Lerch v State of Queensland (Department of Justice and Attorney-General)
[2016] QIRC 98
•22 September 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Lerch v State of Queensland (Department of Justice and Attorney-General) [2016] QIRC 098 |
PARTIES: | Lerch, Jonathan v State of Queensland (Department of Justice and Attorney-General) |
CASE NO: | D/2016/42 |
PROCEEDING: | Industrial Dispute |
DELIVERED ON: | 22 September 2016 |
HEARING DATE: | 9 September 2016 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Fisher |
| ORDERS: | 1. The answer to part (i) of the Question is "Yes". 2. The answer to part (ii) of the Question is "No". |
| CATCHWORDS: | INDUSTRIAL LAW - ARBITRATION OF INDUSTRIAL DISPUTE - where roster variations made by respondent - where temporary protection orders issued by Magistrates Court against two employees in the workplace - whether just and/or reasonable for respondent to have varied and to continue to vary applicant's roster - where respondent had duty to ensure safe workplace - whether roster restrictions in breach of Domestic and Family Violence Policy of Queensland Corrective Services. |
| CASES: | Industrial Relations Act 1999, s 230 (3) |
| APPEARANCES: | Ms R. Keys, Hall Payne Lawyers for the Applicant. |
Decision
Jonathan Lerch, a Custodial Corrections Officer at the Woodford Correctional Centre, lodged a Notice of Industrial Dispute concerning variations that had been made to his roster by Correctional Centre management. A conciliation conference was held before another Member of the Commission, however, it was unable to be resolved. The dispute was subsequently referred for arbitration.
As a result of the referral, the parties to the dispute prepared the following Statement of Agreed Facts:
"STATEMENT OF AGREED FACTS
1.On 25 November 2013, Mr Lerch commenced employment with the Woodford Correctional Centre (WCC) as a Custodial Corrections Officer (CCO).
2.Prior to his commencement, Mr Lech worked as a CCO at Maryborough Correctional Centre and Alice Springs Correctional Centre.
3.Mr Lerch has been employed as a CCO with WCC for approximately 2.5 years. He has worked with Queensland Corrections for approximately 12 years.
4.At all material times the relevant industrial instrument has been the Queensland Corrective Services - Correctional Employees' Certified Agreement 2013 (the Agreement).
5.Mr Lerch has previously had a domestic relationship with another CCO who is also a CCO at WCC.
6.On 26 October 2015, Mr Lerch submitted an application for a temporary protection order (TPO) against the other CCO.
7.On 26 October 2015, the other CCO made a similar application for a TPO against Mr Lerch.
8.On or about 3 November 2015, the Maroochydore Magistrates Court (the Court) ordered, by consent without any admissions, that:
(a)(The other CCO) be of good behaviour and not commit domestic violence;
(b)Mr Lerch be of good behaviour and not commit domestic violence (the Lerch TPO).
9.On 5 November 2015, Mr Lerch was directed to attend a workplace meeting (the First Workplace Meeting).
10.During the First Workplace Meeting, Mr Lerch was advised that he:
(a)would have his roster varied so as to ensure that he and the other CCO would not be rostered to work on the same shift; and
(b)was directed not to undertake any overtime shifts at WCC when the other CCO was also in attendance for a shift (collectively the Decision).
11.As at 5 November 2015, the respondent was aware of court ordered TPOs but was not aware of the specific terms of the TPOs.
12.Since this time Mr Lerch and the other CCO have had their rostered shifts varied from time to ensure that they are not rostered on together at the WCC.
13.On 24 November 2015, Mr Lerch caused an email to be sent to Ms Carlea Walker requesting the WCC to provide him a signed statement of reasons for the WCC's decision of 5 November 2015 to reallocate his shifts in the event the other CCO is also scheduled to work.
14.On or about 25 November 2015, Mr Lerch caused an email to be sent to the General Manager requesting to schedule a time to meet to personally discuss the Decision.
15.By email dated 14 December 2015, Mr Lerch received a response to his request for reasons (the First Response).
16.The First Response was in the following terms:
'I refer to your email of 24 November 2015 concerning the matter which is set down before the court on 04 March 2016.
As to your request for the reasons why the Higher Duties as Acting Supervisor ceased on 5 November 2015, as explained previously this is an administrative decision for the security and good order of the Centre, based on recent feedback regarding your performance and response to that feedback.
The reason why you are no longer able to attend the Centre whilst (the other CCO) is in attendance is due to the fact that you have been issued a lawful and reasonable direction not to attend in such circumstances and the direction has been provided as a result of a Domestic Violence Order that you failed to report.
The means by which I became aware of the matter that you failed to report as per your obligations under the Corrective Services Act 2006 and the Code of Conduct remains confidential.
Despite having failed to report the court proceedings, no formal allegations have been directed against you by Queensland Corrective Services and as such you have not been required to defend yourself against any allegations.'
17.By letter dated 26 February 2016, Mr Lerch gave Notice of a Grievance to Mr Scott Collins, General Manager, WCC (the Grievance Letter).
18.The Grievance Letter contended, inter alia, that:
(a) The Decision was unfair and unreasonable because Mr Lerch:
(i)was not afforded a reasonable, or any, opportunity to respond to the Decision during the First Workplace Meeting;
(ii)was denied an opportunity to respond to an investigation that was procedurally fair;
(iii)was afforded no presumption of innocence; and
(iv)is subject to a TPO that is equal to, and otherwise competing with (the other CCO's) TPO.
19.On 29 February 2016, Ms Walker sent an email to certain employees of the Respondent in relation to the decision to not roster Mr Lerch and the other CCO to work at the same time. That email is annexed to the statement and marked "SOAF1".
20.By letter dated 29 April 2016, Mr Lerch received an outcome letter from Mr Peter Hollis, A/Director, Human Resources, Queensland Corrective Services. That response is annexed to this statement and marked "SOAF2".
21.On 7 June 2015 Mr Lerch filed an industrial dispute with the Queensland Industrial Relations Commission.
22.A conciliation conference was held on 9 June 2015 where Deputy President Swan attempted to settle the matters in dispute.
23.The dispute remains unresolved and the Applicant has referred* it for arbitration."
* [Note: A party to a dispute has no power to refer a dispute to arbitration. The power rests with the Commission pursuant to s 230(3) of the Industrial Relations Act 1999.]
At a Directions Hearing, the parties agreed that the following question should be submitted for arbitration:
"QUESTION:
Is it just and/or reasonable for the respondent to have varied and to continue to vary CCO Lerch's roster and to have directed, and to continue to direct, that Mr Lerch is not to work shifts that the other CCO is rostered, so as to ensure that CCO Lerch and the other CCO are not rostered on duty at Woodford Correctional Centre at the same time."
Mr Lerch gave evidence by affidavit and orally.
For the Respondent, affidavit evidence was given by:
Scott Collins, General Manager, WCC;
David Henderson, Manager, Secure 2, WCC;
Christopher Smith, Acting Correctional Manager, Secure 2, WCC; and
Alan Tilly, Acting Human Resources Manager, WCC.None of the Respondent's witnesses were required by Mr Lerch for cross-examination. Their affidavits were admitted by consent. However, the Commission required Mr Collins to provide some oral evidence on certain points.
Although the evidence of the witnesses is not specifically outlined in these reasons it has been taken into account both in the consideration of the matter and in reaching a decision.
Consideration
During the course of the hearing, Mr Lerch's representative described the action taken by Mr Collins to ensure that neither Mr Lerch nor the other CCO were rostered at the same time as "roster restrictions". As the action was taken under the roster variation clause of the Queensland Corrective Services - Correctional Employees' Certified Agreement 2013, that term shall be used in this decision.
Mr Lerch advanced a number of reasons as to why the decision by Mr Collins to vary his roster was unjust and/or unreasonable. I shall use those reasons as headings to set out and consider the parties' respective cases.
1.The Respondent acted without knowledge of the relevant facts
Mr Lerch correctly submits that the roster variations were made when the Respondent was aware of the existence of the TPOs but was not aware of their terms.
It is true that at the time Mr Lerch was informed of the roster variations copies of the TPOs had not been provided to the WCC nor had the WCC been informed of their particular terms. However, Mr Collins gave evidence that the Queensland Corrective Services Intelligence Group had, at his request, contacted the Queensland Police Service for information. On 29 October 2015, Mr Collins received advice by email from the QPS that the relevant police officer was seeking cross domestic violence protection orders in mandatory terms, together with a condition that each person be prohibited from attending the residence of the other. The email went on to state:
"Lerch requested that a 'no contact' condition be sought. However, I am aware that both persons work together. Therefore, I believe that a 'no contact' condition would not be workable in this instance."
Mr Collins gave evidence that:
"7. Given the nature of the situation, and the fact that all Custodial Correctional Officers (CCOs) work in pairs and or within teams which rely on each other in the many operational capacities within the high risk environment of a prison, I was concerned that any resumption or escalation of the domestic issues between CCO Lerch and (the other CCO) within the workplace could pose not only a serious risk to the officers' workplace safety but also a serious risk to the good order and security of the prison.
8. I formed the view that at the very least I had a duty to ensure that:
-(the other CCO) was safe in the workplace;
-CCO Lerch was safe in the workplace;
-the good order and security of the Centre was upheld and not compromised; and
-that the employees' conditions of employment remained intact and were not breached.
9. I sought advice on my options from the department's Industrial and Employee Relations team via the Deputy Commissioner QCS and it was resolved that in the circumstances it would not be appropriate or fair to transfer to another centre or suspend on full remuneration either officer."
The roster variations were implemented in accordance with clause 3.3 of the Certified Agreement which provides:
"3.3 Roster Variations
3.3.1A roster variation occurs when the Department directs an employee to work a different shift to the shift which the employee has been rostered to work.
3.3.2 The Department will give the employee 72 hours notice of a roster variation. The notice period may be waived by agreement between the Department and the employee."
This clause does not require the employer to consult with an employee, however, there is a general obligation to act reasonably in deciding to vary a roster. In my view, on becoming aware of the domestic situation between two employees, Mr Collins had reasonable cause to act expeditiously to ensure the safety of his two staff and others for whom he had responsibility.
2. The Respondent acted on erroneous assumptions
Mr Lerch argues that the Respondent acted under the erroneous assumption that it would be non-compliant with the court orders if both he and the other CCO were in the Centre at the same time. This submission is made in light of an email (SOAFQ1) from Ms Walker, Manager Human Resources, WCC dated 29 February 2016 advising a number of staff (not including Mr Collins) in those terms.
It was also noted that the TPOs and the later Protection Orders made by the Magistrates Court did not restrict the two officers from working in the same location. In addition, they did not impose other than the mandatory conditions.
This submission gained support from the evidence of Mr Collins, when, in answer to a question from the Commission, he said that the removal of the legal overlay of a TPO would be a strong indicator to return the rosters to normal.
These matters lend support to Mr Lerch's contention that the Respondent was acting unjustly or unreasonably in continuing the roster variations.
3. The Respondent acted despite advice that the restrictions were unreasonable
This argument builds on the earlier submissions. It is contended that "where the Police and the Magistrates Court did not consider that 'no contact' conditions were necessary or desirable taking into account the paramount principle of safety, protection and wellbeing of both the other CCO and Mr Lerch, in civil proceedings, and where there were no additional grounds on which to determine the parties should be restricted from working together, the decision that they be prevented from working together is unreasonable".
Earlier I set out an extract from the evidence of Mr Collins as to his reasons for imposing the roster variations. There, he referred to a prison being a "high risk environment". The WCC is a high security prison and accommodates approximately 1000 inmates. Incidents causing harm to people and damage to property can and do occur in such an environment and officers must have trust and confidence in their fellow officers to act appropriately and co-operatively when such incidents occur. Mr Lerch's evidence in cross-examination supported Mr Collins' evidence about the need for CCOs to rely on each other in this environment. Despite the absence of any "no contact" conditions or other conditions in the protection orders restricting the two officers from working together, the General Manager has an overriding responsibility for the good order of the prison, including, but not limited to, the safety of staff.
The nature of the working environment is a factor supporting the Respondent's actions in imposing the roster variations.
4.The roster restrictions were made in breach of the Domestic and Family Violence Policy of Queensland Corrective Services
The submission is that the provisions of the QCS Policy on DFV were not complied with, in particular, clause 7.3 which provides:
"Staff impacted by DFV, may take out a Domestic Violence Order (DVO) and in early discussions Manager/Leaders and/or HR representative should establish whether the workplace has been included. Where this is the case, it is prudent to request a copy and to ensure that conditions contained therein are followed. Although more uncommon, where parties declare they have been mentioned in a DVO and both parties work at the same site, it will be critical to assess the conditions and make adjustments as may be required. Where staff indicate they are applying for a Domestic Violence Order, they should be encouraged to include the workplace."
Further, the Policy requires at clause 7.6 that a Workplace Risk Assessment occur but there is no evidence of one being undertaken in this case. The Policy also provides for a DFV Workplace Safety Plan to be developed if one is required. Clause 5.2 of the Policy sets out the responsibilities of Managers in identifying and developing an effective DFV response.
Mr Lerch submits that by the Respondent not following the processes set out in the Policy, its decision making was ill-informed, resulting in inappropriate and unnecessary action by the Respondent to his detriment. The decision was therefore unjust and unreasonable.
There is no evidence in either the affidavits of Mr Collins or Mr Tilly that the Policy had been considered in the decision-making process. Further, in his affidavit, Mr Collins states that he has no recollection of Mr Lerch providing him with a copy of the Policy or quoting from it at their meeting on 15 December 2015 or any other time. This is the only reference to the Policy in Mr Collins' affidavit. Although Mr Collins was not cross-examined, with the result that Mr Lerch's case was not put to him, his affidavit responded to various matters raised by Mr Lerch in his affidavit. Further, given his response about the legal overlay of the TPO set out earlier, the inference can reasonably be drawn that the terms of the Policy were not specifically considered by the Respondent in deciding to implement the roster variations.
Mr Collins made clear that the primary matter exercising his mind as to the revisiting of the roster restrictions was the existence of the domestic violence orders. That the variations have not and seemingly will not be revisited until the expiry of the orders, reinforces my view that the Policy has not been a relevant consideration in the continuation of the variations.
In response to a matter raised by the Commission, the Respondent contended that the Certified Agreement overrides the Policy. Although that may be technically correct, Mr Lerch, and indeed any employee, should reasonably expect their employer to comply with its own policies. Employers often sanction employees for not acting consistently with or in disregard of a policy. In the same way, employers should not expect their decision to remain undisturbed when an industrial dispute arises because the employer has not abided by its own policy.
The roster restrictions caused significant detriment to him
This submission concerned the financial impact of the Respondent's decision on Mr Lerch. However, as there was no direct evidence on this point it is not considered further.
Conclusion
The question put before the Commission for determination is a compound one. It is unhelpful for a question to be framed in this way. Proper consideration of the matters involved in the dispute requires that the question be broken into two parts and slightly modified:
(i) Was it just and/or reasonable for the respondent to have varied and to have directed that Mr Lerch not work shifts that the other CCO was rostered, so as to ensure that CCO Lerch and the other CCO were not rostered on duty at Woodford Correctional Centre at the same time.
(ii) Is it just and/or reasonable for the respondent to continue to vary CCO Lerch's roster and to continue to direct that Mr Lerch is not to work shifts that the other CCO is rostered, so as to ensure that CCO Lerch and the other CCO are not rostered on duty at Woodford Correctional Centre at the same time.
Part (i) of the question deals with the initial decision made to implement the roster variations whereas the second part deals with their ongoing nature.
In considering the initial decision, it is the case that Mr Collins was unaware of the circumstances leading to the police seeking domestic violence orders and acted without the full knowledge of the TPOs. However, he was aware in general terms of what was being sought as evidenced by the email he received from the QPS dated 29 October 2015. Critically, that email shows that Mr Lerch sought a "no contact" condition, the effect of which would have prevented him from working with the other CCO. At that stage he clearly had no wish to have any contact with her. Had such a condition formed part of an order sought by the police and issued by the Magistrates Court then the roster variations as made would have been an inevitable consequence. As it was, Mr Lerch's request was overridden by the police. It is curious that having sought such a condition, given its implications, Mr Lerch then complained about the roster variations when such variations provided the protection he had sought by the no contact condition.
I consider it was just and/or reasonable for the Respondent to implement the roster variations on becoming aware that the TPOs were to be made. I hold this view despite the police not seeking a "no contact" condition on the grounds that it would not be workable where the two people work together. Mr Collins had broader considerations as set out in his affidavit at paragraphs 7 and 8 above. Because he had an overarching responsibility to ensure the safety of all staff and inmates in a high security prison environment, it was just and reasonable that he act quickly to implement the roster variations.
The answer then to the first part of the question is "Yes".
The second part of the question concerns the ongoing nature of the roster variations. The TPOs were made on 3 November 2015 and Protection Orders made on 1 June 2016. Those Orders expire on 30 November 2016.
Notwithstanding that Mr Collins had broader matters to consider than the existence of two TPOs affecting two of his staff, he also had an obligation to ensure that the terms of the DFV Policy were applied. In particular, he (or the relevant manager) had a responsibility to review the DFV Workplace Checklist, undertake the DFV Workplace Risk Assessment and work together with the employee to complete a DFV Workplace Safety Plan Agreement, if required: clause 5.2 of the Policy. There is no evidence that any of these responsibilities were carried out.
The Policy was introduced by QCS in May 2015 at a time when DFV was receiving great public attention. It is a significant omission to not apply, let alone not consider, a Policy developed by the employer specifically for dealing with employees experiencing or perpetrating domestic and family violence.
Of course, the outcome of the application of the Policy can only be speculated upon. There is and can be no guarantee that had it been implemented at any time since the TPOs were made that the roster variations would have been modified or rescinded. The Policy requires consideration of the situation of both officers and makes specific reference to the prospect of making adjustments in the workplace where co-workers are mentioned in domestic violence orders. This position is also reinforced by Mr Collins' evidence which was that even once the orders were removed, safety and industrial relations considerations would need to be taken into account to determine whether the roster variations should continue. However, the non-compliance with the Policy means that it was unjust and/or unreasonable to continue to vary CCO Lerch's roster and to continue to implement the roster variations.
The answer to the second part of the question is "No."
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