QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:		McDowell v Townsville City Council [2015] QIRC 163
	
PARTIES:	
	McDowell, Gregory
(Applicant)

v 

Townsville City Council
(Respondent)	

CASE NO:
	
TD/2015/15	
PROCEEDING:
	Application for Reinstatement	
DELIVERED ON:
	26 August 2015	
HEARING DATES: 
	25 - 26 August 2015	
HEARD AT:
	Townsville Magistrates Court	
MEMBER:
	Deputy President Kaufman	
ORDER:
	The application is dismissed. 	
CATCHWORDS:	INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - HARSH, UNJUST OR UNREASONABLE - whether applicant engaged in serious and wilful misconduct - use to which previous warnings may be put - previous warnings only relevant as to the fact that a warning had been given - not opportunity to traverse circumstances of previous warnings - matters referred to in s 77 of the Industrial Relations Act 1999 considered
	
CASES:	Industrial Relations Act 1999, s 77
Lamb v Redland City Council [2014] QIRC 041
Stark v P & O Resorts (Heron Island) (1993) 144 QGIG 914
	
APPEARANCES:	Ms R. Huskie, Construction, Forestry, Mining and Energy Industrial Union of Employees, Queensland, for the Applicant.
Mr N. Le Mare, Corrs Chambers Westgarth, for the Respondent. 

Reasons for Decision

On 26 August 2015, I delivered the following reasons, now slightly edited: 

[1]	Mr McDowell was employed by the Townsville City Council on 24 February 2010 as a labourer. He mainly worked on road gangs whilst so employed.  On 15 December 2014, he was involved in an incident that resulted in him damaging, slightly, the dashboard of a dual-cab vehicle in which he was the rear seat passenger.  The incident is probably best described in Mr McDowell's affidavit:

"…
43.	On 15 December I was a passenger in a truck with Mr Jamie Long and Mr Bennett taking rubbish from Riverside to Stuart landfill.

44.	I was sitting in the back of the truck, Mr Long was driving and Mr Bennett was in the front passenger seat of the truck. 

45.	It was very hot that day so I had the back window down. 

46.	Mr Bennett used the controls in front of the truck and wound the window up.

47.	I said words to the effect: "hey, what are you doing? It is hot in the back.  Can you leave the window down?"  I then proceeded to wind the window back down.

48.	Mr Bennett responded with the words to the effect: "we have the a/c on, so we want the windows up" and he wound the windows up again using the controls in the front of the truck. 

49.	I said words to the effect "the a/c doesn't reach the back, it gets too hot," and I wound the window back down.

50.	Mr Bennett then wound the window up and locked it using the controls in the front of the truck. 

51.	I then reached through to the front of the truck, pressed the unlock windows button and proceeded to wind my window down again.

52.	Mr Bennett then proceeded to wind the window back up and turn the lock on again.

53.	I then reached forward and hit the control panel to unlock the window. Upon impact, the plastic casing around the control cracked.  I realized instantly that I had hit the panel too hard and to continue with the argument further was a mistake.  When we returned to the depot I immediately spoke to Mr Brush, told him what had happened and that I wanted to go to Cranbrook to speak to Mr Chris Dooley of the Respondent or Mr Stinson. 

54.	Mr Brush called Mr Dooley by phone and informed him we were coming over to speak to him.

55.	We went to Mr Dooley's office and Ms Forrestal came and had a meeting with us.

56.	I explained what had happened.  I was apologetic and I offered to pay for the replacement of the plastic casing.

57.	Mr Forrestal advised me I would have to be stood down pending an investigation into the matter."

[2]	It was obviously necessary for Mr McDowell, a large and heavy man, to remove his seatbelt and reach over or between the driver's and passenger's seats of that vehicle to reach the window controls which were located on the dashboard.  Mr McDowell leant over once and put the window up.  The front passenger put the window down again.  Mr McDowell leant over again and punched the dashboard with such force that the mechanism broke, whereupon he said, “You can't put it up now.”  Mr McDowell accepted that the vehicle was in motion at the time and travelling in location where roadworks were taking place.  He said that he snapped and lost his temper.  He immediately reported the incident and showed remorse.  An investigation ensued, at which time Mr McDowell was stood down with pay.

[3]	On 16 December, a letter was sent to him from Ms Deanne Forrestal, the acting manager, maintenance services delivery, asking him to respond to allegations of misconduct.  In that letter, Ms Forrestal reminded the applicant that he had been presented with a Step 2 written warning on 27 August and with a final warning on 23 September 2014, at which time he was advised, amongst other things, that: "Any future substantiated misconduct of this nature may result in further disciplinary action against you, including your dismissal."

[4]	In relation to both of those written warnings, the conduct that resulted in the warning was some sort of interaction with other members of the Council's staff.

[5]	Ms Forrestal set out the result of the investigation and set out the occurrences in the vehicle at the time.  She made two allegations:  that Mr McDowell wilfully acted to damage Council property and that, while he was a passenger in a moving vehicle, his conduct effectively created a significant risk of injury to himself, other persons in the vehicle and other road users.  She noted that he was the subject of a formal investigation.

[6]	Mr McDowell provided a written response to the allegations. In that written response, he made allegations of having been bullied and picked on.  He raised issues of bullying which he says he had with Mr Rush, who I believe is a leading hand. and that he was ignored.There was a suggestion of depression.  It's notable that Mr McDowell, in that written response, did not reply to the allegations in relation to the "dashboard incident."

[7]	On 19 December, there was a meeting between Mr McDowell, Ms Forrestal, James Healy, the employee relations adviser for the Council, and Mick Robinson, a CFMEU official or organiser, who was attending on behalf of the applicant.  Ms Forrestal describes what happened in that meeting:

"…
62.	[Ms Forrestal] attending a meeting on 19 December 2014 with Mr McDowell, his union representative from the CFMEU Mr Mick Robinson, and James Healy.  The meeting was a further opportunity for Mc McDowell to respond to the allegations.  [Ms Forrestal] reviewed [her] notes of the meeting and can confirm that Mc McDowell made statements during the meeting to the effect of the following:

a.	that he had mental health issues and had enrolled in an anger management course;
b.	that the incident where he punched the dashboard was the result of a 'build up';
c.	that he wasn't normally an angry person but realized that he needed help;
d.	that the crew members teased him about his weight and called him lazy; and
e.	that he was the 'hardest worker there'.

63.	Mr Robinson of the CFMEU spoke on behalf of Mr McDowell, offering for Mr McDowell to pay for the damage to the dashboard and requesting 'one last chance'.

64.	During the investigation process into the dashboard incident, Mr McDowell made allegations that he had been bullied and victimised by his crew members.  Those allegations were similar to the allegations made by Mr McDowell in his Affidavit.  I spoke to Mark Brush, Mr McDowell's crew leader while I was investigating the dashboard incident and asked him whether he had witnessed any bullying behaviour amongst the crew as described by Mr McDowell in his written and oral statements.  He said that he had not.   I also spoke to Chris Dooley and Norm Stinson.  All three of these supervisors carry diaries with them to record notable incidents such as a claim of bullying or a safety incident.  None of these supervisors have any diary notes in relation to a compliant made by Mr McDowell. 

65.	I have reviewed Mr McDowell's employment record and can confirm that the Council has not been provided with any medical evidence of Mr McDowell's anxiety or depression as referred to by him in his Affidavit" 

[8]	Notably, at paragraph 64, Ms Forrestal observed that Mr McDowell had made allegations about him having been bullied and victimised by his crew members.  She says that those allegations were similar to those that Mr McDowell made in his affidavit, and she spoke to Mr Mark Bush, Mr McDowell's crew leader, while she was investigating the dashboard incident and received a response to the effect that there were no such allegations made.  The particulars are more specifically set out in paragraph 64 of her affidavit.  Also, at paragraph 22 to 29, she indicates that she had made inquiries to ascertain whether there are any records to substantiate Mr McDowell's allegations of bullying and harassment, and she was unable to find any such allegations.  

[9]	On 23 December, a show cause letter was issued.  The allegations were set out.  The details of the investigation were provided.  The document summarised the statements of others involved in the dashboard incident.  It referred to Mr McDowell's allegations of bullying at the 19 December meeting, and it noted at least three opportunities in the past that Ms Forrestal alleged Mr McDowell had had to raise bullying and harassment issues but hadn't availed himself of those opportunities.  The letter concluded that the allegations had been established, and it invited Mr McDowell to a meeting with Mr Sadler, the acting executive manager, to discuss why termination shouldn't follow.

[10]	On 16 January 2015, there was a meeting involving Mr Sadler, the applicant, Mr Robinson and Ms Forrestal, at which Mr McDowell was asked why his employment should not be terminated.  Mr Sadler also affirmed an affidavit.  He described what happened at the meeting.  At paragraph 64 – he said:

"Mr McDowell attended a meeting on 6 January 2015 to show cause why his employment should not be terminated.  I attended this meeting with Ms Forrestal, Mr McDowell and Mr McDowell's representative from the CFMEU, Mr Mick Robinson."

At paragraph 65:

"During the meeting, Mr McDowell provided reasons as to why disciplinary action should not be taken against him.  His reasons can be summarised as follows:  (a) he had attended an appointment with his GP about a mental health care plan;  (b) he had attended one appointment with a counsellor but had not made a further appointment;  (c) he was seeking counselling services through the CFMEU's program;  (d) termination of his employment would cause him financial stress;  (e) he had offered to pay for damage to the vehicle;  (f) he had offered to apologise to the crew;  and (g) he did not like his crew team leader, did not like him talking to him at all and always had trouble with him."

[11]	At paragraphs 66 to 72, Mr Sadler outlined why he had taken the decision to terminate Mr McDowell's employment.  He said that he took into account Mr McDowell's various responses in relation to the allegations and the proposed disciplinary action.  He did not consider Mr McDowell's claims of being teased or bullied could in any way justify his behaviour in any of the three incidents the subject of the two earlier warnings and the final incident, the dashboard incident, and he was particularly concerned with the nature of Mr McDowell's behaviour in the dashboard incident.  In his view, it was because Mr McDowell had lost his temper, and that behaviour was completely unacceptable, according to Mr Sadler.

[12]	He outlined at paragraph 69 the other facts which he had taken into account:  the three incidents of misconduct, all taking place within a five-months period, the fact that the incidents were not limited to one person, Mr McDowell's offer to pay for the damage and to apologise to the crew.  He noted Mr McDowell claimed that he had anger management issues, as well as anxiety and depression.  However, Mr Sadler believed that Mr McDowell had done little to address this, and ultimately, he came to the view that the termination of Mr McDowell's employment was, in all the circumstances, appropriate.

[13]	Mr McDowell's employment was terminated by letter on 29 January 2015.  It detailed all the procedural steps that had taken place since the dashboard incident and concluded at page 5, outlining what Mr McDowell had put by way of mitigation.  It noted that the previous workplace incidents involved two other employees and that his workplace relationships were discussed on 19 August and 22September 2014, noted that he was under financial stress due to his debt agreement and that losing his job would impact on his relationship with his partner and that Mr McDowell had offered to pay the damage to the Council.  

[14]	Mr Sadler observed that Mr McDowell had failed to follow through on his repeated commitments to actively seek counselling and act on resolving his admitted anger management issues and to apologise to his crew and refrain from outbursts of anger and aggression towards them.  Mr Sadler said that he had no confidence that there would not be a repetition.  He decided to terminate Mr McDowell's employment, noting that the allegations of wilfully acting to damage Council property as well as the jeopardising of the safe operation of a motor vehicle had been substantiated.  He found that Mr McDowell had engaged in serious misconduct and Mr McDowell's employment was terminated at that time.  He was paid his accrued leave entitlements and instructed to return Council property.

[15]	The legislation in the Industrial Relations Act 1999 applicable to matters such as this is section 74 in particular which allows an application for reinstatement to be made if it is alleged that an employee has been unfairly dismissed.  Section 77 deals with arbitration proceedings where conciliation has been unsuccessful.  

[16]	Section 77 provides that:

"In deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider:

 (a) whether the employee was notified of the reason for the dismissal –

 That was clearly the case in this matter – 

(b) whether the dismissal related to operational requirements – 

It did not – 

…or (ii) the employee's conduct, capacity or performance – 

The dismissal related to Mr McDowell's conduct – 

…and (c) if the dismissal relates to the employee's conduct, capacity or performance, whether –

relevantly, subsection (ii):

…whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance – 

[17]	Clearly Mr McDowell was given that opportunity on more than one occasion.  Having considered those matters, I am of the view that there is nothing in the conduct of the Council that would render the termination of Mr McDowell's employment harsh, unjust or unreasonable.  I'm also required by section 77(d) to consider any other matters that I consider relevant or the Commission considers relevant. I turn to those matters now.

[18]	Ms Huskie, who appeared on behalf of Mr McDowell, accepts that the incident was serious.  However, she submits that termination of employment was a disproportionate response because Mr Sadler failed to take into account the mitigating factors.  Mr McDowell particularly relies on his alleged past bullying and harassment to suggest that this caused, contributed or led to his snapping and hitting the dashboard.  As I commented during discussion, there seems to be some disconnect between the alleged bulling and harassment and the incident that occurred when he hit the dashboard.  That seems to me to be specifically related to the fact that he wanted the window down and the people in the front of the cab wanted the window up and the to-ing and fro-ing that took place in relation to raising and lowering the window.  I do note that Mr Bennett was one of the people who was allegedly involved in the bullying and harassment, but that does not seem to me to provide a sufficient cause or connection between those allegations and the loss of temper on that occasion.  I note that, at paragraph 60 of Mr McDowell's affidavit, he said:

"I explained to the respondent my behaviour was in reaction to the way I was being treated by my colleagues and I was seeking to help to treat my depression and anxiety.  I was very apologetic and again offered to pay for the cost of the replacing the plastic casing."

[19]	I accept that Mr McDowell has been consistent in claiming that his prior treatment led to his outburst on that occasion.  I would observe that, even if it did, it doesn't excuse the behaviour.  In my view, Mr McDowell was not being bullied or harassed at the time.  He simply overreacted to the repeated closure of the rear window.

[20]	I also accept the evidence particularly of Ms Forrestal and, Mr Stinson that, although Mr McDowell had made generalised complaints about bullying and harassment, he did not act on invitations to formalise them.  The affidavit of Mr Stinson, who is the acting delivery coordinator for maintenance services with the Townsville City Council, at paragraphs 6 to 9 deals with this issue.  He says that he has read Mr McDowell's affidavit and he's aware that Mr McDowell has made various claims, namely that he reported to his supervisors that he'd been made fun of and bullied by various co‑workers and that he's aware that Mr McDowell claims that he spoke to me about his concerns of receiving differential treatment by Mr Brush.  He goes on to say:

"In relation to those claims, I can recall that Mr McDowell would sometimes come past my office in the morning and raise issues about other people in his team.  Although Mr McDowell did, from time to time, mention the names of the people he was having issues with, he did not provide me with any specifics.  In any event, the issues he raised concerned the dealings he had with other members in his team and his objection to being told what to do by his crew team leader.  Relevantly, the Council provides all employees with training about bullying and harassment.  It was my assessment that the issues McDowell described to me did not amount to bullying or victimisation as there were no specific details.  In any event, Mr McDowell never himself described these matters as amounting to bullying or victimisation and I told him repeatedly that I could not deal formally with them unless he put them in writing and set out the full details."

[21]	Ms Huskie made some submissions in relation to mitigation in support of her application that termination of the applicant's employment was harsh, unjust or unreasonable.  She submitted that the damage was not significant.  I accept that, although that's not the point.  She said that the applicant hadn't planned to take the action.  Well, he did repeat it twice.  She said that he was open and immediate in taking responsibility.  I accept that and Mr McDowell clearly showed contrition and accepted that what he had done was inappropriate and wrong.  Ms Huskie said that, given Mr McDowell's previous complaints against Mr Bennett, the other button-pusher, Mr McDowell just snapped.  I have already dealt with that.  

[22]	Ms Huskie submitted that this sort of behaviour was not usual for Mr McDowell.  I accept that Mr McDowell had previously not engaged in physical behaviour of this nature, however the two incidents that led to the previous warnings did involve his interactions with other members of staff and arguments with them and losses of temper.  Ms Huskie submitted that the incident scared Mr McDowell and resulted in his seeking treatment for anger management.  If that be the case, that is commendable and it does show that Mr McDowell realised the seriousness of his misconduct.  Ms Huskie again pointed out that his complaints about bullying and harassment had not been dealt with.  I've already said all I need to say about that.

[23]	She noted that the applicant had been employed for five years, which, although a reasonable amount of time, is not a particularly long period of employment, and she said there had been no similar incidents involving Mr McDowell.  I have made my comments in relation to that already.  Mr McDowell sought to place much weight on his previous bullying being the reason that he snapped;  I have already made my comments in relation to that.  I don't think there's anything further that needs to be said.

[24]	Mr Le Mare, a solicitor who appeared for the Townsville City Council, emphasised the seriousness of the applicant's conduct and the potential for life-threatening consequences.  I accept that submission, and I observed during the hearing that it seems to me that the incident, which did not cause any significant damage, was potentially very serious.  Mr McDowell was in a moving vehicle, took off his seat belt, lurched across between the driver and the passenger on two occasions, and, at least on the second occasion, with some force.  Luckily, there was no reaction from the driver or the passenger, and nobody was injured.  But the behaviour could have had catastrophic results.

[25]	Mr Le Mare noted that the applicant had been afforded due process, and I've already dealt with the history of the process.It's clear that he had been afforded due process leading from the dashboard incident to the termination of his employment.  It was submitted that Mr Sadler had taken all the relevant factors into account, and I have outlined those factors that Mr Sadler did take into account, and I accept that submission.  It does seem that Mr Sadler turned his mind to all of the relevant matters and gave due consideration to them before he took the step of terminating Mr McDowell's employment.

[26]	Mr Le Mare referred me to Lamb v Redland City Council, where Deputy President O'Connor, at paragraph 6, citing a decision of then Chief Commissioner Hall, in Stark v P & O Resorts (Heron Island), quoted this passage:

"Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, be held immune from interference by the Commission."

[27]	The passage that I have referred to is a passage that is similar to many observations that can be found in decisions of this Commission and the Federal Commission.  It is not for the Commission to put itself in the position of the employer and give a decision that it might have made had it been the employer.  The task of the Commission is to ascertain whether the termination of employment was harsh, unjust or unreasonable, not to substitute its own opinion, if it might have formed a different view.  There is ample authority to that effect.  

[28]	The respondent highlighted in Mr Le Mare's submissions the applicant's failure to formally complain and also, as I've already observed, the disconnect between any bullying and harassment and the dashboard incident.  

[29]	I want to deal with the previous warnings.  In considering whether to terminate Mr McDowell's employment, Mr Sadler had regard to the fact that he had had two formal warnings, the second of which was a final warning, and that the three incidents of misconduct, including the dashboard incident, took place within a period of five months.  The parties led evidence about what had transpired in relation to each of the earlier warnings, as well as the process undertaken in investigating the incidents leading up to them.  I raised with the parties during the hearing whether that evidence was relevant, and suggested that it might not be.  I allowed the parties to lead that evidence, despite my reservations.  

[30]	In my view, in a matter of this nature where there have been previous formal warnings given to an employee who is subsequently dismissed, only the fact – and I emphasise the word "fact" – of those warnings is relevant and admissible.  The circumstances leading to and the processes involved in the two earlier warnings to Mr McDowell are not relevant to the consideration of whether the termination of his employment for the dashboard incident in January 2015, was harsh, unjust or unreasonable.  Such evidence is inadmissible because it is not relevant.  The fact of the existence of previous formal warnings goes to and is relevant to a consideration of whether the dismissal was harsh and, possibly, unjust or unreasonable.

[31]	A person's employment record, especially whether or not he or she has been warned, is clearly relevant when a decision is to be made whether termination or a lesser penalty is appropriate in particular circumstances.  There's obviously a difference between a cleanskin who is engaged in an incident that warrants discipline and somebody who has had previous warnings.  An employer must take that employment history into account.

[32]	However, the appropriateness of those previous warnings, and the way in which they were given, the processes leading up to them and so on, is not relevant to the question of whether a subsequent termination of employment was harsh, unjust or unreasonable.  An unfair dismissal application should not and may not be used as an opportunity to revisit past warnings.  It was open to Mr McDowell at the time that the previous warnings were issued to notify the Commission of the existence of an industrial dispute if he had considered that they had been wrongly issued.  He could have sought to have them dealt with by the Commission and sought to have them revoked.  He did not do so.

[33]	In conclusion, Mr McDowell has not persuaded me that the termination of his employment was harsh, unjust or unreasonable.  As I commented during his cross-examination, his actions in reaching to the front of the vehicle to activate the window buttons on the dashboard could have had quite severe consequences.

[34]	The Council afforded Mr McDowell full and due process.  Mr Sadler took all relevant matters into account, after having afforded Mr McDowell every opportunity to plead his case.  I agree that Mr McDowell's conduct constituted serious and wilful misconduct, such as warranted summary termination.  Here, the Council conducted a full and as exhaustive an investigation as was necessary in the circumstances, given that there was really no dispute as to what occurred during the dashboard incident.  The Council's decision that Mr McDowell had engaged in misconduct warranting termination was based on reasonable grounds.  

[35]	The application for relief is dismissed.