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Together Queensland, Industrial Union of Employees v Resources Safety and Health Queensland[2021] QIRC 394

Together Queensland, Industrial Union of Employees v Resources Safety and Health Queensland[2021] QIRC 394

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Together Queensland, Industrial Union of Employees v Resources Safety and Health Queensland [2021] QIRC 394

PARTIES:

Together Queensland, Industrial Union of Employees

(Applicant)

v

Resources Safety and Health Queensland

(Respondent)

CASE NO:

D/2020/121

PROCEEDING:

Arbitration of an industrial dispute

HEARING DATES:

23 and 24 August 2021

DELIVERED ON:

17 November 2021

MEMBERS:

Pidgeon IC

HEARD AT:

Brisbane

ORDERS:

The adverse determinations of Mr Wiskar set out at paragraph [46] are set aside.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – Industrial disputes – Other matters – external review of a decision – where a complaint was raised regarding a direction given to an employee – whether the response to the complaint made adverse findings – whether the employee should be subject to disciplinary proceedings – whether the findings were fair and reasonable

LEGISLATION:

Industrial Relations Act 2016, s 262, s 451

Queensland Public Service Officers and Other Employees Award – State 2015

APPEARANCES:

Directive 02/17 Managing Employee Complaints

Mr M Thomas for Together Queensland, Industrial Union of Employees

Ms S Payne for Resources Safety and Health Queensland

Reasons for Decision

Background

  1. [1]
    On 21 October 2020, Together Queensland Industrial Union of Employees (the Union) filed a notice of industrial dispute concerning an external review conducted by Resources Safety and Health Queensland (the Respondent/RSHQ).
  1. [2]
    The dispute was lodged in accordance with the external review provisions of the now superseded Directive 02/17 Managing Employee Complaints (the Directive).
  1. [3]
    The dispute notice states that Mr Wright had made an employee complaint which had been subject of internal review in accordance with the Directive.  As per Stage 3 of the Procedures for managing and resolving employee complaints,[1] Mr Wright was seeking external review.  Stage 3- External review relevantly states:

7.5.15 If the employee who made the original complaint is dissatisfied with a decision made following internal review, the employee may seek an external review.  Depending on the issues raised in the complaint, the avenues for external review may include:

  • Notification to the QIRC of an industrial dispute under an industrial instrument.
  1. [4]
    There is no dispute between the parties that Mr Wright has the right to seek external review of the decision and there has been no issue raised regarding the jurisdiction of the Commission to hear the matter.
  1. [5]
    With regard to preventing or settling industrial disputes, s 262(4) of the Industrial Relations Act 2016 (IR Act) provides:
  1. (4)
    Without limiting subsection (3), the commission may do 1 or more of the following –
  1. (a)
    direct any industrial action in relation to the dispute to stop or not happen;
  2. (b)
    make orders, or give directions, of an interlocutory nature;
  3. (c)
    exercise the commission's powers under section 473 (whether or not application under that section has been made) to grant an interim injunction;
  4. (d)
    make another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute.
  1. [6]
    Section 451 of the IR Act addresses the general powers of the Commission:

451 General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. (2)
    Without limiting subsection (1), the commission in proceedings may –
  1. (a)
    give directions about the hearing of a matter; or
  2. (b)
    make a decision it considers appropriate, irrespective of the relief sought by a party; or
  3. (c)
    make an order it considers appropriate.
  1. [7]
    At a mention of the matter on 19 January 2021, it was agreed that the Union would file an amended application clarifying the issues in dispute in the proceedings, the matters to be decided and what outcomes they are seeking.

Circumstances at time of issues under consideration – lead up to the 2019 Christmas period and disputes raised regarding related matters

  1. [8]
    RHSQ and the  RSHQ Employing Office were established on 1 July 2020 under the Resources Safety and Health Queensland Act 2020 (RHSQ Act). Prior to its establishment, the functions of the Petroleum and Gas Inspectorate (PGI) were undertaken by the Department of Natural Resources, Mines and Energy (and the various iterations of that Department pursuant to machinery of government changes).
  1. [9]
    The main functions of the Respondent are to administer a number of pieces of legislation concerning the safety management of resources in Queensland[2] and to further their purposes.  The Respondent consists of seven divisions, including PGI. PGI is responsible for administering safety and health legislation applying to Queensland's petroleum and gas industry.[3]
  1. [10]
    PGI implemented a restructure in February 2019 (the regional restructure which resulted in the PGI being divided into two regions (instead of four), a northern region and a southern region. This coincided with an agreed change to the on-call roster down to one person on-call in each of the northern and southern regions and one of the two Regional Inspectors or the Deputy Chief Inspector continuously on-call as an escalation officer.
  1. [11]
    The issued on-call roster for the 2019 Christmas/New Year closure did not have any additional officers placed on-call beyond the single officer in each region and the escalation officer.
  1. [12]
    Mr John Wright is employed as an AO8 Regional Petroleum and Gas Inspector (PG Inspector) in the RSHQ employing office and was previously in DNRME.[4] Mr Wright is and was responsible for managing a team of PG Inspectors as the Regional Inspector of the northern region for the PGI.  Relevantly for this matter, two of those PG Inspectors managed by Mr Wright are Mr Dittman and Mr Houckham.
  1. [13]
    Mr Wright's immediate supervisor is Deputy Chief Inspector, Mr Daryl Brooker.  The Chief Inspector is Mr Bill Date.  Mr Wright, Mr Brooker and Mr Date all provided statements and appeared as witnesses at the hearing. 
  1. [14]
    Under the Queensland Public Service Officers and Other Employees Award – State 2015 (the Award), PG Inspectors are paid an out-of-hours allowance of $7,246 per annum to compensate for being on-call for seven days/nights per week and for overtime performed on Monday to Fridays (excluding public holidays) outside of ordinary hours.
  1. [15]
    The Respondent says that in or about 2019, the Union raised concerns about cl 13.5 of the Award and the application to PG Inspectors with the then DNRME.
  1. [16]
    On 16 October 2019, a meeting was held with Mr Wright, DNRME Corporate Human Resources representatives, Mr Brooker and some PG Inspectors.[5]
  1. [17]
    The matter was discussed between the parties throughout 2019, and resulted in an email sent by Tina Hocking, the then Acting Principal HR Consultant of the DNRME to Daniel Goldman, Industrial Officer with the Together Queensland, an email on 13 December 2019.  That email stated:

Requirement to attend if not on the on-call roster

The current arrangement has been in place for quite a few years and it seems to have worked up until this dispute.

When [DNRME] calls an inspector who is not on the on-call roster, it is only due to an emergency or dangerous situation and [DNRME] needs to respond immediately. In most of these situations the inspector on the on-call roster will not be geographically located to respond themselves.  This is not [new], and would not become, a regular practice. Management would expect that employees would engage with all such calls in the spirit of the call – that is an emergency situation or dangerous situation that the [PGI] needs to respond to….

If these matters continue to be a point of dispute, management are open to the following:

  1. Proceeding with lodging a dispute with the QIRC so that the QIRC can assist to facilitate a resolution; or
  2. As stated by [the Applicant] at the recent ACC, management would seek to consider having the clause [13.5] repealed.  This would mean that inspectors would not receive the on-call allowance, but would revert back to being compensated for any overtime via way of TOIL, public holiday penalty rate for hours worked within the ordinary spread of hours on public holidays that fall on a weekend etc. with provisions relating to recall to duty still applying and available to management.

Please discuss the above with your members.  If there is still disagreement with management's position, please advise which of the above two options [the Applicant] would like to proceed with.

  1. [18]
    On 7 May 2020, the Union commenced industrial dispute proceedings in the Commission with regard to concerns about on-call and recall practices within the PGI, expectations about recall as compared to on-call, and expectations about home garaging.[6]
  1. [19]
    This dispute, D/2020/121, was filed on 21 October 2020 following the receipt by Mr Wright of the internal review decision of Mr Alex Mandl, Chief Inspector, Explosives at RSHQ. 
  1. [20]
    The Respondent says that central to this dispute is that Mr Wright had responsibilities to effectively manage resources of the PGI.  The Respondent says that as part of his responsibilities, he ought to have, without prompting, taken steps to ensure the PGIs emergency response capability for the northern region.[7]
  1. [21]
    It appears to be agreed that in previous years, there were PG Inspectors on-call as per the on-call roster during the Christmas closure period.
  1. [22]
    Around 9 December 2019, Mr Brooker spoke to Mr Date about needing more security regarding the availability of PG Inspectors over the Christmas period to attend a site in the event of dangerous and emergency situations involving petroleum or fuel gas. Mr Date agreed with Mr Brooker that ‘a more formalised arrangement was desirable’.[8]

Communication with Mr Wright regarding staffing for the Christmas period 2019/20

  1. [23]
    Between 9 December 2019 and 23 December 2019, Mr Brooker communicated to staff, including Mr Wright regarding the Christmas period.  The Respondent describes this communication as outlining the need for them to maintain a suitable emergency response capability over the Christmas period.[9]  The Union says that these communications purportedly outlined the changes that were being proposed.
  1. [24]
    From around 9 December 2019, Mr Wright was aware that Mr Brooker was requesting information about emergency response capability and how resources would be managed to ensure this capability.  The Respondent says that the responsibility was different to previous years due to the regional restructure.
  1. [25]
    The Respondent says that while Mr Brooker did not specifically refer to implementing limited staffing arrangements over the period, his intention was to implement arrangements to have coverage on the days during the Christmas break that were not weekends and public holidays.[10]
  1. [26]
    The Respondent says that the evidence of both Mr Brooker and Mr Date was consistent in that the intention was not to place additional PG Inspectors on the "on-call" roster.  Mr Date stated that the intention was not to have additional people being placed on call.[11]
  1. [27]
    Mr Date's evidence was that he understood that what Mr Brooker was seeking was a 'heightened availability' and some inspectors available to respond.  Mr Date agreed that the 16 December 2019 email from Mr Brooker 'Staff on call over the Christmas period' talked about people on the on-call roster and not other people with a heightened availability.[12]  That email said:

During the Christmas closure period we will seek to have:

  • The rostered on-call inspectors available; and
  • Two additional inspectors available to respond (these should be geographically spread across the state).  Looking at the names presented I suggest:
    • 1 in Rockhampton
    • 1 on the Sunshine Coast
    • 1 in Brisbane
    • 1 in Dalby

Below is the HR advice on working arrangements and timekeeper requirements.

Please advise the specific staff that have been nominated so that these can be provided to the on-call inspectors, Bill and myself. And provide the nominated staff the advice attached.

There will be no requirement for the nominated inspectors to work, unless call (sic) to respond to an incident or dangerous event.[13]

  1. [28]
    Mr Date said that he understood that changing the on-call roster needed the agreement of the majority of staff and the union at the time these events were occurring.[14]  Mr Date agreed that in his mind, Mr Brooker had not directed Mr Wright to place additional staff on-call.[15]
  1. [29]
    Mr Date also said that he was unaware that at a meeting on 16 October 2019 attended by Mr Brooker, members of the HR staff and the Manager of workplace relations and the Union, it had been agreed that there is no requirement for an Inspector to be available or fit for duty when they are not rostered on call.[16]
  1. [30]
    Following a number of exchanges between Mr Wright and Mr Brooker, on 23 December 2019, Mr Brooker provided a direction to Mr Wright to take particular actions with regard to staffing for the Christmas period. Mr Brooker's email said:

Good afternoon, John

I refer to my email of 16 December 2019 to you wherein I instructed regional inspectors to nominate staff to be on call over the Christmas period, provide the staff with the advice I have attached and let Bill [Mr Date] and myself know who these staff were. 

Today I spoke to you to ask who those inspectors will be to ensure RSH[Q] is covered in the event of an incident. You told me you had not arranged this, and there is no one on call in Rockhampton, and if necessary, I could ring either of two staff members in Rockhampton if required.

The department is required to appropriately respond to any emergent incidents.  Staff are arranged to be on-call to ensure that they will be fit to immediately respond to any such incidents.  Your failure to follow my instruction and ensure your region is appropriately covered over the Christmas period could seriously compromise the department's responsibility in this regard. I will consider how to appropriately address your failure to follow my instruction in the new year.

In the meantime as per my instruction of 16 December please arrange or nominate an inspector to enable, in the event of an incident, coverage across the northern part of the state.  I have attached for your information my email of 16 December which includes the instructions regarding work arrangements and leave with respect to the government closure days.

If you would like to talk to me on the above matter, please call me.[17]

  1. [31]
    Based on the evidence of Mr Date and Mr Wright, it would appear that what Mr Wright had done, in identifying some Inspectors who were not going to be away over the break and may be available to be recalled from leave if necessary, was to arrange what he considered a 'heightened availability' for the Christmas period.  Mr Brooker's email of 23 December 2019 appears to be the first time Mr Wright is formally directed to place additional staff 'on-call'.
  1. [32]
    Mr Wright replied to that email, copying in Mr Date and saying,

Daryl

This will be referred to the Union as there is no legal obligation under the Award for personnel to take on duties outside the on all [sic] roster. The on call process as you are aware is in dispute.  Both Andrew and Peter may be available as discussed.  Luke Forster it the nominated on-call inspector with the backup of Christian Houkham.  You [sic] email was a suggested process with no formal requirement to nominate.

Regards

John.[18]

  1. [33]
    The email from Mr Wright appears to have been written on an understanding that he was being directed to place additional employees on-call. The Respondent says that Mr Wright's actions suggest that he did not interpret the initial instructions on 9 December 2019 and 16 December 2019 as requiring him to place additional inspectors on the on-call roster and that it was on 23 December 2019 that Mr Wright formed the view that he was being asked to do something he considered to be contrary to the Award.[19]
  1. [34]
    On 24 December 2019, Mr Date wrote an email to Mr Wright:

John, I have noted these email exchanges.  By you indicating to Daryl Brooker and I that you have not arranged to nominate on-call inspectors per the Deputy Chief Inspector's email to you of 16 Dec 19, the P& G inspectorate might not have on-site response capability north of the sunshine coast should there be an emergency incident. This is an unacceptable situation in fulfilling our responsibility.

I am directing that you arrange suitable staff to be on-call to ensure that they will be fit to immediately respond to any such incidents.  I am instructing you to arrange this today (24 Dec 19) and advise me in writing of the nominated inspector(s) in the northern region by 5pm today.

I note Daryl's email of 16 Dec 19 is reasonable management direction, given in writing, discussed at recent Monday P&G stand-up.[20]

  1. [35]
    This email from Mr Date provides Mr Wright with a clear direction to place an additional employee on the on-call roster.  It also appears to demonstrate that Mr Date understood Mr Brooker's email of 16 December 2019 to have been a direction to place an additional staff member on-call.
  1. [36]
    Without going into the details at this point, it is sufficient to say that Mr Wright sought union advice and advice from HRabout the directions being given to him.  He acted upon the direction from Mr Date and this action caused Mr Dittman to call his Union and to place the Respondent in dispute. 
  1. [37]
    In January 2020, Mr Brooker referred the issue of Mr Wright’s conduct in December 2019 to Mr Date. Based on his review of the ‘relevant conduct, including the relevant communications at the time’, Mr Date formed the view that Mr Wright may have failed to discharge his duties with regard to appropriately managing resources to arrange cover over the Christmas break; and that he may have failed to provide sufficiently detailed information to Mr Dittman which led him to believe his leave was being cancelled.[21]
  1. [38]
    Mr Date wrote to Mr Wright on 14 January 2020 requesting further information to understand what had happened and to determine whether it was necessary to commence a disciplinary process. On 31 January 2020, Mr Date issued another request for further information from Mr Wright.  This was to clarify points and seek documentation directly related to the first response Mr Wright had provided.
  1. [39]
    On 3 February 2020, Mr Wright responded to Mr Date. The response relied on his previous statement and provided no further information.
  1. [40]
    On 5 February 2020, Mr Wright was informed that Mr Date cannot reasonably finalise the matter and that it would be referred to another delegate.

Mr Wright's complaint

  1. [41]
    Mr Wright, made a complaint in writing to Mr James Purtill, Director-General, DNRME.  In this complaint, Mr Wright raised concerns about correspondence provided by Mr Date and the annual performance agreement undertaken by Mr Brooker.
  1. [42]
    On 28 July 2020, Mr Wright received an 'Outcome advice – My decision on your complaint dated 27 February 2020' from Mr David Wiskar, Executive Director, Water Policy.  Mr Wiskar explained that by an instrument of delegation of 1 July 2020, Mr Mark Stone, A/Chief Executive Officer of RSHQ authorised Mr Wiskar to continue as the decision maker for the matter.[22]
  1. [43]
    Mr Wiskar was exercising power under the Directive to resolve Mr Wright's complaint. Clause 7.5.2 of the Directive requires:

A complaint made by an employee must be resolved in accordance with the agency's employee complaints management policy and procedures.  This action may include, but is not limited to, one or more of the following:

  1. conducting preliminary enquiries to determine appropriate options for resolution of the employee complaint
  2. facilitated discussion, mediation, conciliation or negotiation
  3. gathering information, including from witnesses; and/or
  4. other reasonable action in the circumstances 
  1. [44]
    Mr Wiskar concluded that the actions of management in relation to both the concerns addressed by Mr Date and the performance development agreement actions taken by Mr Brooker were reasonable management action, taken in a reasonable way.  Mr Wiskar was also satisfied that Mr Wright's 'claims of bullying and/or victimisation by Mr Date and Mr Brooker cannot be substantiated'. 
  1. [45]
    Mr Wright's appeal does not appear to take issue with the outcome of the external review to the extent that it found there had been no bullying or victimisation of Mr Wright by Mr Date and Mr Brooker.  Likewise, he does not appear to challenge the outcome of the review as it relates to his performance development plan.

Wiskar decision

  1. [46]
    Mr Wiskar's letter included what I will at this stage call 'determinations' which form the basis of the dispute as I understand it:

I have determined that in failing to arrange coverage for an on-call inspector in the North Region over the Christmas/New Year break, you compromised the Inspectorate's ability to perform its function set under legislation to response to dangerous and emergency situation [sic] involving petroleum or fuel gas.  I deem this may constitute serious misconduct, in that you:

  • Failed to appropriately manage your resources to arrange coverage over the Christmas/New Year Break for the Northern Region, in that he [sic]:
  • failed to appropriately determine and notify the Deputy Chief Inspector of the availability of Petroleum and Gas Inspectors as instructed; and
  • thus failed to ensure the inspectorate's emergency response capability over that period of time.  [The first determination]
  • Failed to provide sufficiently detailed information and clarity to:
  • Mr Dittman regarding the work direction to be on-call during the Christmas period, which led him to believe that his recreation leave was being cancelled. [The second determination].
  • Failed to provide sufficient detailed information and clarity to Mr Houckham regarding the requirements relating to completing his timesheets while being on-call over the Christmas period. [The third determination]
  • Failed to meet the expected stating of personal conduct and performance for the AO8 Regional Inspector position in accordance with your Performance and Development Agreement (PDA). [The fourth determination]

In addition, you have not fulfilled the inherent requirements of your role as an AO8 Regional Inspector, particularly in relation to leadership and management of staff. [The fifth determination]

Accordingly, I have determined that you may be liable for disciplinary action in this regard.  I refer the matter to your new employing agency, Resources Safety and Health Queensland (RSHQ) for consideration to commence a disciple [sic] process under the management of a delegate of the new entity in accordance with its instrument of delegation. [The sixth determination]

  1. [47]
    Mr Wiskar's letter said that he was satisfied that his decision and administrative actions appropriately addressed Mr Wright's complaint and provided him with an outcome.  Mr Wiskar informed Mr Wright that if he had any concerns with the handling of the matter or was dissatisfied with the decision, he may request an internal review.
  1. [48]
    On 7 August 2020, Mr Wright wrote to Mr Mark Stone, Chief Executive Officer requesting a review of the decision of Mr Wiskar.  On 13 October 2020, Mr Mandl, provided Mr Wright with an internal review outcome.[23] Under the heading Decision, Mr Mandl said:

In reviewing Mr Wiskar's outcome advice in relation to the handling of on-call arrangements I consider that the evidence supports Mr Wiskar's findings.

Mr Wiskar's finding that the actions taken by Mr Date and Mr Brooker in relation to the PDA process were reasonable.

  1. [49]
    It seems to me that the excerpt reproduced above is missing some words.  But it is clear that Mr Mandl has decided that the Wiskar complaint response was reasonable.
  1. [50]
    It is important to note that Mr Mandl referred to the things Mr Wiskar 'found' that led to a conclusion that Mr Wright 'may be subject to disciplinary action'.  Specifically, Mr Mandl reached the following conclusions:

In reviewing the material Mr Wiskar had before him, I have found no evidence to suggest that his review was deficient.

I support the action recommended in Mr Wiskar's outcome advice that 'you may be liable for disciplinary action in regard to you not fulfilling the inherent requirements of your role as an AO8 Regional Inspector, particularly in relation to leadership and management of staff.' I recommend that this advice be referred to a nominated delegate or your manager for consideration to commence a discipline process.[24]

….

  1. [51]
    Mr Mandl informed Mr Wright that if he had concerns about the way the matter had been handled or was dissatisfied with the decision, he may seek an external review.

Avenues for external review – the current dispute

  1. [52]
    The Union filed an industrial dispute with the Industrial Registry pursuant to cl 7.5.15 of the Directive. Attempts at conciliation were unsuccessful, the matter was then progressed to arbitration and allocated to me.
  1. [53]
    In an application in existing proceedings filed on 29 January 2021, Together Queensland seeks the following outcomes:
  1. That the findings of Mr David Wiskar relating to Mr John Wright regarding on-call arrangements in the Christmas/New Year break contained in the "Outcome advice – My decision on your complaint dated 27 February 2020" dated 28 July 2020; and confirmed by Alex Mandl in the "Internal Review Outcome" dated 13 October 2020; are not fair and reasonable for the reasons set out below…
  1. [54]
    For ease of reference, I am going to refer to the determinations of Mr Wiskar as the first, second, third and fourth determinations as I have labelled them above at [46]. 
  1. [55]
    The Union submits the first determination is not fair and reasonable as:

… the finding is not supported by the available evidence; and in the alternate, is not fair and reasonable in that the direction is not a lawful or reasonable direction as compliance would have caused Mr Wright to breach the requirements of clause 17.8(d) of the Queensland Public Service Officers and Other Employees Award – State 2015.

The direction in question was made pursuant to delegated powers of the Chief Executive. Under the Public Service Act 2008 (PSA) there is a requirement on the Chief Executive and their delegates in discharging responsibilities under the PSA to comply with section 99 of the PSA. Section 99 requires the compliance with all relevant laws, industrial instruments and directives. A direction given to an employee to take action that would not comply with an industrial instrument is expressly forbidden by the PSA and is ultra vires.

  1. [56]
    The Union says the second determination not fair and reasonable as it is founded on an interpretation of the Award that is wrong in law.
  1. [57]
    The Union says the third and fourth determinations are not fair and reasonable as they are not supported by the available evidence.
  1. [58]
    The Union seeks that the Respondent be restrained from taking any discipline action based on the first to fourth findings of Mr Wiskar.
  1. [59]
    The Respondent submits it should not be restrained from taking disciplinary action, or commencing a disciplinary process, on the basis of the findings of Mr Wiskar if that is what it decides to do, because:
  1. (i)
    the findings are fair and reasonable and supported by the evidence for the reasons set out above; and
  2. (ii)
    Mr Wright would have the opportunity to respond to the conduct alleged in the findings and any proposed disciplinary action, in accordance with Directive 14/20 Discipline.[25]
  1. [60]
    Submissions were made by both parties regarding the nature of this matter, what I am being asked to consider and what powers I have.
  1. [61]
    I am taking the approach that my role in this dispute is reasonably narrow in that I am reviewing the section of the Wiskar decision set out at [46] and deciding if it was fair and reasonable.  This involves considering the actions taken by Mr Wiskar in coming to his decision as well as the parts of the decision that are in dispute.
  1. [62]
    The Respondent says that decision of Mr Wiskar needs to be considered in its entirety and not simply in relation to the determinations made by Mr Wiskar.  Specifically, the Respondent asks me to consider Mr Wiskar's views regarding the on-call arrangements in the Christmas period from pages one to eight of the Wiskar decision letter.  For completeness, I note that I have read Mr Wiskar's letter in full.  I have carefully read those pages of the letter because I was trying to understand what each person providing evidence in this matter thought the directions or communication given to Mr Wright actually entailed.
  1. [63]
    In the context of the evidence presented at arbitration, it is important to note that on page six of his decision letter, Mr Wiskar says:

In my view, the communications from Mr Date and Mr Brooker in relation to what was expected of you was clear, in that you were to nominate an inspector to be on-call for the Christmas/New Year period from 24 December 2019 to 2 January 2020. This was communicated to you on a number of occasions, including via the Chief Inspector's stand-up meetings on 9 and 16 December 2019 and again on 23 December 2019 via phone call with Mr Brooker. 

Both Mr Date and Mr Brooker deny having directed that additional Inspectors be placed on-call.  However, I can understand why, based on a review of the material, Mr Wiskar came to this conclusion.  

Mr Wiskar's decision – Made 'adverse findings' not 'disciplinary findings'

  1. [64]
    It is not in dispute that Mr Wiskar's determinations arose from a complaints review process rather than a disciplinary process.  I accept to that extent, Mr Wiskar's determinations are not 'disciplinary findings' in the formal sense.  However, the language used in the Wiskar decision and then in the Mandl review is unmistakable.  Mr Wiskar, at various times throughout his decision letter uses phrases such as 'I have reached the conclusion that you failed…'; 'I have determined that…'; 'I deem this may constitute serious misconduct'; 'I do not deem…'; 'You have not…'; 'I have determined that…'.
  1. [65]
    Mr Wiskar's decision letter was not provided to Mr Wright as part of a disciplinary 'show cause' process.  It did not arise from a disciplinary process. Mr Wright was not responding to allegations when he made his submissions to Mr Wiskar and provided him with information.
  1. [66]
    On page six of the decision letter, Mr Wiskar states that the correspondence from Mr Date that Mr Wright was complaining about was

merely a process to gather facts and information from you and provide you with natural justice for him to understand your actions and therefore enable Mr Date to determine what further action, if any, was warranted.

  1. [67]
    Mr Wiskar goes on to say at page seven, 'This process was ceased because you escalated the matter by submitting this complaint to the Director-General.'
  1. [68]
    It is clear to me, that Mr Wiskar, having been tasked with responding to Mr Wright's complaint, had two jobs. Firstly, Mr Wiskar was required to consider Mr Wright's complaint that he was being victimised as a result of 'concerns regarding on-call arrangements in the Christmas/New Year break'. Secondly, he was required to consider Mr Wright's complaint regarding this performance development agreement.
  1. [69]
    The role of the delegate fact sheet was in evidence.  That fact sheet relevantly says:

Identify and consider all relevant matters

Your decision as delegate is based on a consideration of all the facts of the matter.  If relevant matters aren't correctly identified at the outset, you are less likely to make a good decision.[26]

  1. [70]
    In terms of the relevant matters, Mr Wiskar identified two matters for his consideration resulting from Mr Wright's complaint.   He was not investigating a complaint made about Mr Wright.  He was not acting as a proxy and continuing the 'fact finding' commenced by Mr Date.  At its highest, his job was to investigate whether Mr Wright's complaints had any foundation.  In the event that, as he did, Mr Wiskar found that there were no grounds to uphold Mr Wright's complaint, the 'process' Mr Wiskar said had 'ceased' because of the complaint, would be able to recommence and run its course (via the delegate to be appointed by Ms Hocking).
  1. [71]
    This is not what occurred.  In addition to considering Mr Wright's complaint, Mr Wiskar made the series of determinations set out above. 
  1. [72]
    The Respondent says that Mr Wiskar did not go further than considering Mr Wright's complaint and make 'adverse findings that Mr Wright may have committed serious misconduct'.  The Respondent says that Mr Wiskar appropriately considered Mr Wright's conduct as a part of the complaint and did not make any findings 'in relation to Mr Wright's failings'.[27]  This appears to be in conflict with Respondent's statement in its response to the statement of facts and contentions which is set out at [59] above.  Further, the Respondent's response to statement of facts and contentions says that the findings were fair and reasonable because, among other things: the findings are not about compliance with the Award and/or IR Act; the findings are about Mr Wright's failure to fulfil his responsibility to appropriate manage the resources for the Northern Region; a failure of Mr Wright to meet the responsibilities of his position…[28]
  1. [73]
    The Respondent says that the 'finding' of Mr Wiskar that Mr Wright had failed to manage his resources to arrange coverage for the northern region over the Christmas/New Year break was fair and reasonable and supported by the available evidence. The Respondent also says that Mr Wiskar's 'finding' with regard to the communication with Mr Dittman is fair and reasonable. Further, the Respondent says that the 'finding' regarding communication with Mr Houckham is fair and reasonable.
  1. [74]
    I disagree with the Respondent's contention that Mr Wiskar's decision on Mr Wright's complaint did not make adverse findings against Mr Wright. Mr Wiskar made preliminary disciplinary findings accompanied by a recommendation that a disciplinary process commence.  Even if this was not Mr Wiskar's intention, it is reasonable for a person in receipt of his correspondence to form the view that this was an outcome of the complaints process.
  1. [75]
    The role of delegate fact sheet also provides the following advice:

Determine and evaluate the facts

Decisions must be based on facts.  All relevant information should be considered and should not be dismissed without good reason.

The balance of probabilities applies to administrative decision making. The more serious the issue and likely outcome, the stronger the evidence required to meet the standard.

There may also be legislative requirements that relate to your decision. In such cases, you must apply the law to the facts before you to make your decision.

Other decisions will be discretionary and you will have flexibility to make your decision. For discretionary decisions you must ensure that all relevant matters through the factual findings are considered and given appropriate weighting.[29] (my emphasis)

  1. [76]
    It is clear that Mr Wiskar found the matter of the on-call Christmas arrangements to be a serious issue.  But for Mr Wright, the decision of Mr Wiskar took on an additional seriousness, in that a recommendation arising out of Mr Wiskar's decision was that a disciplinary process be commenced based on his determination that Mr Wright's actions 'may constitute serious misconduct'.
  1. [77]
    The PS Act does not describe serious misconduct as one of the grounds for discipline.  Section 187(b)  'been guilty of misconduct' as a ground for discipline. Section 187(4)(a) defines misconduct as 'inappropriate or improper conduct in an official capacity'. 
  1. [78]
    The definition of misconduct has been considered by Merrell DP in Coleman v State of Queensland (Department of Education) [2020] QIRC 032 (Coleman).

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[30]

  1. [79]
    It is not unusual for employees found to have engaged in misconduct to be asked to show cause as to why they should not face serious disciplinary action, including dismissal from employment.
  1. [80]
    Mr Wright thought that he was making a complaint regarding what he clearly perceived to be unfair treatment following the matters which occurred with the on-call arrangements for the Christmas period.  It would be understandable for him to be deeply concerned and alarmed to find that the outcome was not only that his complaints were dismissed, but that the decision maker had determined that his actions may constitute 'serious misconduct'.
  1. [81]
    Such a finding puts a completely different complexion on the complaints process that was being undertaken and I imagine that if he had known the result may be a recommendation to commence a disciplinary process, Mr Wright may have presented additional evidence or differently framed submissions.  He certainly should have expected an opportunity to respond to the statements of Mr Date and Mr Wright who had received copies of his complaint against them and had the opportunity to consider Mr Wright's position on matters before providing their own responses.
  1. [82]
    The evidence strongly suggests that Mr Wright was not provided with natural justice prior to the outcome of the complaint being provided to him. A review of the materials available to me indicates that following his 7  May 2020 response[31] to Mr Wiskar's 30 April 2020 request[32] for more information to support his complaint, the next correspondence Mr Wright received from Mr Wiskar was an email on Monday 11 May 2019 stating: '…acknowledging receipt of your response. Thank you. I will review the information you have provided and revert to you in due course.'[33]
  1. [83]
    The next correspondence from Mr Wiskar to Mr Wright was an email on 14 May 2020.  The email thanks Mr Wright for the further information he had provided and says,

I have now begun a process of reviewing the material you provided.  For my clarity, can I also ask you to please provide details of what outcomes you seek to achieve in relation to the issues you have raised regarding the on-call matter.[34] 

  1. [84]
    On 3 June 2020, Mr Wiskar sent correspondence[35] to Mr Brooker and Mr Date providing them with the material Mr Wright had submitted, along with his complaint. On 10 June 2020, Mr Brooker replied to Mr Wright's request for information.[36] On 11 June 2020, Mr Date replied to Mr Wright's request for information.[37]
  1. [85]
    It appears, based on the documents exhibited to Mr Wiskar's affidavit, that the next time Mr Wright received correspondence from Mr Wiskar, was when he received the 'Outcome advice – My decision on your complaint dated 27 February 2020'[38] dated 28 July 2020 and subject of this dispute.
  1. [86]
    It does not appear that Mr Wiskar returned to Mr Wright to give him an opportunity to raise questions, concerns or an alternate version of events.  The outcome letter demonstrates that Mr Wiskar accepted Mr Brooker's and Mr Date's responses to the questions he had posed for them to answer, without reverting to Mr Wright with regard to the material he was considering with a view to providing an opportunity for a further response. The letter had attached to it some 41 attachments (I note that there was repetition of some documents and that some of those documents were provided to Mr Wiskar by Mr Wright). 
  1. [87]
    I found Mr Wiskar to be a thoughtful, considered and forthright witness. Under cross-examination at the hearing Mr Wiskar was asked about the decision or findings that he had made in relation to Mr Wright's conduct. Mr Wiskar replied 'Well, I don't know that I made any decision about Mr Wright's conduct. My job wasn't to make a decision about Mr Wright's conduct.'[39]
  1. [88]
    Mr Wiskar maintained his position that he had not made 'findings' in the decision letter.  However, he agreed that it was reasonable to say that when reading the set of sentences outlining the first to fourth findings, he 'was at least making observations about Mr Wright's conduct that were adverse to him'.[40]
  1. [89]
    Mr Wiskar was asked about the role of delegate fact sheetand taken to a section of that fact sheet:

Provide natural justice

Natural justice (or procedural fairness) is providing an employee with a 'fair hearing' before a decision is made.  The employee should be notified of the key issues and be provided with the information you are considering to make your decision, and given the opportunity to respond. [41]

  1. [90]
    As the cross-examination continued, it appeared to confirm that the first time that Mr Wright received the materials put forward by Mr Brooker and Mr Date which had informed Mr Wiskar in coming to his decision, was when he was provided with the decision letter.
  1. [91]
    Specifically, when asked if he did not give Mr Wright an opportunity to respond to the responses provided by Mr Brooker and Mr Date, before making adverse observations, Mr Wiskar replied: 'That appears to be the case.' And further:

Mr Thomas:  So, you did not provide him with natural justice in accordance with the fact sheet, did you?

Mr Wiskar:  Again, without checking more fully, I think that's correct.

  1. [92]
    The Respondent submits that Mr Wiskar did not agree that he had not afforded Mr Wright natural justice but provided a caveat that he would need to check more fully.  With regard to this submission, I note that Mr Wiskar was not re-examined on this point and the Respondent has not made an attempt to draw my attention to any evidence that Mr Wiskar put the statements and evidence of Mr Brooker and Mr Date to Mr Wright for a response or clarification prior to making and issuing his decision.[42]
  1. [93]
    Mr Wiskar did not appear to seek any information from the two men it was alleged Mr Wright had failed to provide information to, Mr Dittman and Mr Houckham.
  1. [94]
    The Respondent submits that Mr Wright was asked for information and further particulars by way of a letter of 30 April 2020 and that Mr Wiskar made clear the scope of the review.  The Respondent says that neither RSHQ nor Mr Wiskar were obliged make Mr Wright take up the opportunity to respond to the letter of 30 April 2020 and that natural justice was afforded to Mr Wright by virtue of being given the opportunity to respond and to provide further and better particulars with respect to his complaint.
  1. [95]
    The evidence demonstrates the Mr Wright did, in fact, 'take up the opportunity to respond to the letter of 30 April 2020.[43]
  1. [96]
    I am not satisfied that Mr Wright received natural justice in the complaints process which culminated in the decision containing the adverse findings regarding his conduct.
  1. [97]
    Mr Wright was not 'provided with the information' being considered or 'given the opportunity to respond'.  The need for procedural fairness was not fulfilled.

Wiskar decision 'adverse findings' were not fair and reasonable

  1. [98]
    The findings of Mr Wiskar set out at [46] were not fair and reasonable and therefore should be set aside.  However, to leave it at that would be of little use to the parties.  The dispute seeks to question the 'findings' Mr Wiskar made.
  1. [99]
    I note that the Respondent submits that Mr Wiskar did not 'make findings' in the decision. However, the Respondent appears to separately submit that it should not be precluded from commencing a disciplinary process on the basis of Mr Wiskar's 'findings' and that his 'findings' were fair and reasonable.
  1. [100]
    Together Queensland seek an order that the Respondent be restrained from taking any disciplinary action based on the findings of Mr Wiskar.  Such an order is unnecessary as the findings are set aside. It would be unreasonable to commence a disciplinary process in reliance on findings which have been set aside.
  1. [101]
    I agree with the Respondent's contention that Mr Wiskar's 'referral' of the matter for consideration of commencement of a disciplinary process are not determinative for the purpose of a disciplinary process by RSHQ.  Nothing precludes RSHQ from seeking to investigate concerns it has with the conduct of an employee by following a proper process. 

The remaining questions before the Commission

  1. [102]
    Having determined that the decision of Mr Wiskar is set aside, I now turn to how to deal with the questions which were before the Commission and which the parties led evidence about at the hearing.
  1. [103]
    Significant preparation occurred prior to the arbitration and the Commission heard evidence from witnesses and received a large amount of documentary evidence addressing the matters subject of the Wiskar decision.
  1. [104]
    I do not think that it would be of assistance to the parties or a good use of the time of the Commission to conclude the arbitration with the setting aside of the Wiskar decision without giving some consideration to the questions explored at arbitration. I feel duty bound to address the matters I was asked to consider, though I will consider each one as a question in its' own right based on the evidence before me, not through the lens of Mr Wiskar's findings which I have set aside. 

Did Mr Wright fail to appropriately manage his resources to arrange cover over the Christmas/New Year break for the northern region, in that he:

  • failed to appropriately determine and notify the Deputy Chief Inspector of the availability of PG Inspectors as instructed; and
  • thus failed to ensure the inspectorate's emergency response capability over that time?

Submissions of the parties

  1. [105]
    The Union submits that the evidence shows that prior to the 2019/2020 Christmas closure the expectations for ensuring the emergency response capability over the Christmas closures was reliance on the Inspectors who had been rostered on-call and the ability to recall other Inspectors beyond that.[44]
  1. [106]
    On 28 November, all members of the PGI received an email from Ms Campion, Principal HR Consultant outlining the requirements for the Christmas closure.[45]  The Union says that advice effectively directed staff, other than SES and SO level staff, to apply for leave in accordance with the Christmas closure circular.
  1. [107]
    The Appellant contends that if it had been decided that the Christmas closure arrangements were, for the first time, not to be applied, there was an absolute requirement on the part of PGI management to issue clear directions that such a change was going to occur.
  1. [108]
    The Appellant submits that the evidence of Mr Brooker and Mr Date was that the decision to implement different arrangements for the 2019/2020 Christmas closure than those in place in previous years only occurred on or about 9 December 2019.
  1. [109]
    Mr Date's evidence was that he did not provide a direction that 'limited staffing arrangements' were in place and that the Campion direction about the Christmas closure did not apply to anyone at the PGI.[46]
  1. [110]
    On 9 December, at the weekly Chief Inspector meeting, Mr Brooker provided a direction that Regional Inspectors were to ensure 'we have coverage over the Christmas break. and that he was to be advised 'who will be here during that time'.[47]
  1. [111]
    Mr Wright's evidence was that he believed Mr Brooker was seeking assurances that there was adequate recall coverage, that is, Inspectors who were not going away and would be available for recall.[48] As Mr Wright understood it, he was not in a position to guarantee staff would be available if they were not on the on-call roster.
  1. [112]
    Mr Wright says that he spoke to his staff to see who was not travelling away and could be recalled if required.  Mr Wright identified Mr Jaggard, Mr Dittman and Mr Houckham could be called as they were not going to be away. Mr Wright was seeking to have 'coverage' in the event someone was required to be recalled.
  1. [113]
    On 16 December 2019, Mr Wright emailed Mr Brooker at 8.08am to inform him of who could be called if needed.[49]  Mr Wright says he thought that this met the direction given at the meeting on 9 December 2019.
  1. [114]
    Mr Brooker's evidence was that he sought to put in place different arrangements for the 2019/2020 Christmas closure than those that had been implemented in previous years. He said that the email he sent on 16 December made it clear that this was his expectation. That email entitled 'Staff on call over the Christmas period'[50] provided:

During the Christmas closure period we will seek to have:

  • The rostered on-call inspectors available; and
  • Two additional inspectors available to respond (these should be geographically spread across the state). Looking at the names presented I suggest:
    • 1 in Rockhampton
    • 1 on the Sunshine Coast
    • 1 in Brisbane
    • 1 in Dalby

Below is the HR advice on working arrangements and timekeeper requirements.

Please advise the specific staff that have or have been nominated so that these can be provided to the on-call Inspectors, Bill and myself. And provide nominated staff the advice attached.

There will be no requirement for the nominated inspectors to work, unless call to respond to an incident or dangerous event.

Cheers

  1. [115]
    The HR advice attached to the above email commences with the following statement,

This is the advice from Nick Gillespie and Belinda Papparlardo in relation to on-call and timekeeper.  As per last year, the cleanest way to deal with employees who are on-call for the whole of the Christmas closedown is to put in a standard day for the concessional day and the two work days.

  1. [116]
    Mr Wright's evidence was that the email of 16 December 2021 did not change anything and that Mr Brooker was 'seeking coverage' and there was 'no mention of the word on-call'.[51]  The Union submits that this conclusion was reasonable as the attached advice only referred to officers who were on call as per the agreed on call roster.
  1. [117]
    The Union submits that Mr Brooker's evidence under cross-examination was that this same email was a clear direction of the following:
  1. (a)
    Limited staffing arrangements were to be implemented in the PGI over the Christmas closure for the first time.
  2. (b)
    There were to be four nominated staff "available to respond" but not to be granted leave on 27, 30 and 31 December 2019.
  3. (c)
    The email provided details of how to manage on-call arrangements when Christmas closure arrangements were in place was also to be applied to those four staff despite them not being on call over the closure period.
  1. [118]
    The Union submits that the position that the email provided such clear guidance should not be accepted as:
  1. (a)
    The implementation of limited staffing arrangements is not mentioned, there is only reference to staff being 'available', a term that has been used throughout this matter in reference to 'recall'.
  2. (b)
    The email from Mr Brooker refers to the whole closure period, but as per the unchallenged evidence of Ms Flanders, the implementation of limited staffing arrangements would only provide maximum additional guaranteed response capability of 13 percent of the entire period.
  3. (c)
    The significance placed on the need to provide a response capability for the entire closure period by both Mr Brooker and Mr Date in their affidavit evidence[52] makes it an absurdity to suggest that the increased level of 'emergency response capability' that was being sought was limited to 27 of 204 hours and not on weekend and public holidays within the closure period.
  1. [119]
    The Union submits that the most useful evidence of there being no clear guidance issued by Mr Brooker to Mr Wright of what the changed expectations were for managing his resources over the Christmas closure period is the simple fact that there is no agreement by any party as to what those expectations were.  To demonstrate this, the Union sets out the different understanding Mr Wright, Mr Wiskar and Mr Date have of what was being directed:
  • Mr Wright believes he was directed to guarantee the availability of Inspectors for recall who were not on the on-call roster;[53]
  • Mr Wiskar states that there is a clear expectation that Mr Wright was to nominate an additional two inspectors to be on-call over the closure period;[54] and
  • Mr Date's evidence is that, despite his direction of 24 December to Mr Wright to place officers on-call, this was not the expectation as changes to the on-call roster are subject to the requirements of the industrial instrument.[55]
  1. [120]
    Mr Date's evidence under cross-examination was that while his direction of 24 December 2019 to Mr Wright was to place officers on-call,[56] there was no expectation that additional officers be placed on-call.  Instead, Mr Date describes that he expected a conversation to occur with Senior Inspectors to ensure a 'heightened availability' across the whole closure period including evenings.[57]  The Union submits that such an expectation is not lawful and in keeping with the Award obligations as discussed at the dispute meeting of 16 October 2019.
  1. [121]
    The Union submits that Mr Brooker's evidence is inconsistent.  In his affidavit evidence, Mr Brooker states that he was seeking 2 inspectors in the Northern Region for 'emergency response capabilities to respond' over the break period.  Mr Brooker's email of 16 December seeks two additional inspectors 'available to respond' during the closure period.  Under cross-examination, Mr Brooker accepted that changes could not be made to the on-call roster without the agreement of the union.[58] Mr Brooker also stated that he had not directed Mr Wright to put additional people on call.[59]
  1. [122]
    The Union says that despite the evidence at [121], in his email of 23 December,[60] Mr Brooker states that his direction of 16 December was that he had 'instructed Regional Inspectors to nominate staff to be on-call over the Christmas period' and that Mr Wright was to 'arrange or nominate an Inspector to enable, in the event of an incident, coverage across the norther part of the state.'  The Union points out that Mr Brooker used the term 'on-call' four times in that email when discussing his expectations.
  1. [123]
    In his affidavit, Mr Brooker gives evidence[61] he sought to ascertain which Inspectors were placed on 'standby', this is also a term that is used in the notes of his phone call with Mr Wright on 23 December.[62]
  1. [124]
    Mr Brooker's statement for this matter notes that Mr Dittman had been placed on-call in response to the direction of Mr Date but that neither he, nor Mr Date had directed Mr Dittman to cancel his leave.[63] 
  1. [125]
    In cross-examination, Mr Brooker said that the intention of his direction of 16 December was not to place additional staff on-call but to implement limited staffing arrangements.
  1. [126]
    The Union submits that there was no clear direction from Mr Brooker as to the changed expectations for ensuring an emergency response capability over the Christmas closure period of 2019/20.  The directions given were imprecise and inconsistent using terms such as 'available to respond', 'on-call', 'cover the Christmas period' without reference to the specific provisions of the relevant industrial instruments.
  1. [127]
    The Union submits that there were three possible options for Mr Wright to manage his response over the Christmas closure period:
  • He was expected to place additional officers on-call.  This is what he believed he was being directed to do, what Mr Wiskar also believed and what Mr Date, in his email of 24 December 2019 he states the direction from Mr Brooker to be.[64]  If this was the case, there would have been a breach of cl 18.7 of the Award in that there was no agreement with the majority of staff or the Union to change the on-call roster.
  • The second option is that Mr Wright was expected to ensure Inspectors who were not on call would nevertheless be in a state of 'heightened availability'.  This would accord with the evidence of Mr Date, but not the understanding of Mr Wiskar.  It would also not be permissible under the award.
  • The third is the position put by Mr Brooker giving oral evidence, that the expectation was that the direction to have everyone apply for leave in accordance with the email of Ms Campion regarding the Christmas closure was countermanded and that the email of 16 December made it clear there was an expectation to have two officers on duty during the ordinary hours on 27, 30 and 31 December 2019.
  1. [128]
    The Union says that the third option above doesn't stand up to scrutiny when considering the words of that email, the references to officers being on 'standby', the constant reference throughout the matter of the need for coverage across the entire closure period and the understanding of Mr Date as to the expectations based on his conversations with Mr Brooker is considered.
  2. [129]
    The Union says that the evidence is that up until 9 December 2019, the expectations of everyone in the PGI, other than Mr Brooker and Mr Date, would have been that the Christmas closure period would have been managed as it had in previous years, through the compulsory closure and reliance on the on-call roster and recall if required.[65]
  1. [130]
    The Union says that if Mr Wright is to be disciplined for not managing his region in accordance with the directions in the 16 December email, the directions must be clear and lawful and that they are not.
  1. [131]
    The Union submits that Mr Wright did not fail to appropriately manage resources to arrange over of the Christmas and New Year break because
  • the directions given by the DCI prior to 24 December 2019, despite their imprecision and internal contradictions, where complied with as far as is permissible by Chapter 2, Part 3, Division 3 of the IR Act and cl 18 of the Award;
  • Mr Wright was satisfied, based on his experience and the previous arrangements during the Christmas closures that he did have satisfactory coverage to provide an emergency response over the closure;
  • the coverage Mr Wright had in place was apparently acceptable to Mr Brooker for 177 of 204 hours of the closure period according to the evidence on the stand provided by Mr Brooker that all he actually wanted was two staff on duty during ordinary hours on 27, 30 and 31 December;
  • the direction given by Mr Date on 24 December to place an additional Officer on-call was complied with despite that direction breaching cl 18.7(d) of the Award in circumstances that the Chief Inspector should have been aware were subject to a current industrial dispute; and
  • in complying with those Directions in so far as was permissible by the Act and the industrial instrument, Mr Wright did ensure the inspectorate's response capacity to the limit of his authority.
  1. [132]
    The Respondent says that there has been some debate over the technicality of words and expressions used throughout the proceeding, but the underlying issue is that Mr Wright knew what was expected of him as early as 9 December 2019, and he deliberately frustrated the PGI's emergency response capability.
  1. [133]
    The expectation of Mr Wright with respect to the Christmas period was known and understood by Mr Wright, including through communication to Mr Wright:
  1. (i)
    during various weekly meetings;
  2. (ii)
    in emails from Mr Brooker;
  3. (iii)
    in telephone calls with Mr Brooker; and
  4. (iv)
    in an email from Mr Date.
  1. [134]
    Mr Wright had the responsibility to ensure that he managed his resources to meet the emergency response capability.  In the 2019 Christmas period, this responsibility was different to previous years due to the regional restructure.
  1. [135]
    Despite understanding this expectation, Mr Wright approved leave for every member of his team for the Christmas period, with some approvals happening after the communications listed at [28], resulting in potential adverse implications for the PGI's ability to respond promptly to emergency situations involving petroleum or fuel gas.

Consideration

  1. [136]
     It appears to me that there has clearly been a breakdown in communication that has led to confusion over what direction was being given by Mr Brooker (and later Mr Date) to Mr Wright. 
  1. [137]
    That the first specific communications about the arrangements to be put in place for Christmas 2019 appear to have been made in the second week of December may have added to a misunderstanding that the arrangements which had been in place in previous years were to be in place in 2019. 
  1. [138]
    I understand that the regional restructure may have changed the expectation of what was required for an 'emergency response', however, I also note that Mr Wright was basing his understanding of what was required on the experience of previous years.
  1. [139]
    I found Mr Date to be an honest and forthright witness. Mr Date's evidence indicated to me that there existed some form of 'understanding' that following a discussion with a supervisor, some PG Inspectors who had indicated that they were on leave but not going away had agreed that they could be called in the event of an emergency.  This appears to accord with Mr Wright's actions taken following the 9 December meeting/email.
  1. [140]
    Mr Date was asked what was meant by the 'coverage' that he and Mr Brooker were seeking to have in place for the Christmas period.  He said it did not mean additional people being placed on-call.

Mr Date:  it was having the regional inspector, in owning the seven or eight senior inspectors that he has under his…management control, to  having a frank conversation with them about, 'Okay, this is coming up. What is the – you know – who will be available to do Christmas Day in the unlikely event we have to recall you for an emergency situation the 26th, the 27th, the 28th, that – that sort of longer period – longer break period, as in to – to comply with, you know, their ability to provide the emergency – the – the emergency response function.'[66]

  1. [141]
    Mr Date agreed that this was what had been done in previous years but that as there was now a new structure and new boundaries, 'it's about having the senior inspectors, who may not be leaving the area, who would be reasonably available…'.[67]  Mr Date said that in his mind, the intent was to know who wasn't going anywhere while they were on leave.[68]
  1. [142]
    It appears that this is what Mr Wright organised following the request to provide names additional to those on-call.  Under cross-examination, it appeared to me that Mr Wright was interpreting the terms 'on-call' and 'recall' as he understood them to have practical effect with rostering.  Mr Wright was questioned as to how the terms might be understood 'in loose terminology, if someone's not being precise' and he was clear that he understood the use of the term 'on-call' to mean something quite different to a 'recall' scenario.[69] This was his consistent evidence.
  1. [143]
    When asked about Mr Date's direction on 24 December 2019, Mr Wright's evidence was clearly that he understood the instruction to be to place someone else on-call.  His understanding was that the person had to be 'immediately fit to respond' and 'to sit beside the phone ready to go'.[70]  Mr Wright was asked whether there were other ways he could ensure that the instruction was fulfilled other than to place an additional inspector on the on-call roster and he responded, 'I had already had additional people available for recall…'.
  1. [144]
    Somewhat confusingly, Mr Wright was asked if he thought it was open to him to tell an Inspector that their leave was being cancelled because they were required to be placed on-call.[71]  I make two observations about this: firstly, Mr Wright's evidence clearly shows that he did not think he was able to do this as it would constitute a change to the on-call arrangements requiring consultation; and secondly, when he did act against that understanding and cancel Mr Dittman's leave and place him on-call, he and Mr Dittman were later told that this was not the instruction at all.
  1. [145]
    It also seems to me that what Mr Brooker was seeking to have in place was an 'emergency response' capability. It is difficult to reconcile Mr Brooker's communications and directions as they appear in the emails and meeting minutes that were in evidence, with his evidence given under cross-examination that he was seeking additional Inspectors who were 'reasonably available' and 'able to attend' and at no point was he seeking additional 'on-call' Inspectors.[72]  Under cross-examination, Mr Brooker introduced the term 'limited staffing arrangements'[73] but I note that it appears that at no point did Mr Brooker direct that 'limited staffing arrangements' be put in place.  Mr Brooker said that his email of 16 December 2019 made it clear that he was putting in place 'limited staffing arrangements'.[74] He later said that he didn't 'deem them to be limited staffing arrangements per se'.[75] It is not clear from that email that 'limited staffing arrangements' were being put in place and, in circumstances where this had not happened for previous Christmas periods, I do not accept that this was the direction Mr Wright should have taken from the 16 December 2019 email.
  1. [146]
    Despite the inconsistency of language used by Mr Brooker and the lack of timely feedback or follow up in response to Mr Wright, I think it was fair for Mr Brooker to have an expectation that should Mr Wright, as an experienced AO8 officer, be confused about what was being asked of him, that Mr Wright would check for clarification. However, it seems that Mr Wright was not confused until the direction changed to use the language 'on-call'.  It is unclear why Mr Wright would have sought clarification on something that he thought he clearly understood.
  1. [147]
    Mr Wright was asked on a number of occasions if his communication with Mr Brooker could have been more helpful. 

Mr Wright:  Well… you've seen the email trail, he didn't come back at any point in time and challenge anything put forward until the eleventh hour, if you like, so whatever was put out there, I put out there in good faith. And the information that came back – all the – it would be much better if it had abided by the award conditions, if you have on call and recall, that's what it's all based on. If you're going to put the words coverage or additional inspectors and stuff, he gives no clarity to the situation. So at the end of the day, if the communication from above had been – it could have been more easily dealt with, if Daryl had have made the decision on on-call inspectors. They could have started a consultation process through the people in the union, and it would have come to probably a different outcome. But when the wording is vague and all the feedback is vague, it doesn't do much for communication between the parties…[76]

  1. [148]
    The emergency response capability or coverage Mr Brooker was seeking would not have been achieved by simply having more people not on leave during the Christmas period.  This is because it seems that what Mr Brooker was requiring, and eventually asked for, was additional Inspectors to be on-call.
  1. [149]
    The language that was used throughout communications regarding the Christmas closure was imprecise and unclear. Mr Brooker gave evidence that Mr Wright's email of 9 December 'rang alarm bells'[77] for him but he agreed that he did not act on those concerns until the meeting on 16 December.[78] That there was a week between the 9 December 2019 communication and the 16 December 2019 follow up, is not indicative of the apparent seriousness and urgency of Mr Brooker's concerns.
  1. [150]
    Likewise, the delay between the 16 December 2019 email and the 23 December 2019 follow up meant that what may have been able to be dealt with in a more timely way, ended up being done with a high level of urgency, potentially compounding the problem.
  1. [151]
    Mr Date's observation of the emails exchanged between Mr Brooker and Mr Wright was that they 'were unhelpful, uncooperative and, you know, borderline combative' and that this 'goes both ways'.[79]  In re-examination, Mr Date clarified that he was talking about Mr Wright's emails. 
  1. [152]
    My own observation, having reviewed of all of the emails and the timeline of telephone calls, is that the communication was not ideal from the perspective of either party.  The continued confusion or need for clarification of terminology and the instructions which were provided, even throughout the hearing, attests to the communication issues existing at the time. I am simply unable to find that the responsibility for any confusion or miscommunication can be attributed to any one person. 
  1. [153]
    The Respondent submits that 'The instructions were of enough clarity that Mr Wright comprehended what was expected of him and supposedly he contacted the PG Inspectors in the northern region to ascertain their availability'.[80] 
  1. [154]
    Mr Wright did provide names to Mr Brooker when requested.  When Mr Brooker deemed that this was not adequate to provide sufficient emergency response capability, it was open to him to provide much more specific advice and instruction about what exactly the expectation was.  This is particularly the case following a restructure process and where a decision has apparently been made that there needs to be a change or adjustment to what has been in place in previous years.
  1. [155]
    The Respondent directs my attention to what it says is the 'conflicting nature' of Mr Wright's evidence with regard to the use of the terms 'will be available' and 'may be available'.  It seems to me that Mr Wright had confirmed the names of those who weren't going anywhere over Christmas and were available to be recalled under the provision enabling that.[81]  Mr Wright understood that in order to be recalled from leave, one has to be fit for duty.  I understand this to be the reason Mr Wright referred to the three Inspectors as being available for recall, but had put the caveat of 'may', as he was not in a position to know whether each employee would be fit for duty in the event they were recalled.  Mr Wright's evidence was that this is the way the arrangement works and that he was confident, based on his relationship with the nominated Inspectors that they would be available to be called if necessary.

Mr Wright:  …well, as per the award, you're either on call, available for recall when you put the word coverage. Did we have coverage as per our normal year-round rostered capabilities? Yes, we did. Did I make attempts to check that other people were available for that period? Yes, I did.[82]

  1. [156]
    I do not think the two things are mutually exclusive.  The three men named as available for recall had indicated to Mr Wright that they were not going away and could be called in the event of an emergency.  As they were not on-call, it would only be at the point such a call was made and they were fit for duty that they would be able to be recalled. Mr Wright was of the view that this would be sufficient for coverage. 
  1. [157]
    Mr Wright was asked multiple times under cross-examination if he was satisfied with the level of coverage he had put in place.  Mr Wright repeatedly said that he was confident with the level of response coverage available for the Christmas period and that 'it was above and beyond what we'd normally be provided on the roster'.[83]
  1. [158]
    When questioned as to why he had not spoken to other Inspectors located in other parts of the region about their availability for recall, Mr Wright's reply was that he spoke to Inspectors in the areas listed by Mr Brooker in the email on 16 December 2019.[84]
  1. [159]
    There was evidence before the Commission regarding the timing of leave applications and Mr Wright's approval of leave applications.  It appears uncontroversial that Mr Wright approved the leave of some Inspectors during December, after Mr Brooker had talked about ensuring coverage for the Christmas period. To not approve leave for those employees who left applying for leave until December may have led to further availability during the working days of the Christmas period.  But as was covered comprehensively during the hearing, it would not have led to enhanced coverage after hours. In the absence of an instruction or agreement about what the minimum staffing requirement was or a negotiation about adding people to the on-call roster,  In circumstances where there had been no clear or specific advice given as to exactly what Mr Brooker meant by 'coverage', I cannot conclude that Mr Wright's approval of leave for some employees led to insufficient coverage or was in some way improper. 
  1. [160]
    Mr Brooker was taken through the email to Mr Wright where he says that he had instructed regional inspectors to nominate staff to be on-call over the Christmas period and that there was no one on-call in Rockhampton.  Mr Brooker referred to the use of the words 'on-call' as 'misfortunate' and appeared to maintain that it was not his intention to place Inspectors on-call.  Nonetheless, this was the language used, and it would appear to me, what Mr Brooker had in mind in seeking 'coverage'.
  1. [161]
    The parties made submissions regarding the lawfulness of the direction to place additional Inspectors on-call.  In circumstances where a direction to place an inspector on-call was made on 23 December, Mr Wright sought advice arising from his concerns[85] but eventually complied with the direction and then soon after, the direction was 'clarified' through discussion with Mr Dittman and the Union. I do not think this matter turns on the lawfulness of the direction. 
  1. [162]
    It was reasonable to expect that Mr Wright manage the resources within his responsibility to ensure adequate emergency response for the Christmas period.  For reasons discussed above, I do not think that the directions provided regarding what would be an acceptable or adequate 'cover' were sufficient or discussed or negotiated in a timely way. 
  1. [163]
    In circumstances where there had been no clear decision or instruction about changed arrangements for December 2019, I cannot find that Mr Wright failed to appropriately manage his resources to arrange cover on the Christmas/New Year break for the northern region.

Did Mr Wright fail to provide sufficiently detailed information and clarity to Mr Dittman regarding the work direction he be on-call during the Christmas period, which led him to believe that his recreation leave was being cancelled?

  1. [164]
    The Appellant submits that this question is easily dispensed with, as the very act of placing Mr Dittman on call, which had occurred as a result of Mr Date's direction to Mr Wright of 24 December, resulted in his leave being cancelled. This was also accepted by Mr Wiskar in cross examination.[86]
  1. [165]
    I have reviewed the email Mr Date sent to Mr Wright.  It unequivocally directs Mr Wright to place a member of staff on-call.  Mr Date's evidence under cross-examination was that he 'used the incorrect term – you know, phraseology that I did not mean…' and 'I have to own the fact that I used the term 'on call''.[87]  Mr Date confirmed that he had directed Mr Wright to put someone on call.[88]
  1. [166]
    It is not possible to place an employee on-call when that employee is on leave.  The effect of placing Mr Dittman on call was that his leave was cancelled.
  1. [167]
    Mr Wright's evidence was that Mr Dittman 'sits a few metres away from him' and that they had discussed the direction which had been provided to Mr Wright and that Mr Wright was going to place Mr Dittman on-call.
  1. [168]
    Mr Wright followed the Direction given to him despite his misgivings and Mr Dittman then exercised his right to raise a grievance, with the support of his Union, regarding the cancellation of his leave at late notice.
  1. [169]
    There is no evidence before me to suggest that Mr Dittman was interviewed or asked for more information with regard to the information or 'clarity' provided to him by Mr Wright.
  1. [170]
    I cannot conclude on the evidence before me that Mr Wright did not provide Mr Dittman with sufficiently detailed information about the direction that he be placed on call for the Christmas period.

Did Mr Wright fail to provide sufficiently detailed information and clarity to Mr Houckham regarding the requirements relating to completing his timesheets while being on-call over the Christmas period?

  1. [171]
    The Union submits that this question is answered by the fact that the email Mr Wright sent to Mr Houckham is in evidence.[89]
  1. [172]
    Mr Wiskar accepted in cross-examination that the email had been sent by Mr Wright and that Mr Wiskar had not interviewed Mr Houckham and relied only on the information provided by Mr Brooker.[90]
  1. [173]
    Mr Wright told Mr Wiskar that the email had been sent on 23 December 2019 but had been archived and would need to be retrieved.[91]
  1. [174]
    I cannot accept the Respondent's submission that Mr Wright had the opportunity to provide the email but did not.  He could not access the email. When an internal process is being conducted, and an employee points with precision the date, time and subject line of an archived email, it should not be beyond the employer to arrange a search of their own email archives to produce the email.
  1. [175]
    It appears that the information that was to be provided to Mr Houckham was attached to the email of 16 December 2019 but that it was not forwarded by Mr Wright to Mr Houckham until 23 December 2019.  While the seven day delay in providing the information may not be ideal, the fact remains that the information was sent prior to the Christmas closure.  In any case, the evidence seems to indicate that there may have been a need to manually record hours and add them after the Christmas break.[92]
  1. [176]
    In any case, Mr Wiskar's evidence was that the 'adverse observation' that Mr Wright had not provided the information to Mr Houckham was 'incorrect'.[93]
  1. [177]
    I cannot conclude on the evidence before me that Mr Wright did not provide Mr Houckham with sufficiently detailed information about the requirements to completing timesheets while being on-call over the Christmas period.
  1. [178]
    For the forgoing reasons, I order that:
  1. The adverse determinations of Mr Wiskar set out at paragraph [46] are set aside.

Footnotes

[1]  Directive 02/17: Managing Employee Complaints, cl 7.5 (superseded by Directive 11/20).

[2] Coal Mining Safety and Health Act 1999 (Qld), Explosives Act 1999 (Qld); Mining and Quarrying Safety and Health Act 1999 (Qld); Petroleum and Gas (Production and Safety) Act 2004 (Qld).

[3] Petroleum and Gas (Production and Safety) Act 2004 (Qld); Petroleum and Gas (Safety) Regulation 2018 (Qld).

[4]  Submissions of the Union filed 11 August 2021, [7].

[5] Exhibit 13, DB6.

[6] Queensland Industrial Relations Commission matter number D/2020/49.

[7] Respondent's closing submissions filed 14 October 2021, [11](k).

[8] Ibid [31].

[9] Exhibit 13, [62].

[10] For example: T2-17 ll40-41.

[11] T2-40 l13.

[12] T2-47 ll28-31.

[13] Exhibit 11, WD8.

[14] T2-47 ll44-47.

[15] T2-48 ll47-48.

[16] T2-48 ll11-14.

[17] Exhibit 11, WD9.

[18] Exhibit 11, WD10.

[19] Respondent closing submissions filed 14 October 2021 [32](f).

[20] Exhibit 11, WD12.

[21] Exhibit 11, [48].

[22] Exhibit 8, DW18.

[23]  I note the Respondent submissions that I cannot consider the fairness and reasonableness of that decision as the Applicant's material does not contain a full copy, however, I note that there was a full copy of the letter at JW5 of Exhibit 3.

[24]  Exhibit 3, JW5,

[25] Respondent's Response to Statement of Facts and Contentions filed 19 May 2021, [34].

[26] Exhibit 8, DW3.

[27] Respondent's closing submissions filed 14 October 2021, [32](k).

[28] Respondent's Response to Statement of Facts and Contentions 19 May 2021, [28].

[29] Exhibit 8, DW3.

[30] Coleman, [62].

[31]  Exhibit 11, DW9.

[32]  Ibid, DW8.

[33]  Ibid, DW10.

[34]  Ibid, DW12.

[35]  Ibid, DW14; DW15.

[36]  Ibid, DW16.

[37]  Ibid, DW17.

[38]  Ibid, DW19.

[39]  T2-8 ll8-11.

[40]  T 2-11 ll22-23.

[41]  Exhibit 8, DW3.

[42]  Respondent's closing submissions filed 14 October 2021. 

[43]  Exhibit 8, DW9.

[44]  Appellant's closing submissions, 27 September 2021 [28] making reference to evidence of Mr Date T2-33 l7 to T2-37 l30 and Mr Brooker T2-61 l36 to T2-64 l9 and T2-67 ll30-47.

[45]  Exhibit 4, JWR2.

[46]  T2-58 ll3-22.

[47]  Exhibit 13, DB14.

[48]  T1-24 ll8-23.

[49]  Exhibit 13, DB-16.

[50]  Exhibit 13, DB18.

[51]  T1-40 ll16-18; T1-44 ll7-47.

[52]  Exhibit 13 [17]-[40]; Exhibit 11 [29]-[36].

[53]  T1-24 ll13-39.

[54]  T2-16 l37 to T2-17 l 37.

[55]  T2-40 ll13-16.

[56]  Exhibit 11, WD12.

[57]  T2-42 l16 – T2-43 l16.

[58]  T2-82 ll 1-19.

[59]  T2-78 ll35-41.

[60]  Exhibit13, DB22.

[61]  Exhibit 13, [68].

[62]  Exhibit 13, DB19

[63]  Exhibit 13, [72].

[64]  Exhibit 11, WD12.

[65]  T2-74 ll17-23.

[66]  T2-40.

[67]  T2-41.

[68]  T2-41.

[69]  T1-63 ll9-24.

[70]  T1-64 l43 – T1-65 l11.

[71]  T1-65 l33 – l44.

[72]  T2-78 ll4-6.

[73]  T2-70 – T2-71.

[74]  T2-72.

[75]  T2-73.

[76]  T1-48 ll26-38.

[77]  Exhibit 13, [63].

[78]  T2-79.

[79]  T2-51 – T2-52.

[80]  Respondent closing submissions filed 14 October 2021, [45](m).

[81]  T1-24 l13.

[82]  T1-27 ll41-44.

[83]  T1-61 ll18-25.

[84]  T1-56 l34 – T1-58 l10;

[85]  T1-70 ll6-33;

[86]  T2-16 ll26-29, ll31-35.

[87]  T2-50 ll13-14.

[88]  T2-53 l47 – T2-54 l1.

[89]  Exhibit 3, JW2.

[90]  T2-13 ll4-46.

[91]  Exhibit 8, DW9.

[92]  Exhibit 8, DW9 Campion email of 16 December finishes with: "Just a reminder, Timekeeper will not be available from 20 December so times will need to be recorded somewhere to input when the system reopens on 2 January 2020."

[93]  T2-13 ll45-46.

Close

Editorial Notes

  • Published Case Name:

    Together Queensland, Industrial Union of Employees v Resources Safety and Health Queensland

  • Shortened Case Name:

    Together Queensland, Industrial Union of Employees v Resources Safety and Health Queensland

  • MNC:

    [2021] QIRC 394

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    17 Nov 2021

Appeal Status

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

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