Thomson v Brisbane City Council - [2021] QIRC 429

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Thomson v Brisbane City Council [2021] QIRC 429
PARTIES:	Thomson, Aaron Lee (Applicant) v Brisbane City Council (Respondent)
CASE NO:	TD/2021/40
PROCEEDING:	Application for reinstatement
DELIVERED EX TEMPORE ON:	13 December 2021
HEARING DATE:	9 December 2021
MEMBER:	Dwyer IC
HEARD AT:	Brisbane
ORDER:	*Pursuant to section 321 of the Industrial Relations Act 2016* (Qld), I order that within 21 days of this decision: 1. That the respondent will reinstate Mr Thomson to his former position on conditions at least as favourable as the conditions on which he was employed immediately before his dismissal; and 2. Mr Thomson's continuity of employment be maintained for all purposes from the date of dismissal.**
CATCHWORDS:	INDUSTRIAL RELATIONS - APPLICATION FOR REINSTATEMENT -unfair dismissal - safety breach - line marker and traffic controller operating heavy machinery - positive alcohol reading - zero alcohol limit - severity of breach - employee showing remorse and admitting guilt - 25 years service with employer - unconditional apology - demonstrated insight into conduct - dismissal harsh, unjust and unreasonable - reinstatement ordered - no order for compensation - order that continuity of service be maintained
LEGISLATION:	City of Brisbane Regulation 2012 (Qld) s 258 Industrial Relations Act 2011 (Qld) s 316, 317, 320, 321
CASES:	Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG 139 Bostik (Aust) Pty Ltd v Georgevski (No 1) (1992) 36 FCR 20 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Farquharson v Queensland Racing Integrity Commission [2018] QIRC 1 Perkins v Grace Worldwide (Aust) Pty Ltd [1997] IRCA 15, (1997) 72 IR 186 Robinson v Woolworths Limited [2012] FWA 1179

Reasons for Decision

Delivered ex tempore on 13 December 2021

Background

At the outset of these proceedings, it was established that the material facts relevant to the application were almost entirely uncontroversial. Consequently, the evidence in the proceedings was provided exclusively by way of affidavits, and the parties provided both written outlines of argument and oral submissions.
At the time of his dismissal, Mr Aaron Thomson had been employed with the Brisbane City Council ('the BCC') for 25 years. His first two years were not full-time but by 4 April 1998 he was employed full-time and remained so until his termination in April 2021.
In the entire 25 years of his employment, Mr Thomson was not subject to any disciplinary process or performance management. It would appear that Mr Thomson had an exemplary work history.
At the time of his dismissal, Mr Thomson was employed as a building and trades person in the 'Road Marking, Asphalt and Aggregates' team based at Stafford. The work routinely performed by Mr Thomson included painting line and sign markings on roadways which necessarily involved working in proximity to traffic. Another aspect of Mr Thomson's duties included occasional traffic control on these worksites.
Mr Thomson was subject to the 'Managing Drugs and Alcohol in the workplace' policy ('the policy') implemented by the respondent some years earlier. In the policy,…

Grounds of appeal

[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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Details

Case: [2021] QIRC 429
Decision Date: 13 December 2021

CaseChat Overview and Summary

In the case of Thomson v Brisbane City Council, the Fair Work Commission was tasked with determining whether Mr Thomson's dismissal was unfair and to decide on the appropriate remedies. Mr Thomson, who had worked for the council for 25 years, was dismissed after a safety breach involving the operation of heavy machinery while under the influence of alcohol, despite the council's zero-tolerance policy. The dispute centred around the severity of the breach, Mr Thomson's remorse, and his unblemished employment history.

The legal issues before the court involved whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009 (Cth). Key considerations included the nature of the misconduct, the employer's zero-alcohol policy, and Mr Thomson's lengthy service and demonstrated remorse. The court had to weigh the seriousness of the breach against the mitigating factors, including Mr Thomson's admission of fault and his 25 years of service.

The court found that while Mr Thomson's conduct was a serious error of judgement, the dismissal was nonetheless harsh, unjust, and unreasonable. The court acknowledged that Mr Thomson's actions did not stem from wilful misconduct, but rather from a misjudgement regarding the effects of alcohol the previous evening. The court highlighted Mr Thomson's unblemished record and his sincere apology as significant mitigating factors. Given these circumstances, the court concluded that the dismissal was unfair and ordered Mr Thomson's reinstatement to his former position, with continuity of service maintained.

Pursuant to section 321 of the Industrial Relations Act 2016 (Qld), the court ordered that within 21 days of the decision, the respondent would reinstate Mr Thomson to his former position on conditions at least as favourable as the conditions on which he was employed immediately before his dismissal. Additionally, the court ordered that Mr Thomson's continuity of employment be maintained for all purposes from the date of dismissal.

Orders

Orders of the court

Pursuant to section 321 of the Industrial Relations Act 2016 (Qld), I order that within 21 days of this decision:

1. That the respondent will reinstate Mr Thomson to his former position on conditions at least as favourable as the conditions on which he was employed immediately before his dismissal; and

2. Mr Thomson's continuity of employment be maintained for all purposes from the date of dismissal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the circumstances I make the following orders:Pursuant to section 321 of the Industrial Relations Act 2016 (Qld), I order that within 21 days of this decision:1.That the respondent will reinstate Mr Thomson to his former position on conditions at least as favourable as the conditions on which he was employed immediately before his dismissal; and2.Mr Thomson's continuity of employment be maintained for all purposes from the date of dismissal.

Ratio Decidendi

Legal Principle Established

Further, by mounting arguments on multiple alternative grounds, the submissions on behalf of Mr Thomson almost obscure the two very simple (but no less compelling) facts in support of the submission of unfairness namely, that in mitigation of his conduct, proper regard should be had to Mr Thomson's 25 years unblemished employment history and also his demonstrated contrition and insight.Consideration of dismissalMisconduct The first matter for me to consider in the context of these submissions is the nature of the conduct engaged in by Mr Thomson. The conduct leading to Mr Thomson's termination was wholly admitted. Howsoever it might be characterised (as either misconduct or serious misconduct) it does not influence my conclusions about the harshness or otherwise of the termination. I do not consider that Mr Thomson's actions in attending for work that morning could properly be described as wilful or deliberate in the sense that he knew he would produce something other than a 0.00% blood alcohol level reading. It is fair to say that Mr Thomson was entirely conscious that he drank excessively the evening before. He uses these exact words in his apology. The common experience of any adult familiar with the effects of alcohol is that there is often alcohol present in one's system the next day. I consider that Mr Thomson ought to have been conscious that there was at least some risk that he was more than 0.00% when he presented for work. However, I equally consider that (as he told Mr Bird) he thought he would be clear and that this probably influenced his evaluation of the risk. As Dr O'Toole's evidence broadly confirms, the science around the rate of alcohol absorption is often imprecise and subject to numerous variables. Similarly, it is the common experience that an individual's personal evaluation of their own blood alcohol level is often fraught with imprecision and misleading indicators. The real offending conduct of Mr Thomson is not that he presented when he knew that his blood alcohol level was 0.026%, but that he presented in circumstances where he ought to have appreciated there was a risk he would produce a non-negative result. He should have exercised better judgement and insight. On the whole, I consider that Mr Thomson's conduct ultimately amounts to a serious error of judgement on his part and an error that should have (and could have) been avoided had he had proper regard to his obligations with respect to the policy. There can be no question that Mr Thomson's conduct put himself and others at risk. It is wholly irrelevant that the reading was within the lawful limits for e.g. driving a motor vehicle outside of the context of his employment. It is irrelevant that no harm actually arose from his actions. To the extent that it needs to be reiterated it should be said clearly that any employee who engages in conduct that gives rise to a risk of injury or death to themselves or others ought to expect that, in all but the most exceptional circumstances, their conduct will likely warrant the termination of their employment.