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  4. Stone v Brisbane City Council - [2015] QCAT 507

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Stone v Brisbane City Council[2015] QCAT 507

Stone v Brisbane City Council[2015] QCAT 507

CITATION:

Stone & Spelta v Brisbane City Council [2015] QCAT 507

PARTIES:

David Stone and Joseph Spelta

(Applicants)

 

v

 

Brisbane City Council

(Respondent)

APPLICATION NUMBERS:

ADL059-14 and ADL060-14

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

24 and 25 August, 2015

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

DELIVERED ON:

29 December, 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The applications are dismissed.
  2. In the event that the respondent intends to make submissions in relation to costs it must file and serve any submissions by 22 January, 2016. 
  3. The applicants must file and serve any response in relation to costs by 5 February, 2016.

CATCHWORDS:

Direct discrimination – trade union activity.

Anti-Discrimination Act 1991 (Qld), ss 7(k) and 15

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 248 CLR 500;

Gordon v State of Queensland and Ors [2013] QCAT 564

APPEARANCES:

APPLICANTS:

David Stone and Joseph Spelta

RESPONDENT:

Brisbane City Council

REPRESENTATIVES:

APPLICANTS:

Self-represented

RESPONDENT:

represented by Mr Anthony Harding of Counsel, instructed by Mr Paul Gerard Jeffery, Solicitor of Barry Nilson, Lawyers.

REASONS FOR DECISION

Background

  1. [1]
    By Direction made on 16 December, 2014 it was ordered that application number ADL059-14 made by David Stone be heard and decided together with application number ADL064-14 made by Joseph Spelta.
  2. [2]
    On 23 January, 2014, the respondent terminated the employment of both Mr Stone and Mr Spelta, following the delivery of letters to them asking them to show cause why their employment should not be terminated. Both Mr Stone and Mr Spelta were employed by the Brisbane City Council as bus drivers.
  3. [3]
    Termination of Mr Stone and Mr Spelta’s employment arose out of unprotected industrial action in which they both participated which was ostensibly taken because of the termination of employment of another bus driver at the depot and grievances with management.

Show Cause Process – Mr Stone

  1. [4]
    The Show Cause letter to Mr Stone appears as attachment KB-8 to the affidavit of Kim Binstead, Workplace Relations Consultant (Exhibit 12).
  2. [5]
    The letter alleged misconduct on the part of Mr Stone, in particular:
    1. (a)
      absenting himself from his allocated work without following the appropriate notification process and without authorisation;
    2. (b)
      not undertaking his allocated rostered work in accordance with his run print;
    3. (c)
      ejecting passengers from the City Sights bus he was driving to participate in unprotected industrial action;
    4. (d)
      not following Council’s dispute resolution process; and
    5. (e)
      failing to comply with the Order of the Queensland Industrial Relations Commission (QIRC) to resume his normal duties at 3.45pm.
  3. [6]
    The letter further alleged that on 28 November, 2013 Mr Stone participated in unprotected industrial action, instigated by representatives of the Australian Rail Tram and Bus Union (ARTBU) and that as a consequence he failed to complete his assigned services in accordance with his run print.
  4. [7]
    The statement was made that the City Sights tour bus is a flagship service operating at a higher than normal fare. It was necessary to deploy other buses to collect potential passengers stranded at Mount Coot-tha.  A complaint was received from TransLink in relation to a failure to present at Post Office Square at 1.30pm or 2.15pm as scheduled.
  5. [8]
    The seriousness of the incidents  was emphasized. Reference was made to the expectation Mr Stone would provide a high quality and safe service to the community; reference was made to his training and to the recent reminder of his obligations.
  6. [9]
    Mr Stone’s response was made by email, on 6 January 2014.  The response appears as KB-10 to Ms Binstead’s affidavit.  Mr Stone’s response is to the effect that he received a phone call from the union representative to inform him to stop work.  He informed the four passengers on his bus about the union directive to stop work and that they could continue their journey by city hopper to return to Southbank, which is where they originally started their City Sights journey.
  7. [10]
    Mr Stone said that he returned to the Depot, but when he had not been allocated a bus with only 10 minutes left until he signed off, he left and rang the Depot by mobile to tell them he was going home.
  8. [11]
    Mr Stone said the reason he did not present at the Post Office Square stop was that he was following the union directive to stop work and return to the depot.
  9. [12]
    By a lengthy letter, dated 23 January 2014 (KB-12 to the affidavit of Ms Binstead), Mr Warren, Divisional Manager, Brisbane Transport wrote to Mr Stone, setting out his reasons for terminating his employment.  The reasons included:
    1. (a)
      Mr Stone’s admission that he received a phone call while operating a passenger service vehicle, which is illegal;
    2. (b)
      ejecting passengers from a City Sights bus service;
    3. (c)
      following a union directive to stop work being no  justification for doing so;
    4. (d)
      inconsistencies in Mr Stone’s explanation as to his whereabouts and reason for leaving the depot prior to his sign-off time;
    5. (e)
      disregard of the QIRC Order to return to work and failure to present to the counter to make himself available for allocation of remaining work;
    6. (f)
      taking unprotected industrial action during the peak afternoon period causing significant disruption to the travelling public and Brisbane Transport’s operations;
    7. (g)
      failure to provide sufficient justification or mitigating circumstances for his misconduct;
    8. (h)
      lack of understanding of the severity of the misconduct;
    9. (i)
      lack of remorse;
    10. (j)
      no assurance that Mr Stone would not undertake or participate in this type of action in the future;
    11. (k)
      despite receiving a letter of expectations on 18 September, 2013 that any failure in the future to carry out his work in accordance with the Council’s Code of Conduct; and that he would be managed in accordance with Council’s Managing Poor Performance and Misconduct procedure – Mr Stone has not fulfilled his responsibilities;
    12. (l)
      no trust in Mr Stone’s ability to provide a safe and reliable service in the future;
    13. (m)
      breach of trust, risk to the reputation and trust of Council, repudiation of his employment contract, not satisfying a standard of behaviour expected of a Council employee, breaches of responsibilities under the City of Brisbane Act 2010, Council’s Code of Conduct; Council’s Certified Agreement; and Bus Operator Handbook.

Show Cause Process – Mr Spelta

  1. [13]
    Mr Spelta received a letter requesting that he show cause why his employment should not be terminated, dated 13 December 2013 (KB-14 to the affidavit of Ms Binstead). Mr Spelta was at the relevant time a delegate of the  Australian Rail Train and Bus Union (ARTBU) at the Toowong Bus Depot.
  2. [14]
    The allegations made against Mr Spelta included the following:
    1. (a)
      inciting Council employees to participate in unprotected industrial action;
    2. (b)
      failing to raise concerns in accordance with Council’s values and Code of Conduct;
    3. (c)
      absenting himself from his allocated work without following the appropriate notification process and without authorisation;
    4. (d)
      not undertaking his allocated rostered work in accordance with his run print; and
    5. (e)
      failing to comply with an Order from the QIRC to resume normal duties at 3.45pm on Thursday, 28 November, 2013;
    6. (f)
      failing to raise concerns and grievances to his Manager and to follow the dispute resolution procedure outlined in the Certified Agreement, particularly given a letter from Council to Mr Spelta on 7 January, 2010 warning of the seriousness of unprotected industrial action and requiring a commitment to follow proper complaint processes.  That letter followed unprotected industrial action taken by Mr Spelta on 9 December, 2009;
    7. (g)
      ignoring a warning given in a letter on 1 September, 2010 about participation in unprotected industrial action;
    8. (h)
      through involvement as a union delegate in the EBA8 negotiations he knew the protocols in relation to taking industrial action.
    9. (i)
      he actively encouraged other bus drivers to take unprotected industrial action.  This may have occurred without the sanction of his senior union representatives;
    10. (j)
      the taking of unprotected industrial action during the peak afternoon period caused significant disruption to the travelling public and Brisbane Transport’s operations.
  3. [15]
    Mr Spelta responded by letter dated 10 January 2013.  He made the following points:
    1. (a)
      there has been no investigation in relation to the matter carried out;
    2. (b)
      Council cannot rely on “warnings” issued in 2010, as no warning was issued and there was no natural justice associated with the letters sent in 2010;
    3. (c)
      the allegation of inciting unprotected industrial action is denied.  In particular Mr Spelta said that it was not he who suggested members take industrial action;
    4. (d)
      the Council has no evidence that he incited members to take industrial action. He merely called meetings to discuss the sacking of Paul Clarke, advised members of the outcome of the vote on industrial action; and once the QIRC made orders, informed members of the orders;
    5. (e)
      because of poor relations with a previous depot manager employees had no faith procedures would protect them from unfair treatment;
    6. (f)
      as a collective ‘we believed that the action would send a loud message to BT management that we were upset about the treatment historically that bus operators at Toowong Depot have received including a significant lack of respect from BT Management’;
    7. (g)
      he was with union officials when the QIRC conference proceeded, he held discussions with union officials and was then driven back to the depot.  He completed his shift upon return;
    8. (h)
      he enjoys his work,  has good relationships with drivers and their families, has raised funds for the Brisbane Tram and Bus Special Children’s Association Inc and is President of the Association; he is accessible to members at all times in his role as delegate; and
    9. (i)
      in relation to the 2009 industrial action he waited in the canteen and returned to work when the direction to do so was given.
  4. [16]
    By letter dated 23 January, 2014 (KB-18 to Ms Binstead’s affidavit), Mr Spelta was given notice of termination of his employment.  The following reasons were given:
    1. (a)
      Mr Spelta encouraged unlawful behaviour, including by calling a special meeting and using emotive language in his texts to members of the Union;
    2. (b)
      no message to members informed them that the industrial action they were to take was unprotected and unlawful;
    3. (c)
      the industrial action was timed to cause maximum inconvenience, putting children at risk;
    4. (d)
      he should have known that the appropriate appeal of a dismissal by an employee, is by application to the QIRC, not by inviting members to a meeting to vote on whether unprotected industrial action should be taken;
    5. (e)
      he participated in the unprotected industrial action; was absent without permission from the depot manager, did not return to the depot for an hour after the QIRC return to work direction was made and the depot manager had to ring him because he did not know where he was;
    6. (f)
      his lack of faith in depot management to respond to the issue is not a valid reason to operate outside Council’s procedures, engage in or encourage unprotected industrial action;
    7. (g)
      concern that his judgment in the stoppage on 28 November, 2013 and other matters demonstrates his inability to identify and appropriately manage potential conflicts between his role as a Council employee and union delegate. This is despite a letter of expectations from the Depot Manager, dated 7 December, 2012;
    8. (h)
      Council has complied with the relevant Managing Poor Performance and Misconduct process including its natural justice obligations.  This allegation was raised in the QIRC on 20 December, 2013 and resolved amicably;
    9. (i)
      Mr Spelta should have been well aware of his employee obligations relating to participating in unprotected industrial action as a result of the information and penalties issued to him following the 2009 action and as such placed more weight on the gravity of his behaviour in this instance;
    10. (j)
      the events on 28 November, 2013 impacted on Council’s reputation in being able to provide a safe, effective and reliable passenger service;
    11. (k)
      Mr Spelta failed to understand the seriousness of his actions or demonstrate any genuine remorse.  There was no assurance that similar action would not be taken in the future;
    12. (l)
      the action put considerable strain on Brisbane Transport staff and management and affected Council and Translink’s reputation;
    13. (m)
      no sufficient justification or mitigating circumstance has been provided;
    14. (n)
      participation in uprotected industrial action in 2009 and 2013 demonstrates that Mr Spelta’s behaviour has not and potentially will not change;
    15. (o)
      an irreparable breach of trust has occurred;
    16. (p)
      Mr Spelta has repudiated his employment contract;
    17. (q)
      Mr Spelta does not satisfy a standard of behaviour expected of a Council employee; and
    18. (r)
      there have been breaches of the City of Brisbane Act 2010 (Qld), Council’s Code of Conduct and Bus Operator Handbook.

Mr Stone and Mr Spelta’s contentions

  1. [17]
    Mr Stone and Mr Spelta assert that the Council engaged in direct discrimination against them on the basis of their trade union activity, in breach of sections 7(k) and 15 of the Anti-Discrimination Act 1991 (the Act).
  2. [18]
    They say that the reasons cited by the Council in their dismissal letters are not genuine reasons for dismissal.  Rather the substantial reason for dismissal was their trade union activity.
  3. [19]
    In Mr Stone’s case that activity was said to be:
    1. (a)
      membership of the Rail, Tram and Bus Union since he commenced employment with the Council;
    2. (b)
      engaging in trade union activity including  raising safety issues, representing the Union’s views and disputing the calculation and payment of entitlements to City Sights’ drivers and attending the QIRC in a dispute over City Sights drivers’ wages and conditions.
  4. [20]
    In Mr Spelta’s case that activity was said to be:
    1. (a)
      membership of the Union since 2002;
    2. (b)
      appointment as the Union delegate at the Toowong depot;
    3. (c)
      as delegate engaging in trade union activity including raising safety issues, advocating for Union members’ rights at work;
    4. (d)
      attending disciplinary and performance meetings with Union members;
    5. (e)
      representing the Union’s views at the workplace; and
    6. (f)
      maintaining and updating the Union noticeboard.
  5. [21]
    Mr Spelta contends that this activity regularly caused him to be in conflict with the Council.
  6. [22]
    Both Mr Stone and Mr Spelta contend that they were treated less favourably than 38 other employees whose circumstances were the same or not materially different in that they too participated in the industrial action on 28 November 2013.  Those other employees received written reprimands and warnings, whereas Mr Stone and Mr Spelta were dismissed. They contend that their dismissals were on the basis of their trade union activity.
  7. [23]
    The Council denies that it has discriminated against Mr Stone or Mr Spelta on the basis of any trade union activity. The Council’s contentions in response say in the alternative that if the Council is found to have discriminated against them, such discrimination was lawful pursuant to sections 107 and 108 of the Act. This assertion does not appear to have been maintained in the Council’s evidence or final submissions.

What the applicants must prove

  1. [24]
    Within the provisions of sections 7(k) and 10 of the Act, Mr Stone and Mr Spelta must prove on the balance of probability that:
    1. (a)
      because of their trade union activity;
    2. (b)
      Council treated them less favourably than another person was treated who did not engage in trade union activity;
    3. (c)
      in circumstances that are the same or not materially different; and
    4. (d)
      if there are two or more reasons why they were treated less favourably, their trade union activity is the substantial reason for the treatment.

Because of Trade Union Activity

  1. [25]
    The Act requires that there be a direct causal connection between the attribute in question and the discriminatory conduct. I accept the submissions of the Council that an enquiry into the mental processes of the individual who made the decision in question is relevant.[1]
  2. [26]
    Trade union activity is not defined in the Act.  Accordingly I find that it must bear a meaning as it would be commonly understood.  I find that the activities Mr Stone and Mr Spelta describe as their trade union activity are trade union activities. That is union membership or acting as a union delegate and engaging in industrial issues. The Council does not submit otherwise. I note that neither Mr Stone nor Mr Spelta asserts that participation in unlawful, unprotected industrial action is trade union activity. To the extent that it is necessary to do so, I find such participation would not be trade union activity within the meaning of section 7(k) of the Act.

Less favourable treatment

  1. [27]
    Mr Stone and Mr Spelta complain that they have suffered unfavourable treatment in having their employment terminated. In Mr Spelta’s case he asserted at the hearing that he is also subjected to unfavourable treatment, because since his dismissal, he is not allowed to enter the workplace to talk to employees, including to conduct meetings associated with the Special Children’s Association.  The question is whether, on a comparison with a person who did not engage in trade union activity, that amounts to  less favourable treatment, in circumstances that are the same or not materially different.
  2. [28]
    Put another way -  whether a person who was not a Union member or Union delegate, and who did not involve himself in industrial issues would have had his employment terminated or denied access to the Depot, in circumstances that are the same or not materially different.

Comparison with another person in circumstances that are the same or not materially different.

  1. [29]
    Mr Stone and Mr Spelta’s case suggests the appropriate comparator must be the 38 other bus drivers who they say participated in the industrial action. Given the description in the evidence of those people as members of the Union, I do not think they can properly be considered a comparator as they bear a hallmark of the attribute “trade union activity”.
  2. [30]
    The Council says the comparator must be a person who engaged in unprotected industrial action but who is not a Union member.
  3. [31]
    I find that the comparison which must be undertaken should be by reference to a person who did not engage in trade union activity, that is, who was not a Union member or delegate and who did not involve himself in industrial issues -  but in any event:
    1. (a)
      put passengers off a City Sights bus service in order to stop work without a lawful reason; and/or
    2. (b)
      stopped work without a lawful reason; and/or
    3. (c)
      was not at work when directed to resume work; and
    4. (d)
      had previously been advised stopping work for an unlawful reason was unacceptable.
  4. [32]
    In the circumstances of this case, the comparator is a hypothetical person.

Evidence

  1. [33]
    Mr McAuley, Mr Kantor, Mr Donovan, Mr Simpson, Mr Newson, Mr Love and Mr Smith were Council bus drivers at the relevant time.  They gave evidence as to their involvement in the industrial action and knowledge of the preceding meetings. They also gave evidence of management action taken in relation to them as a result of the industrial action.  There was consistent evidence that Mr Spelta did not suggest industrial action at the meetings.
  2. [34]
    Mr Spelta and Mr Stone’s affidavits (Exhibit 1 and 2 in the proceedings) give evidence of the events leading up to the industrial action and confirm their participation in the industrial action. They both also described their involvement in the Union and industrial issues at the Toowong Depot. They also described the process adopted by the Council in terminating their employment, including their show cause notice, response and ultimate termination.
  3. [35]
    In cross-examination Mr Spelta acknowledged that he knew Council treated unprotected industrial action as a serious matter.  He said his role was to report to members and to take direction from the members on the issues to be discussed.  He denied inciting the industrial action. Mr Spelta said that he knew before the meeting that the workers could not take unprotected industrial action, but emotions were running high. He said that Mr Matters, a Union official at the meeting, told the meeting of the risks of doing so.  Mr Spelta said that his role was to take the vote from the floor.
  4. [36]
    In relation to his absence from work, Mr Spelta said that he went with Mr Matters to participate in the QIRC process.  He denied that he was not given permission to do so because a Union official requested that he be given that permission, which was granted. He did not accept that he should have made the request on his own behalf. No evidence was called from the Union official.
  5. [37]
    Mr Stone was at pains at the hearing to deny that he had talked on the phone when driving. He said that he did not. He said that he stopped the bus and let his passengers off. He said that he picked up his bag with his phone in it, took his headset off, got out of the bus and checked his phone. He says that he saw a text from Mr Spelta and then telephoned him.
  6. [38]
    Mr Stone acknowledged in cross-examination that this was a different version of events than that given in his response to the show cause letter and that there were differences with the version given in his affidavit. Mr Stone attempted to explain the differences on the basis of the time which had elapsed from the events.
  7. [39]
    In cross-examination Mr Stone confirmed that he did not know for certain if people might be waiting at other stops when he did not finish his route and returned to the depot.  He said he knew that there had been a complaint from a passenger.  He also confirmed that he left the depot at 4.15pm and spoke to Ms Tamasee, Counter Officer, at 5.11pm as to his whereabouts.
  8. [40]
    Mr Stone acknowledged in cross-examination that the Council treated the matters raised against him as serious.  He also confirmed in cross-examination that he left the depot at 4.15 before his shift finished.
  9. [41]
    The Council called evidence from Ms Odgaard. Her affidavit is Exhibit 11 in the proceedings.  At the relevant time she was acting Chief Human Resources Officer at the Council. Ms Odgaard said that she was consulted in relation to the proposed disciplinary action against Mr Stone and Mr Spelta, and made a recommendation based on the show cause letters, responses and draft termination letters.  She said that she made her recommendation of termination of employment to the Divisional Manager of Brisbane Transport, Mr Warren, but that she was not the decision maker. When it was put to her in cross-examination that Mr Spelta’s union activity was the basis for his dismissal, she denied that was the case.
  10. [42]
    Ms Binstead is a Workplace Relations Consultant in the Workplace Relations Team.  Her role was to provide advice to Mr Alan Geyer, the Chief Operating Officer and Mr Graeme Morgan, the then Depot Manager in relation to application of Council’s Managing Poor Performance and Misconduct procedure and the options for taking disciplinary action against those involved in the strike. Mr Geyer and Mr Morgan were to then refer this advice together with their positon, to Mr Warren for a final decision as to the disciplinary outcome.
  11. [43]
    Attached to her affidavit, Exhibit12 in the proceedings, is a spread sheet setting out information in relation to 15 employees involved in the strike who were issued with a show cause notice.  Reference is made to each employee’s prior history and advice given on disciplinary action.  Ms Binstead says that each person was considered according to their individual circumstances.  Of the 15 employees, 3 were recommended for dismissal, including Mr Stone and Mr Spelta. One employee resigned during his termination interview.
  12. [44]
    Ms Binstead said in cross-examination that employees who had not participated in earlier unprotected industrial action were given a “Please explain” letter and those who had previously taken unprotected industrial action were given a “Show Cause” letter.
  13. [45]
    When asked what the final reasoning was for dismissal of Mr Stone and Mr Spelta, Ms Binstead said that in Mr Stone’s case it was mostly the behaviours on the day, including people being put off the City Sights bus so that he might participate in the industrial action and failing to return to work.  She said that it was very serious and brought the Council into disrepute.  Further, she thought he had failed to demonstrate insight into the significance of the matter.
  14. [46]
    In relation to Mr Spelta, Ms Binstead said that the reasons were his involvement in the 2009 unprotected industrial action, that fact that he was influential in the action being taken in November, 2013 and that he absented himself without permission and failed to return to work.
  15. [47]
    In relation to whether Mr Spelta had incited the industrial action, Ms Binstead said in cross-examination that as a delegate he was at the centre of events.  However, there were a number of reasons for the termination, not just that issue.
  16. [48]
    When it was put to Ms Binstead that he had been singled out for his union activity and that Mr Warren and Mr Geyer had an axe to grind, Ms Binstead denied that was the case and expressed her offence at the suggestion she would make a recommendation based on someone having an axe to grind.
  17. [49]
    Mr Geyer the Chief Operating Office gave evidence. His affidavit is exhibit 15 in the proceedings. He confirmed that he accepted Ms Binstead’s recommendation that Mr Stone and Mr Spelta should be dismissed on the grounds set out in their termination notices. He denied that they were dismissed for their trade union activity.
  18. [50]
    When cross-examined as to whether Mr Spelta was the instigator of the industrial action, Mr Geyer pointed to the fact that Mr Spelta was the Union delegate. He also referred to a conversation he had with Mr Matters, the Assistant Secretary of the Union who was at the meetings.  Mr Geyer said that he had been told Mr Matters could not stop the action and that the action had been taken by the depot and the delegate. Although no objection was taken, I note that such evidence is hearsay. I do not have regard to it as evidence that what was allegedly said was true, but rather as evidence of what Mr Geyer says he was told and his own state of mind.
  19. [51]
    Mr Morgan, the then Depot Manager gave evidence. His affidavit is exhibit 16 in the proceedings.  He confirmed that he accepted Ms Binstead’s recommendations and referred the final decision to Mr Warren.  He said each decision was reached on an individual basis after considering the facts involved for each person.  He denied that the dismissals had anything to do with Mr Stone and Mr Spelta’s union activities.
  20. [52]
    In cross-examination, Mr Morgan said that he had not given Mr Buttenshaw of the Union, permission for Mr Spelta to leave to the workplace to participate in the QIRC proceedings. 
  21. [53]
    In response to a question from me, Mr Morgan said that no formal investigation had been conducted to discern the facts of what had happened on the day before framing the allegations against Mr Spelta and Mr Stone.  In this regard, I note that Ms Binstead said in cross-examination that she relied on advice from HR Operations and information from Depot employees, when framing the show cause letters.
  22. [54]
    Finally, Mr Warren gave evidence. His affidavit is exhibit 14 in the proceedings. He was at the time the Divisional Manager of Brisbane Transport and the person who decided to proceed with termination of the employment of Mr Stone and Mr Spelta. Mr Warren said that he accepted the recommendation of Ms Binstead which had been adopted by Mr Geyer and Mr Morgan. He said that the grounds for dismissal are set out in the letters of termination.  He refuted that he dismissed Mr Stone and Mr Spelta on the basis of their trade union activity.
  23. [55]
    In cross-examination Mr Warren refuted the assertion that Union activity was the reason for termination of employment of Mr Spelta.  Mr Warren refuted the assertion and said that the relevant concerns for him were customer service, the code of conduct and the EBA.  He said that he was ashamed that Brisbane Transport disrupted services, including school services, because of the industrial action.
  24. [56]
    Mr Warren made the point in cross-examination that he did not consider the industrial action and Mr Spelta’s role in it to be Union activity. He said it was illegal activity.
  25. [57]
    On the issue of whether Mr Spelta incited the industrial action, Mr Warren said in cross-examination that he was of the opinion that Mr Spelta co-ordinated the meetings of members, sent out text messages about the strike and did not take any notice of Mr Matters’ cautions.
  26. [58]
    Mr Warren was questioned about the lack of an investigation to substantiate the allegations made against Mr Stone and Mr Spelta.  Mr Warren said that between HR, the depot manager and the COO, they put the facts to him and he believed them. He made his decision on that basis.

Submissions

  1. [59]
    Counsel for the Council submitted that:
    1. (a)
      the trade union activity the subject of the complaint was unprotected (and thereby unlawful) trade union activity which the Act does not and cannot protect;
    2. (b)
      the trade union activity the subject of the complaint was not endorsed by the trade union and therefore was not “trade union activity” for the purposes of the Act;
    3. (c)
      the trade union activities particularized by the applicants are the only trade union activities to be treated as an attribute;
    4. (d)
      the Tribunal needs to determine the reasons for  termination of employment of Mr Stone and Mr Spelta;
    5. (e)
      Mr Warren was the decision maker. It is his mental processes which are important.  He set out his reasons for termination of employment in the termination letters.  They were the real reasons for termination;
    6. (f)
      if I accept that there were no other reasons for termination that ought to be an end of the matter;
    7. (g)
      just because Mr Spelta was acting as a Union delegate it would be an error to say that he was engaging in Union activity;
    8. (h)
      as the comparator, that must be a person who engaged in the activity but was not a member of the Union;
    9. (i)
      it does not matter if Mr Stone and Mr Spelta were acting as a Union delegate or union member, the same action would have resulted on the evidence;
    10. (j)
      the show cause notice reveals not just one fact which led to the decision to terminate.  The key fact for Mr Spelta was the encouragement and participation in industrial action. When he had previously participated in unprotected industrial action he had been given a letter of expectation as to future conduct. Further, he ought to have been aware of the consequences of unprotected industrial action.  Furthermore, he did not resume his normal duties in accordance with his print run;
    11. (k)
      the actions of Mr Stone are as per the show cause notice;
    12. (l)
      the tribunal’s task is not to conduct a merits review of the decisions to terminate or to determine whether Mr Warren acted on sufficient evidence.  The only relevance of a consideration of the process undertaken leading up to the decisions to terminate and of the findings of fact bearing on those decisions concerns whether they contradict the decision maker’s testimony of the reasons he took the actions he did;
    13. (m)
      in any case the decisions to terminate were reasonable and justifiable on the facts as the decision maker understood them to be;
    14. (n)
      the question is whether the reasons given for termination of employment were the real reasons.  It is not to the point that a different decision might have been made;
    15. (o)
      the Council did not engage in a sham exercise. In relation to Mr Spelta, the text messages from Mr Spelta came to light and were relied on to say that Mr Spelta encouraged industrial action. Further the background letters show he ought to have known not to participate in unlawful industrial action.  The decision maker rightly or wrongly came to the view that Mr Spelta encouraged and participated in industrial action and did not return to work.  These were serious matters for the respondent and sufficient for him to be dismissed;
    16. (p)
      in relation to Mr Stone it was unacceptable to put people off a bus to engage in unprotected industrial action;
    17. (q)
      as to the comparator exercise there is no evidence that a comparator doing what Mr Stone and Mr Spelta did would be treated differently where that person was not a Union member;
    18. (r)
      there is no evidence that Mr Stone and Mr Spelta’s termination was because of their Union activity or in Mr Spelta’s case because Mr Geyer and Mr Warren had an axe to grind over earlier industrial issues;
    19. (s)
      the Tribunal should find that none of the evidence establishes a direct (or even indirect link) between Mr Stone and Mr Spelta’s lawful trade union activities and their dismissals;
    20. (t)
      no weight should be given to the evidence of Mr Kantor as a disgruntled ex-employee or Mr Love in relation to accessing the depot as a non-employee.
    21. (u)
      Mr Stone’s comments about a lack of brochures on the bus is irrelevant. (This was a matter of complaint Mr Stone raised with Mr Warren in cross-examination. Mr Stone did not make its relevance clear).
  2. [60]
    Mr Spelta’s submissions are that:
    1. (a)
      he did not incite industrial action;
    2. (b)
      the information relied upon by the Council was not verified or found to be true;
    3. (c)
      no operator was interviewed other than by a show cause interview; and
    4. (d)
      the allegations against him are based on unsubstantiated hearsay evidence from counter staff with a poor relationship with him.
  3. [61]
    Mr Stone submitted that he received a back pay entitlement very late compared to other drivers in circumstances where he was very successful in obtaining back pay.  He feels that by being involved in that dispute and being active in the Union is why he was discriminated against.

Findings

  1. [62]
    I am not satisfied on the evidence that Mr Spelta and Mr Stone have established that their employment was terminated because of their trade union activity. I am not satisfied on the evidence that the contention put by them is established that the reasons given in their termination letters were not the real reasons for their termination.
  2. [63]
    Mr Spelta and Mr Stone did not adduce any evidence which established a direct link between their trade union activity and termination of their employment. None of their witnesses gave evidence of any direct link.  None of the Council’s witnesses made any concession in cross-examination that there was any link between Mr Spelta and Mr Stone’s trade union activity and their termination of employment. To the contrary the witnesses were very clear on the reasons for termination and strongly refuted any suggestion that trade union activity had anything to do with the terminations. I found the Council witnesses to be honest witnesses.
  3. [64]
    Where there is no direct evidence of a matter, it may be possible for the Tribunal to draw an inference from the established facts taken as a whole.[2]  Can I infer from the established facts that the reasons given in the termination letters were not the real reasons for termination and that Mr Stone and Mr Spelta’s trade union acitivity were the real reasons for termination? The matters that Mr Spelta and Mr Stone advanced at the hearing to undermine the Council’s position on the reasons for termination of employment, were the lack of any formal investigation and substantiation of the matters alleged in the show cause notices.
  4. [65]
    Although it was agreed there was no formal investigation, I accept Ms Binstead’s evidence as to having collected information as to events from depot staff, which were put into the show cause letters. I find that being given an opportunity to respond to those matters before any decision to dismiss the employees was made ensured that the decision maker and his advisors were apprised of both sides of the story before proceeding.  I agree with Council’s submission that the Tribunal’s purpose is not to determine whether another decision could have been made by the Council, but rather whether the process adopted by the Council reveals the reasons given for termination were a sham.  I do not think the process adopted was so lacking in integrity that such a conclusion could be reached.  The decision to terminate was not reached in an arbitrary way by Mr Warren as decision maker. Four senior employees of the Council were involved in the show cause process and the recommendations in relation to termination of employment. I cannot find that Mr Warren and his advisors were all involved in a sham process. I accept their evidence.
  5. [66]
    There is no question on the evidence that both Mr Spelta and Mr Stone participated in unprotected industrial action.  There is no question that they were both aware how seriously Council viewed that conduct. There is no question Mr Stone left his City Sights route to return to the depot without attending at his required stops.  There is no question that neither Mr Spelta nor Mr Stone were available at the depot to resume work when required.  These are the established facts, which point counter to any inference that the reasons given for termination of employment were not the real reasons.
  6. [67]
    There is some element of doubt as to whether Mr Spelta incited the industrial action. However, on balance I think there was sufficient information for Council to make the allegation and to form a reasonable view that Mr Spelta had done so. I reach this conclusion for these reasons.  It is not in contention that Mr Spelta was heavily involved in organising the meetings to discuss members’ action over the dismissal of a fellow employee and grievances with management. Mr Spelta acknowledged in evidence that he alleged at the meetings with members that Council was engaging in harassment. Mr Spelta agreed that he, himself, did not warn employees of the illegal nature of the proposed industrial action at the meetings or in his texts. Further, he texted employees to inform them of the strike action.  These were all matters within the contemplation of the Council when it made the allegation and made its decision.
  7. [68]
    There is some element of doubt as to whether Mr Spelta was given permission to leave the workplace. I accept the evidence of Mr Morgan that he was not given permission, particularly as Mr Buttenshaw was not called to say what occurred. There is a reasonable basis for this matter to form part of the decision to terminate Mr Spelta’s employment.
  8. [69]
    In Mr Stone’s case the element of doubt surrounds the question of whether he used a mobile phone whilst driving a City Sights bus.  Mr Stone has not helped himself by suggesting in his response to the show case letter that he did so.  The fact that he later gave different versions more favourable to himself, does not alter the view the Council could reasonably form at the time of termination of employment, based on his own response.
  9. [70]
    I find that the matters of doubt raised by Mr Stone and Mr Spelta do not support an inference that the reasons given for termination are not the real reasons and that the real reason is their trade union activity.  This is particularly in view of the extent of established facts which were reasons relied upon by the Council for termination of their employment.
  10. [71]
    I find that the reasons for termination of the employment of Mr Stone and Mr Spelta are the reasons set out in the letters of termination. 
  11. [72]
    I agree with the submission by the Council that having found termination of employment of Mr Stone and Mr Spelta was not because of their trade union activity, there should be no need to consider the matter further as a critical limb of establishing direct discrimination has not been proved beyond reasonable doubt.
  12. [73]
    However, for the purpose of completeness, I find that there is no evidence that the comparator, as described earlier in this decision would not be treated in the same way as Mr Stone and Mr Spelta. I accept the evidence of Council’s witnesses, particularly Mr Warren, as to the seriousness with which Council views unlawful disruption to its services. Council witnesses gave evidence of its Managing Poor Performance and Misconduct Procedure. I have no reason to believe that it would not be applied to the hypothetical comparator with termination of employment for misconduct a possible outcome after a show cause process.
  13. [74]
    In relation to access to the Depot by an ex-employee I accept the evidence of Mr Geyer that no employee without a valid reason would be allowed into the depot and that a possible valid reason may be the collection or return of property. I find that there is no evidence Mr Spelta has been treated any differently to any other employee in this respect, because of his trade union activity. 
  14. [75]
    For the reasons set out in this decision, I find that Mr Stone and Mr Spelta have not established that they have suffered direct discrimination on the basis of their trade union activity.

Orders

  1. [76]
    The applications are dismissed.
  2. [77]
    In the event that the respondent intends to make submissions in relation to costs it must file and serve any submissions by 22 January, 2016.  The applicants must file and serve any response by 5 February, 2016.

Footnotes

[1]Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 248 CLR 500 at [44],[45],[127] and [140].

[2]  See the discussion by Member P Roney SC in Gordon v State of Queensland and Ors [2013] QCAT 564 at [8] –[22].

Close

Editorial Notes

  • Published Case Name:

    David Stone & Anor v Brisbane City Council

  • Shortened Case Name:

    Stone v Brisbane City Council

  • MNC:

    [2015] QCAT 507

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick

  • Date:

    29 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
2 citations
Jump To
Cite 1 - (2012) 248 CLR 500
Cite 2 - (2012) 248 CLR 500
Gordon v State of Queensland & Ors [2013] QCAT 564
2 citations
Jump To
Cite 1 - [2013] QCAT 564
Cite 2 - [2013] QCAT 564

Cases Citing

Case NameFull CitationFrequency
Gilbert v Metro North Health and Hospital Service (No. 2) [2023] ICQ 202 citations
Gilbert v Metro North Hospital Health Service [2021] QIRC 2554 citations
1

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