Applicant's written submissions filed on 5 August 2024
Respondent's written submissions filed on 28 August 2024
Applicant's written submissions in reply filed on 18 September 2024
MEMBER:
HEARD AT:
Merrell DP
Brisbane
ORDER:
Pursuant to s 319(b) of the Industrial Relations Act 2016, the Applicant's application for reinstatement, filed on 19 September 2023, is dismissed.
CATCHWORDS:
INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – APPLICATION FOR REINSTATEMENT – where Applicant employed by the Respondent as a Bus Operator – allegations made by the Respondent that the Applicant engaged in six acts of misconduct during the course of his employment – disciplinary process commenced by the Respondent in respect of the six allegations of misconduct – six allegations of misconduct found to be substantiated by the Respondent – Applicant given an opportunity to respond as to whether the allegations of misconduct were made out and whether, in light of the Applicant's misconduct as substantiated by the Respondent, the Applicant should be dismissed – where Applicant subsequently dismissed – where Applicant applied to the Queensland Industrial Relations Commission for reinstatement alleging his dismissal was unfair – whether the Applicant's dismissal was harsh, unjust or unreasonable – whether the Applicant's impugned conduct was a manifestation of a psychiatric injury he suffered – on the evidence the Applicant did engage in the six acts of misconduct as alleged against him by the Respondent – on the evidence the Applicant's impugned conduct was not attributable to any psychiatric injury suffered by the Applicant – the Applicant was given the reasons for his dismissal by the Respondent – the Applicant was dismissed because of his misconduct and he was given an opportunity to respond to the Respondent about the claims made about his conduct prior to his dismissal – the Applicant's dismissal was proportionate to certain of the substantiated acts of misconduct in which the Applicant engaged – the Applicant's dismissal was not harsh, unjust or unreasonable – the Applicant's application for reinstatement dismissed
LEGISLATION:
Brisbane City Council Certified Agreement 2018 (EBA9), sch 10
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Satterly v Brisbane City Council involved an application by the applicant, Mr Satterly, for reinstatement to his position as a Bus Operator for the respondent, Brisbane City Council. Mr Satterly had been dismissed following a disciplinary process which found six allegations of misconduct against him to be substantiated. Mr Satterly contended that his dismissal was unfair as it was harsh, unjust or unreasonable. The primary issue for the Court was to determine whether Mr Satterly's dismissal was harsh, unjust or unreasonable.
The court was required to consider whether the applicant's dismissal was proportionate to the misconduct, whether the applicant's conduct was attributable to any psychiatric injury he suffered, and whether the applicant was provided with an opportunity to respond to the allegations prior to his dismissal. The court found that the applicant did engage in the six acts of misconduct as alleged by the Council, and that his misconduct was not attributable to any psychiatric injury he suffered. The applicant was given reasons for his dismissal and an opportunity to respond to the claims made against him.
In deciding the matter, the court considered the seriousness of the misconduct, the employer's right to dismiss an employee for misconduct, and the fairness of the dismissal process. The court found that the applicant's dismissal was proportionate to certain of the substantiated acts of misconduct in which he engaged and that his dismissal was not harsh, unjust or unreasonable. Consequently, the applicant's application for reinstatement was dismissed.
The court made the following order: Pursuant to s 319(b) of the Industrial Relations Act 2016, the Applicant's application for reinstatement, filed on 19 September 2023, is dismissed.
Orders
Orders of the court
Pursuant to s 319(b) of the Industrial Relations Act 2016, the Applicant's application for reinstatement, filed on 19 September 2023, is dismissed.
Background
Background to the litigation
In an unfair dismissal case, an applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.[27] Undisputed factual background [27] Gold Coast District Health Service v Walker [2001] ICQ 62; (2001) 168 QGIG 258, 259 (President Hall).The Transport for Brisbane Bus Operator Handbook Exhibit 12, exhibit 'AL-5' is the Transport for Brisbane Bus Operator Handbook ('the Handbook'). The Handbook relevantly provides:All bus operators are issued with a Bus Operator Handbook. Adherence to the Bus Operator Handbook instructions is a condition of your employment. NOTE: This handbook does not override any legislation, award or enterprise bargaining agreement.[28][28] Exhibit 12, exhibit 'AL-5', page 755 of the HB. Relevantly to the first allegation, the Handbook dealt with the on road support provided from the NCC. The Handbook provides:The Network Coordination Centre (NCC) is responsible for ensuring that all incidents and issues impacting the network are dealt with effectively and that all bus services are maintained to the highest possible level of efficiency.When a bus proceeds out of the depot into service, it immediately comes under the direction of NCC until it returns to the depot at the end of a shift. NCC is connected by radio to all mobile vehicles and other vehicles within Council's fleet. NCC has direct lines to all depots, garages and emergency services.When you call NCC, you are sending a message requesting them to call you back. Several factors impact on NCC's ability to respond, including the priority of your request and other work demands in NCC at the time such as priority calls or events.When contact is established with NCC via the radio system, calls are recorded to ensure a high standard of customer service and for training and coaching needs.You must report any issues or incidents which are affecting, or are likely to affect, our services to NCC via the bus radio (e.g. accidents, traffic hold-ups, fires, burst water mains, local flooding).[29] [29] Exhibit 12, exhibit 'AL-5', page 781 of the HB. The Handbook also specified what a Bus Operator had to do in the event of an accident or incident. Relevantly, the Handbook provides:REPORTING ACCIDENTS AND INCIDENTSIn the event of an accident or incident, you must immediately do the following:· Without obstructing traffic more than is necessary, stop the bus as soon as possible. Apply the park break and select neutral. Turn on the hazard lights before leaving your seat.· Report all incidents to NCC and press the CCTV button.…Where damage is caused to an unattended vehicle, securely attach a written note providing your name, registration number, list Brisbane City Council as the owner and the bus number. You must securely attach the written note under the windscreen wiper blade. You can use the pre-prepared form available in the appendix of this handbook.[30][30] Exhibit 12, exhibit 'AL-5', page 835 of the HB. Relevantly to the second allegation, the Handbook provides: BUS OPERATORS' LEGAL RESPONSIBILITIESIn your role, you must comply with current State and Federal legislation which includes, but is not limited to:…· Transport Operations (Road Use Management - Road Rules) Regulation (Qld)…If you require access to relevant legislation, see your team leader.Some of the legislative requirements prescribed in the above legislation and standards require you to:· wear a seatbelt correctly if the bus is moving, or is stationary, but not parked.[31][31] Exhibit 12, exhibit 'AL-5', page 770 of the HB.
Evidence
Evidence Before The Court
At a general level, the six acts of misconduct alleged by the Council against Mr Satterly were:·on 9 February 2023 at 4.55 pm, Mr Satterly failed to contact the Council's Network Coordination Centre ('NCC') after a bus he was operating was involved in an on-road incident[6] ('the first allegation of misconduct');[6] Exhibit 11, exhibit 'AL-2', page 145 of the HB.·on 9 February 2023 at 4.56 pm, Mr Satterly failed to wear a seat belt when operating a Council bus[7] ('the second allegation of misconduct');[7] Exhibit 11, exhibit 'AL-2', page 145 of the HB.·on 9 February 2023, Mr Satterly failed to follow his 'run print' when the bus he was operating departed early at four bus stops[8] ('the third allegation of misconduct');·on 9 February 2023, at 6.48 pm, Mr Satterly displayed inappropriate behaviour towards a colleague when she approached him and suggested to Mr Satterly that he was holding up a bus stop at Browns Plains[9] ('the fourth allegation of misconduct'); ·on 13 February 2023:- at approximately 6.55 pm, Mr Satterly displayed inappropriate behaviour, when talking about his work colleague, in a rude and disrespectful way, to NCC; and- at approximately 3.40 pm and 9.04 pm, Mr Satterly displayed inappropriate behaviour towards a work colleague[10] ('the fifth allegation of misconduct'); and·on 23 March 2023, Mr Satterly emailed a letter to Ms Samantha Abeydeera, Divisional Manager, Transport for Brisbane ('Ms Abeydeera'), which contained obscene, grossly offensive, disrespectful, threatening and inappropriate statements concerning current and previous Council officers, and that some of the same allegations were repeated in a subsequent letter from Mr Satterly dated 10 April 2023[11] ('the sixth allegation of misconduct' or collectively 'the six allegations of misconduct'). The evidence led by the parties[8] Exhibit 11, exhibit 'AL-2', pages 145-146 of the HB.[9] Exhibit 11, exhibit 'AL-2', page 146 of the HB.[10] Exhibit 11, exhibit 'AL-2', pages 146-148 of the HB.[11] Exhibit 11, exhibit 'AL-2', pages 148 to 149 of the HB.Mr Satterly Mr Satterly gave evidence on his own behalf and was cross-examined. Mr Satterly also led evidence from Mr John Meikle[12] and Ms Ishmaele Reihana,[13] both former Bus Operators with the Council. Mr Meikle and Ms Reihana were not cross-examined. [12] Exhibit 1.[13] Exhibit 2. Mr Satterly also relied upon a number of documents which were admitted into evidence without objection from the Council.[14] These included a report dated 11 March 2024 from Dr Martin Nothling, Specialist Medical Practitioner in Psychiatry to Mr Andrew Murrell of the Council's workers' compensation self-insurer, City WorkCover ('Dr Nothling's report').[15] Dr Nothling's report concerned an application for workers' compensation made by Mr Satterly dated 12 March 2023 by which he claimed he suffered a work-related psychiatric injury at 7.00 pm on 9 February 2023 at the '…Browns Plains Terminus.'[16] [14] T 1-53 to T 1-54.[15] Exhibit 4.[16] Exhibit 6, pages 919 and 921 of the HB.
Decision
Reasons for decision
For these reasons, this submission is rejected.Conclusion The primary issue I had to determine was whether Mr Satterly's dismissal was harsh unjust or unreasonable. Mr Satterly made a number of submissions which alleged that the bus depot from which he operated, and where at one point in time he had been a union delegate, had been mismanaged. Mr Satterly then made further assertions about the industrial relations and workplace health and safety implications for such alleged mismanagement. None of those issues were relevant to the primary issue I had to determine. The evidence of Mr Meikle and Ms Reihana went to such assertions. As a consequence, their evidence, as submitted by the Council, was entirely irrelevant. Mr Satterly claimed that the conduct in which he engaged was attributable to his mental illness that was caused by the Council arising out of the alleged mismanagement which he asserted. For the reasons I have given, I have found that Mr Satterly's misconduct was not as a consequence of any psychiatric illness or condition from which he had suffered. Mr Satterly's misconduct included misconduct that was serious in nature. It was misconduct that justified the Council dismissing him on notice. Having regard to the matters referred to in s 320 of the IR Act, there is nothing on the facts that satisfies me that Mr Satterly's dismissal was harsh, unjust or unreasonable. For the reasons I have given, Mr Satterly's dismissal was not harsh, unjust or unreasonable. Mr Satterly's application for reinstatement is dismissed. I make the following Order:1. Pursuant to s 319(b) of the Industrial Relations Act 2016, the Applicant's application for reinstatement, filed on 19 September 2023, is dismissed.
