Lamb v Redland City Council
[2016] QIRC 6
•15 January 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Lamb v Redland City Council [2016] QIRC 006 |
PARTIES: | Lamb, Kevin v Redland City Council (Respondent) |
CASE NO: | B/2012/71 |
PROCEEDING: | Application to recover unpaid wages and superannuation |
DELIVERED ON: | 15 January 2016 |
HEARING DATES: | 10 and 11 July 2014 |
MEMBER: | Industrial Commissioner Neate |
ORDER: | Application dismissed |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR UNPAID WAGES, SUPPERANNUATION - Whether Applicant entitled to amounts claimed - whether the Applicant's position at the Council was incorrectly classified - whether he was entitled to payment at a higher level - Applicant dismissed without notice for misuse of fuel card - whether entitled to payment in lieu of notice - whether he is estopped from claiming payment - whether Council obliged to pay contribution to superannuation fund |
| CASES: | Industrial Relations Act 1999 ss 83, 84, 85, 278 Lamb v Redland City Council (TD/2012/48) - Decision O'Connor v Electroboard Administration Pty Ltd (2001) 168 QGIG 90 |
| APPEARANCES: | Mr K. Lamb, Applicant in person |
Decision
The Applicant in these proceedings, Kevin Alan Lamb, applied to the Queensland Industrial Relations Commission ("the Commission") for an order for payment to him by Redlands City Council ("the Respondent" or "the Council") of:
(a)unpaid wages, unpaid superannuation and other amounts in the total sum of $20,843.44 plus interest; and
(b)an unspecified amount for accrued annual leave and overtime.
The Respondent disputes the application and submits that no order for payment should be made in favour of the Applicant.
Background
The Applicant was employed by the predecessor to the Respondent on 16 May 1994. He was employed by the predecessor and the Respondent continuously for more than 18 years until his employment was terminated on 8 June 2012, at which time he held the position of Service Manager, Financial Reporting and Capital Management ("the Position").
The Applicant was dismissed for serious misconduct.[1] His application for reinstatement was dismissed by a differently constituted Commission on 24 February 2014.[2] No appeal was made against that decision.
[1] Misusing a fuel card allocated to him by the Respondent.
[2] Lamb v Redland City Council (TD/2012/48) - Decision type="1">
There is no dispute that:
(a)the Applicant was appointed to the Position on 21 November 2011 and, at that time, the Position was classified as Level 8 under the Redland City Council Officers' Certified Agreement No 1 2009 ("the Certified Agreement") (Exhibit 3);
(b)the Position was created out of the restructure of the Council that occurred in 2011 and the Applicant was promoted to the Position after he had successfully applied for it and had gone through a competitive merit selection process; and
(c)prior to being promoted to the Position, the Applicant held the position of Manager, Financial Reporting which position was classified as Level 7 under the Certified Agreement.
The amount originally claimed by the Applicant was calculated as follows:
(a) wages for the period 1 December 2010 to 21 November 2011 (i.e. the period immediately before the Applicant was appointed to the Position)
$13,263.72
(b) wages for five weeks in lieu of notice of dismissal from employment at the weekly rate of $1845.23 ($9,226.15) less the amount paid ($3,588.08)
$5,638.07
(c) replacement of tow ball fitted to a council provided vehicle
$350.00 (d) superannuation $1,591.65
Total: $20,843.44 As noted earlier, the Applicant also seeks an unspecified amount for accrued annual leave and overtime for the period 1 December 2010 to 21 November 2011.
The claim for unpaid wages relates to the position of Manager, Financial Reporting, Level 7 (i.e., the position that the Applicant held from 1 December 2010 to 21 November 2011) which the Applicant alleges was incorrectly classified as Level 7. The basis of his claim for unpaid wages is that that position should have been classified as Level 8 under the Certified Agreement. Consequently, the claim for unpaid wages, superannuation, annual leave and overtime is calculated by reference to the difference in wages between Level 7 pay point 3 and Level 8 pay point 5 positions under the Queensland Local Government Officers' Award 1992 ("The Award").
The claim for unpaid wages referred to in [6](b) relates to the termination of the Applicant's employment. He claims to have been paid two weeks in lieu, not the required five weeks.
The Applicant's claim was particularised in his affidavit filed on 14 November 2011 (Exhibit C to Exhibit 1) as follows:
(a)Unpaid wages calculated as follows:
i. between 1 December 2010 and 30 June 2011, the Applicant was paid $1,518.60 per week at Level 7 pay point 3 under the Certified Agreement and his claim is that he should have been paid at Level 8 pay point 5 over that period in the amount of $1,774.26 with the result that he was underpaid in the gross amount of $7,414.14 (being $255.66 per week over a period of 29 weeks);
ii. between 1 July 2011 and 21 November 2011, the Applicant was paid $1,579.34 per week at Level 7 pay point 3 under the Certified Agreement and his claim is that he should have been paid at Level 8 pay point 5 over that period in the amount of $1,845.23 with the result that he was underpaid in the gross amount of $5,849.58 (being $265.89 per week over a period of 22 weeks); and
iii. the total gross amount claimed for the period 1 December 2010 to 21 November 2011 (taking into account the 4 per cent or $35.00 per week increase which occurred on 1 July 2011 pursuant to clause 24.3 of the Certified Agreement), was $13,263.72;
(b)unpaid overtime, which has not been particularised in respect of overtime performed by the Applicant[3] and paid at Level 7 pay point 3 between 1 December 2010 and 21 November 2011;
[3] The Applicant claims that the Respondent would not provide details of the hours that he worked between 1 December 2010 and 21 November 2011.
(c)12 per cent superannuation contribution to be made by the Respondent to the Queensland Local Government Superannuation Scheme in the amount of $1,591.65 (being 12 per cent of $13,263.72);
(d)unpaid wages in the amount of $5,638.07, being the difference between the two weeks' pay in lieu of notice provided to the Applicant upon the termination of his employment compared with what he claims he should have been paid, namely five weeks paid at the rate of $1,845.23 for a further three weeks (being the total amount of five weeks' notice claimed by the Applicant);
(e)replacement of a new tow ball to the Applicant's private vehicle as per the Respondent's vehicle policy and amount of $350.00; and
(f)unpaid wages in respect of annual leave taken between 1 December 2010 and 21 November 2011, which the Applicant claims should have been paid at Level 8 pay point 5.
The Applicant led evidence in support of his claims in the form of his affidavits (Exhibits 1 and 2). He gave oral evidence at the hearing.
Applicable law
The application was made under ss 83(4)(b) and 278 of the Industrial Relations Act 1999 ("the Act").
The subsections of s 278 that are relevant to the application state:
"Power to recover unpaid wages and superannuation contribution etc
278(1) An application may be made to the commission for an order for payment of—
(a)an employee's unpaid wages; or …
(d)contributions to the approved superannuation fund payable for an eligible employee that are unpaid; …
(2)An application can not be made to the commission if the total amount claimed under subsection (1) is more than $50,000.
(3) The application may be made by—
(a)for a claim for occupational superannuation—an employee who is an eligible employee on whose behalf an employer is required to contribute to an approved superannuation fund; or
(b)for any other claim—an employee …
(4)The application must be made within 6 years after the amount claimed became payable.
…
(8) On hearing the application, the commission …—
(a)must order the employer to pay the employee—
(i)the amount the commission … finds to be payable and unpaid to the employee within the 6 years before the date of the application; and
(ii)an amount the commission … considers appropriate, based on the return that would have accrued in relation to the contributions had it been properly paid to the approved superannuation fund; and
(b)may make an order for the payment despite an express or implied provision of an agreement to the contrary; and
(c)may order the payment to be made on the terms the commission … considers appropriate.
(9) For an order about an unpaid contribution, the order must require the contribution to be paid to—
(a)if the employee is employed by the employer—the approved superannuation fund; or
(b)if the employee is no longer employed by the employer—
(i)the approved superannuation fund; or
(ii) a complying superannuation fund; or
(iii) a superannuation fund nominated by the employee; or
(iv) an eligible rollover fund; or
(v) if the amount is less than the amount of total benefits that may revert to an employee under the Superannuation Industry (Supervision) Act 1993 (Cth)—the employee.
Section 83 of the Act states:
"What employer must do to dismiss employee
83 (1) An employer may dismiss an employee only if—
(a)the employee has been—
(i) given the period of notice required by section 84; or
(ii) paid the compensation required by section 85; or
(b)the employee engages in misconduct of a type that would make it unreasonable to require the employer to continue the employment during the notice period.
(2) Misconduct under subsection (1)(b) includes—
(a)theft; and
(b)assault; and
(c)fraud; and
(d)other misconduct prescribed under a regulation.
(3)However, subsection (1)(b) does not apply if the employee can show that, in the circumstances, the conduct was not conduct that made it unreasonable to continue the employment during the notice period.
(4)If an employer dismisses an employee, to whom subsection (1)(a) applies, without giving the required notice or paying the required compensation—
(b)on an application under section 74—the commission may order the employer to pay the employee the compensation that the employer was required to pay under section 85; or
(c)otherwise—the commission … may order the employer to pay the employee the compensation that the employer was required to pay under section 85.
(5) An application for an order under subsection (4)(b) may be made by—
(a)an employee who has been dismissed; …
(6)The application must be made within 6 years after the day on which the employee is dismissed.
(7)A regulation may exclude from the operation of this section dismissals happening in specified circumstances that relate to the transfer of the employer's business."
It is apparent from s 83 that ss 84 and 85 are also relevant to some applications under s 83. Those sections state:
"Minimum period of notice required from employers
84 (1) The minimum period of notice is—
(a) if the employee's continuous service is—
(i) not more than 1 year—1 week; and
(ii)more than 1 year, but not more than 3 years—2 weeks; and
(iii)more than 3 years, but not more than 5 years—3 weeks; and
(iv) more than 5 years—4 weeks; and
(b) increased by 1 week if the employee—
(i) is 45 years old or over; and
(ii)has completed at least 2 years of continuous service with the employer.
(2)A regulation may prescribe matters that must be disregarded when working out continuous service under subsection (1).
Minimum amount of compensation required
85(1) The minimum compensation payable to an employee is at least equal to the total of the amounts the employer would have been liable to pay the employee if the employee's employment had continued until the end of the required notice period.
(2) The total must be worked out on the basis of—
(a) the ordinary working hours worked by the employee; and
(b) the amounts payable to the employee for the hours, including, for example, allowances, loadings and penalties; and
(c)any other amounts payable under the employee's employment contract.
(3)A regulation may prescribe the amount that is taken to be payable, or how to work out the amount, under an employment contract mentioned in subsection (2)(c), to an employee whose wages before dismissal were decided wholly or partly on the basis of the commission or piece rates."
Claim for unpaid wages - an overview
Among the matters listed in s 278 in respect of which an application may be made to the Commission for an order for payment is "an employee's unpaid wages" (s 278(1)(a)). The definition of "wages" includes amounts payable to an employee for work performed, or to be performed, by the employee; a public holiday; leave the employee is entitled to; or termination of employment. The definition also includes a salary or an amount payable from wages for the employee, with the employee's written consent (Schedule 5).
The claim for unpaid wages has three components:
(a)wages said to be payable for work performed in the period 1 December 2010 to 21 November 2011;
(b)wages payable for annual leave and/or pro rata annual leave and overtime for the period 1 December 2010 to 21 November 2011; and
(c)unpaid wages payable under s 83(4) of the Act in lieu of notice to dismiss under s 85 of the Act.
As the Respondent submits, it is apparent from s 278(8) of the Act that the Commission's jurisdiction is enlivened when the Commission finds that there are wages payable and unpaid to the Applicant within six years before the date of the relevant application.
Wages payable for work performed
The key issue to be decided is whether between 1 December 2010 and 21 November 2011[4] the Applicant's position of Manager, Financial Reporting at Level 7 should have been classified as Level 8 at the top pay point (pay point 5) under the Certified Agreement rather than being classified at Level 7 pay point 3, being the level at which the Applicant was paid during that period.
[4] Or, as the Respondent contends, Friday 18 November 2011, because the Applicant was appointed to the Position effective Monday, 21 November 2011.
The following people gave oral and affidavit evidence in relation to that issue:
(a)the Applicant (Exhibits 1 and 2);
(b)Carolyn Jackson, the Council's Manager Capital and Asset Accounting (Exhibit 5);
(c)Eleanor Noonan, the Council's Group Manager of Community and Customer Services, and previously acting Head of Human Resources (Exhibit 6);
(d)Gavin Holdway, the Council's previous Chief Financial Officer (Exhibits 15 and 16).
Before considering relevant aspects of that evidence, it is appropriate to note that there was an organisational restructure of the Council's Corporate Services department in 2010. Immediately before that restructure occurred, there was a Corporate Asset Information Team ("CAIT"). It comprised 10 people who reported to the Service Manager Corporate Asset Information and who were variously responsible for the Respondent's asset accounting function, Geographic Information Systems ("GIS") (which involved the mapping of the Respondent's underground assets such as pipes and drains) and the asset management function of the Respondent (Exhibit 5 para 3). In late 2010, as part of a restructure, the CAIT was disbanded and the Service Manager role for the CAIT was made redundant (Exhibit 5 para 4). The functions and relevant positions of the CAIT were reallocated within the Council's structure. At the time of the restructure, the Applicant was employed at a Level 7 pay point 3 classification.
Applicant's submissions: As the Applicant notes:
(a)and at the time of the restructure (i.e., around the start of the period to which this claim relates), the position of Service Manager Corporate Asset Information (position FNS021) which directly managed the CAIT was classified and hence remunerated at Level 8. The position description was created on 17 August 2006 and amended on 1 September 2009 (Exhibit 14); and
(b)for the period to which this claim relates, he held the position of Manager, Financial Reporting (position FNS003) which was classified as Level 7 under the Certified Agreement. The position description was created on 17 August 2006 and amended on 30 September 2011 (Exhibit 8).
As noted earlier, the Applicant was promoted to the Position (at Level 8) on 21 November 2011.
The Applicant claims that, during the period from 1 December 2010 to 21 November 2011:
(a)he undertook "very significant additional duties and accountabilities;"
(b)the Certified Agreement provided that position descriptions would be used as the primary source of classifying positions and that the Council would continue to provide to each employee a position description which clearly and accurately identified as a minimum: the requirements of the job; the skills, knowledge, experience, qualifications and/or training required; the responsibility and classification level of the position; the organisational relationship of the position; and the accountability/extent of authority of the position (Exhibit 3 clause 31);
(c)the Respondent failed to provide him with a position description that took account of the "significant additional job requirements, skills, knowledge, experience, qualifications, organisational relationship and authority of the position resulting from a major restructure in the Corporate Services department;"
(d)the position description for FNS003 did not change during that period; and
(e)the position of Manager, Financial Reporting should have been classified as a minimum at Level 8 pay point 5 (i.e., the top increment of Level 8) under the Certified Agreement and he should have been remunerated accordingly.
The Applicant contends that it would be "extremely unfair" for him to be remunerated at the first increment of Level 8 given:
(a)the significant additional accountabilities and skills and experience required; and
(b)the "very small" difference between Level 7 pay point 3 and Level 8 pay point 1, which difference did not represent "fair additional remuneration for assuming these significant additional accountabilities and skills and experience required."
He states that Council management has the discretion to set the increment at any step in the Level and has exercised this right many times in the past by paying staff at the top end of a particular level.
The basis of the Applicant's claim is set out in paragraphs 3 and 4 of his affidavit (Exhibit 2) where he states:
"3. During the period 1/12/10 to 21/11/11 the former General Manager of the Corporate Services department at Redland City Council (RCC) Martin Drydale transferred four specialist staff and accountabilities from the Corporate Asset Information Team and the Grants and Subsidiaries function under my direct management as part of a complicated and long term restructure of the department. The Corporate Asset Information Team was disbanded as part of the restructure but the key accountabilities, responsibilities and staff were transferred under my management in relation to asset accounting and asset management in particular.
4. Neither of the three members of the Corporate Asset Information Team nor the Grants and Subsidies officer reported to me just prior to the restructure. The three staff from the Corporate Asset Information team and the Grants and Subsidies officer were physically relocated from other locations within the organisation to reside in my immediate team environment on or about 1/12/10 under my direct management."
The Applicant referred to the transfer of the additional accountabilities and staff as a "very large increase in responsibility and work load" for him personally as the Council is an infrastructure rich organisation with more than $2 billion in assets and a budget over $100 million.
In support of his claim, the Applicant notes that the position of Manager of the CAIT was classified at Level 8. According to the Applicant, that team "transferred under my management" and he "continued to manage all of the responsibilities" of the Financial Reporting team in addition to the accountabilities from the CAIT at Level 7.
In cross-examination, the Applicant conceded that:
(a)it was on the basis of the transfer of the four employees to his area that he based his claim that the Respondent under-classified his position at Level 7; and
(b)it was on the basis of the transfer of those employees to his area that he believed he should have been paid at pay point 5 of Level 8.[5]
[5] T1:27.
The Applicant also refers to the affidavit evidence of Ms Jackson that:
(a)after the restructure, Ms Jackson reported to him and the positions of Assistant Asset Accountant and Finance Officer were transferred under his management;
(b)the Asset Accounting Team reported directly to him and took advice from him following the restructure;
(c)the Applicant became responsible for signing the timesheets of the Asset Accounting Team and he undertook[6] budgetary functions for the Asset Accounting Team; and
[6] Ms Jackson's evidence was that the Applicant "might have undertaken some budgetary functions for the Asset Accounting team, but this would have been limited to reporting our wages, as this was the only cost attributable to our team." (Exhibit 5 para 12)
(d)he became responsible for signing off final documents produced by the Asset Accounting Team (including data capture, reconciliation of asset movements, depreciation processing and asset accounting advice),
and to her oral evidence, including evidence that:
(e)the Council's assets were valued at about $2 billion;
(f)the asset accounting function was important in the overall financial reporting framework of the Council and in gaining certification from the Queensland Audit Office of the Council's valuation and depreciation of its assets;
(g)the Asset Accounting Team reported to the Applicant who in turn reported to the Manager Financial Services, Mr Holdway;
(h)at the time of restructuring, a lot of position descriptions were put on hold because Human Resources were busy doing work for other areas as well.
He points to some similar evidence given by Ms Noonan, and to her evidence that his role changed from December 2010 as a result of the restructure and that a review of his position description was not finalised and reviewed by the Council's Human Resources.
The Applicant also refers to some similar evidence given by Mr Holdway in his affidavit (Exhibit 16), and to his evidence that, as a result of the restructure in December 2010, the Applicant:
(a)was given management responsibility for four additional staff (three officers from the CAIT and the Grants and Subsidies Officer), and that his role and responsibilities increased accordingly;
(b)became responsible for budget monitoring and reporting for the Asset Accounting Team which transferred to his management;
(c)became responsible for providing specialist advice in the development of the asset accounting functions;
(d)had additional responsibilities with respect to the development and management of customer relationships and improvement of services;
(e)took on responsibility for asset information reporting, financial asset reporting and asset registers;
(f)became responsible for the management of the Grants and Subsidies Officer and for liaison with sponsoring agencies;
(g)became responsible for providing advice to project managers on eligibility for grants and subsidies applications;
(h)became responsible for management of internal projects and work groups to assist in development of activity based costing systems.
The Applicant also refers to Mr Holdway's oral evidence to the effect that:
(a)the duties that were transferred to the Applicant included responsibilities in relation to the Council's asset registers, and asset accounting transactions such as depreciation, reconciliation and re-evaluations;
(b)the staff member would need to be a qualified accountant to perform those duties;
(c)the knowledge required to perform the duties included a good knowledge of infrastructure assets in the local government environment, a good understanding of accounting principles and methodologies that applied to asset accounting functions, an understanding of the relevant legislation (including the Local Government Act2009 (Qld)) and Australian Accounting Standards, International Financial Reporting Standards, Local Government Finance Standards, and Queensland Audit Office Best Practice Guidelines;
(d)the biggest component of the Council's balance sheet was its infrastructure assets (valued at approximately $2 billion);
(e)the Queensland Audit Office would not sign off financial statements if the accounting or valuations were incorrect;
(f)a qualification on financial statements would mean that those statements could not be relied on to give a true and fair view, and that would affect the Council's reputation.[7]
[7] T 2:75-80.
However, the Applicant takes issue with some of the evidence given by Ms Jackson. In particular, he seeks to refute her statements that:
(a)he did not have any involvement in the Asset Management Plan which the CAIT was due to complete in December 2010[8] (Exhibit 5 para 4);
(b)the Asset Accounting Team was quite autonomous and did not rely extensively on the Applicant's advice, and the Applicant did not take on any additional responsibility for the daily functioning of that team (Exhibit 5 para 8); and
(c)the only significant additional work that the Applicant took on was administrative, such as the requirement that he sign the timesheets of the Asset Accounting Team (Exhibit 5 para 9).
[8] Ms Jackson also gave evidence that the Asset Management Plan was completed in December 2010, and the asset management function was transferred to another group within the Council. (Exhibit 5 para 6)
Rather, the Applicant contends that:
(a)although the three asset officers were experienced and good staff and did a professional job in coordinating the Asset Management Plan and related function, he was ultimately responsible (as their manager) for reviewing the Asset Management Plan and making appropriate recommendations and amendments, and for all outcomes and performance of Ms Jackson's work;
(b)he was the manager of the Asset Accounting Team and, in that role, was accountable for their overall performance and outcomes and providing higher level advice and technical support, and at team meetings he briefed these staff on wider organisational planning and legislative issues, health and safety requirements, budget requirements and action plans to ensure end of month and financial year goals were met. He had to monitor and review their monthly and end of year financial asset reports to ensure they met specified technical requirements, and was regularly involved with Ms Jackson in meetings with Information Technology staff regarding computer software enhancements to the asset registers. Ms Jackson regularly asked him for advice on technical accounting issues;
(c)for the reasons stated above, it is not correct that the only significant additional work undertaken by the Applicant was administrative, such as signing off timesheets.
I note that the Respondent characterises this part of the Applicant' submission as a mixture of submissions and evidence and submits that it is not fair to the Respondent for the Commission to take into account any evidence given by the Applicant other than a written statement that has been admitted as an exhibit or oral evidence in the hearing.
The Applicant also takes issue with some of Mr Holdway's statements, including that:
(a)all three asset accounting positions of the CAIT had been under his management until the creation of the CAIT in 2006 (Exhibit 16 para 2);
(b)the Applicant did not lead and coordinate the CAIT, which had been disbanded (Exhibit 16 para 4(b));
(c)the Applicant did not become responsible for asset management planning or asset management strategies (Exhibit 16 para 4(d));
(d)the Applicant's role from 1 December 2010 was the same (save for the addition of the management of the Grants and Subsidies Officer) as prior to the creation of the CAIT in 2006 (Exhibit 16 para 8).
Rather, the Applicant contends that:
(a)one of the staff members (Ms Jackson) did not work for the Council at that time and had not worked under his management before the restructure in December 2010;
(b)although the CAIT name did not exist after the restructure, all the accountabilities and responsibilities (apart from GIS related matters) and three asset staff and one Grants and Subsidies Officer were transferred under his management, and the Applicant became responsible for the budget monitoring and reporting for those four staff and their related activities;
(c)he provided regular input to the process in conjunction with Ms Jackson and attended meetings with specialist technical staff across the organisation where required. He also reviewed many of the individual asset management plans across the organisation. Although Ms Jackson coordinated this activity on a day-to-day basis and did a professional job, she reported to the Applicant and he was responsible for her performance and outcomes of her position;
(d)in 2006, two officers from the Applicant's then team transferred to the newly created CAIT and many other accountabilities were allocated to the Applicant (but a position description was never redrafted by the Council). When the two officers returned to his management five years later, the level of processing, sophistication, volume, reporting requirements, software and legislative requirements had increased enormously (and the Council should have undertaken a formal position re-evaluation process at both times, but failed to do so).
Again I note that the Respondent characterises this part of the Applicant' submission as a mixture of submissions and evidence and submits that it is not fair to the Respondent for the Commission to take into account any evidence given by the Applicant other than a written statement that has been admitted as an exhibit or oral evidence in the hearing.
Part of the Applicant's case, and the source of considerable grievance to him, is that he was not provided with an accurate position description for the role he occupied between 1 December 2010 and 21 November 2011. In particular, he contends, the Council did not provide him with a position description that clearly and accurately reflected the additional requirements of the job and the skills, experience and qualifications required to perform it. Consequently, he submits, the Council failed to comply with the requirements of the Certified Agreement. He points to correspondence from him to Mr Drydale dated 2 February 2011 and 9 March 2011 in which he requested a review and re-evaluation of his position description to bring it up to date with the transfer of duties and accountabilities from the CAIT and the grants and subsidies program. The correspondence refers to related discussions with Mr Drydale about the request. There was no evidence of any formal reply to those letters.
A considerable amount of hearing time, and extensive periods of cross-examination, were devoted to this issue. It is not necessary to traverse that evidence in detail, but I note that much of it was directed to ascertaining:
(a)why there was such a delay in evaluating the role performed by the Applicant in that period; and
(b)whether the evaluation was based on an accurate and complete description of the functions and responsibilities conferred on the Applicant in that period.
In relation to how his position description was processed after the restructure, the Applicant refers to Mr Holdway's affidavit evidence (Exhibit 15 para 4) that he did not specifically recall that the Applicant asked him to have his role after the restructure re-evaluated in accordance with the Certified Agreement, "although he might have." Mr Holdway did recall that, because many positions within the organisation were changed by reason of the restructure, the then General Manager Corporate Services (Mr Drydale) decided to put "on hold" any re-assessments of Council position descriptions until the restructure was complete. This meant that several position descriptions were being held by Mr Drydale's personal assistant during 2011 and were not actioned. In cross-examination, Mr Holdway (who had a team of approximately 45 people during the restructuring) confirmed that statement.[9]
[9] T2: 87-90.
The Applicant also refers to Ms Noonan's oral evidence on this topic, noting, among other things, that she agreed that the Council has an obligation to provide every employee with a position description that clearly and accurately identifies the requirements of the position and other specified information in relation to the position. Ms Noonan stated that three months would be a typical timeframe for a position re-evaluation to be completed (although it could take a longer or shorter time), and she did not know why the Applicant's position description took so long (about 11 months) to evaluate. Ms Noonan did not sign off on the Applicant's position evaluation and did not know who did the evaluation or signed it off. When asked where the additional asset accounting responsibilities were reflected in position description FNS003, Ms Noonan stated "you won't see that in the document." In particular, when asked why there was no mention of "asset" in the position evaluation, Ms Noonan stated that the position evaluation is generic in nature and there is "no determination of what you're looking for, which is asset management on that PD."[10]
[10] T 1: 47, 49, 53, 59, 64-66, 82-83, 89, 96-100.
Ms Noonan also gave affidavit and oral evidence that there was quite a delay in the formal drafting of position descriptions for many of the roles which changed during the restructure. The Applicant's position was evaluated during the relevant period, and as a result there was no change to the level of that position and hence no change to his salary (see Exhibit 6 and the Evaluation of FNS003 dated 27 October 2011 attached to it). In Ms Noonan's experience, where an employee's role is re-evaluated upwards as a result of a restructure, and there is a material delay in conducting that re-evaluation, then that employee's manager would usually authorise that back-pay be paid to the employee from the period of that delay. That did not occur in this case, as the re-evaluation after the restructure evaluated the Applicant's role at the same level as before the restructure, namely Level 7 (Exhibit 6 para 10).
There was much contention about the adequacy of the evaluation process (in terms of the methodology employed), and the alleged absence of any notification to the Applicant about the outcome of that evaluation. But the key criticism was that the evaluation to which Ms Noonan referred apparently proceeded by reference to an inadequate or inapplicable position description.
However, Ms Noonan gave evidence that remains relevant to this part of the Applicant's case. She stated that the process of assessing relative levels of positions takes into consideration the number and level of positions that report directly to the manager as well as their functional and technical capabilities and responsibilities. It appears that less weight is given to the number of positions that report to a manager and more emphasis is given to the functional capacity of the position. Some accountabilities have more significant ratings than others. The methodology also takes into consideration the breadth of the role, its sphere of influence, and the level of technical experts that report to that position.[11]
[11] T 1: 79, 90, 95, 118.
Respondent's submissions: The Respondent denies that the Applicant's position was under-classified in the way contended by the Applicant.
First, the Respondent submits, there was no significant added supervisory responsibility placed on the Applicant.
In support of that submission, the Respondent refers to the oral evidence and affidavit (Exhibit 5) of Ms Jackson about a restructure of the Council's Corporate Services department in 2010. At that time she was employed in the CAIT as the Acting Service Manager. Ms Jackson's evidence was that:
(a)the CAIT comprised 10 people who reported to the Service Manager of CAIT and who were variously responsible for the Respondent's asset accounting function, Geographic Information Systems ("GIS") (which involved the mapping of the Respondent's underground assets such as pipes and drains) and the asset management function of the Respondent (Exhibit 5 para 3);
(b)in late 2010 as part of a restructure, the CAIT was disbanded and the Service Manager role for the CAIT was made redundant (Exhibit 5 para 4);
(c)Ms Jackson then acted in the asset management role and reported to the Applicant in his role as Service Manager, Financial Reporting, and Ms Jackson had this role because the asset accounting and asset management functions of CAIT were due to complete the Asset Management Plan in December 2010, and the Applicant did not have any involvement in the Asset Management Plan or the asset management function (Exhibit 5 para 4);
(d)at that time, the other asset accounting functions of CAIT were transferred to the Applicant (Exhibit 5 para 5);
(e)once the Asset Management Plan was completed in December 2010, the asset management function was transferred to another group within Council and Ms Jackson (along with the former members of the Asset Accounting Team of CAIT) continued with the Council's asset accounting function (Exhibit 5 para 6);
(f)on a day-to-day basis following the restructure, there was virtually no change in the operations of the Asset Accounting Team (despite the change in their direct reporting being to the Applicant), and the people performing the asset accounting functions sought advice from the Applicant (in his role of Service Manager) as they had done before the restructure (Exhibit 5 para 7);
(g)after they had been transferred to report to the Applicant, the asset accounting members of CAIT worked quite autonomously, did not rely extensively on the Applicant's advice, and managed matters within their own team; the Applicant did not take on any responsibility for the daily functioning of the Asset Accounting Team, and his only additional work was administrative (such as being required to sign timesheets) (Exhibit 5 para 9); and
(h)to the extent that the Applicant might have undertaken some budgetary functions, that would have been limited to reporting on the wages of the employees performing the asset accounting function under him (Exhibit 5 para 12).
The Respondent also relies on evidence from Ms Jackson to the effect that:
(a)the Applicant did not provide specialist advice in the development of Enterprise Asset Management Planning;
(b)although the Applicant did provide specialist advice in the development of asset accounting, this was a function that he had been undertaking professionally for the whole period that Ms Jackson had been with the Council to that point;
(c)the Applicant was not involved with the Council's asset management function, and so did not undertake asset management planning or strategies;
(d)members of the Asset Accounting Team did the work in respect of asset information reporting, financial asset reporting and asset registers (including data capture, reconciliation of asset movements, depreciation processing and asset accounting advice) and, although the Applicant signed off on the final documents produced, Ms Jackson did not recall that he ever questioned the final results presented to him;
(e)there was not a very large increase in the Applicant's responsibility or workload as a result of him commencing management of the Asset Accounting team as part of the restructure (Exhibit 5 paras 13-16).
The Respondent notes that in cross-examination the Applicant agreed that:
(a)before 1 December 2010, the CAIT team had three functions (asset management, asset accounting, and GIS) and that before the redundancy of Ms Pippia's position as Manager Corporate Asset Information on about 1 December 2010, she was responsible for those three functions as a Level 8 manager of CAIT;
(b)before the CAIT was disbanded on or about 1 December 2010, there were nine employees of CAIT and after that date only three of those employees (Ms Jackson, Jenna Dickson and Hazel Irvine) came under the Applicant's supervision; and
(c)the six employees employed in CAIT that performed the Council's GIS work were transferred to the Information Technology Branch of the Respondent and never came under the Applicant's supervision.[12]
[12] T 1: 27-29.
Furthermore, the Applicant gave evidence that:
(a)he supervised Robert Russell (the Grants and Subsidies Officer who came under his supervision from 1 December 2010) on a day-to-day basis; and
(b)he was only responsible for the budgeting for Mr Russell's wages and salaries because the Council's budget development in respect of Grants and Subsidies was done by other employees of the Council.[13]
[13] T 1: 32, 33.
The Respondent submits that, because the Applicant did not develop the Respondent's budget in respect of the grants and subsidies provided to it (which the Applicant concedes was done by other officers of the Respondent), it can only be the case that the Applicant only had the administrative or day-to-day responsibility for supervising Mr Russell, such as signing off his timesheets and ensuring that his wages were incorporated into the budget, as was the case with the other three officers transferred to the Applicant's supervision from the CAIT.
The Respondent also refers to and relies on the evidence of Mr Holdway, who was employed as its Chief Financial Officer between 1 December 2010 and 18 November 2011. In summary, Mr Holdway's evidence was similar to aspects of Ms Jackson's evidence about the scope of the Applicant's responsibilities. Mr Holdway stated that:
(a)although the Applicant's role and responsibilities increased when he took on the management of four officers, he did not become responsible for all elements of the Service Manager Corporate Asset Information or the Grants and Subsidy Officer;
(b)rather, after the CAIT was disbanded, the Applicant became responsible to lead and coordinate the asset accounting functions (which were only part of the former CAIT's functions);
(c)the Applicant again took on responsibility in relation to asset information reporting, financial asset reporting and asset registers (responsibility for which he had lost on the formation of the CAIT in 2006);
(d)the Applicant managed the Grants and Subsidies Officer (who liaised with sponsoring agencies and provided advice to the Project Managers on eligibility for grants and subsidies applications);
(e)the Applicant began managing the officer who participated in internal projects and with work groups to assist in the development of systems, including activity based costing;
(f)although those elements formed part of the annual budget development, the Applicant was not responsible for annual budget development (Exhibit 16 para 4).
Mr Holdway also explained that:
(a)the Service Manager Corporate Asset Information was remunerated at Level 8 to reflect the responsibilities of that role, which included managing two different types of team (the GIS staff and the asset accounting function);
(b)the role of Service Manager Corporate Asset Information was made redundant when the CAIT was disbanded, and hence it is incorrect for the Applicant to say that the position was transferred under his management in the restructure or that he took on management of the accountabilities of the CAIT;
(c)from 1 December 2010, the Applicant's role was the same as before the creation of the CAIT in 2006 (with the addition of the management of the Grants and Subsidy Officer) and that role was evaluated at Level 7;
(d)despite the addition of the management of the Grants and Subsidies Officer, the Applicant's responsibility and workload did not change to a very large degree as a result of the restructure, and the officers who came under his management were experienced and competent (and, in particular, the Asset Accounting Team was well managed by Ms Jackson) (Exhibit 16 paras 6-9); and
(e)when the Applicant's current role (as the Manager, Financial Reporting) was assessed in 2011, it was determined to still be a Level 7 position (Exhibit 15 paras 5-7).
From all of this evidence, the Respondent submits that:
(a)the Applicant's position was a Level 7 position when the Asset Accounting Team members had been the Applicant's direct reports prior to the formation of the CAIT, and they ceased directly reporting to him upon the formation of the CAIT;
(b)the Applicant's position role had not been re-evaluated downwards after he ceased supervising those Asset Accounting Team members upon the formation of the CAIT;
(c)the Applicant may have an argument if all of the responsibilities and all of the staff members from the CAIT that existed before 1 December 2010 were transferred to him from that date;
(d)however, that was not the case and, in effect, only the employees performing asset accounting function of the Respondent were transferred to the Applicant's responsibility from 1 December 2010;
(e)in that regard, the only real change was that the Applicant only had administrative responsibilities in respect of those three employees (such as signing timesheets and accounting for their wages and performing the annual budget review) because those employees worked autonomously and the Applicant merely signed off on the final asset accounting documents provided to him by those three (former CAIT) employees;
(f)from 1 December 2010, the Applicant had no responsibility in respect of the GIS function that was previously performed by the CAIT or the asset management function previously performed by the CAIT; and
(g)the supervision of Mr Russell as the Grants and Subsidies Officer merely involved the administrative supervision of him.
The Respondent submits that, for those reasons, in the period from 1 December 2010 until 18 November 2011, the Applicant's position did not meet the terms of the description criteria set out in Schedule A to the Award in respect of a Level 8 administrative position. That part of the Award states:
"Characteristics of the level
At the eighth level of the Administrative Services stream, officers are subject to broad direction from senior officers and exercise managerial responsibility for a department/Counsel's relevant activity. In addition, officers may operate as a senior specialist providing multi-functional advice to either various departments or directly to Council.
General features of this level require the officers' involvement in the initiation and formulation of extensive projects/programmes which impact on Council's goals and objectives. Officers are involved in the identification of current and future options and the development of strategies to achieve desired outcomes.
Additional features include providing financial, specialised, technical and professional and/or administrative advice on policy matters within the department and/or Council.
In addition, officers will be required to develop and implement techniques, work practices and procedures in all facets of the work area to achieve corporate goals.
Officers at this level require a high level of proficiency in the application of theoretical or scientific approaches in the search of optimal solutions to new problems and opportunities which may be outside of the original field of specialisation.
Positions at this level will demand responsibility for decision-making within the constraints of divisional/corporate policy and require the officer to provide advice and support to other areas of Council. Officers at this level will have significant impact upon Council's policies and programmes and will be required to provide initiative, the ability to formulate, implement, monitor or and evaluate projects and/or programmes.
Positions at this level may be identified by the significant independence of action within the constraints of departmental or corporate policy." (Exhibit A to Exhibit 16)
By reference to those criteria, the Respondent submits that the mere additional requirement that the Applicant supervise four additional employees (primarily from an administrative point of view) did not result in the Applicant:
(a)being subject to broad direction from senior officers and exercising a managerial responsibility for a department of the Respondent's relevant activity, nor did it result in the Applicant operating as a senior specialist providing multi-functional advice to various departments or directly to the Respondent;
(b)being involved in the initiation and formulation of extensive projects or programs that impacted on the Respondent's goals and objectives;
(c)being involved in the identification of current or future options and the development of strategies to achieve desired outcomes;
(d)being required to provide financial, specialised, technical or professional and/or administrative advice on policy matters within the Applicant's Department or within the Respondent;
(e)having significant impact on the Respondent's policies and programs; and
(f)being required to provide an initiative, the ability to formulate, implement, monitor and evaluate projects and/or programs.
By reference to the Responsibilities set out in Schedule A to the Award in respect of a Level 8 administrative position, the Respondent submits that the Applicant was not required to:
(a)undertake work of significant scope and/or complexity;
(b)undertake duties of innovative, novel or critical nature with little or no professional direction;
(c)provide specialist advice on policy matters and contribute to the development or review of policies; or
(d)manage extensive projects/programs in accordance with departmental or corporate goals.
The Respondent concedes that:
(a)there is no real dispute that the Respondent, because of the extensive restructure that was going on at the time, did not accede to the Applicant's request to have his position reviewed when he had been requesting that from late 2010;
(b)it might also be the case that the position description evaluated (set out in Ms Noonan's affidavit (Exhibit A of Exhibit 16)) is the Financial Reporting Manager position that was created after the further restructure in late 2011 that resulted in the Applicant being appointed to the Position.
However, the Respondent submits that, although the Applicant was given additional responsibility for supervising four employees between 1 December 2010 and 18 November 2011, in practice no additional responsibility was given to him in respect of asset accounting functions. On that basis, there was no significant change in the work value of his position such that his position met the criteria for an administrative strand Level 8 position set out in Schedule A to the Award.
The Respondent refutes the Applicant's assertions during the proceeding that he was responsible for the acquittal of $2 billion worth of assets and $40 million worth of depreciation of Council assets while in that position. It relies on evidence that:
(a)although the Applicant signed off on the asset accounting reports provided by Ms Jackson, Ms Dixon and Ms Irvine, there is no evidence that the fact that he supervised those employees meant that he took on any additional significant responsibilities for which he would be responsible in a reporting or disciplinary sense if there were errors in the reporting of those assets; and
(b)Mr Holdway clarified that ultimately the person responsible for those assets and depreciation would be the Chief Executive Office.[14]
Consequently, the Respondent submits, the Applicant's claim is misconceived.
[14] T 2: 119.
In response to the Applicant's contention that he should have been remunerated at Level 8 pay point 5 at that time because the position of Service Manager Corporate Asset Information was classified as Level 8 pay point 5, the Respondent submits that there is no evidence to suggest that, even if the Applicant's position should have been classified at Level 8 (which the Respondent denies), his position should have been paid at pay point 5.
In response to the Applicant's criticism of the alleged failure by Mr Drydale to review and re-evaluate the Applicant's position description immediately after the restructure took effect, the Respondent submits that any failure by the Council to provide a written response to the Applicant's application for a review of his position description is not evidence that the Applicant's unpaid wages claim has been made out (and there is no provision in the Certified Agreement to that effect). In other words, such a failure is not evidence that the Applicant's position between 1 December 2010 and 18 November 2011 was incorrectly classified as a Level 7 pay point 3 position as opposed to a Level 8 pay point 5 position under the Certified Agreement. Rather, the Respondent submits, this question is determined by assessing the work performed by the Applicant during that period compared with the description criteria set out in Schedule A to the Award in respect of a Level 8 administrative position.
Finally, the Respondent submits there can be no basis for any claim that the Applicant's position should have been a Level 8 position because, from 21 November 2011, the Applicant held the Position that was classified at Level 8 under the Award. There is evidence that the Applicant was promoted into the Position and that it was a different position to that held by the Applicant immediately before that time, in particular because the Position is responsible for three Level 7 managers and the composition of this team was different from the team supervised by the Applicant prior to his appointment to the Position (see Exhibit 9).
Consideration and conclusion: Having considered the evidence as a whole, I have concluded that the Applicant overstated the nature, extent and significance of his functions and responsibilities in the period from 10 December 2010 to 18 November 2011. It is clear that although he had management responsibilities for four additional staff during that period (three of them from the disbanded CAIT, and the Grants and Subsidies Officer), he was allocated management responsibility in relation to only one of the functions of the CAIT, namely asset assessment. Other positions in the previous CAIT and the other functions (asset management and GIS) were allocated elsewhere within the organisational structure of the Council. Nor was the Applicant responsible for all aspects of the additional officers' work.
I note the Applicant's statements in the course of the hearing that on occasions he worked long hours in discharging his functions. However, that does not of itself demonstrate that the position was classified at too low a level.
I am satisfied that the evidence supports the submissions made by the Respondent to the effect that:
(a) the position occupied by the Applicant in the period from 1 December 2010 until 18 November 2011 did not meet the criteria in respect of a Level 8 administrative position set out in Schedule A to the Award; and
(b) a comparison between the position occupied by the Applicant until 18 November 2011 and the Position, which he occupied from 21 November 2011, supports the conclusion that the previous position should not have been classified as Level 8.
I am also satisfied that there was no equivalence between the role of the Service Manager Corporate Asset Information and the role performed by the Applicant in the period 1 December 2010 until 18 November 2011. Consequently, there is no need to express any view about the relevant pay point within Level 8 of the former position.
I note that it would have been desirable for the Respondent to have completed a timely, comprehensive and accurate evaluation of the Applicant's role by or relatively soon after 1 December 2010. Had that occurred, it might be that the Appellant would not have commenced these proceedings. However, given the apparently extensive restructuring being undertaken by the Council at that time and the number of positions whose functions were being adjusted, the Respondent has been able to explain (if not completely justify) that apparent lapse in management practice. In any case, I am satisfied that the absence of an accurate and contemporaneous re-evaluation of the Applicant's role does not support his case that the position should have been classified as Level 8 (let alone Level 8 pay point 5).
Wages payable for annual leave and overtime
Applicant's submissions: The Applicant submits that he is entitled to payment for unpaid wages in respect of annual leave taken between 1 December 2010 and 21 November 2011 which he claims should have been paid at Level 8 pay point 5. He also seeks unpaid overtime, which has not been particularised in respect of overtime performed by him and paid at Level 7 pay point 3 between 1 December 2010 and 21 November 2011.
However, the Applicant agrees that if the Commission dismisses his wages claim, the annual leave and overtime claims must fail.
Respondent's submissions: The Respondent submits that, if the Commission dismisses the Applicant's wages claim, the overtime claim must fail because there can be no cause to revisit any overtime performed by the Applicant between 1 December 2010 and 18 November 2011. Similarly, the annual leave payment claim must fail because there can be no cause to revisit any payment made to the Applicant in respect of annual leave taken by him during that period.
Consideration and conclusion: Given my findings in respect of the Applicant's wages claim, his claim for payment in respect of annual leave and over time must fail.
Wages paid in lieu of notice to dismiss
Applicant's submissions: The Applicant contends that he is entitled to the payment of $5,638.07, being wages for five weeks in lieu of notice of dismissal from employment at the weekly rate of $1,845.23 ($9,226.15) less the amount already paid to him ($3,588.08).
He calculates that he was entitled to payment for five weeks on the basis that:
(a)s 84(1)(a)(iv) of the Act provides that the minimum period of notice is four weeks; and
(b)because he is 50 years old and served 18 years of continuous service, he is entitled to an additional week under s 84(1)(b) of the Act.
Respondent's submissions: In reply, the Respondent refers to the circumstances of the Applicant's dismissal and a letter to him dated 8 July 2012 from Mr Drydale, the Council's General Manager Corporate Services. That letter was quoted by the Commission in Lamb v Redland City Council.[15] It is clear from the letter that the Applicant was advised on 10 April 2012 of specific allegations against him including that he had been filling his son's car with petrol and paying for it with the Council's fuel card. An investigation was conducted by Aitken Legal (and the Applicant was interviewed on two occasions). The Applicant was given an opportunity to submit a written response to the allegations but declined to do so. The findings of the Investigation Report dated 4 May 2012 were provided to him in a show cause letter, to which he provided a written response on 24 May 2012. The Council reviewed all the evidence (including the Investigation Report and the Applicant's response) and concluded that:
[15] Lamb v Redland City Council (TD/2012/48) - Decision , [27].
(a)fuel purchased by the Applicant was used for a purpose other than for his Council supplied vehicle;
(b)the Applicant was in breach of the Fuel Card Policy;
(c)the Applicant was also in breach of Principle 3 (Being Honest, Trustworthy and Reliable) and Principle 5 (Using Council Resources Economically and Efficiently) of the Code of Conduct;
(d)the Applicant's actions amount to official misconduct.
The letter stated that, given the seriousness of the Applicant's actions and the seniority of his position (which requires a level of trust and transparency), Council had "determined that terminating your employment is the necessary course of action and therefore wishes to formally advise that effective immediately, your employment at Council is terminated. Having made a finding of official misconduct, your employment could be terminated summarily with [sic - presumably he meant "without"] notice, however, as an act of goodwill a payment of 2 weeks in lieu of notice will be made to you."
The Respondent submits that, for the purposes of these proceedings, two statements from that letter are relevant:
(a)"Council … wishes to formally advise that effective immediately, your employment at Council is terminated;" and
(b)"as an act of goodwill a payment of 2 weeks in lieu of notice will be made to you."
The Respondent also submits that:
(a)the Applicant applied to the Commission for reinstatement;
(b)his application was dismissed;
(c)Deputy President O'Connor found that the summary dismissal of the Applicant was not harsh, unjust or unreasonable;
(d)as a consequence of Deputy President O'Connor's decision, the Applicant is prevented from re-agitating the notice claim before the Commission as part of the present application.
In that regard, the Respondent submits that the doctrine of issue estoppel applies and prevents the Applicant making the notice claim. The Respondent refers to the statement of the High Court in Port of Melbourne Authority v Anshun Pty Ltd in support of its submission that a final judgement by a competent tribunal creates an issue estoppel in that it forever binds the parties, and those who claim through them, in respect of any issue of fact or law which was legally indispensable to that decision.[16]
[16] Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 51; (1981) 147 CLR 589, 597 (Gibbs CJ, Mason and Aicken JJ).
For the doctrine of issue estoppel to apply in a second set of proceedings, it is necessary that:
(a)the same question has been decided;
(b)the judicial decision which is said to create the estoppel was final; and
(c)the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised is or their privies.[17]
[17] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, [21] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
By reference to those requirements, the Respondent submits that:
(a)the same question as posed in the present claim for notice (i.e. whether the Applicant's dismissal was such that he should have been paid compensation in lieu of the correct period of notice pursuant to the combined effects of ss 74, 84 and 85 of the Act) was decided in the Applicant's reinstatement case;
(b)the decision made by Deputy President O'Connor was final in the sense used in the authorities (and, in any event, there was no appeal against that decision) and, although the Commission was not sitting as a "court," the doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties even if its jurisdiction is derived from statute;[18]
(c)the parties were exactly the same in the reinstatement case as they are in the present unpaid wages case.
[18] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, [22] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
In the alternative, the Respondent submits that because the Applicant's summary dismissal was fair (and Deputy President O'Connor found that the Applicant was fairly dismissed without notice), there was and is no obligation on the part of the Respondent to make any payment to the Applicant in lieu of notice.
The two weeks' pay in lieu of notice (paid at Level 8 pay point 3 by the Respondent on the Applicant's dismissal) was paid as an act of goodwill and cannot legally result in the conferral of any obligation on the part of the Respondent to pay the Applicant the balance of three weeks' notice pursuant to s 84 of the Act.
Consequently, the Respondent submits that the Applicant's claim for unpaid wages in lieu of notice must be dismissed.
Consideration and conclusion: The evidence establishes the reason for and circumstances surrounding the Applicant's dismissal. As Deputy President O'Connor found, the Applicant's dismissal was not harsh, unjust or unreasonable and therefore was not "unfair" within the meaning of s 73 of the Act. Consistently with that conclusion (supported by the evidence before the Commission in these proceedings), it was open to the Respondent to dismiss the Applicant under s 83(1)(b) of the Act for misconduct of a type referred to in s 83(2). Consequently, s 83(4) does not apply and the Applicant is not entitled to the minimum period of notice or payment in lieu of that period.
Given that finding, it is not necessary to rule on the first limb of the Respondent's argument, that the Applicant is estopped from making the notice claim. Had it been necessary to make such a ruling, there would have been a question whether the issue in this case was the same as the issue which Deputy President O'Connor decided in Lamb v Redland City Council.[19] In that case, the issue was whether the Applicant was unfairly dismissed. The issue here is whether, at the time he was dismissed, he was entitled to a payment in lieu of a specified number of weeks. Both issues arose out of the same set of circumstances, but that does not mean they are the same question. However, it is not necessary to express a concluded view on that submission.
[19] Lamb v Redland City Council (TD/2012/48) - Decision type="1">
Applicant's submission: The Applicant claims the sum of $1,591.65, being contributions which he contends were payable to the Queensland Local Government Superannuation Scheme, but were not paid. The amount is calculated as follows by reference to the $13,263.72 which the Applicant claims was owed to him for the period 1 December 2010 to 21 November 2011: $13,263.72 x 0.12 (i.e. 12%) = $1,591.65.
However, the Applicant concedes that if the Commission dismisses the wages claim, the unpaid superannuation claim must fail.
Respondent's submission: The Respondent submits that if the Commission dismisses the wages claim, the unpaid superannuation claim must fail.
Consideration and conclusion: Given my findings in respect of the Applicant's wages claim, his claim for payment of additional superannuation contributions must fail.
Claim for reimbursement not pursued
The Applicant claimed that the Respondent should pay him $350.00 which remained unpaid for the fitting of a tow ball to his council-provided vehicle, which was originally a Toyota Camry and then a Ford Escape. The Applicant was permitted to use the vehicle for his own private use on an unlimited basis. The Appellant gave evidence about how that the cost was incurred.
In his affidavit (Exhibit 7), Andrew Ross, Group General Counsel, refers to Guideline document GL-2812-001 of Redland City Council, "Staff Passenger Vehicle Fleet," which was in place at the time of the Applicant's employment. Mr Ross states that:
(a)under that Guideline, where accessories are fitted to a Council vehicle by an officer, the officer who paid for the accessories has the choice of removing them from the vehicle at trade-in if the vehicle is not damaged in any way (see clause 1.10 of the Guideline). If the accessories are not removed, they will become the property of council and sold with the vehicle;
(b)there is no provision under the Guideline for a financial reimbursement to the officer for an accessory such as a tow ball.
Section 278 of the Act does not refer to an application for reimbursement of expenses incurred by an employee in the course of their employment. There is authority for the view that a payment made as reimbursement is not within the ordinary concept of "wages."[20]
[20] Bettina O'Connor v Electroboard Administration Pty Ltd (2001) 168 QGIG 90.
During the hearing, the Applicant abandoned the claim for reimbursement for the tow ball as part of these proceedings,[21] on the basis that the amount claimed could not have amounted to "wages" within the meaning of s 278 of the Act.
[21] The Applicant indicated that he would take up the claim separately: T2:125.
Additional submission by the Respondent
The Respondent also submits that the Applicant's application was born out of the fact that he had been dismissed by the Respondent, and is an attempt to punish the Respondent for that dismissal. In making that submission, the Respondent notes that:
(a)the Applicant made no claim for unpaid wages, the subject of the Applicant's application, while he was employed by the Respondent; and
(b)the Applicant only made the unpaid wages claim after he had been dismissed.
The Applicant strongly disputes the Respondent's submission.
In his oral submissions on behalf of the Respondent, Mr Merrell conceded, appropriately, that if the Applicant is legally entitled to the amounts claimed, the motive and delay described by the Respondent could not ultimately inhibit a decision in the Applicant's favour.
Given the findings already recorded, it is not necessary to provide a response to the Respondent's additional submissions.
Conclusion and order
For the reasons set out above, each of the claims made and pursued by the Applicant has failed. As a consequence, his application for unpaid wages, unpaid superannuation and other amounts must be dismissed.
Order accordingly.
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