the CEO replied to Mr Lamb-Miller’s June letter, and on 8 September, she wrote proposing three alternative flexible working options.
Mr Lamb-Miller replied on 28 September 2015, rejecting the CEO’s proposals. He concluded that he believed the process to have been unfair and stated that he refused to resign. He said that if no agreement could be reached, he would be pursuing every legal avenue open to him. Ms Reitano decided that in the circumstances, Mr Lamb-Miller was unable or unwilling to perform the inherent requirements of his job and resolved to terminate his employment. This, she did, by letter dated 1 October which was handed to Mr Lamb-Miller on that date.
Mr Dwyer, counsel who appears for the Council, at the conclusion of the case for the applicant, made an application under section 331 of the Industrial Relations Act 1999 that I dismiss the matter on the basis that further proceedings are not necessary or desirable in the public interest. Mr Dwyer relies on the facts as I have outlined them, and submits that on the applicant’s case, he cannot succeed and therefore it is in the public interest not to further expend public money – those of Council and of the Commission – by continuing with the matter with the calling of the three witnesses whose statements have been filed.
I was referred to a decision of Commissioner Thompson’s where the Commissioner took into account those considerations in acting under section 331 of the Act.[1] I accept Mr Dwyer’s submissions and I will dismiss this application.
[1] Wayne Smith AND GSM (Operations) Pty Ltd (No. B687 of 2002) 172 QGIG 1686
Mr Lamb-Miller’s perception is that he has been unfairly treated and that the processes of Council have been unfair to him. The factors I have outlined indicate to the contrary. The processes of Council may not have been perfect. There were certainly gaps and delays which, as I’ve said, if anything, worked in Mr Lamb-Miller’s favour. He continued to work remotely for some two and a-half years after having been offered a trial of six months. At the end of each – but the ultimate decision to terminate the trial – Mr Lamb-Miller made approaches to Council and made submissions to Council that resulted in the trial being further extended and he continued to work remotely whilst that was being undertaken.
His proposals have, as is evident from the email exchanges, been taken account of and consideration given thereto. Mr Lamb-Miller, in his submissions, says that mistakes were made, misapprehensions were made, the people who made their decision that the trial wasn’t working satisfactorily, were mistaken and that Council was wrong in not permitting him to continue working remotely or accepting one or another of his proposals. I accept that that’s a perception genuinely held by Mr Lamb-Miller, but that’s not the end of the matter.
An employer is entitled to give to an employee, a lawful direction which, if reasonable, must be complied with. Mr Lamb-Miller’s contract of employment required him to be based in Roma. It was a concession to him to allow him to work remotely on a trial basis, and that was done having regard to his personal circumstances. I see no unfairness in the way in which he was treated.
I have no doubt that in the circumstances of the case, Council had a valid reason for terminating Mr Lamb-Miller’s employment. It was clear from the correspondence to which I’ve referred, that Mr Lamb-Miller could not or would not work from Roma. No compromise position was able to be reached between the parties and Council was within its legal rights to require Mr Lamb-Miller to return to Roma to work in the position to which he had been appointed. The change in name or title of his position to which Mr Lamb-Miller refers does not, to me, indicate that there was a change in the role that enabled him to work from anywhere but Roma. The exchanges to which I’ve referred make that abundantly clear.
As I outlined at the beginning of this hearing, I was concerned that, on the face of it, there may have been a denial of procedural fairness in the way in which the termination of Mr Lamb-Miller’s employment was effected by the giving him of a letter terminating his employment without what, in the usual course of events, would have required a show-cause process of some form to have been engaged in. Normally before a person’s employment is terminated, it’s put to that person what the position is and why termination is being contemplated, and an opportunity to reply is provided. They are the usual requirements of natural justice and, as I indicated, it concerned me that it did not appear that that had occurred here.
However, on a careful analysis of the documentary material, it is clear, as Mr Dwyer submitted, that there was no doubt that if an accommodation could not be reached and if Mr Lamb-Miller was not prepared to work from Roma, the inevitable result would be that his contract with Council would be terminated either by him resigning or by Council terminating it. Indeed, during the evidence this morning, Mr Lamb-Miller told me that he was expecting that his employment would be terminated, but he thought that it would not be done quite at the time that it did occur.
The letters that I’ve referred to from Mr Lamb-Miller make it clear that he knew and understood the consequences of not complying with the Council’s requirements in the absence of an alternative arrangement being agreed, and I am satisfied that in the circumstances, there has been no denial of natural justice.
On the applicant’s own case, he has not been able to establish that the termination of his employment was unfair, and consequently I accept that it is not necessary or desirable in the public interest that the matter continue.
Mr Lamb-Miller, in his submissions, at first in an answer to me said that he intended to rely on the affidavit material that has been filed on behalf of the respondent and to elicit evidence that is favourable to him in cross-examination. However, as the directions to which I’ve referred make clear, Mr Lamb-Miller was required to put his case first, put his evidence first, which he did, and that’s the evidence upon which he relies. Council is not obliged to put in any material and without the witnesses being called, that affidavit material is not part of the case.
It follows that the applicant is not able to sustain his application, and it is appropriate to act under section 331 of the Act. The application is dismissed.
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