Moorhead v Moreton Bay Regional Council
[2014] QIRC 29
•10 February 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Moorhead v Moreton Bay Regional Council [2014] | ||||||||||
| QIRC 029 | |||||||||||
| PARTIES: | Moorhead, Mark | ||||||||||
| (Applicant) | |||||||||||
| v | |||||||||||
| Moreton Bay Regional Council | |||||||||||
| (Respondent) | |||||||||||
| CASE NO: | TD/2013/87 | ||||||||||
| PROCEEDING: | Application for Reinstatement | ||||||||||
| DELIVERED ON: | 10 February 2014 | ||||||||||
| HEARING DATES: | 7 and 8 January 2014 | ||||||||||
| MEMBER: | Industrial Commissioner Fisher | ||||||||||
ORDERS : |
| ||||||||||
CATCHWORDS: | INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - Termination of employment - Dismissal - Reinstatement - Evidence - Conduct - Deviated to go to TAB - Breached code of conduct - Whether dismissal harsh, unjust or unreasonable - No formal disciplinary policy or process - Toolbox meetings - Applicant initially lied and colluded with other employees - Disciplinary penalty - Determined penalty harsh - Disproportionate to the gravity of the conduct - Previous unblemished record - Incorrect interpretation of assessment of conduct - Trust and confidence - Application granted - Reinstatement ordered - Continuity of employment to be | ||||||||||
| maintained. | |||||||||||
| CASES: | Industrial Relations Act 1999, s 77, s 77(a), s 77(b), s 77(c)(ii), s 77(d) | ||||||||||
| Fair Work Act 2009 | |||||||||||
| Local Government Act 2009, s 11 | |||||||||||
| Barsha v Motor Finance Wizard (Sales) Pty Ltd | |||||||||||
| (2002) 171 QGIG 139 at 143 Stewart v University of Melbourne Print S2535 Dr Mark Colson v Barwon Health [2013] FWC 8734 Mr Anthony Callahan v Graphic Impressions [2014] FWC 437 | |||||||||||
| Auto Logistics and Auctions Pty Ltd trading as | |||||||||||
| Pacific Auto Auctions v Jane Rosa Kovaks (1997) 155 QGIG 320 | |||||||||||
| APPEARANCES: | Mr M Moorhead, in person, for the Applicant. Mr D Williams, Minter Ellison Lawyers, for the Respondent. |
[1] Mark Moorhead has applied for reinstatement to his former position of Parks Labourer with the Moreton Bay Regional Council (the Council). Mr Moorhead commenced employment as a casual employee through a labour hire company in March 2012 before being directly employed by the Council on 23 October 2012. The Council dismissed Mr Moorhead from employment on 25 September 2013 for reasons relating to his conduct.
Relevant Facts
[2] The facts of the matter are of short compass and are generally agreed between the parties. On Friday 6 September 2013 Mr Moorhead and his acting leading hand, Terry Casey, were returning to the depot in the green Council chipper truck at the direction of their supervisor when they deviated to go to the TAB at Kippa-Ring. Mr Moorhead said that he and Mr Casey had an arrangement whereby one of them bought a weekly instant scratch-it ticket on the Broncos depending on whether they won or lost. As the Broncos played their last match of the football season the previous night, they decided that rather than buying an instant scratch-it ticket, they would use the $5.00 usually spent to bet on a horse at the TAB instead.
[3] They reached the TAB shortly after 1.00 pm. The stop was not made in their lunch break and they diverted from the route back to the depot to get to the TAB. Mr Casey, who was driving the chipper truck, parked in MacFarlane Street rather than on the main road. That park was chosen not just because it was closer to the TAB but more particularly because the truck would be concealed. Mr Moorhead said they went into the TAB for about five to 10 minutes but he left and returned to the Council vehicle before Mr Casey. Three other Council employees were at the TAB at or about the same time. Their truck, the whipper truck, was also parked in MacFarlane Street.
[4] Unbeknown to Mr Moorhead, the Council had been tipped off by another Council worker who had been telephoned by his spouse advising that Council vehicles were parked in MacFarlane Street. Three supervisors went there to investigate the situation. The mowing supervisor, Trevor Morris, approached Mr Casey and Mr Moorhead and told them to report to his office at 3.00 pm. Although they did so, no meeting occurred that day. Instead, they were told to report to a meeting with Human Resources (HR) on 10 September 2013.
[5] Mr Moorhead acknowledged in his evidence in chief that the five employees had met to discuss what they would say in the meeting with HR. He said he tried to persuade them to be honest and upfront, however, he was overruled. To avoid contradicting the others and implicating them, when he went to the meeting and was asked to give his version of events, Mr Moorhead said that he had gone to the bank. At that point, Brenda Barwin, the HR Operations Manager, asked him directly whether he had been in the TAB. Mr Moorhead acknowledged that he had.
[6] Mr Moorhead was called to another meeting with management on 13 September 2013. Unlike the first meeting, the Council offered Mr Moorhead the opportunity to have a witness present. He took his supervisor to the meeting. There he was handed a show cause letter.
[7] Mr Moorhead responded to the show cause letter by email on 19 September 2013. After his response was received, the advice of several Council managers was sought about the proposed disciplinary penalty of termination of employment. All supported the imposition of that penalty.
[8] On 25 September 2013, Mr Moorhead attended another meeting and was handed a letter of termination signed by the Chief Executive Officer, Daryl Hitzman. The letter informed him that his conduct on 6 September 2013 was found to have breached the Council's Code of Conduct and he had failed to perform his responsibilities as a Council employee under the Local Government Act 2009.
[9] All five employees who had visited the TAB on 6 September 2013 were dismissed from employment, regardless of the length of their employment or disciplinary record.
Consideration of s 77 Elements
[10] Section 77 of the Industrial Relations Act 1999 (the Act) sets out the matters the Queensland Industrial Relations Commission (the Commission) must consider in deciding whether a dismissal was harsh, unjust or unreasonable. The Commission is satisfied that Mr Moorhead was notified of the reasons for his dismissal: s 77(a). These reasons were contained in the letter from Mr Hitzman dated 25 September 2013. Further, the prospect of termination of employment was identified in the show cause letter from the Council.
[11] Mr Moorhead's dismissal related to his conduct: s 77(b). Although he was not warned about his conduct, he was given an opportunity to respond to allegations about his conduct through the show cause process: s 77(c)(ii). While this element has been satisfied, there are aspects of the process leading to the decision to terminate Mr Moorhead's employment that require examination.
[12] In the show cause letter and the letter of termination, Mr Hitzman referred to Mr Moorhead's indication that going to the TAB was an acceptable practice. Mr Moorhead denied ever making this comment. He acknowledged saying that he did not know visiting the TAB was specifically mentioned in the Code of Conduct. His intention was to indicate that he did not realise that it was a discrete breach, separate from being out of his designated work area and out of work time.
[13] There is no one set of notes taken of the meeting with Mr Moorhead nor were any supplied to him. However, several versions are available from the Council's witnesses.
[14] The notes of Michael Ham, Manager Operations, taken on the day are attached to his witness statement. Regrettably, he does not record the exchange where the Council claims that Mr Moorhead considered it was acceptable to go to the TAB.
[15] In his witness statement, Alan Williams, Team Leader - Parks considered Mr Moorhead's comment to be arrogant and evidence of his not understanding the seriousness of his conduct.
[16] Ms Barwin did not attach her notes to her witness statement but sets out the exchange therein:
"29. I said to Mr Moorhead, 'you understand that it's inappropriate based on the code of conduct?' to which Mr Moorhead replied 'I didn't know gambling was against by [sic] the code of conduct'. Mr Ham then said words to the effect of 'it's not about gambling, its [sic] about using rate payers money inappropriately. It's not right to go the TAB on work time'."
[17] Ms Barwin also went on to comment that "Mr Moorhead's statement showed that he did not appreciate the wrongfulness of his conduct" was attempting to downplay his wrongdoing. Further, the Code of Conduct "does not (and cannot) deal with every potential situation of employee misconduct."
[18] I accept that Mr Moorhead's comment was unhelpful but I do not accept it showed a lack of appreciation that his conduct was wrong or he considered his conduct to be an acceptable practice. As Mr Moorhead submitted, it was highly unlikely that he would contend that it was acceptable after just admitting that he had been out of his work area and outside his break time. In addition, in his show cause response Mr Moorhead admitted his mistake in the following terms:
".. I am aware that this behaviour was inappropriate."
"… my decision to deviate from our route was based on a moment of
self-deception and foolish reasoning, which I am ashamed of…"
"My behaviour was a betrayal of the public's trust, an abuse of time and resources (ultimately funded by the ratepayer) and reflects badly on all employees in Council including Councillors. I regret my actions and am extremely disappointed in myself."
[19] He also submitted that he was also unlikely to consider this conduct acceptable given that Mr Ham's notes record him as showing genuine remorse. Against that is the evidence of Ms Barwin and Mr Williams. Mr Moorhead was not offered the opportunity to have a witness present at the meeting on 10 September 2013. Given this, Mr Moorhead is somewhat at a disadvantage in being able to confirm his view of his demeanour and attitude at the meeting.
[20] Mr Moorhead submitted that the inaccurate reporting of his response and the perception of it by Ms Barwin contributed to the comment contained in the show cause letter and letter of termination. That contention must be correct as it was Ms Barwin who made the recommendations to Mr Hitzman and drafted the letters.
[21] It should also be pointed out that the Council does not have a formal disciplinary policy or process. Although I accept that Mr Moorhead was given the opportunity to respond to the allegations, not offering Mr Moorhead the opportunity to have a witness or support person present at the initial meeting is a concerning omission. Ms Barwin said that she did not consider that it was necessary for Mr Moorhead to have a witness present for the first meeting as its purpose was fact finding. However, as the chain of events shows, the first meeting on 10 September 2013 was a prelude to the disciplinary process. Moreover, the statements made by Mr Moorhead were more than just fact finding but were ultimately used by the Council as reasons to justify his dismissal
[22] The failure to have one set of notes and to not provide Mr Moorhead with any record of the meeting is also of concern. These omissions can have important ramifications as highlighted by this case where there is a dispute about what occurred at the meeting and further, Mr Moorhead's demeanour and responses or interpretations of responses are used to justify the disciplinary action taken.
[23] Section 77(d) allows the Commission to consider any other relevant matter. Several were raised during the hearing and these are addressed below.
[24] It is contended by the Council that Mr Moorhead regularly attended the TAB. In this regard reliance was placed on the evidence of Christian Hanckel, an employee of the Council who resides in MacFarlane Street. Mr Hanckel said that while he was on holidays for a three week period in August 2013 he saw the whipper truck parked there every Friday and a green chipper truck parked in the street on one of the Fridays. In answer to a question from the Commission Mr Hanckel confirmed that he had not seen Mr Moorhead the day the chipper truck was parked in MacFarlane Street.
[25] In his evidence Mr Moorhead said that there were two chipper trucks - one green and one yellow/orange. He said that chippers often swapped trucks but he believed that he had been assigned to the green truck not long before his dismissal. He added that he was trying to stay in the green truck so that he could keep it maintained. In his submissions Mr Moorhead also relied on the Parks Maintenance daily diaries which did not show that he was either regularly working with Mr Casey or working in Kippa-Ring. The Council was unable to disclose the Parks Maintenance daily diaries for the two chipper trucks in the 10 week period immediately before 6 September 2013 but produced diaries for the last two weeks in July and all of August 2013.
[26] The other evidence relied on by the Council to support the contention that Mr Moorhead regularly visited the TAB was from Damien Summers, one of the five employees who were dismissed on 23 September 2013 for being at the TAB on 6 September 2013. He was a crew member of the other truck that was parked in MacFarlane Street. Mr Summers said he had contacted the Council about a week after his dismissal because he believed "there's a culture within the council and someone had to stand up and say something about it."
[27] Mr Summers admitted that during his employment with the Council he had gone to the TAB consistently about three times a week with co-workers to place bets. He said he had regularly seen Mr Moorhead and another employee placing bets at the Kippa-Ring TAB and estimated this was 50 per cent of the time. However, in answer to a question from the Commission, Mr Summers said that he (and others) went to the TAB once a week and saw Mr Moorhead there about 50 per cent of the time, i.e., every other week. In cross-examination Mr Summers was asked to clarify the number of times he had seen Mr Moorhead at the TAB in light of his affirmed written evidence. Mr Summers said that Mr Moorhead was in the TAB once in one week and twice in the next. He also said that he saw Mr Moorhead there every Friday in the month leading up to 6 September 2013. In all he had seen Mr Moorhead at the TAB 10 or more times from about March 2013. The Council noted in its submissions that this roughly coincided with the start of the football season.
[28] Mr Moorhead denied that he regularly visited the TAB during his employment but conceded that he had gone there once before 6 September 2013 outside of his break time, when he was a casual employee in 2012. The Council contended that if this were correct then Mr Moorhead would have stated that in his written evidence. Rather than doing this, Mr Moorhead had simply stated that the Council had produced no evidence that he regularly visited the TAB. Similarly, Mr Moorhead did not specifically deny the Council's allegation raised at the conciliation conference that the five employees had agreed to meet at the TAB. He simply asserted that the Council had not produced any evidence in support of the allegation. The Council contended that Mr Moorhead's responses in his written evidence were the result of careful consideration to say the minimum amount possible. As a result the credit of Mr Moorhead had been impugned.
[29] The Commission notes firstly that the dismissal of Mr Moorhead was not because of multiple visits to the TAB, only the one on 6 September 2013. However, the Council raised the issue in evidence to cast doubt over the credibility of Mr Moorhead. The evidence called by the Council in this respect conflicts. Mr Hanckel was on holidays between 6 or 7 August 2013 and 27 August 2013. He saw a green chipper truck parked in MacFarlane Street once during that period. No evidence is before the Commission showing that Mr Moorhead was in that vehicle that day. However, Mr Summers contends that Mr Moorhead was at the TAB every Friday in the month leading up to 6 September 2013. This encompassed the period that Mr Hanckel was on leave.
[30] I am of the view that had the green chipper truck been there every Friday, Mr Hanckel would have said so given his other evidence that the whipper truck was parked in MacFarlane Street on three consecutive Fridays he was on leave in August 2013. Further, I accept that Mr Hanckel was genuinely concerned about the activities such that he raised the matter with his supervisor on return from leave. I accept Mr Hanckel as a reliable witness and consider that his evidence shows that Mr Summers was in error. Having considered the evidence given by Mr Summers about the matter, I do not find him to be a witness of credit.
[31] Added to this are the daily diaries for the last two Fridays in August 2013. The diary for 30 August 2013 does not show Mr Moorhead working with the green chipper truck or with Mr Casey that day. On 23 August 2013 Mr Moorhead was working partly at Burpengary and on 16 August 2013 he was working with a casual employee. Mr Moorhead said that from the sample of five weeks, he was either not with Mr Casey or in the vicinity of the Kippa-Ring TAB for four of those weeks. This submission was not disputed by the Council.
[32] For these reasons I am not satisfied that the allegation that Mr Moorhead regularly attended the Kippa-Ring TAB has been substantiated. Clearly, though, on Mr Moorhead's evidence alone, the visit to the TAB on 6 September 2013 is substantiated. The Commission will proceed to determine the application based on the one visit to the TAB on 6 September 2013.
[33] The next issue is the first version given by Mr Moorhead to the Council on 10 September 2013 and his meeting with his co-workers to discuss what they would tell the Council. The Council contends that Mr Moorhead lied and the conduct in the meeting with the co-workers was a conspiracy to defraud the Council.
[34] Mr Moorhead accepts that he initially lied to the Council at the meeting of 10 September 2013 but this was "only for 30 seconds" because as soon as Ms Barwin asked him a direct question he immediately acknowledged that he had been at the TAB. Mr Moorhead also explained that it was not his view that the employees concerned should mislead the Council and he tried to persuade his co-workers to that effect. When they would not agree, he decided to go along with the majority so that he would not contradict them.
[35] Although this may be thought to be a typically Australian approach, neither action does Mr Moorhead credit. The Commission accepts though that once confronted with the precise allegation by Ms Barwin, Mr Moorhead admitted his actions and did not persist with the lie. As such, the deceit, while it occurred, was fleeting.
[36] Mr Moorhead also contends that his treatment was different from and significantly harsher than other employees in similar cases within a similar period. He raised the case of a number of other outdoor employees who, in July 2013, were away from their designated work area and had been found to have exceeded their break by approximately 30 minutes. The documents provided to the Commission show that two leading hands received a written reprimand while other employees were not disciplined.
[37] Several employees said that they had lost track of time because they were not wearing watches. To Mr Moorhead, this seemed to suggest that the employees had colluded about the information provided to the Council. Ms Barwin said that most outdoor staff do not wear watches for health and safety reasons but, in my view this does not explain why the supervisors were not conscious of the time given they would have access to timepieces in the trucks. Further, the possibility of collusion does not appear to have been suspected by the Council, at least from the documents available to the Commission and the evidence of Ms Barwin. Although Ms Barwin gave evidence about the incident, some of that evidence was not consistent with the documentation. This can be explained because she had not been involved in the investigation and disciplinary process. However, the Commission is left with an unsatisfactory explanation of the findings made by the Council and the reasons for differential treatment.
[38] The Commission considers that the penalties imposed by the Council for not dissimilar acts at proximate times are inconsistent.
[39] The Commission accepts that the Council had regularly been reinforcing to the employees at the Margate Depot in toolbox meetings the need to adhere to start and finish times, break times and staying within designated work boundaries and on task. In this regard I also note that they had been advised not to go to the ATM during work hours because of the complaints that might be generated from ratepayers as a result. This information was directed to ensure employees conducted themselves appropriately, primarily but not exclusively, to avoid generating complaints from ratepayers.
[40] The exacerbating factors in the case of Mr Moorhead are that he went to the TAB, rather than being in a park as were the other employees involved in the other incident, and his collusion with the other four employees. I have already noted that the possibility of collusion between the employees in the park incident did not appear to exercise the minds of the Council.
[41] The Commission accepts that some members of the community may view the Council employees being in the TAB in their work wear being a more unsavoury activity than going to the bank, for example. However, the length of time that the other employees were in the park (about 50 minutes in total) is also certain to be of concern to some residents. Whether the employees were highly visible in the park is a matter of dispute between the parties. It appears, based on Mr Ham's evidence, that all employees under his area of responsibility, which included the employees in the park, were the subject of similar instructions to those given at the Margate Depot toolbox meetings.
Conclusions
[42] The Commission is satisfied that s 77(a) and (b) of the Act have been satisfied. Although Mr Moorhead was given the opportunity to respond to the allegations as required by s 77(c), some aspects of the process undertaken by the Council were unsatisfactory. A number of issues have been raised in relation to s 77(d) of the Act. All of these matters must be weighed and balanced against the satisfaction of the statutory elements and consideration given to the conduct itself.
[43] There are two matters on which the parties, and the Commission, are agreed. These are that Mr Moorhead's conduct on 6 September 2013 was wrong and that he was wrong to initially lie to the Council at the first meeting on 10 September 2013. Where the parties disagree is in respect of the disciplinary penalty imposed as a consequence of that conduct. The Council argues that it was proportionate given the conduct occurred against a background of being repeatedly instructed to kept to work times and break times. In light of the collusion that occurred, the penalty was further considered to be proportionate and reasonable. In contrast, Mr Moorhead contends that dismissal was disproportionate to the gravity of the offence and given his admission that he had been at the TAB when the matter was squarely put to him. Further, he had no history of disciplinary action and the penalty imposed on other employees for an offence of not adhering to work and break times and out of the work area was substantially less.
[44] The Commission has determined that penalty of dismissal was harsh. It was harsh
1
because it was disproportionate to the gravity of the conduct. It must be remembered that only one visit to the TAB was substantiated. [45] The Council contends that Mr Moorhead lied in circumstances where the importance of honesty was emphasised. Mr Moorhead lied in giving his initial version to the Council but admitted going to the TAB on being pressed by Ms Barwin to tell the truth. While the Council officers were naturally affronted by Mr Moorhead's initial lie, it was momentary and not repeated. Thereafter, Mr Moorhead continued to admit his conduct. In my view, the Council has focussed on his initial lie and neglected to place appropriate weight on his admission, his continual acknowledgement of his actual conduct and his remorse.
[46] Similarly, much has been made about the gathering of the five employees to discuss their stories. Unlike other workplaces where an investigation is commenced there does not appear to have been any prohibition on employees discussing the matter. This is not to condone the conduct but simply identifies another deficiency in the process. The agreement was designed to mislead the Council. In my view it is putting too much gloss on the action to say that it was a "conspiracy to defraud the Council." It was foolish but designed to protect the employees rather than defraud the Council. As it happened, any "fraud" was exposed immediately on Mr Moorhead's admission.
[47] The dismissal was also harsh because the Council imposed the same penalty on Mr Moorhead as the other employees involved regardless of his employment history or any admissions made. Mr Moorhead had an unblemished, albeit short, employment history with the Council. He was considered at one stage to be worthy of undertaking Certificate III training which was partially funded by the Council. Although the Council was understandably disappointed in Mr Moorhead's conduct given its investment in his future, a second chance was not contemplated. Contrary to the evidence of Mr Hitzman, Mr Moorhead was not given a chance of redemption after admitting his mistake when the specific allegation was put and he was pressed to tell the truth. In addition, Mr Moorhead was given the same disciplinary penalty as others involved in the same conduct who had not admitted going to the TAB at the first interview or at all.
[48] I also consider the dismissal was harsh because it was disproportionate in comparison with recent, similar conduct by other outdoor employees at the Council. Those other employees were away from their work area and had extended their break time without sound reason. Only two supervisors received a written reprimand and the Council did not impose a disciplinary penalty on the others.
[49] I further consider that the Council acted on an incorrect interpretation of Mr Moorhead's assessment of his own conduct. He recognised that his conduct was inappropriate and if there were any doubts about his comments made at the meeting of 10 September 2013, then his show cause response should have dispelled them.
[50] Having so found, consideration must now be given to the remedy. Any remedy is discretionary. Mr Moorhead seeks reinstatement. The Council submits that this remedy is impracticable because it has lost trust and confidence in Mr Moorhead such that the employment relationship cannot be restored. The primary remedy available under the Act is reinstatement and if that is found to be impracticable, the Commission may consider the remedy of re-employment. Only when the Commission has found both reinstatement and re-employment to be impracticable can consideration be given to the remedy of compensation.
[51] In two recent decisions of the Fair Work Commission, detailed consideration was
given to the concept of trust and confidence in determining a remedy where a
2
dismissal has been found to be unfair. Although the Fair Work Act 2009 requires consideration of whether reinstatement is appropriate, rather than practicable as the Industrial Relations Act 1999 requires, much of the discussion by Gostencnik DP is still relevant.
[52] DP Gostencnik considered that the concern is "with that which is essential to make
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an employment relationship workable." He went on to state: "[89] It is doubtless the case, that trust and confidence is a necessary ingredient in any employment relationship. But it would be wrong to assume the status of the relationship of trust and confidence is the sole criterion or even a necessary one to determine whether or not reinstatement is appropriate. As Justice Gray observed in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd the development of the law relating to trust and confidence in the employment relationship commenced when that relationship invariably involved a close personal relationship between the employer and employee, but with the emergence of corporate employers, the importance of trust and confidence in the employment relationship has diminished.
[90] I do not take his Honour's comments to mean that trust and confidence as an element of the employment relationship is no longer important. It is merely recognition that in many cases it will be important to have regard to the totality of the employment, and that in the case of a corporate employer, the loss of trust and confidence in the employee will be by a manager or managers of the corporate employer. But as his Honour observed, in such cases the 'critical question must be what effect, if any, a loss of trust by the manager in an employee is likely to have on the operation of the workplace concerned'." (references omitted)
[53] After reviewing a number of decisions that considered the concept of trust and confidence, DP Gostencnik distilled the following propositions "concerning the impact of a loss of trust and confidence on the question of whether reinstatement is an appropriate remedy:
An assessment of whether there has been a loss of trust and confidence must be decided on the circumstances of the particular case, including the nature of the employment;
An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise any claim by an employer that reinstatement is inappropriate because of a loss of confidence in the employee;
The appropriateness of reinstatement does not depend on notions of a loss of trust and confidence in the employee, although it is a relevant and even important consideration;
Dismissal for misconduct, assuming the employer is acting honestly, will in most cases imply a loss of trust and confidence in the employee. If the dismissal is ultimately found to be 'unfair', the question becomes whether the relationship can be restored if the employee is reinstated. In answering that question all of the circumstances must be taken into account, not just the views of management;
The reluctance of an employer to shift from a view, despite a tribunal's
assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed;
The fact that it may be difficult or embarrassing for an employer to be
required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate;
In most cases, employment relationships are capable of withstanding some friction and doubt and in this context, trust and confidence are concepts of degree;
The question, so far as it relates to reinstatement is ultimately, whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is
4
appropriate to consider the rationality of any attitude taken by a party."
[54] Given these propositions and bearing in mind the legislative requirement to be considered by the Commission is the practicability of reinstatement, consideration is now given to the practicability of reinstatement in the circumstances in this case.
[55] The Council is a corporate employer[5] and thus there must be evidence from the
[5]relevant managers holding the view that trust and confidence has been lost in
6
Mr Moorhead and an assessment made as to the effect of this on the workplace.
The primary evidence as to the Council's loss of trust and confidence was given by Ms Barwin and Mr Hitzman. To this end, their evidence mainly focussed on the effect of Mr Moorhead's lie and collusion with other employees.
[56] The Commission accepts that senior officers of the Council would be concerned about the fact that an employee initially lied about their conduct. However, in my view, this concern does not lead inescapably to the conclusion that trust and confidence is incapable of being restored. More important is the view of the local management and there was an absence of relevant evidence on this point, although I accept that there is some concern about the effect on other employees and the culture of the workplace were Mr Moorhead to be reinstated.
[57] The restoration of trust and confidence is not just a one way street and consideration must also be given to Mr Moorhead's views about the matter. In this regard the Commission takes into account Mr Moorhead's stated commitment to adhere to the Code of Conduct at all times if he was reinstated even if it meant being unpopular with other staff or supervisors. I also accept Mr Moorhead's evidence about his remorse and his commitment not to re-offend. In my view, these are all matters that show that Mr Moorhead is committed to re-establishing the trust and confidence in the employment relationship.
[58] Mr Moorhead was employed as a Labourer in the Parks area of the Council. I accept that the nature of Mr Moorhead's employment is such that he works away from a Council depot. For this reason, the Council would wish to ensure that Mr Moorhead could be trusted to act appropriately. However, at the time of his dismissal it is clear that there was some inadequacy in supervision in the area, laxity in adhering to work and break times and a poor culture generally. Mr Ham acknowledged while under cross-examination that Mr Moorhead's supervisor in the Parks area was not considered suitable for permanent employment in the higher position. Although the Commission acknowledges the need for individual employees to accept some personal responsibility, the effect of a poor culture and inadequate management cannot be underestimated. It appears that the Council has, since the dismissal, recruited for the supervisory positions in which there were only acting appointments. This step should assist in not only changing the culture but should ensure that proper supervision is given.
[59] The loss of trust and confidence must be soundly and rationally based and it is important to scrutinise the claim by the Council that reinstatement is impracticable because of the loss of trust and confidence. I consider that part of the Council's view is not soundly based. In this regard I refer to the undue weight given by the Council to the lie initially told by Mr Moorhead and its failure to give appropriate weight to his admission, remorse and previous unblemished employment record.
[60] Taking all of these matters into account, the Commission is of the view that with appropriate supervision and in light of the commitment made by Mr Moorhead, that trust and confidence in the employment relationship is capable of being restored.
[61] However, the question of whether trust and confidence can be restored is only one matter to be considered in determining the practicability of reinstatement. The Council also argued that Mr Moorhead had demonstrated an inability to comply with basic work requirements and obligations and had demonstrated contempt for the ratepayers. Further, "Mr Moorhead's reinstatement would fundamentally undermine the Respondent's Code of Conduct and send an untenable message to its workforce that the type of conduct which Mr Moorhead and the other employees engaged in was acceptable."
[62] Mr Moorhead acknowledged that the requirement to adhere to start, finish and break times had been regularly raised at toolbox meetings, however, he disputes the Council's contention that there was an escalation of emphasis on the lines of acceptable conduct. In his submission, both Mr Ham's address to staff on 27 November 2012 and the subsequent raising of these matters at the toolbox meetings did not emphasise that the Council was taking a firm line on these matters, for example, that disciplinary action, including termination of employment, would be contemplated for breaches.
[63] A review of the minutes of the toolbox meetings confirms that employees were told to adhere to break times but not of the potential for severe disciplinary action to be taken for breaches. Further, the delay of nearly five weeks in formally implementing the show cause process for the employees who overstayed their break time in the park because management overlooked notifying HR, also suggests that the approach to the issue by the Council was inconsistent. Despite these comments, the Commission accepts that Mr Moorhead was not complying with basic requirements of his employment.
[64] The disregard for ratepayers has been addressed by the extracts from Mr Moorhead's show cause response.
[65] The Council also contends that reinstatement is impracticable because of the message sent to other employees. The Commission considers that this concern is addressed by my later comments, however it is also likely that employees would be discomforted by the actions of the Council in applying disproportionate and differential disciplinary penalties in cases of similar conduct.
[66] In Auto Logistics and Auctions Pty Ltd trading as Pacific Auto Auctions v Jane Rosa Kovaks, de Jersey P considered the meaning of "impracticable" and said:
"That word does in my view bear its ordinary meaning, and it is not enough, to
establish impracticability, to show that restoration of employment would be
merely inconvenient or difficult. As the dictionaries confirm, the words mean
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practically impossible."
[67] Although reinstatement might be difficult for the reasons set out by the Council, the Commission considers that the threshold of "practically impossible" has not been met for the reasons set out above.
[68] I therefore conclude that reinstatement is practicable and further, that in the circumstances of this case, it is an appropriate remedy.
[69] Accordingly, the Commission makes the following orders:
1. That Mark Moorhead be reinstated to his former position of Parks Labourer Grade 3 with the Moreton Bay Regional Council;
2. The reinstatement is to take effect no later than 3 March 2014;
3. That Mark Moorhead repay to the Moreton Bay Regional Council the notice paid on termination;
4. That the Moreton Bay Regional Council pay to Mark Moorhead monies lost between the date of dismissal and the date of reinstatement less monies earned by Mark Moorhead since his dismissal; and
5. The continuity of Mark Moorhead's employment is to be maintained.
[70] In relation to Order 4 above, it should be noted that the Council (and the ratepayers) are not liable for the full amount of the wages lost as Mr Moorhead found alternative, albeit casual, employment after his employment. To assist in calculating the monies to be paid by the Council, Mr Moorhead is to provide to the Council a statement of his earnings for the relevant period. To this end an updated version of exhibit 16 is sufficient. In the event other employment has been obtained by Mr Moorhead since the hearing of his application, details of the income earned from that employment must also be provided to the Council.
[71] The Commission does not have power under the Act to impose conditions on the reinstatement. However, as would be evident from this decision the Commission considers that some disciplinary response by the Council was necessary in light of Mr Moorhead's conduct and the Council may wish to revisit this matter. In the event the Council takes such a step, then it must ensure that the penalty is proportionate to the conduct, consistent with the penalties given to similar conduct and is not taken in disappointment that its position did not prevail in the Commission.
[72] At the close of his submissions, Mr Moorhead advised that if he was reinstated that he would have responded positively to a lesser penalty and was unlikely to re-offend. I trust Mr Moorhead realises that he has been fortunate and takes the opportunity that has been granted to him to maximise his employment at the Council.
[73] Order accordingly.
1
Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG 139 at 143 citing Stewart v University of
Melbourne Print S2535.
2
Dr Mark Colson v Barwon Health [2013] FWC 8734; Mr Anthony Callahan v Graphic Impressions [2014]
FWC 437.
3
Mr Anthony Callahan v Graphic Impressions [2014] FWC 437 [88].
4
Mr Anthony Callahan v Graphic Impressions [2014] FWC 437 [94].
Local Government Act 2009, s 11.
6
ibid [91].
7
Auto Logistics and Auctions Pty Ltd trading as Pacific Auto Auctions v Jane Rosa Kovaks (1997) 155
QGIG 320 at 321.
0
2
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