Stephens v Gold Coast City Council
[2015] QIRC 213
•14 December 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Stephens v Gold Coast City Council [2015] QIRC 213 |
PARTIES: | Stephens, Brian v Gold Coast City Council |
CASE NO: | D/2015/54 |
PROCEEDING: | Arbitration of a Dispute |
DELIVERED ON: | 14 December 2015 |
HEARING DATE: | 23 - 26 November 2015 |
HEARD AT: | Brisbane |
MEMBER: | Vice President Linnane |
ORDERS: | 1. That the Applicant be reinstated in the role of Supervisor of the Respondent's Reedy Creek Landfill Site. 2. That the reinstatement take effect as and from 5 June 2015. 3. That the first and final warning issued to the Applicant on 4 June 2015 be removed. 4. That the Applicant be paid any loss of salary resulting from his demotion on 4 June 2015. 5. That the Applicant be placed under a Performance Management Program for a twelve month period. |
| CATCHWORDS: | INDUSTRIAL LAW - ARBITRATION OF INDUSTRIAL DISPUTE - Conciliation Conference unsuccessful - Matter referred to arbitration - Applicant challenged the employer's decision to demote employee - Whether Employer had sufficient justification for demotion - Whether allegations of vindictive behavior, harassment and bullying were able to be substantiated - Insufficient evidence before the Commission - Demotion not warranted – Applicant reinstated to his supervisory role with conditions - Industrial Relations Act 1999 s 230(3)(b). |
| CASES: | Industrial Relations Act 1999 s 230(3)(b) Jones v Dunkel (1959) 101 CLR 298 |
| APPEARANCES: | Mr E White, Counsel instructed by Adams Wilson Solicitors for the Applicant. |
Decision
The matter before the Commission is the arbitration of a Dispute Notification filed in the Industrial Registry on 17 July 2015. The Dispute was notified by Brian Stephens (Applicant) against a decision of the Gold Coast City Council (Respondent) to demote him from a supervisor role to that of an operator and to provide him with a first and final warning.
In the first instance that matter was dealt with by a Member of the Commission in a Conciliation Conference on 22 July 2015. On 21 August 2015 the Commissioner made a finding under s 230(3)(b) of the Industrial Relations Act 1999 (Act) that he had formed the view that conciliation had failed, that the parties were unlikely to resolve the dispute and that the appropriate course for a resolution of the dispute was by arbitration. The Applicant then sought to have his dispute arbitrated. This decision is the outcome of the arbitration.
The Applicant has been an employee of the Respondent for twenty-five years having commenced working for the Respondent in 1989 as a truck driver (Heavy Plant) and was made a Supervisor of Molendinar and Tugan Landfills in about 2003. During this time he acted as Supervisor of the Reedy Creek Landfill Site (Site) as and when required.
The Applicant was appointed Supervisor of the Site on 20 June 2011. As Supervisor the Applicant was directly responsible for the day-to-day operation of the Site. In the role of Supervisor he was responsible for eleven staff. The Site appears to be a rather busy operation given that on any day there may be fifty to one hundred Respondent employees attend the Site as part of the Respondent's waste management service. At the time of his demotion the Applicant reported to Russell Currie (Senior Landfill Technical Officer) and Steve Cantrell (Senior Co-ordinator Waste and Resource Management).
Respondent's Investigation and Outcome
On or about 27 March 2015 the Applicant received a letter notifying him that the Respondent had commenced an investigation into his conduct and instructed him not to attend work. On 28 April 2015 Jodie Lea Waller, Senior Business Partner in the Respondent's People and Culture area, forwarded the Manager Waste and Resource Management, Matt Fraser, a Summary Report of the Investigation undertaken into the Applicant's conduct. Both Ms Waller and Ms Suzanne Bonnette from the People and Culture area of the Respondent's operations conducted the investigation. It is apparent from that Report that the Applicant's supervisor, Russell Currie, initiated the complaint following a toolbox meeting with staff at the Site on 25 February 2015. On 3 March 2015 the formal investigation was instigated.
The Applicant was not interviewed during the Investigation and was not given any opportunity to address the Respondent's concerns prior to the Summary Report of the Investigation being provided on 28 April 2015. Had he been interviewed he may have provided appropriate responses to many of the allegations raised against him e.g. the trench/drain incident. On 30 April 2015 the Applicant was issued with a Letter of Allegations and was required to respond to that letter by 8 May 2015. The Applicant responded in correspondence from his Solicitor dated 8 May 2015.
Colette McCool, the Respondent's Director Community Services on behalf of the Chief Executive Officer, issued the Respondent's decision in the matter in correspondence dated 4 June 2015 (Exhibit 5). In doing so Ms McCool made the following findings:
·"Council finds that on the Balance of Probability, Mr Stephens did not give sufficient regard to the health and safety of the employees under his direction by providing them with the correct tools and personal protective equipment (PPE)". Except to say that the Respondent preferred the versions of events provided by five of the Applicant's staff and his supervisor, Mr Currie, there was no particularisation of the conduct relied upon to form the finding;
·"In his response, Mr Stephens states that safety equipment such as ear plugs and gloves were stored in his car and a container at the site. Council considers these to be inappropriate storage places for such safety items and that they should be freely available for use by employees without having to request them". The Respondent does not identify an approriate storage place at the Site;
·"I am satisfied that your client has been provided with sufficient training with respect to relevant policies such as Council's Work Health and Safety, Code of Conduct for Employees and Good Working Relationships policies. Mr Stephens knew, or ought to have known, at the time that his conduct and behaviour with respect to work health and safety and his treatment of employees under his direction was inappropriate and, therefore a breach of Council's policies and law". The Respondent failed to identify the training received by the Applicant in any of these "relevant policies" or how he knew, or ought to have known, that his conduct and behaviour with respect to work health and safety and his treatment of employees under his direction was inappropriate and thus a breach of the Respondent's policies and law. No specific Respondent policy or law was identified. All Ms McCool appears to have done is quote in this correspondence from a "Work Health and Safety Policy" and a "Good Working Relationship Policy". Ms McCool failed to identify the specific parts of those policies which the Applicant is said to have breached e.g. one of the policies identified in the "Work Health and Safety Policy" is that supervisors are to ensure "support and return to work for injured workers so they can get back to work as soon as possible". There was no suggestion at any time that the Applicant failed to adhere to this responsibility. It was as though Ms McCool could not identify specific responsibilities said to have been breached by the Applicant, so she identified every responsibility of supervisors;
·"This is not an allegation of singular error of judgement. Your client has demonstrated a repeated disregard for his responsibilities as a supervisor with respect to work health and safety and workplace harassment". The correspondence does not identify what Ms McCool found to be the error of judgement or what constituted the repeated disregard for his responsibilities as a supervisor;
·on this basis, the Respondent found that Allegations 1 and 3 of the Letter of Allegation to have been substantiated.
Neither the Chief Executive Officer nor Ms McCool gave evidence at this hearing. Thus the correspondence dated 4 June 2015 is the only record of the decision maker and should, at the very least, as the Applicant submitted, have clearly set out the following:
· the evidence considered by the decision maker;
· the matters considered by the deicison maker; and
· the findings made by the decision maker.
The correspondence should have revealed that the decision maker did not fail to take into account any relevant consideration, did not take into account irrelevant considerations, had sufficient particularised facts on which to base her decision and should have identified which policies were said to have been breached and how they had been breached.
In circumstances where Ms McCool did not give evidence and where she has not specifically identified issues on which she made findings, it is difficult to conclude that Ms McCool took into account all relevant information, and did not take into account irrelevant information, in coming to the conclusions outlined in the letter of 4 June 2015.
In that letter of 4 June 2015, Ms McCool goes on to decide the Applicant's conduct amounted to "misconduct" in accordance with the Respondent's Disciplinary Policy. Ms McCool did not identify the aspect of that Policy that she relied upon. Given that Ms McCool did not give evidence and the Disciplinary Policy was not before me in the arbitration, it was essential that Ms McCool identify precisely the aspect of the Disciplinary Policy she relied upon to make her finding that the Applicant's conduct amounted to "misconduct".
Instead, there is simply a statement that the Applicant's conduct amounted to "misconduct" and, as a result, Ms McCool could take action under s 279 of the Local Government Regulation 2012. In that same piece of correspondence Ms McCool went on to decide the penalty for the "misconduct". Ms McCool stated that in deciding the penalty she took into account a range of factors, specifically the following:
· the fact that the Applicant, as a supervisor of many years, should be well aware of the Respondent's policies, particularly Work Health and Safety, Good Working Relationships and the Respondent's Code of Conduct for Employees. Ms McCool fails to identify how the Applicant would have been well aware of these policies. None of these policies were before me in this arbitration. No evidence was adduced at the hearing to indicate that the Applicant was aware of the particular Respondent policies. There was no evidence as to the training that the Applicant had been given whilst employed as a Supervisor with the Respondent. As the employer, the Respondent had that information, and could have adduced it during the course of the hearing. I can only assume that the Respondent had no record of the Applicant being aware of, or trained in, these policies and therefore had no such documentation to produce;
· the fact that the Applicant was a long term employee of the Respondent and that there had not been any discipinary issues of note in the past. Clearly this is a relevant factor to consider given the Applicant had been employed by the Respondent for twenty-five years;
· the fact that the Applicant is classified as a Landfills Operations Supervisor, a position of authority responsible for the supervision of staff and contractors and work health and safety compliance on site. Whilst one might presume that as the Supervisor at the Site the Applicant would have been responsible for work health and safety compliance on Site, there was no evidence of this fact adduced by the Respondent at the hearing. It was never suggested to the Applicant that he was responsible for work health and safety compliance on Site; and
· the Applicant's behaviour had demonstrated a breach of trust and a "break down in employer confidence in his ability to follow direction, adhere to workplace policies and procedures and to supervise other employees". The Respondent has failed to produce any evidence as to a breakdown in employer confidence in relation to the Applicant. The Respondent did not adduce evidence from any person in management. As stated earlier, neither the Chief Executive Officer nor Ms McCool gave evidence. There was no identification of any "direction" given to the Applicant which he failed to follow in either the correspondence of 4 June 2015 or at the hearing. It would thus be difficult to find a breakdown in employer confidence where a failure to follow a direction has not been identified. There was no evidence that the Respondent had lost trust in the Applicant's ability to supervise other employees. The only evidence adduced was from some employees who the Applicant supervised, some drivers who came to the Site and from others who have had no contact with the Applicant in years. No workplace policies and procedures were put into evidence by the Respondent therefore it is difficult to conclude that the Applicant had failed to adhere to those policies and procedures. Further, there was no evidence given by management that the Applicant had failed to adhere to any policy or procedure.
Assessing the conduct of the Respondent, the whole process appears flawed from the beginning. Whilst the Respondent did not include in its evidence before the Commission the statements of employees provided to the investigators, two such statements were included in the Applicant's material i.e. from Jimmy Gripske and Ray Zielke. Question 12 to each of the employees appears to have been "Did you find Brian's behaviour to be offensive/intimidating/humiliating and/or threatening and if so why did you feel this way?" Mr Gripske's response was "Yes, all of the above", Mr Zielke's response was "Yes, of course. It makes for a very uneasy workplace". The responses to such leading questions should never have been relied upon.
According to those statements the complaint being investigated was made by Wolf Stoermer, Kevin Jenkins and Jimmy Gripske. This is different to the Summary Report of the Investigation which states under the title Complaint/Allegation the following:
"At the toolbox meeting with staff on Wednesday, 25 February 2015 conducted by Mr Russell Currie, Senior Technical Officer Landfills, a number of issues were raised by a number of employees with regard to the supervision provided by Mr Brian Stephens, Landfill Operations Supervisor. The issues raised included allegations of bullying/harassment carried out toward certain employees by Mr Stephens and a failure to address and manage safety issues on the Reedy Creek Landfill site.
On the afternoon of Wednesday, 25 February 2015, Mr Currie provided an email including dot points and diary notes of the morning toolbox meeting conducted by him at the Reedy Creek Landfill site. These dot points and diary notes outlined the concerns raised by some of the employees in relation to the points above.
On Tuesday, 3 March 2015 the Manager Waste and Resources Management Branch requested that a formal investigation be conducted by the People & Culture Branch given the serious nature of the issues raised by the Reedy Creek Landfill employees."
It is not suggested in the Investigation Report that the complainants were Mr Stoermer, Mr Jenkins and Mr Gripske. During the course of the hearing I asked whether the complaint was initiated by Mr Currie and the response was "yes". Yet the statements taken from witnesses suggest that the complainants were Mr Stoermer, Mr Jenkins and Mr Gripske. Both Mr Jenkins and Mr Gripske gave evidence in the proceeding however Mr Stoermer did not give evidence. No reason for his failure to give evidence was provided by the Respondent.
Concerns about the Respondent's Case at the Hearing
In the week prior to the arbitration commencing, I asked the Respondent's representative why Mr Currie was not giving evidence. I was told that he was on long term sick leave. I stated at that time that an Affidavit to that effect should be provided so that no adverse inference would be taken from his failure to give evidence. No such Affidavit was available at the commencement of the hearing. I again raised the issue during the course of the hearing. It was not until the evidence had concluded and the parties were to provide their submissions that the Respondent produced an Affidavit from Mr Fraser. I could have said nothing and could have drawn a Jones v Dunkel[1] inference. It turns out that Mr Currie resigned his employment with the Respondent on 6 July 2015 whilst on long term sick leave. This was unknown to those representing the Respondent in this proceeding until the last day of the hearing.
[1] Jones v Dunkel (1959) 101 CLR 298.
In preparation for the hearing of this matter I had sought the names of the persons who were to represent the Applicant and the Respondent at the hearing. I had been informed on Wednesday 18 November 2015 that Ms Waller was representing the Respondent. On Friday 20 November 2015 I was preparing for the hearing by reading the material filed in the arbitration. I then became aware that Ms Waller was also the investigator of the complaints about the Applicant. She had signed off on the Investigation - Summary Report dated 26 April 2015. This was the Report conveyed to Mr Fraser. This Investigation Report formed the basis of the Letter of Allegations.
I arranged for a Mention of the matter at lunchtime on that day wherein I expressed my concern about Ms Waller's representation of the Respondent. Ms Waller appeared to accept the inappropriateness of her representing the Respondent in circumstances where she had conducted the Investigation into the Applicant's conduct. She indicated that Ms Steele would represent the Respondent as she had also been involved in the preparation for the hearing.
All of the material to be relied upon by both parties was required to be filed in the Industrial Registry as a result of a Further Directions Order issued on 1 September 2015. Thus all of the evidence-in-chief of the witnesses was filed in the Industrial Registry by 9 November 2015.
In terms of the material presented on behalf of the Respondent I have already noted the failure to adduce evidence from anyone in management. The witnesses relied upon by the Respondent appeared not to have been properly put to proof. Their evidence contained generalisations such as "I was bullied by the Applicant", "I was harassed by the Applicant", "the Applicant was vindictive towards me". When asked for particulars of such conduct the witnesses were unable to identify examples or the conduct had little or no substance after the witness had been cross-examined.
Further, the Respondent failed to put into evidence the Letter of Allegations of 30 April 2015, the Response to the Letter of Allegations dated 8 May 2015 or the Letter of Demotion and the first and final warning dated 4 June 2015. Fortunately, these documents were attached to the Notification of Dispute which was the initiating pleading in this matter. Nor did the Respondent adduce any evidence of the policies and procedures said to have been breached by the Applicant. No training records of the Applicant were in evidence. No questions were asked of the Applicant as to his knowledge of the Respondent's policies and procedures or of the training he received on such policies and procedures. I would assume that an employer the size of the Respondent would have a systematic training program for supervisors however there was no evidence about any training the Applicant received including any training on the role of a supervisor.
Had Mr Alpen been put to proof I am sure the Respondent would not have called him in support of its case. Similarly, had Mr Cook been put to proof I doubt that he would have been called as a witness. His evidence concerned an event in mid-2007 where the Applicant is alleged to have said "what the fuck are you doing over here". At this time, the Applicant was relieving as Supervisor at Stapylton. Mr Cook told the Applicant never to swear at him anymore and Mr Cook conceded that the Applicant has never sworn at him since. The problem with Mr Cook's evidence was that he stated he continues to feel threatened by the Applicant as a result of that incident. I have great difficulty in accepting that Mr Cook could continue to feel threatened from such a comment being made at the Stapylton Landfill site in mid-2007. Mr Cook does not work with the Applicant and has not done so since about that time. It is astounding that an employer would seek to rely upon such evidence in support of a demotion of an employee in 2015.
Without dealing with the evidence adduced in this hearing, I have determined that the Respondent has not provided the necessary evidence to substantiate the allegations outlined in its Letter of Demotion and first and final warning dated 4 June 2015. In those circumstances there is no basis advanced by the Respondent for depriving the Applicant of his supervisory role at the Site and no basis for the first and final warning.
I have mentioned that the Applicant was not interviewed during the course of the investigation and I instanced the trench/drain complaint. The Applicant was also not given an opportunity to be heard on penalty. This opportunity was only given to him after receipt of the letter of 4 June 2015 notifying him of his demotion.
Whilst I have already found that the Respondent has failed to substantiate the matters relied upon in the correspondence of 4 June 2015 to demote the Applicant, there were some issues raised in the course of the hearing that I need to consider.
Evidence
[26] The Applicant relied upon the evidence of the following witnesses:
· the Applicant (Affidavit of Evidence filed 19 October 2015 - Exhibit 1 and the Further Affidavit of Evidence in Reply filed 10 November 2015 - Exhibit 2);
· Peter Toohey (Exhibit 8) a Water Truck Driver at the Site who has worked with the Applicant since he became his Supervisor in 2010;
· Peter Kingston (Exhibit 6) a Screen Plant Operator who has worked with the Applicant for ten years and has been supervised by the Applicant at the Site; and
· Deslee Cook (Exhibit 9), an employee at the Site Weigh-bridge who has known the Applicant since he commenced as Supervisor at the Site.
The Respondent relied upon the evidence of the following witnesses:
· Glen Alpen (Exhibit 16). Mr Alpen has not been supervised by the Applicant since November 2012. I will deal with Mr Alpen's evidence later in the decision;
· Phil Heath (Exhibit 17), a Plant Operator since September 2007. Mr Heath's Affidavit responds to the Affidavit of Evidence of the Applicant. There is a statement from him to the investigator included in the Applicant's material;
· Kevin Jenkins (Exhibit 18) commenced working as a labourer and/or truck driver at the Site in August 2010. There is a Statutory Declaration of Mr Jenkins attached to the Applicant's Affidavit of Evidence in which he addresses the Applicant's Response to the Letter of Allegations;
· Matthew Vial (Exhibit 20) has not been supervised by the Applicant. He was employed as a Medium Truck Driver (Fleet) and is a union delegate. Mr Alpen had reported to him certain conduct on the part of the Applicant in or about 2012. Mr Vial's evidence did not assist the Respondent's arguments as it relied predominately on what Mr Alpen had conveyed to him;
· Craig Wilson (Exhibit 21) has not been supervised by the Applicant. He is employed as a truck driver. He describes an incident on 26 August 2014 when the Applicant asked Mr Wilson to put his hard hat on. He failed to put it on immediately and was asked again to put his hard hat on. On the second occasion the Applicant is alleged to have said "I am sick of you whinging about putting your hard hat on. You can get in your truck and fuck off". Mr Wilson's response was that the Applicant "was a big fat cunt and I didn't want to work with him anyway". It is alleged by Mr Wilson that the Applicant displayed vindictive behaviour and/or reprisal action towards employees by directing them to carry out jobs manually that are able to be done with machinery and assigning them with extra hard tasks as punishment when he was displeased with them. The Applicant lodged a formal complaint against Mr Wilson's conduct on this occasion. As a result of this, Mr Wilson was issued with a Letter of Expectation. No disciplinary action was taken against the Applicant. Mediation was attempted but failed. It would seem that Mr Wilson had an axe to grind with the Applicant;
· Sylvester Cook (Exhibit 22) is not supervised by the Applicant. Mr Cook had an incident with the Applicant about mid-2007 when the Applicant is alleged to have said to him "what the fuck are you doing over here". Mr Cook told the Applicant after this incident that he was not to swear at him anymore. The Applicant has not sworn at him since that time. An incident occurring eight years prior should not have been relied upon in the Investigation. This is particularly so when no complaint was made in 2007 and there has been no further incident in that eight year period;
· Dean Gutteridge (Exhibit 23) is not supervised by the Applicant. Mr Gutteridge became aware of the incident between the Applicant and Mr Wilson and he tried to arrange mediation between the two. Mr Wilson reports to Mr Gutteridge and his evidence relied upon the information conveyed to him by Mr Wilson;
· James Gripske (Exhibit 24) is a plant operator at the Site. Mr Gripske's Affidavit simply responded to the Applicant's Affidavit of Evidence. His origial statement to the investigator was included in the Applicant's Affidavit;
· Ray Zielke (Exhibit 25) a plant operator (Skid Steer) at the Site. Mr Zielke's Affidavit simply responded to the Applicant's Affidavit of Evidence. His original statement to the investigator was included in the Applicant's Affidavit.
Given that this is about the demotion of the Applicant from his supervisory role at the Site it is his conduct as a Supervisor that is at the heart of this matter. Of the eleven employees that the Applicant was supervising at the time of his demotion:
· two employees, Mr Toohey and Mr Kingston, gave evidence in support of the Applicant;
· four employees, Mr Zielke, Mr Grispke, Mr Jenkins and Mr Heath were critical of him and gave evidence for the Respondent; and
· nothing was heard of the other five employees, including Mr Tyler whom the Respondent witnesses claimed the Applicant favoured and Mr Stoermer who apparently was an original complainant.
Mr Toohey's evidence is the Applicant never demands or tells employees to do a job but rather "he asks us to undertake any tasks and then thanks us when those tasks are completed". According to Mr Toohey the Applicant is a true gentleman who treats everyone fairly and equally.
Having read the material and heard the evidence of the four witnesses called by the Respondent who were, prior to his demotion, supervised by the Applicant, I am satisfied that the Applicant's conduct at the Site, at times, was of concern and should be improved. This conduct included the following:
· the language used by the Applicant at the Site was inappropriate at times. Whilst the workplace is a landfill site the Applicant should be respectful of other employees, particularly those he supervises, and not use inappropriate language. The Applicant should receive some training in this regard to ensure that he remedies this aspect of his behaviour;
· the manner in which the Applicant sometimes speaks to his employees is also inappropriate. I do note here that Mr Zielke has hearing difficulties and the Applicant at times speaks rather loudly so that Mr Zielke can hear. The Applicant should however receive some training in regard to what some staff perceive to be an "aggressive and condescending tone" to his speech. This may assist in ensuring that the Applicant does not use what are seen by some employees to be threatening mannerisms when speaking with employees;
· the Applicant sometimes lit up a cigarette in places designated non- smoking zones. This conduct was admitted by the Applicant. As a Supervisor of employees he should model desired behaviours and be extra vigilant in ensuring that he does not smoke at all in non-smoking areas. The Applicant is now aware that he is on notice not to smoke in any non-smoking area on the Site; and
· the Applicant sometimes did not wear a hard hat in circumstances where he was required to wear a hard hat. This conduct was admitted by the Applicant. The Applicant cannot be demanding of employees that they wear hard hats when circusmtances require it and not wear a hard hat at all times where it is required. Once again the Applicant is now on notice that he must, at all times, where a hard hat on Site where it is required. It should however be noted that the Site is not a "hard hat" site. The wearing of hard hats was recommenced for one specific job i.e. the building of a clay wall of the quarry on the Site. That specific job has been completed. When using the Screen Plant however hard hats and safety glasses must be worn.
At the end of the cross-examination of Mr Toohey I asked him could he explain why a number of Respondent employees had lodged complaints against the Applicant. His response was:
"we've got one bloke in particular who's been on Brian's case for as long as I can remember. And he's actually done the same thing to me. It's like a vendetta. And all the witnesses are all friends."
I then asked Mr Toohey who was the one person and he indicated that it was Mr Alpen.
Mr Alpen's Evidence: It is thus appropriate to deal with Mr Alpen's evidence at this time. Mr Alpen was the first of the Respondent's witnesses. Mr Alpen has been employed by the Respondent since November 2003. He commenced employment as a Plant Operator at the Site in 2008, a number of years prior to the Applicant becoming the Supervisor of the Site. I found Mr Alpen to be an unreliable witness. He was disingenuous in his evidence and appeared to be quite vindictive towards the Applicant.
Mr Alpen's major concern was the fact that the Applicant, when he commenced as Mr Alpen's supervisor, reduced the overtime that Mr Alpen was receiving. The Applicant's evidence was that he commenced to share the overtime around amongst all the employees and Mr Alpen's share of the overtime reduced considerably. I accept the Applicant's evidence in this regard as the Respondent called no evidence to refute the statement and it had the ability to produce the overtime records for the Site for the whole period since the Applicant commenced as the Supervisor at the Site. Similarly, any allegation made against the Applicant that he favoured certain employees by giving them more overtime could have been refuted by the Respondent. I accept then that the Applicant's allocation of overtime complies with the Respondent's policies and that he was relatively even handed in the allocation of overtime.
While giving evidence, for some reason Mr Alpen could not recall any concern he had about the reduction in his overtime. He did not recall it being an issue at a mediation between himself and the Applicant on 22 May 2012. This is in circumstances where he attached a document to his Affidavit which identified the issues, from his perspective, that needed to be discussed at the mediation. The first such issue was "overtime" and the fact that Mr Alpen was of the view that he was not getting enough overtime since the Applicant became his Supervisor.
Throughout his evidence Mr Alpen continued to deny that his real issue with the Applicant was the reduction in the overtime he received once the Applicant became his Supervisor. It was to Mr Fraser that Mr Alpen complained in mid-2012 and it was Mr Fraser who organised the mediation. Mr Fraser was not scheduled to give evidence in the proceeding but was in the precincts of the Commission when Mr Alpen gave evidence. Throughout most of Mr Alpen's evidence Mr Fraser was outside the Commission hearing room. Following Mr Alpen's evidence, Mr Fraser was asked to identify the issues that Mr Alpen had with the Applicant at the time of the mediation. Mr Fraser was able to identify that "overtime" was one of Mr Alpen's issues at or about May 2012. At this mediation the Applicant did not identify any work performance issues in relation to Mr Alpen. The mediation was thus concerned solely with Mr Alpen's complaints about the Applicant.
A Plan of Action was organised at the mediation. Mr Alpen did not act on any of the matters identified including him clarifying his hours of overtime with the Applicant. Perhaps he did not act because he was aware there was no basis for his complaint. The Plan of Action provided that if he was unable to resolve matters with the Applicant he could inform Mr Cantrell to assist in the resolution. He admitted he did not avail himself of this opportunity.
Later that year Mr Alpen sought a transfer and, by November 2012, he was not working at the Site. Given the manner in which he gave his evidence it was clear that Mr Alpen still maintains a vindictive attitude towards the Applicant. I formed the view, immediately following Mr Alpen's evidence, that he and the Applicant could not work at the same location. I formed this view not because of any evidence given by the Applicant in this hearing, but simply the vitriol in Mr Alpen's evidence. It would be grossly unfair to the Applicant to have him supervise Mr Alpen in any capacity.
Mr Alpen's Affidavit (Exhibit 16) was riddled with hearsay. He was not a witness to most of the incidents he raised in is Affidavit. I indicated to the parties during the course of the hearing that I could not rely upon any of Mr Alpen's evidence and I do not rely upon it.
Complaints from Employees
Having accepted the Applicant's conduct in paragraph [30] to have been inappropriate I now turn to some of the issues raised by the four Respondent witnesses who were supervised by the Applicant i.e. Mr Zielke, Mr Grispke, Mr Jenkins and Mr Heath.
Leading Hand Issue: Mr Zielke and Mr Grispke are the leading hands on the Site. The Applicant does not inform them when he leaves the Site. Rather he informs the Weigh-bridge. The Applicant admits that he did not inform the leading hands when he went off Site. This was deliberate on his part as he wished to ensure the work rate continued on Site in his absence. In his experience once the leading hand knows that the Supervisor is off site the work rate slows and some employees will actually stop working. The Applicant instead advises the Weigh-bridge when he is leaving the Site. Deslee Cook an employee in the Weigh-bridge confirmed the Applicant's evidence in this regard. The Applicant was always available to be contacted whilst he was off Site either via telephone or over the two-way radio.
The Applicant should at all times advise the leading hands if he is leaving the Site as they have additional responsibilities at such times. If either Mr Zielke or Mr Grispke allow the work rate to slow down in the absence of the Applicant, then they are not performing their duties properly and their conduct may need to be investigated. Apparently both Mr Zielke and Mr Gripske are permanent leading hands.
Both men also complain that when they do take responsibility for an issue they are often criticised by the Applicant. Perhaps the Applicant's Manager, Richard Morgan (the replacement for Mr Currie) could assist the Applicant, Mr Zielke and Mr Grispke to come to some arrangement as to the devolution of responsibility between the Applicant and the two leading hands.
Pre-Start Meetings: There was some criticism of the manner in which the Applicant conducted pre-start meetings. My understanding is that a new form of pre-start meeting has been in place since March 2015 and the manner in which the current meetings are held should be continued.
Availability of Personal Protective Equipment (PPE): There was some criticism as to the availability of PPE at the Site. The Applicant kept some PPE in his ute (available to employees as the Applicant drove around the Site) and some PPE was kept in a on-Site container in the workshop area. The Applicant said that protective sunglasses have always been readily available, gloves and glasses were both available in the on-site container in the workshop area and protective glasses were also available in the Weigh-bridge office.
It was the Applicant's evidence that there had been Work Health and Safety audits at the Site and he had told the inspectors that some gloves, glasses and ear plugs were in his ute. The inspectors did not have a problem with that arrangement. Deslee Cook gave evidence that each fortnight, after speaking with the Applicant, she would place a call over the UHF Radio to all staff advising them that if they required any PPE, tools, truck wash, special items and normal store items they should notify her. She would then write up a list and those items would then be obtained from the stores area.
It would appear that sufficient PPE was available to employees at the Site whilst the Applicant was employed as the Supervisor. In any event I understand that a new arrangement for the storing of PPE in the smoko room has been in existence for some time and appears to be working. The current approach to the storage of PPE should be maintained.
Trench/Drain incident: The "trench/drain incident" was regularly raised throughout the course of the hearing. It is apparent that a number of truck drivers coming onto the Site had complained to some employees about a "significant dip" in a road on Site. In an unsigned witness statement to the Investigation (it appears as though Ms Bonnette has interviewed the witness and then written up the statement in her own words), Mr Gripske (Jimmy) recorded his complaint as follows:
"Approximately 12 months ago, Jimmy did some work (dug a drain and laid some pipes to alleviate drainage issue) under the direction of the relieving supervisor whilst Brian wasn't there which everyone seemed really happy with. When Brian came back to work, he asked who was responsible and directed the excavator driver to rip it all out (this was not a work day for Jimmy). The following day when Jimmy came back to work, Brian directed him to complete a Statutory Declaration stating what he had done. Jimmy called the acting supervisor who had directed him to do the work and he told him not to worry about it and sorted it out with Brian. After that, Jimmy felt that it was payback time on Brian's part - treated him with contempt and general bullying behaviour."
The person alleged to have given Mr Gripske the direction to put pipes in the trench/drain was Murray Allen, Acting Technical Officer.
The Applicant's response was that truck drivers had complained about a dip in the road which was a storm water "run-off" drain and he had received a telephone call from Steve Dalton, the Respondent's Heavy Plant Co-ordinator, about the particular trench/drain. Mr Dalton and the Applicant met on the Site to discuss the trench/drain. Mr Dalton could find no major problem with the trench/drain but mentioned that a grader could be used to make it a bit smoother for the trucks.
The Applicant said that if anyone wished to submit a complaint about the road they would do so at the Weigh-bridge office on their way out of the Site. He had not directly received any complaints from the public nor was he aware of any complaints lodged at the Weigh-bridge concerning the trench/drain.
When the Applicant got to work on the following Monday he found a pipe in the drain and wanted to know who put the pipe in the drain. He was informed that it was Mr Gripske and that he had operated the new excavator without being inducted and without advising Heavy Plant that he had used the excavator. Mr Gripske admits that he used the excavator without having been inducted and without advising Heavy Plant.
The Applicant then received a telephone call from Mr Dalton asking why Mr Gripske had used the excavator without being inducted. The Applicant further advised Mr Dalton that Mr Gripske had installed a pipe in the ground in the drain they had discussed the week prior. Mr Dalton asked the Applicant to have Mr Gripske provide a written statement as to why he operated the excavator without induction. Apparently Mr Gripske refused to provide the Applicant with such a statement and the Applicant heard nothing further about the matter from Mr Dalton.
The Applicant had previously advised staff at a pre-start meeting that there was a small dish/spoon on the road so there was no need to put a pipe in place. This is disputed by at least one of the Respondent winesses. The Applicant further advised that it was the Respondent's intention to re-direct the access road to the landfill site in about a month's time and thus any upgrade was a waste of time. The Applicant then directed Robbie Tyler to remove the pipe from the drain and reinstate the original condition of the road.
The Applicant states that he did not do this out of spite or to humiliate Mr Gripske. I accept the Applicant's explanation of the incident as Mr Dalton was not called by the Respondent to deny the Applicant's account of the incident. In light of the information contained in the Applicant's Affidavit in this proceeding and the ability of the Respondent to check his account wih Mr Dalton, Mr Gripske continued in his Affidavit to raise the issue. Mr Gripske admitted that he had not been inducted to use the excavator and admitted that he did not comply with the direction given by the Applicant to provide him with a written account of what he had done. Mr Gripske is a leading hand and should not have used the excavator and should have complied with the Applicant's direction.
None of the four witnesses for the Respondent who were supervised by the Applicant bothered to find out from the Applicant why he had the road reinstated to the position it was prior to Mr Gripske undertaking the work. Yet these employees formed very uncomplementary views about the Applicant as a result. Mr Jenkins stated that the Applicant did this "out of spite". Mr Heath referred to this incident as "it's Brian's way or the highway" and that the Applicant did this to "humilitate Jimmy in any way". Mr Gripske concluded that this was a "clear illustration of how Brian Stephens refuses to accept any of our safety concerns, even if they are correct and make a safer envionment". Mr Gripske further stated that it was an example of "it's Brian's way or the highway". The concern for me is that the Affidavits of these employee witnesses were prepared in response to the Applicant's Affidavit where he explains the reason for the reinstatement of the road and his discussion with Mr Dalton. Yet the employee still think that it is the Applicant's "way or the highway".
[56 ]I find it unlikely that the Respondent would have bothered to rely upon this incident to demote the Applicant had the investigators taken the time to interview both the Applicant and Mr Dalton and gathered more information. It was Mr Gripske who should have been disciplined as a result of this incident because he used a machine for which he was not inducted and he disobeyed a lawful direction from his supervisor in not providing the written statement of his actions. I have no difficulty in accepting that the Applicant's conduct in respect of the trench/drain incident was appropriate and thus the incident could in no way be relied up to demote the Applicant.
Asbestos Covering: There was criticism about the manner in which the Applicant arranged for the covering of the asbestos that was dumped on Site. The employees complained that it was virtually impossible to ensure every last particle of asbestos was covered when the method used by the Applicant was implemented. Some witnesses suggested the process adopted at the Stapylton Site was a more appropriate process.
It was the Applicant's evidence that the practice he used at the Site was to dump the asbestos on the ground in the "asbestos area" up towards the top of the tip where few people went. The drott operator would then cover the asbestos with a pile of dirt which came from the tip. If enough dirt was put on it, the asbestos would not be exposed. At the Stapylton site they dig a hole at the toe of the rubbish every day and deposit the asbestos into the hole because the tip moves forward eight to ten metres every day when more rubbish is unloaded onto the tip. Thus, the rubbish covers the hole containing the asbestos area every day as it moves forward.
At the Site, the Applicant said if they were to implement this method it would take two to three weeks for the hole to be covered by the rubbish resulting in the asbestos remaining exposed for some time. The tip face at the Site moves about six to eight metres in a week and those walking around the toe of the tip would be exposed to dust from the asbestos.
The Applicant recalled that in November 2014 Mr Cantrell was on the site while the Applicant was on leave. Mr Cantrell discovered that there was asbestos exposed and he raised this with the Applicant on his return from leave. The Applicant then spoke with Mr Gripske and told him to make sure all the asbestos was covered. The Applicant was required to direct him on a number of occasions that day to cover the asbestos as on each occasion Mr Grispke left asbestos uncovered.
The method of covering asbestos on the Site which had been implemented on the Site for some time was obviously known to Mr Cantrell. Mr Cantrell's concern was that the employees were not totally covering the asbestos. He did not appear to have been concerned about the process implemented by the Applicant for the covering of the asbestos at the Site. The Applicant's explanation for not following the process adopted at the Stapylton appeared to have validity.
When the process was known to more senior management, the Respondent would have great difficulty in taking any disciplinary action against the Applicant for the manner in which he had his employees cover the asbestos.
Leachate Incident: It was alleged the Applicant required employeees, in or about June 2014, to repair a pipe in water that he knew to be contaminated with leachate without the necessary PPE. The Applicant's account of the incident was that around 2012 a labourer/contractor by the name of Dave was on site because Mr Zielke was on sick leave. The Applicant took Dave down to the leachate pump and instructed him on how to connect and disconnect the pump. That pump was unable to be repaired and was replaced.
A few days later the pump broke down again and the Applicant sent Dave and Mr Jenkins down again to replace the pump. When Dave went to disconnect the delivery line, neither he nor Mr Jenkins turned the tap off before disconnecting it from the pump. As a result the contaminated water sprayed over Dave and he became sick. The Applicant ultimately sent Dave home to have a shower and get changed. He did not deny Dave medical attention as alleged. The Applicant completed an Incident Report and advised Mr Cantrell on the day of the incident. In preparing for this hearing, the Applicant apparently sought a copy of the Incident Report he had prepared but the Respondent failed to provided him with a copy.
None of the evidence surrounding this incident would cause me to question the Applicant's conduct insofar as this incident is concerned.
Sifting Sand by Hand Incident: The Applicant stated that he had never asked Mr Jenkins to sift sand by hand and I accept that evidence. On a particular occasion he had asked Mr Jenkins to move sand as they were building a base for a number of tanks. The task Mr Jenkins was given was to set a sand base "pad" for five tanks to sit on. The tanks cannot be placed straight onto the ground as they need a sand base and the sand needed to be spread out. The capacity of these tanks was about 5,000 litres and the base area was about 20 - 25 square metres.
The Applicant stated that, contrary to what Mr Jenkins said, a grader is not used to level a small area for five tanks. The sand needed to be screened by hand to ensure that the base pad was level. The Applicant agreed that it was 38 degree temperature on the day but confirmed that the work needed to be done. The Respondent has a policy of ceasing work when the temperature hits about 41 degrees. In any event there was no machine on site that could set the sand base "pad" for five tanks to sit on.
Once again I am unable to find the Applicant's actions in this regard to be a work, health and safety issue nor do I find the Applicant's conduct in requiring Mr Jenkins to perform the work inappropriate in all of the circumstances.
Water in Dam Incident: Mr Gripske complained that he was directed by the Applicant to pump water out of the dam into the water truck. No timeframe was identified by Mr Gripske. Mr Gripske said that he told the Applicant that there were rocks in the water and that a screen should be used to avoid rocks going into the pump. Mr Gripske said that the Applicant ignored this advice.
The Applicant stated that he did not ignore Mr Gripske's advice. Rather he and two other employees worked with Mr Tyler who used the excavator to lift the suction mechanism out of the water, placing a bucket over the end of the suction and returning it back in the water. This was done to prevent the rocks getting into the pump. He said that he was aware of the issue and he addressed the issue in an efficient and timely manner. The Applicant did however state that it was inevitable that, at some point, the suction will pick up a rock or rocks which might damage the pump. The Applicant stated that to the best of his knowledge the system he installed continues to be the system used at the Site.
I prefer the evidence of the Applicant to that of Mr Gripske in respect of this incident and find no issue with the manner in which the Applicant dealt with the matter.
Picking up papers in long grass incident: Mr Jenkins advised the Investigation that the Applicant had directed him to pick up papers in long grass without allowing him to return to the depot to collect the correct tools or PPE and, further, he was compelled to fashion makeshift tools out of walking sticks and knives. This is alleged to have occurred in or about February or March 2015. It should be noted that this incident is likely to have occurred after the toolbox meeting on 25 February 2015 when the complaint against the Applicant was initiated.
The Applicant states that the Site has long grass in a few spots and the area that this incident is alleged to have occurred was not identified by Mr Jenkins. The Applicant could only identify the site by the statement that "it was a snake infested area" i.e. the area between the wrecking yard pump and the back shed. The Applicant stated that he had been directed by Mr Cantrell and Mr Currie to ask his employees to pick up papers in that specific area. Prior to the employees commencing to pick up papers in the area, the Applicant arranged for Mr Tyler to knock all the long grass down with the back of the bucket of the excavator to ensure there were no snakes in the area. The Applicant said that the employees were using, and had access to, paper picking tools on that occasion.
Whilst the employees were performing this task, the Applicant asked Mr Jenkins and one other employee after lunch on the particular day, to clean the truck and ensure that the equipment (the paper pickers) was removed from the truck as it was going into the workshop in Carrara and he was unsure as to how long it would be at Carrara. Neither employee emptied the truck and so the truck went to Carrara together with the equipment, including the paper pickers. On the following work day the employees found themselves without paper pickers. When the Applicant became aware that the employees had left the paper pickers in the truck, he directed them to pick up papers in other areas of the Site i.e. they were to rake up papers around the tip or use the vacuum to clean papers out of the drains around the fences.
The Applicant was required to attend a meeting off-Site that afternoon and, following the meeting, he attended the workshop at Carrara and collected the paper pickers. On his return neither Mr Jenkins nor the other employee had cleaned up any of the papers in the area from the wrecking yard pump to the back shed - there were no bags of papers collected on that day. The employees had been directed to perform these tasks at a time when paper picking tools were available to them according to the Applicant. There were rakes, a vacuum and shovels available to the employees to collect the paper.
The Applicant denied directing any employee to use "make-shift tools" to pick up papers. He saw photos in the Respondent's list of documents in this matter that appear to show "make-shift tools". The Applicant said that he had never seen those tools before and he would not, under any circumstances, direct employees to make or use tools like that. Given that Mr Jenkins was obviously a complainant at the toolbox meeting on 25 February 2015 I question the actions of Mr Jenkins and his make-shift tools and the photographs taken.
Once again the Applicant has a perfectly reasonable response to this complaint of Mr Jenkins. I prefer the evidence of the Applicant to that of Mr Jenkins in relation to this incident.
Blockage in the Vacuum Machine Incident: Mr Jenkins in his statement to the Investigation said that the Applicant had directed him to remove blockages in the vacuum machine and that required him to place his arm in past the fan. The Applicant denies asking employees to put their hands in the vacuum cleaner or "past a fan" to remove blockages. He certainly has never given a direction to do so and never knew this was an issue. The vacuum came on Site when the Suntown site was closed and the Applicant did not know that any employee put their arms in past the fan to remove blockages.
Screen Plant Incident: Mr Heath during the Investigation process stated that he was at the screening plant on one day having never used the machine and the Applicant did not given him any direction as to how to use the machine. He said that there was a big rock stuck in the machine and the Applicant drove up in his van and yelled at him to get the rock out of the machine. Mr Health said that he spent hours on his back trying to get the rock out. He further stated that he had subsequently found out that there was a manual way to have the rock removed which the Applicant was aware of and which was safer and more time effective. Mr Heath saw this incident as the Applicant being vindictive towards him.
In his Affidavit, Mr Heath says that the Applicant gave him a very brief rundown on how to use the screen plant on this particular day. Within about an hour the Applicant notified him that there was a big rock stuck in the roller. He says he then got out of the truck and went to speak with the Applicant about how to get the rock out and the Applicant just drove off. He says he was left to work out how to get the rock out of the machine. He said that the only way he could see to get the rock out was to physically climb inside the machine with a crow bar and lay on his back and knock the rock out with the crow bar. Mr Heath stated that after a couple of months of using the machine he worked out that he had to open and separate the belts from the rollers and then the rocks just fell out.
The Applicant could recall, early in 2014, there was a rock stuck in the screen plant and it had to be removed to enable the machine to operate properly. The Applicant did not accept the version of this incident provided by Mr Heath. According to the Applicant, Mr Heath, another employee and himself were in the machine with crowbars trying to remove the rock. In the end it was decided to remove the roller to get the rock out. The rock then fell out down the shoot and the roller was then replaced. The Applicant stated that he had not been aware of any other procedure for removing the rock. Further, he has not been trained in any other procedure for removing such rocks.
I prefer the evidence of the Applicant to that of Mr Heath in respect or this incident. I note that in the Investigation Report dated 28 April 2015 it is stated that Mr Heath believed that the Applicant was being "purposely vindictive" in not showing him a quicker way of removing the rocks.
In the Letter of Allegations dated 30 April 2015 the Respondent appears to rely on Mr Heath's complaint to the Investigation to allege that the Applicant displayed vindictive behaviour and reprisal action toward Mr Heath by directing him to climb into machinery to clear out rocks. On neither of Mr Heath's accounts of this incident does he say he was directed by the Applicant to climb into the machine to clear out rocks. This appears to be another example of the evidence obtained in the Investigation being inappropriately used.
The Applicant said he had recently become aware of an alternative method which involved the removal of the safety pins in the machine but he believed that this was an unsafe mehod of removing the rocks. This apparently was the method that Mr Heath referred to when he said had now found an alternative method of removing the rocks from the machine. The Applicant indicated that he did not believe that this method was a Respondent-approved method.
Peter Kingston who has twenty years of expereience in operating screen plants and quarrying said that the screen plant gets blocked quite often. To clear a stockpile conveyer (screen plant) blocked with dirt he uses the following method:
"(1)Switch all conveyers and screens off;
(2)Lower stalled stockpile conveyer until it is supported by the two steel cables at the top of the conveyer. This will allow some material to fall from the conveyer past the side skirts;
(3)Try to restart the conveyer. If the belt starts allow it to run until it is empty, turn the belt off and raise conveyer back to its original position making sure the side skirts are inside the belt;
(4)If the belt fails to start, switch off plant engine and remove key. Climb onto the belt via the top of the screen catwalk and shovel material from belt. After this climb off the belt and try to restart the conveyer; and
(5)If conveyer stops follow step 3. If conveyer fails to start follow step 4 until conveyer starts. (Note: conveyer will start if loaded with a limited amount of material so the conveyer does not have to be cleaned out completely with a shovel)."
Mr Kingston also outlined the procedure for changing screens on the screen plant and for replacing the bottom screen mats.
The Applicant said that if he had seen Mr Heath removing the safety pins from the conveyer belt he would have asked him to stop immediately as the practice was very unsafe.
Compact Rubbish with Drott Incident: Mr Zielke in his statement to the Investigation said that the Applicant directed him to compact rubbish using the "drott" after the Respondent had issued a direction not to do so as the compactor was broken. The direction, according to Mr Zielke, had been given after a number of roll-overs had occurred. ve
The Applicant stated that there was a Task Analysis Safety Instruction (TASI) for Use of Track Loader as a Replacement Compactor on Landfill that allowed him to direct employees to use the drott to compact rubbish when the compactor was broken. He was aware of two roll-overs that had occurred, one at the Stapylton site years ago and one at Tugan when Mr Heath rolled over. The TASI was put in place to demonstrate how to use the drott to compact rubbish in a safe manner. This TASI was in evidence.
According to the TASI, the Applicant has complied with the Respondent's requirements and I cannot see why the Respondent would have relied on such a complaint to demote the Applicant given its own established procedures.
Ground of Workplace Harassment - Vindictive Behaviour on the part of the Applicant: It was alleged that the Applicant displayed vindictive behaviour and/or reprisal action towards employees by directing them to carry out jobs manually that are able to be done with machinery and assigning them with extra hard tasks as punishment when he was displeased with them. The examples relied upon included:
· by directing an employee to climb into machinery to clear out rocks. I have already dealt with this incident and find no basis for the allegation in the Investigation Report. There is no evidence that the Applicant directed Mr Heath to climb into the machine;
· by directing a employee to re-dig a trench by hand after rain as the Applicant claimed that he did not properly remove all of the clay the first time. There was no evidence before me in respect of this issue;
· in carrying out reprisal action against an employee who was a witness against him in a serious workplace incident involving leachate when he returned to the workplace after a significant illness. According to the evidence the leachate incident involved Dave. Dave did not give evidence. One of the so-called reprisal actions was said to be "sift significant amount of sand by hand which could have been done by machine in 38 degree heat resulting in him almost fainting". This then must refer to Mr Jenkins. I do not accept that Mr Jenkins was directed to sift significant amounts of sand by hand. He was asked to establish a sand base pad for five tanks to sit on. I accept the Applicant's evidence that a grader is not usually used to level such a small area. I further accept that the sand needed to be screened by hand to ensure that the base pad was level. The direction given by the Applicant was not reprisal action against Mr Jenkins. Further, there was nothing in the evidence to support the allegation that the Applicant engaged in reprisal action over the leachate incident.
Ground of Workplace Harassment - referred to Site as "His Site": The Respondent alleges that by continuously referring to the Site as "his Site" the Applicant has engaged in workplace harassment in the Letter of Allegations. It is nothing of the sort.
Other Allegations of Workplace Harassment: The Respondent alleged that the Applicant spoke "down to employees and telling them (signalling with your hands) that you are here (placing your hand down low) and I am up here (placing your hand high) and telling your employees to 'sit there in your truck or in a certain place, until I tell you to move'". There was no evidence adduced of any such actions on the part of the Applicant.
The final allegation of workplace harassment was that the Applicant yelled and swore on site and in team meetings and that he conducted team meetings in the lunchroom with his sunglasses on, refusing to remove them. As for the allegation concerning the sunglasses, the Applicant has been advised by his medical practitioner to wear sunglasses in bright light. He says that he never wears his sunglasses over his eyes during staff meetings. His sunglasses are usually perched on top of his head or on his hat. He needs reading glasses if he is reading something during a meeting and cannot therefore have sunglasses and reading glasses on at the same time. In any case, I don't know what the problem is if the Applicant wears sunglasses. I am unable to comprehend how the Applicant wearing sunglasses in the lunchroom and refusing to remove them can amount to workplace harassment.
I have previously dealt with the Applicant's language and the manner in which he addresses employees earlier in this decision.
Conclusion
I have previously determined that the Respondent has failed to adduce sufficient evidence to substantiate the allegations outlined in its Letter of Demotion dated 4 June 2015 in paragraph [23] of this decision. I have further found that the Respondent, in the arbitration of this dispute, did not identify any basis for depriving the Applicant of his supervisory role or for issuing him a first and final warning.
I did however deal with the evidence of those witnesses who were, prior to the Applicant's demotion, supervised by the Applicant. I have dealt in this decision with a substantial number of the complaints or allegations raised against the Applicant by these employees. A number of these matters were said to be breaches of Work Health and Safety policies of the Respondent. The Applicant did give evidence that as the Supervisor of the Site he had undergone a number of Site audits on Work Health and Safety and that the respective Respondent site inspectors had been satisfied with the manner in which he had managed the Site. The Respondent adduced no evidence to contradict the Applicant's evidence in this regard.
Other than the matters identified in paragraph [30] of this decision I find the Applicant's conduct not to have raised any issues of Work Health and Safety or Workplace Harassment which would warrant any action being taken against the Applicant.
At the close of the evidence I asked those representing the Respondent to speak with senior management of the Respondent as to any options I might consider should I reinstate the Applicant to his position as Supervisor of the Site. I indicated that I would like to be addressed on this issue on the following morning.
I did not ask anything of the Applicant however he responded by saying that he did "not dispute that any such reinstatement might include conditions such as performance management over a 12-month period and additional training as required". The Respondent's response was that it believed that "it is inappropriate for Mr Stephen's [sic] to be reinstated into his role. However, Council is prepared to maintain Mr Stephen's salary in his current role whilst he undergoes intensive management training". There was no evidence that the Applicant had been provided with any management training since 2011 let alone intensive management training.
[100]As I indicated to the parties I expected the Respondent to suggest a "trial period" as a supervisor or something similar. After I suggested this the Respondent's representative said that the Respondent would agree with that proposal.
[101]The Applicant is reinstated in his position as Supervisor of the Reedy Creek Landfill Site. I have found that allegations made by the four witnesses that the Applicant will now be required to supervise have not been substantiated. I lay some of the blame for this on the Investigation. Witnesses were not sufficiently put to proof. The scant particulars which the witnesses provided were not further investigated and specific particulars provided. No one seems to have sought further information from the Respondent which would have corroborated some of the allegations raised e.g. overtime records, training records etc. I doubt that Mr Cantrell or Mr Dalton were interviewed when the Applicant's Response to the Letter of Allegations was provided. It does not appear as though the investigators actually went to the site otherwise the trench/drain incident may not have been relied upon.
[102]I have identified that the Applicant should be further trained in certain respects. That training should also involve training for supervisory staff or management training. Work will need to be done on the relationship between the Applicant and his leading hands. They are matters for the Respondent to consider and take appropriate action.
[103]The relationship between the Applicant and some of his employees will be strained for a period of time. Mr Currie is no longer the Applicant's manager. I was informed that his replacement is Richard Morgan and that Mr Cantrell is Mr Morgan's supervisor. Both of these gentlemen will have to work with the Applicant and his team. I will place the Applicant on an appropriate performance management program for a twelve month period. The terms of that program should be agreed between the Applicant (with the assistance of his legal advisers) and Mr Morgan and perhaps Mr Cantrell. The Applicant's evidence was that he had a good working relationship with Mr Cantrell.
[104]During that performance management program the Respondent is to ensure that the Applicant receives all the necessary training to enable him to carry out the duties and responsibilities of his position as Supervisor. Should any issues arise during the course of that performance management program and the parties cannot resolve the issue, then the matter can be referred back to the Queensland Industrial Relations Commission for conciliation.
[105]The Applicant was demoted effective 4 June 2015. He has obviously expended monies in seeking this remedy. For the past twenty-seven weeks his salary has been reduced from that of a Supervisor's rate of pay to that of an operator's rate of pay. The Applicant is to be reinstated into his Supervisory position as of 5 June 2015 and paid any loss in salary during that twenty-seven weeks.
[106]The first and final warning issued to the Applicant on 4 June 2015 is to be removed from his record. As the Demotion Letter stated there had not been any disciplinary issues of note during the Applicant's twenty-five years of employment with the Respondent. His employment record will reflect that position as at the date of release of this decision.
[107]I order accordingly.
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