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  4. Granger v Gympie Regional Council - [2023] QIRC 80

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Granger v Gympie Regional Council[2023] QIRC 80

Granger v Gympie Regional Council[2023] QIRC 80

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Granger v Gympie Regional Council [2023] QIRC 080

PARTIES:

Granger, Ty Steven

(Applicant)

v

Gympie Regional Council

(Respondent)

CASE NOS:

D/2020/3

TD/2021/46

PROCEEDINGS:

Notice of industrial dispute

Application for reinstatement

DELIVERED ON:

13 March 2023

HEARING DATES:

6, 7 and 8 December 2021

22 February 2022

MEMBER:

O'Connor VP

HEARD AT:

Gympie (6, 7 and 8 December 2021)

Brisbane (22 February 2022)

ORDERS:

  1. That applications D/2020/3 and TD/2021/46 be dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTE – where dispute notification – where applicant employed as roads maintenance supervisor – where applicant obtained railway iron from his employer delivered to his private property using his employer's plant for his own personal benefit – where allegations of corrupt conduct, misconduct and/or inappropriate workplace conduct – where applicant subject to external investigation – where disciplinary process – where employer satisfied on reasonable grounds that substantiated conduct constituted misconduct – where disciplinary sanction in the form of demotion and transfer – whether disciplinary action of demotion was justified – whether sanction harsh, unjust and unreasonable – where applicant seeking compensation – determined decision to demote was reasonable – application dismissed.

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – application for reinstatement – where applicant employed as slasher operator – where allegations applicant operated slasher in a reckless manner – where applicant engaged in behaviour which constituted serious misconduct – where applicant causing risk to health and safety of himself and the general public – where applicant failing to operate plant and equipment in a safe manner – where failure to report or identify damage to plant and equipment – where dismissal related to conduct – whether dismissal was harsh, unjust or unreasonable – where applicant seeking compensation – determined dismissal not harsh, unjust or unreasonable – application dismissed.

LEGISLATION:

Employees Relations Act 1994, s 105, s 107

Fair Work Act 2009 (C'th), s 170CD

Industrial Relations Act 2016 (Qld), s 261, s 265, s 316, s 317, s 320, s 371

Local Government Act 2009 (Qld), s 13, s 197

Local Government Regulation 2012 (Qld), r 278, r 279, r 280, r 283

Public Sector Ethics Act 1994 (Qld), s 4, s 9

Work Health and Safety Act 2011 (Qld), s 28

Workplace Relations Act 1996 (Cth), s 170CG(3)

CASES:

Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Grivell (1999) 74 SASR 240

Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 425

BHP Coal Pty Ltd t/a BMA v Schmidt [2016] FWCFB 1540

Blair v Chubb Security Australia Pty Ltd [2003] AIRC 1006.

Boo Hwa Chan v Christmas Island Administration [1999] AIRC 1371

Byrne v Australian Airlines Limited (1995) 185 CLR 410

Charlton v Eastern Australia Airlines Pty Ltd [2006] 154 IR 239

Consolidated Press Ltd v Thompson (1952) 52 SR (NSW) 75

Costello v Queensland [2020] ICQ 3

Elizabeth Gorczyca v RMIT University [2002] AIRC 1115

G A Stewart v University of Melbourne [2000] AIRC 779

Hermann v Qantas Airways Ltd [2001] AIRC 316

Kruger v The Commonwealth (1997) 190 CLR 1

Michelle Holland v Qantas Airways Limited [2011] FWA 3778

Minister for Immigration and Border Protection v SZVFW & Others (2018) 264 CLR 541

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

NSW Trains v Mr Todd James [2022] FWCFB 55

Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 195 ALR 502

Russian v Woolworths (SA) Pty Ltd (1995) 64 IR 169

G A Stewart v University of Melbourne [2000] AIRC 779

Teece Lollback v University of Southern Queensland [2014] FWC 2011

Visscher v Honourable President Justice Giudice (2009) 239 CLR 361; (2009) 258 ALR 651

Wadey v YWCA Canberra [1996] IRCA 568

APPEARANCES:

Mr P Kuskie, Rostron Carlyle Rojas Lawyers for the Applicant.

Mr D Williams and Ms B Kappel Davis, MinterEllison Lawyers for the Respondent.

Reasons for Decision

  1. [1]
    Two applications were filed by Mr Ty Granger ('the Applicant') in the Queensland Industrial Relations Commission '(the Commission').  The first application is a notice of industrial dispute filed on 20 January 2020 pursuant to s 261 of theIndustrial Relations Act 2016 ('the IR Act') relating to the Applicant's employment and subsequent demotion with the Gympie Regional Council ('the Respondent/Council)'.[1]The second is an application for reinstatement filed on 28 May 2021 pursuant to s 317(1) of the IR Act following Mr Granger's termination of employment with the Council on 7 May 2021.[2]
  1. [2]
    Conferences were held before the Commission on 7 February 2020 and 10 and 12 May 2021 in D/2020/3 and on 21 July 2021 in relation to both matters, without success.
  1. [3]
    At a mention on 1 June 2021 before the Commission as constituted the parties agreed that both matters be heard together, and consent directions were issued on 4 June 2021.  On 17 August 2021 further consent directions were issued for the parties to provide statements of facts and contentions, lists of witnesses, outlines of evidence and outlines of submissions as well as listing the matters for hearing in Gympie on 6, 7 and 8 December 2021.

Issues for determination

  1. [4]
    There are two issues for determination in these proceedings:
  1. (a)
    whether the disciplinary action of demoting the Applicant from his role of Supervisor was justified; and
  1. (b)
    whether the dismissal of the Applicant was harsh, unjust and unreasonable within the meaning of s 316 of the IR Act.

Legislation

  1. [5]
    The application for reinstatement is filed under s 317 of the IR Act which appears in Division 2, Part 2 of Chapter 8, 'Unfair dismissals'.  Section 316, which is the first section in Division 2, provides as follows:

316 When is a dismissal unfair

A dismissal is unfair if it is harsh, unjust or unreasonable.

  1. [6]
    The matters which the Commission must consider when deciding whether a dismissal was unfair are set out in s 320 of the IR Act as follows:

320 Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  1. (b)
    whether the dismissal related to -
  1. (i)
    the operational requirements of the employer's undertaking, establishment or service; or
  1. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance -
  1. (i)
    whether the employee had been warned about the conduct, capacity or performance; or
  1. (ii)
    whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant.
  1. [7]
    Relevant legislation applicable to the Applicant as an employee within local government is the Local Government Act 2009 (Qld) ('LG Act').  Section 13 of the LG Act provides:

13 Responsibilities of local government employees

  1. (1)
    All employees of a local government have the same responsibilities, but the chief executive officer has some extra responsibilities.
  1. (2)
    All employees have the following responsibilities -
  1. (a)
    implementing the policies and priorities of the local government in a way that promotes -
  1. (i)
    the effective, efficient and economical management of public resources; and
  1. (ii)
    excellence in service delivery; and
  1. (iii)
    continual improvement;
  1. (b)
    carrying out their duties in a way that ensures the local government -
  1. (i)
    discharges its responsibilities under this Act; and
  1. (ii)
    complies with all laws that apply to local governments; and
  1. (iii)
    achieves its corporate plan;
  1. (c)
    providing sound and impartial advice to the local government;
  1. (d)
    carrying out their duties impartially and with integrity;
  1. (e)
    ensuring the employee's personal conduct does not reflect adversely on the reputation of the local government;
  1. (f)
    improving all aspects of the employee's work performance;
  1. (g)
    observing all laws relating to their employment;
  1. (h)
    observing the ethics principles under the Public Sector Ethics Act 1994, section 4;
  1. (i)
    complying with a code of conduct under the Public Sector Ethics Act 1994.
  1. [8]
    The Chief Executive Officer (CEO) is authorised to take disciplinary action (including termination) against an Applicant (a local government employee) in accordance with the power contained in s 197 of the LG Act and the provisions of Chapter 8, Part 3, Division 1 of the Local Government Regulation 2012 ('the LG Regulation').
  1. [9]
    Section 197 of the LG Act provides as follows:

197 Disciplinary action against local government employees

  1. (1)
    The chief executive officer may take disciplinary action against a local government employee.
  1. (2)
    A regulation may prescribe -
  1. (a)
    when disciplinary action may be taken against a local governmentemployee; and
  1. (b)
    the types of disciplinary action that may be taken against a local government employee.
  1. [10]
    The LG Regulation provides that a CEO may take disciplinary action against local government employees and the types of disciplinary action.  Regulations 278, 279, 280 and 283, Division 1 of the LG Regulation provide as follows:

278 What div 1 is about

This division prescribes, for section 197(2) of the Act, when the chief executive officer may take, and the types of, disciplinary action.

279 When disciplinary action may be taken

The chief executive officer may take disciplinary action against a local government employee if the chief executive officer is satisfied the employee has -

  1. (a)
    failed to perform their responsibilities under the Act; or
  1. (b)
    failed to perform a responsibility under the Act in accordance with the local government principles; or
  1. (c)
    taken action under the Act in a way that is not consistent with the local government principles.

280 Types of disciplinary action

  1. (1)
    The disciplinary action taken by the chief executive officer against a local government employee may be 1 or more of the following -
  1. (a)
    dismissal;
  1. (b)
    demotion, including a reduction in remuneration;

Examples of demotion of a local government employee -

  • a reduction in the classification level of the local government employee's employment and a corresponding change in the employee's duties
  • a reduction in the local government employee's level of remuneration within the classification level of the employee's employment
  1. (c)
    a deduction from salary or wages of an amount of not more than 2 penalty units;
  1. (d)
    a written reprimand or warning.

Note -

If the disciplinary action to be taken is dismissal, the dismissal must comply with the requirements that apply in relation to the local government employee under the Industrial Relations Act 1999, chapter 2A or 3.

  1. (2)
    A written reprimand or warning -
  1. (a)
    must state the following -
  1. (i)
    the employee's conduct that is disapproved of;
  1. (ii)
    the remedial action needed to rectify the conduct;
  1. (iii)
    the period within which the remedial action is to be taken;
  1. (iv)
    the possible consequences for a repeat of the conduct by the employee; and
  1. (b)
    is part of a local government employee's employment record.

283 Employee to be given notice of grounds for disciplinary action

  1. (1)
    Before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee -
  1. (a)
    notice of the following -
  1. (i)
    the disciplinary action to be taken;
  1. (ii)
    the grounds on which the disciplinary action is taken;
  1. (iii)
    the particulars of conduct claimed to support the grounds; and
  1. (b)
    a reasonable opportunity to respond to the information contained in the notice.
  1. (2)
    The grounds and particulars are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular of conduct can be advanced in any proceeding about the disciplinary action taken against the local government employee.
  1. [11]
    The Public Sector Ethics Act 1994 ('the PSE Act') requires the Council to maintain a Code of Conduct that enshrines the ethics principles which relevantly provide:
  • promoting the public good; and
  • accountability and transparency.[3]
  1. [12]
    Other legislation applicable to the Applicant in respect of his own health and safety and that of others was the Work Health and Safety Act 2011 (Qld) ('the WHS Act').  Section 28 of the WHS Act provides:

28 Duties of workers

While at work, a worker must -

  1. (a)
    take reasonable care for his or her own health and safety; and
  1. (b)
    take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
  1. (c)
    comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
  1. (d)
    co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace.

Applicant's Statement of Facts and Contentions

  1. [13]
    The Applicant filed the following Statement of Facts and Contentions on 27 August 2021 in relation to both matters.

Notice of industrial dispute (D/2020/3)

Facts

  1. On 4 September 2018 [sic] the Applicant's supervisor offered him the opportunity to purchase from Council some scrap railway iron.  The supervisor arranged for the railway iron to be delivered to the Applicant's property and undertook to attend to the necessary paperwork.
  1. On 3 October the Applicant raised with the Manager Main Roads Maintenance the railway iron wishing to attend to payment.  He was informed that, contrary to the advice of the Applicant's supervisor, the iron should have been sold by tender.  The Applicant immediately arranged the return to [sic] the iron to a Council depot.
  1. On 5 August 2019 the Applicant received correspondence from his employer raising concerns that he had breached the Employer's Staff Code of Conduct in relation to the railway iron.
  1. The Applicant cooperated fully with the investigation, participated in the interview as requested and provided full and frank disclosure.
  1. On 9 December 2019 the Applicant received correspondence from the Respondent detailing the outcome of the investigation.  The external investigation concluded that the Applicant was, inter alia, not guilty of misappropriation.
  1. Despite this finding, the Respondent found that the Applicant was guilty of misconduct.  The Respondent was sanctioned by demotion.  The Applicant was informed that, if he did not accept the demotion, he would be terminated.
  1. The demotion included a reduction of salary of approximately $20,000 per annum.

Contentions

  1. The Applicant's conduct does not amount to misconduct.  He was entitled to act on the instruction of his supervisor and at all times acted with honesty and integrity.
  1. Council had failed to provide the employee with any specific training in relation to the Public Sector Ethics Act which would have equipped him to question the express instruction of his supervisor.
  1. The findings of the external investigator did not justify any sanction, let alone significant demotion without counselling or warning.
  1. The sanction was harsh, unjust and unreasonable.[4]
  1. [14]
    The Applicant seeks compensation for lost wages consequent upon the unfair demotion, being from the date of demotion until termination of employment.[5]

Application for reinstatement (TD/2021/46)

Facts

  1. On 13 January 2020 the Applicant commenced employment in the new (demoted) role of Labourer/Operator LGES (Slasher Operator).  The new position was at a new depot in Gympie, approximately 75 kilometres from the Applicant's home in the town of Kilkivan.  The position at the new depot required the Applicant to operate machinery in a new unfamiliar area, which contains numerous major thoroughfares including the Bruce Highway.
  1. On 14 January 2020 the Applicant was provided with a comprehensive induction from an experienced operator to the machinery he was required to operate, namely a John Deere 6230 and slasher.
  1. On 30 April 2020 the Applicant was required to operate a new tractor, a John Deere 6110.  This vehicle was an extra 15 horsepower, was a change from manual transmission and clutch to electronic clutch and gear shift, had sixteen extra gears, was considerably longer, taller and had a wider wheelbase, and was equipped with a wider front blade.  The Applicant was provided with no operational induction or training on this vehicle.  On his first day of operation, through human error, he collided with a light pole and caused minor damage.  The damage was appropriately reported.
  1. The Applicant, in the course of his employment, experienced minor damage to equipment, explicable as fair and wear and tear.  All incidents requiring report were reported appropriately.
  1. The Applicant was spoken to on a single occasion by a supervisor in relation to 'rooster tails' left by the slasher.  The Applicant explained that the rooster tails were caused by the larger tyres on the new tractor, in combination with the excessive height of the grass, causing grass to lay down under the slasher and not be cut.
  1. On 7 January 2021 the Applicant drove the tractor over a broken pipe head concealed in long grass, causing minor damage.  The Applicant could not have known the pipe head was broken and the incident was unavoidable accident.
  1. The Applicant did not, at any stage, operate machinery at excessive speed.
  1. The Applicant was never cautioned in relation to his operation of machinery.
  1. On 11 February 2021 the Respondent alleges the Applicant failed to operate machinery in breach of then Safe Work Method Statement (SWMS) in that he operated a slasher without a shadow vehicle.  The Applicant at no stage operated the slasher without a shadow vehicle or in breach of the SWMS.
  1. The Applicant's denial was communicated to the Respondent by way of correspondence from the Applicant's solicitors dated 18 February 2021.  The Respondent did not investigate the Applicant's denial.
  1. On 15 February 2021 the Respondent alleges the Applicant commenced slashing a roundabout prior to traffic control being set up.  The Respondent did not slash the roundabout which was in fact slashed by another operator.  Neither the Applicant, nor the other operator, commenced slashing prior to the traffic control being in place, and the allegation is completely false.
  1. The falsehood of the allegation was communicated to the Respondent by way of correspondence from the Applicant's solicitors dated 18 February 2021.  The Respondent did not investigate the Applicant's denial.

Contentions

  1. The Respondent may not rely on the damage caused to Council machinery on 30 April 2020 as a basis for dismissal.  Council failed in its duty to the Applicant to provide a safe workplace by requiring him to operate machinery on which he had no experience and was provided no training.
  1. The remaining items of damage are consistent with unavoidable accidents by a skilled and careful operator and do not warrant dismissal, especially in circumstances were the applicant received no warning.
  1. The alleged incident on 11 February 2021 did not occur.  Council failed in their duty as an employer to conduct any, or any proper, investigation of the truth of the allegation in circumstances where the facts had been completely denied by the Applicant.
  1. The alleged incident on 15 February 2021 likewise did not occur and was denied.  Council again failed in their duty to conduct any, or any proper investigation of the truth of the allegation.
  1. Had the allegations against the Applicant been true, which they were not, dismissal was not a fair option.  A fair and reasonable employer would have counselled and warned the employee.
  1. [15]
    The Applicant seeks compensation for unfair dismissal in the sum equal to one-half of his annual salary at the date of termination of employment, at the rate he should have been paid, but for the unfair demotion.[6]

Respondent's Statement of Facts and Contentions

  1. [16]
    The Respondent filed a Statement of Facts and Contentions on 13 September 2021 in detailed response to both matters.  The following is pertinent:

Notice of industrial dispute (D/2020/3)

Facts

  • the conduct on 4 September 2018 [sic] occurred but not in the manner or sequence alleged by the Applicant;
  • a formal investigation dated 19 November 2019 (the Investigation) concluded there was sufficient evidence (amongst other things) to substantiate the findings;
  • the conduct on 3 October did not occur in the manner alleged;
  • the Respondent sent a letter to the Applicant dated 5 August 2019 however this was not limited to the raising of concerns that the Applicant had breached the Council's Code of Conduct;
  • the Applicant cooperated with the Investigation and participated with the Investigator and 'freely made admissions and concessions in relation to his own conduct';
  • the Investigation found that there was insufficient evidence to substantiate that the Applicant misappropriated Council property and materials, made unauthorised use of Council resources and/or materials for his personal use and/or benefit and made unauthorised use of Council staff members' labour and Council plant to facilitate and conceal these activities;
  • the Investigation found there was sufficient evidence to substantiate that on 4 September 2018 [sic] Mr Whitfield and Mr Granger had a discussion about Mr Granger using the railway iron for his personal use and benefit;
  • it is not correct the Applicant was 'found guilty of misconduct' as alleged, but rather that the Respondent was satisfied, on reasonable grounds, that the Applicant's substantiated conduct constituted misconduct;
  • the letter dated 9 December 2019 advised that disciplinary sanction in the form of a demotion was appropriate; the Applicant was offered the opportunity to respond to the proposed disciplinary sanction; and advised he remained suspended;
  • the Applicant was advised demotion of position was sufficient disciplinary sanction; and
  • the Applicant was not informed if the demotion was not accepted he would be terminated.

Contentions

  • the Applicant's conduct did amount to misconduct;
  • the Applicant, as a Supervisor and a local government employee, was expected to know the ethical obligations, Council's processes, procedures and guidelines;
  • the findings of the Investigation did justify a sanction;
  • the Council denies the sanction was harsh, unjust or unreasonable; and
  • the Council denies the Applicant is entitled to compensation.

Application for reinstatement (TD/2021/46)

Facts

  • the Council agrees the Applicant commenced on 13 January 2020 in the new Slasher Operator role in Gympie and he was provided with a comprehensive induction to operate a John Deere 6230 and slasher;
  • the Council states the Applicant was provided with adequate training to operate a new John Deere 6110;
  • the Applicant had an obligation under work health and safety legislation if he felt unable to safely operate plant;
  • the Applicant was involved in seven incidents of damage or malfunction to plant prior to his termination;
  • the Council says the 'rooster tails' are commonly understood to be caused by operating a slasher at excessive speed in long grass;
  • the Council does not agree the incident where the Applicant drove a tractor over a broken pipe head was unavoidable;
  • the Council denies the Applicant has not operated machinery at excessive speed and/or been cautioned on multiple occasions, claiming he operates more efficiently, and words to the effect of 'I get 12km done in a day, the others get 8 done, they are too slow';
  • the Council states that on 11 February 2021 the Applicant did operate a slasher in breach of the SWMS without a shadow vehicle and it was investigated by the Council;
  • the Council says that on 15 February 2021 the Applicant did commence slashing a roundabout prior to having traffic control set up and it is not true that he was not the individual slashing the roundabout at the time; and
  • the Council states the 15 February 2021 allegation, which was denied by the Applicant and claimed to be not investigated, was investigated by the Council.

Contentions

  • the Council says it was reasonable for it to rely on the damage caused on 30 April 2020 as contributing to the reasons for dismissal;
  • the Council does not agree that the damage caused to its plant since the Applicant commenced in January 2020 is consistent with unavoidable accidents by a skilled and careful operator;
  • the Council says the incidents on 11 and 15 February 2021 did occur and Council did not fail to investigate ' … where the facts had been completely denied by the Applicant';
  • the Council agrees with the Applicant that dismissal was a fair option had the allegations against the Applicant been true, which they were;
  • the Council states the Applicant's disregard for the Council's safety management system placed himself, other workers and the public at risk and that such conduct is in breach of the Council's Code of Conduct, the Local Government Act 2009 (Qld) and potentially the Work Health and Safety Act 2011 (Qld); and
  • the Council says in these circumstances it was reasonable to terminate the Applicant's employment and denies the Applicant is entitled to the compensation sought.[7]

Applicant's summary of submissions

Industrial dispute

  1. [17]
    The Applicant contends the decision of the Respondent to demote him on 9 December 2019 was harsh, unjust and unreasonable under the IR Act.
  1. [18]
    The Applicant submits the facts of the dispute are essentially the subject of consensus between the parties.  Subject to matters arising during cross-examination, both parties accept the process and findings of the report by Q Workplace Solutions.
  1. [19]
    In his submissions the Applicant states the findings of the Investigator were that he was not guilty of any dishonesty and that he was 'acting in good faith'.  It was accepted that the Applicant's actions were at the direction of a person in a senior supervisory position and as soon as he became aware that due process had not been followed, the Applicant returned the Council property.
  1. [20]
    The Investigation Report exonerates the Applicant of all matters investigated and rejects any finding of 'misappropriation of materials, unauthorized use of Council resources, materials, plant and Council staff members' labour'.[8]
  1. [21]
    The following criticism of the Applicant is found at paragraph 1.4(o) of the Q Workplace Solutions Report:

On the other hand, Mr Granger is a Council Supervisor.  Given Mr Granger's position, it is not unreasonable to consider that Mr Granger ought to have certain knowledge and understanding of Council processes, procedures and guidelines, including appropriate use of Council resources.[9]

  1. [22]
    The Applicant submits there is a complete disconnect between the finding of the Investigator and the decision of Council.
  1. [23]
    The basis of Council's decision was that the Applicant was 'expected to know the appropriate policies and procedures' and that he 'should have questioned the matter further'.  The Applicant submits this is an abrogation of Council's responsibility to ensure employees are provided training and instruction as to appropriate policies and procedures.  The Applicant submits the only training by Council is that he participated in Code of Conduct Training in October 2018, after the incident in question.
  1. [24]
    The Applicant argues that it was only as a result of him questioning the process with a more senior supervisor, that he became aware that his immediate supervisor's instruction was incorrect and of his own volition arranged the immediate return of Council property.
  1. [25]
    Council has rejected the findings of the independent investigator and this error explains the contradiction between those findings and the finding of 'misconduct' by Council.  On the basis of this error, Council's decision must fail.
  1. [26]
    The decision of Council to find the Applicant guilty of misconduct and to demote him resulted in a salary loss of approximately $20,000 per annum and significant loss of benefits. 
  1. [27]
    The demotion amounted to constructive dismissal, which was not justified on the facts.
  1. [28]
    The Applicant further submits the penalty is severe and is completely unfair and unreasonable.[10]

Unfair dismissal - Applicant's outline of submissions

  1. [29]
    The Applicant submits his dismissal on 6 May 2021 was harsh, unjust, or unreasonable and therefore unfair within the meaning of s 316 of the IR Act. 
  1. [30]
    The dismissal was based on alleged conduct on seven occasions relating to his operation of Council equipment, namely tractor and slasher and his compliance with relevant safety standards.
  1. [31]
    In the Show Cause letter dated 15 February 2021, Council refers to seven incidents of plant damage, full particulars of which were not provided.  The Applicant claims the failure to provide particulars denied him the opportunity to respond to each incident.  All of the allegations relate to the Applicant's operation of a John Deere model 6110 tractor.  The Applicant claims he was not provided with any induction or training in relation to the operation of this machinery despite the fact it is significantly larger, more powerful, faster and has a different transmission and braking system to the vehicle which he was trained to operate.
  1. [32]
    The Applicant states the most serious incident resulting in the most expensive damage was on the Applicant's first day of operation of this machine.  The second most serious incident relates to the Applicant's slasher striking a totally obscured and unsigned broken pipe.  The Applicant said there is no evidence that the incident was anything other than an unavoidable incident.[11]
  1. [33]
    The Applicant submits that Council tried to abrogate its responsibilities to provide proper training to employees before operating machinery by attempting to put responsibility for the lack of training upon him, suggesting that he 'should have asked for it'.
  1. [34]
    In the absence of a formal warning, the Applicant contends that the Council's decision to dismiss him, is harsh, unjust and unreasonable.

Failing to operate plant and equipment in a safe manner, in accordance with prescribed operating procedures and all relevant safety and statutory requirements

  1. [35]
    The Applicant denied the 11 February 2021 allegation in the Response to the Show Cause correspondence dated 18 February 2021.  He provided an explanation contrary to the allegation, namely that he was operating more than 4 meters from the road edge, and that he did not operate the slasher at any time when the Safety Controller was not in place.  He submits that following receipt of the denial, Council conducted no further inquiry as to the truth of the allegations.[12]
  1. [36]
    Similarly, the Applicant denied the factual basis of the 15 February 2021 allegations in that he had slashed the roundabout referred to or that he had operated the slasher without traffic control in place.  A further investigation by Council could, it is submitted, have established the true facts and that the failure to investigate was incompetent.  The Applicant argues that Council failed to meet the standard of a reasonable employer.[13]
  1. [37]
    In the absence of any warning in relation to compliance with safety procedures, or education and counselling as to how it was alleged his conduct was non-compliant, the Applicant was effectively summarily dismissed.  Had sufficient evidence been obtained to corroborate the allegations, the dismissal would still have been harsh, unjust and unreasonable.[14]

Industrial dispute - Respondent's outline of submissions

  1. [38]
    The Respondent submits the Applicant's demotion from his role of Roads Maintenance Supervisor was an available form of disciplinary action, exercising the functions given to the CEO pursuant to r 279 of the LG Regulation.  If it was a proper exercise of that power, the Commission should not disturb it on other grounds, noting it is an exercise of a power under a Statute.
  1. [39]
    Local Government employees' responsibilities under the LG Act include:
  1. (a)
    implementing the policies and priorities of the local government in a way that promotes the effective, efficient and economical management of public resources;
  2. (b)
    carrying out their duties impartially and with integrity;
  3. (c)
    observing the ethics principles under s 4 of the PSE Act; and
  4. (d)
    complying with a code of conduct under the PSE Act.[15]
  1. [40]
    Relevant disciplinary action under the LG Regulation includes dismissal, demotion, deduction in wages, or a written reprimand.[16]

Background to the Investigation

  1. [41]
    A formal Investigation was conducted by Q Workplace Solutions during 2019 in relation to the Applicant's conduct between 4 September 2017 and 10 October 2017. 
  1. [42]
    The findings of the Investigation were detailed in an Investigation Report dated 19 November 2019.[17]
  1. [43]
    The Investigator was appointed by the Respondent to conduct an investigation into allegations of corrupt conduct, misconduct and inappropriate workplace conduct.  However, the Investigator was not to make any findings as to whether any substantiated conduct constitutes a breach of any applicable policy, procedure, or legislation.[18] The Investigation focussed on whether the Applicant had been guilty of corrupt conduct.  The Investigation was not into whether the Applicant had met all of his responsibilities as set out in s 13 of the LG Act.
  1. [44]
    The Investigation Report concluded there was sufficient evidence to substantiate that:
  • on 4 September 2017 the Applicant had a discussion with Mr Adam Whitfield, the Applicant's supervisor at the time, whereby Mr Whitfield told the Applicant words to the effect the Applicant could have the railway iron for his own personal use and benefit;
  • the Applicant considered Mr Whitfield authorised his personal use of the railway iron;
  • the Applicant intended to use the railway iron for his own personal benefit;
  • on 4 September 2017 Troy Taylor, an employee of the Respondent, delivered the railway iron using Council plant during work hours to the Applicant's private property;
  • the Applicant became 'uncomfortable' with having the railway iron at his property; and
  • on 10 October 2017 the Applicant returned the railway iron to Council's Mount Olive pit using the Respondent's plant during work hours.[19]

The Demotion decision

  1. [45]
    The Respondent submits that although the investigation did not substantiate that the Applicant had misappropriated the Respondent's property (and did not make a finding of corrupt or otherwise dishonest conduct), the Investigation clearly found as relevant subordinate facts, that:
  1. (a)
    the Respondent's material (namely, railway iron) had been on the Applicant's property, in a circumstance where the Applicant would have known it was the Respondent's property;
  2. (b)
    the railway iron was delivered to the Applicant's property for his own personal use and benefit;
  3. (c)
    the Applicant made no arrangements, nor took any steps, to purchase the material from the Respondent; and
  4. (d)
    the Applicant removed the material from his property, using the Respondent's resources, only when a query was raised about the material.[20]
  1. [46]
    In considering these factual findings about whether the Applicant's conduct warranted disciplinary action, it was open and in fact required the Respondent to consider such findings.  The Applicant's substantiated behaviour was not, it was submitted, in accordance with his obligations as a local government employee. 
  1. [47]
    Section 9(b) of the PSE Act requires public officials to be committed to using public resources in an effective and accountable way.
  1. [48]
    The Respondent submits there are many unresolved issues to be explored further in the Applicant's evidence.
  1. [49]
    On the facts, the Applicant's substantiated conduct is in breach of the PSE Act and the Code of Conduct, a code of conduct under the PSE Act, and is a failure to comply with his responsibilities under the LG Act.  It was therefore open to Mr Smith as the CEO of the Council at the time to take disciplinary action under r 279 of the LG Regulation.

Demotion an appropriate form of disciplinary action

  1. [50]
    The CEO considered termination of the Applicant's employment but ultimately determined that demotion was the appropriate disciplinary action.  Mitigating factors were considered including the Applicant believed he was acting under and with the permission of his supervisor at the time; his length of time in a supervisory role and the belief that with support and the relinquishment of supervisory duties the Applicant could remain a valuable employee.
  1. [51]
    All local government employees are subject to the LG Act and the Code of Conduct.  The Applicant was aware of his employee obligations under the Code of Conduct because he attended Code of Conduct training on 2 November 2016 (prior to the conduct in question).  He also attended Code of Conduct training on 25 October 2018 (prior to the Investigation occurring).[21]
  1. [52]
    The Applicant's submissions in respect to Code of Conduct training should be rejected.

Due process followed

  1. [53]
    The Respondent submits that in accordance with r 283 of the LG Regulation, the evidence will show that the Applicant was afforded due process in the course of imposing disciplinary action.
  1. [54]
    The decision to demote the Applicant was consistent with and compelled by the findings of the Investigation Report and in accordance with relevant law and policy which applied to him.  The Respondent submits the demotion decision should be upheld by the Commission.[22]

Termination proceedings

  1. [55]
    The Respondent submits that the termination was not unfair within the meaning of s 316 of the IR Act.  The Applicant was notified of the reasons for dismissal, in the show cause letter dated 15 February 2021 and the termination letter dated 6 May 2021.  He was given the opportunity to respond to the show cause and provided a response dated 18 February 2021.
  1. [56]
    The Respondent made the decision to dismiss the Applicant pursuant to r 280(1)(a) of the LG Regulation.

Prior warning

  1. [57]
    The Applicant had not previously been formally warned about his performance however he was made aware on multiple occasions the concerns held by his supervisors (and their supervisors) about his performance and conduct.
  1. [58]
    The Respondent submits the evidence demonstrates that the Applicant did not take seriously, or accept, feedback concerning his performance or conduct and continued to operate the Respondent's plant recklessly and in breach of his safety obligations.[23]

Reasons for dismissal

  1. [59]
    The Applicant's employment was terminated on three primary grounds:
  1. (a)
    his disregard and non-compliance with the Respondent's safety protocols and procedures;
  2. (b)
    his speed whilst operating machinery; and
  3. (c)
    the nature and extent of the damage to the Respondent's plant incurred by him.[24]

Disciplinary action under the LG Regulation

  1. [60]
    The Applicant's conduct constituted a repeated breach of the Code of Conduct and a failure to comply with his responsibilities under the LG Act.  In failing to comply with the Respondent's safety system, including the Traffic Guidance Scheme (TGS) and the Safe Work Method Statement (SWMS), the Respondent submits it is likely the Applicant engaged in conduct in breach of the WHS Act in failing to take reasonable care for his own health and safety and that of others who might be affected; this in itself is a failure to comply with the LG Act.
  1. [61]
    The Respondent submits it was clearly open to the CEO to take disciplinary action under r 279 of the LG Regulation and in the circumstances, termination was the appropriate outcome.
  1. [62]
    The Applicant was afforded procedural fairness as part of the disciplinary process and provided with the opportunity to respond to the allegations.  He was paid all outstanding salary and statutory entitlements and an additional five weeks' payment in lieu of notice of termination of employment.
  1. [63]
    The Respondent's decision to terminate the employment cannot be considered to be harsh, unjust or unreasonable. 
  1. [64]
    The Respondent seeks an order for the Applicant's claims to be set aside under ss 265(1) and 320 of the IR Act.

Consideration

The Dispute Proceedings

  1. [65]
    The case sought to be made by the Applicant in these proceedings was one of dismissal by way of demotion.
  1. [66]
    It is well accepted that a contract of employment may be terminated by an employer in a number of ways.  It may be terminated lawfully, by the employer giving notice required by the contract or by giving reasonable notice on termination if no period is specified; or the employee may commit a repudiatory breach of the contract, and if accepted by the employer, lawfully terminates the contract.
  1. [67]
    Where the employer terminates the contract there is at the same time a termination of the employment under that contract.  Continued employment cannot survive the termination of the contract.  In such circumstances there is a dismissal.
  1. [68]
    Dismissal may also be affected by way of repudiation by the employer.  The employer either without notice or with inadequate notice, terminates the services of the employee by refusing to continue to employ the employee in the position in which the employee was employed.
  1. [69]
    However, such a repudiation does not automatically terminate the contract of employment.  The contract continues until the employee accepts the repudiation.[25]  If an employer wrongfully dismisses an employee they break, but do not terminate the contract. The employer cannot discharge the contract of employment by a unilateral breach.
  1. [70]
    In the Industrial Relations Court of South Australia in Russian v Woolworths (SA) Pty Ltd (Jennings SJ, Cawthorne and Parsons JJ),[26] the Court stated:

If one party purports to terminate the contract otherwise than in accordance with the terms of the contract that amounts to a repudiation of the contract by that party.  This is so because the repudiation evinces an intention of that party to be no longer bound by the contract.  The other party then has the option of accepting the repudiation thereby regarding the contract as at an end and in the case of a contract of employment seeking a remedy for the wrongful termination of the contract or electing to treat the contract as a continuing one seeking a declaration that it continues in restraining the other party from acting as if the contract was at an end.[27]

  1. [71]
    The Applicant was invited to make a submission in respect of the disciplinary sanction, namely, demotion.  The Applicant replied to the Respondent in the following terms:

Dear Ms Gordon

RE: Disciplinary Action

I refer to your correspondence of 19 December 2019 and the decision and offer contained therein.

Please be advised that I will present myself for duties as set out in that letter.

However, I dispute that the disciplinary action taken against me is fair and assert that it is harsh, unjust and unreasonable, and was not a reasonable management action having regard to all of the circumstances.

Whilst, for economic reasons, I shall accept the demotion at this time, I reserve any rights that I have to dispute that decision in the future.

 Kind regards

Ty Granger.[28]

  1. [72]
    It is recognised that a dismissal may occur in circumstances where there is a unilateral, detrimental change by an employer to the employment status of an employee which is contested by the employee and where employment with the employer continued at the altered status level.[29]
  1. [73]
    The High Court of Australia in Visscher v Honourable President Justice Giudice (in the judgment of the plurality) for the purpose of s 170CE (1) of the Workplace Relations Act 1996 recognised that a demotion which does involve a significant reduction in remuneration or duties of an employee may constitute a dismissal.[30]
  1. [74]
    In the decision of Blair v Chubb Security Australia Pty Ltd,[31] Whelan C in the context of s 170CD(1B) of the Fair Work Act 2009 ('the FW Act') stated:
  1. [34]
    A demotion may amount to a repudiation of the contract by the employer.  It may then constitute a termination of employment at the initiative of the employer.  In not all circumstances will a demotion constitute a repudiation of the contract or bring about a termination of employment at the initiative of the employer.  The contract may, for example, allow the employer to demote an employee in certain circumstances (Hermann v Qantas Airways Limited) [PR90396].
  1. [35]
    Even where a demotion would amount to a repudiation of the contract, at common law, it may not be a "termination at the initiative of the employer" for the purposes of the Workplace Relations Act 1996.  Where the contract is silent, but an award or other industrial instrument provided for under the Act allows the employer to demote an employee, there will be no termination of employment for the purposes of section 170CE(1) (Gorczyca v RMIT University [PR919363] upheld on appeal [PR922414]).
  1. [36]
    Not all actions by an employer which cause a change in employment of an employee will amount to a demotion.[32]
  1. [75]
    The Commissioner further wrote:
  1. [40]
    The language of section 170CD(1B) refers to a "significant reduction in the remuneration or duties" of the employee.  In order for a demotion to bring about the termination of the employment, I am of the view that the reduction in remuneration or duties would need to be significant enough to amount to a repudiation of the contract by the employer.[33]
  1. [76]
    However, as the authorities suggest[34] where a contract or industrial instrument, and by extension, a statute, has a provision allowing demotion, such a demotion is not a dismissal by the employer or a repudiation of the existing contract of employment.
  1. [77]
    In Charlton v Eastern Australian Airlines[35] the Full Court wrote:
  1. [32]
    … a termination of employment occurs when a contract of employment is terminated.  This necessarily occurs when the employment relationship comes to an end.  However it can also occur even though the employment relationship continues.  Where a contract of employment has been terminated, but the employment relationship continues, this will be because a new contract of employment has come into existence …
  1. [34]
    Unless the contract of employment or an applicable award or certified agreement authorises an employer to demote an employee, a demotion, not agreed by the employee, that involves a significant reduction in remuneration will amount to a repudiation of the contract of employment.  If that repudiation is accepted, either expressly or by conduct, then the contract of employment is terminated.  If, in such circumstances, the demoted employee then remains in employment with the employer, this occurs pursuant to a new contract of employment in respect of the demoted position.  It may be noted that where the employment continues with the employee allegedly acquiescing in a reduction in salary or other terms of employment, difficult questions may arise as to whether the continued employment involves the continuation of the original contract of employment … (emphasis added).[36]
  1. [78]
    It is not in dispute that the Applicant's terms of employment include matters contained in the LG Act which were imported into his contract of employment.
  1. [79]
    In the Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Grivell[37] the issue to be resolved before the Full Court was whether a demotion, where there is continued and uninterrupted employment by the employer in the circumstances, constitutes a dismissal for the purposes of s 105 of the Employees Relations Act 1994 ('the ER Act').  Section 105 entitles a dismissed employee to apply to the Industrial Relations Commission of South Australia (SAIRC) for relief under that part of the Act.  By s 107 of the ER Act the SAIRC must determine whether a dismissal is 'harsh, unjust or unreasonable'.
  1. [80]
    Mr Grivell commenced employment with Advertiser Newspapers in January 1989 as a reel hand.  In May 1995 he was selected for promotion as a foreman which involved more supervisory duties.  He was paid at a higher rate than his previous position as printing machinist.  This was accepted to be a permanent promotion.  The Advertiser at all times was subject to the Newspaper Printing Agreement 1987, an award of the Commonwealth Industrial Relations Commission.
  1. [81]
    On 15 January 1997, Mr Grivell was informed by the Advertiser that he would no longer be required as foreman on a permanent basis from 17 January 1997.  Mr Grivell protested from the outset and informed the Advertiser that he would fight their decision.  However, Mr Grivell recommenced work on the following Monday as a printing machinist and had been working in this position at least until the hearing of his application in the SAIRC.  The Full SAIRC found that, but for the return to the shop floor, Grivell had otherwise acted in complete contradiction of any consensual variation or affirmation of his contract of employment. As a result of his demotion, he suffered a substantial reduction in his weekly pay.
  1. [82]
    In considering the meaning of "dismissal of an employee", Bleby J with whom Doyle CJ and Martin J concurred, found that:

...for the purposes of the (SA) Act, an employee must be a person who has a contractual relationship with the employer under a common law contract of employment.  Without a contract of employment there can be no employee and no employment.  It follows that if a contract of employment is terminated, as opposed to being varied by mutual agreement, employment under that contract must also cease.  There will be a termination of employment.[38]

  1. [83]
    However, importantly for present purposes, Bleby J went on to observe:

Depending on the original contract, there may also be a term of that contract that the employer reserves the right to direct the performance of higher duty for such period as the employer shall determine and to pay the employee at that higher rate for only so long as such duty is performed.  If in those circumstances the employer determines that there will be no more higher duty performed, the employer will be acting within the terms of the contract.  There will be no termination of the contract by the employer and no repudiation, because the employer was acting within the terms of the contract.[39]

  1. [84]
    In a similar vein in Boo Hwa Chan v Christmas Island Administration[40] Polites SDP said that:

The award . . . appears to me to give the Administration a clear option to redeploy and if such an option is exercised by virtue of the operation of the award the employment is not terminated notwithstanding the common law position.[41]

  1. [85]
    In my view, a demotion of an employee by an employer which involves a significant reduction in remuneration that is not agreed to by an employee will not amount to a repudiation of the employment contract if it is authorised by a contract of employment, an applicable award, a certified agreement or by statute.
  1. [86]
    Therefore, the action taken by the Respondent to change the remuneration and duties of the Applicant consequent upon a disciplinary process could not constitute a dismissal where the change was one authorised by the LG Act.

The Demotion Decision

  1. [87]
    It is accepted by the Applicant that the decision of the Respondent was not outside the powers conferred on the CEO by the LG Regulation, nor that the Commission has jurisdiction to determine the Industrial Dispute.
  1. [88]
    However, what is agitated by the Applicant is the approach which should be adopted by the Commission in determining the severity of the demotion.  In such circumstances, it was submitted that the appropriate test for the Commission in the Demotion Proceedings is whether the decision was 'harsh, unjust or unreasonable'.
  1. [89]
    To succeed in impugning the decision of the CEO, the Applicant must establish that the decision to impose the sanction, lacks an 'evident and intelligible justification'.[42]
  1. [90]
    The discretion given to the CEO to take disciplinary action against a local government employee is a broad one.  However, a discretionary power, statutorily conferred, must be exercised reasonably.[43]
  1. [91]
    In Kruger v The Commonwealth, Brennan CJ observed that:

Moreover, when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised.[44]

  1. [92]
    The High Court in Minister for Immigration and Border Protection v SZVFW & Others[45] Nettle and Gordon JJ summarised the nature of the Court's task in this way:
  1. [78]
    The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.
  1. [79]
    That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.
  1. [80]
    Parliament is taken to intend that a statutory power will be exercised reasonably by a decision-maker. The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed has been abused by the decision-maker or, put in different terms, the decision is beyond power. That question is critical to an understanding of the task for a court on review.
  1. [81]
    How that abuse of statutory power manifests itself is not closed or limited by particular categories of conduct, process or outcome. …[46]
  1. [93]
    Therefore, the task for the Commission is to decide whether the decision reached by the CEO was one that was reasonably open to him on the facts as found by him and which he took into account.
  1. [94]
    On 9 December 2019 the Respondent advised the Applicant that his behaviour constituted misconduct and that disciplinary action was warranted.  The Respondent formed the view that the Applicant's conduct was contrary to:
  • Public Sector Ethics Act 1994 section 9 which requires that public officials are committed to using public resources in an effective and accountable way.
  • Section 3A "Acting within the Law" which states:

As an employee of Council, you are expected to comply with applicable legislation, awards, certified agreements and Council policies and local laws.

  • Section 4A "Using Council Assets" which states:

Council's assets include property, plant, equipment, information systems, computing resources, goods, products and/or valuables (this includes surplus materials, waste material and off-cuts).  All employees share the responsibility for looking after them;

If you are in charge of assets you must take good care of them while they are in your possession or use, and ensure they are used economically and efficiently.  It is an offence to misuse or allow someone else to misuse Council assets.  You must make sure assets are secured against theft and properly stored, maintained and repaired.

You must ensure that you use Council assets only for official Council business.

  • Section 4B "Diligence, care and attention" requires you to contribute to the Council's aim to conduct its business with integrity, honesty and fairness and to achieve the highest standards in service delivery.  This specifically includes; not exposing Council to a judgment for damages against it, as a result of your negligence or breach of any law or policy.[47]
  1. [95]
    Consistent evidence was given as to the reasons why the Applicant was demoted:
  1. (a)
    the substantiated conduct was inconsistent with the Applicant's role as supervisor,[48]which carried with it a greater responsibility to be aware of appropriate behaviour;[49] and
  1. (b)
    the Applicant was aware or ought to have been aware of his obligations in relation to the disposal of Council assets.[50]
  1. [96]
    Pursuant to r 279 of the LG Regulation, the CEO of Council has a statutory discretion to take disciplinary action against a local government employee if satisfied the employee has, amongst other circumstances, failed to perform their responsibilities under the LG Act.
  1. [97]
    Once the CEO reaches the requisite level of satisfaction as to an employee's conduct under r 279, there arises a discretion as to the type of disciplinary action that may be taken under r 280 of the LG Regulation.
  1. [98]
    The Respondent's workplace values are reflected in its Code of Conduct.  That Code is informed by s 4 of the PSE Act which sets out the "ethics principles" as being fundamental to good public administration.  Those principles are:

Integrity and Impartiality;

Promoting the Public Good;

Commitment to the System of Government; and

Accountability and Transparency.[51]

  1. [99]
    The sentiment of those principles is echoed in the LG Act.[52]
  1. [100]
    What is contended by the Respondent is that on the facts as known to the CEO, the Applicant's substantiated conduct is in breach of the Respondent's Code of Conduct, which relevantly requires its workforce to:
  1. (i)
    comply with the Respondent's policies and local laws;[53]
  1. (ii)
    take responsibility for looking after the Respondent's assets including property, plant and equipment;[54]
  1. (iii)
    not misuse or allow anyone else to misuse the Respondent's assets (in fact, that it is an offence to do so);[55]
  1. (iv)
    requires employees to ensure that the Respondent's assets are only used for official Council business;[56] and
  1. (v)
    conduct its business with integrity, honesty, and fairness and to achieve the highest standards in service delivery.[57]
  1. [101]
    The values in the Respondent's Code of Conduct which are of relevance to this matter are "Accountability" and "Transparency".  Those values are, respectively, explained in the Code as:

If you are in charge of assets you must take good care of them while they are in your possession or use, and ensure they are used economically and efficiently. It is an offence to misuse or allow someone else to misuse Council assets.  You must make sure assets are secured against theft and properly stored, maintained and repaired.             

You must ensure that you use Council assets only for official Council business.[58]

  1. [102]
    What is advanced by the Respondent is that all local government employees are subject to the LG Act and the Code of Conduct and are required to uphold the values contained therein and comply with their associated obligations.  Moreover, this is so regardless of whether another employee, even one in a supervisory position, tells them otherwise.  No one has authority to authorise a breach of those obligations, not even the CEO.
  1. [103]
    They are obligations which apply individually by reference to the governing instruments.
  1. [104]
    The case mounted by the Applicant was premised upon the contention that Mr Whitfield was going to "start the paperwork" for the Applicant to purchase the railway iron and that a general inquiry had been made of Mr Salt about the process involved in purchasing the railway iron from the Respondent.  In support of that contention, the Applicant relied upon his diary notes "regarding his enquiries of Mr Whitfield about the process to formalize the acquisition of the railway iron".[59]
  1. [105]
    The Applicant supplied his "contemporaneous diary notes"' to the Investigator.  The Investigation Report records the following:

Although Mr Granger's diary notes are inconsistent with relevant evidence given by [redacted] the Investigator prefers the evidence of Mr Granger and has placed some weight on Mr Granger's diary.[60]

  1. [106]
    The reliability of the diary entries must be questioned.  I accept that the entries relating to the conduct of the Applicant, the subject of these proceedings, are not consistent with the tenor of the Applicant's other entries.
  1. [107]
    The dairy entry for 5 September 2021[61] contains, for example, a note which was crossed out to the extent that it could no longer be read.  The Applicant's explanation as to why the entry was obliterated was as follows:

And would you agree they've been heavily crossed out? --- They've been crossed out to probably to the same degree as September being - as being filled in.

Well, I'm not so sure, Mr Granger.  I would suggest to you that they've been crossed out in a way which would obliterate any trace of what was written so that no reader subsequently could ever be able to ascertain what was written.  Would you agree with that? --- They are crossed out, yes.[62]

  1. [108]
    The Applicant decided to make the entry in a Brisbane City Council diary after his third contact with Mr Whitfield and 'having no progress on the matter with this steel I decided that it needed to be noted down'.  The BCC diary was last used by the Applicant on 7 May 1998 some 19 years earlier.[63]
  1. [109]
    The diary entry was as follows:

Further to GRC diary September 5, 2017?[64]

  1. [110]
    In cross-examination, the Applicant was asked:

So a couple of questions about that.  That word or that phraseology "further to", is that your normal language, Mr Granger, or is that something that you - somebody else suggested you might want to write? --- No, that's my normal language.

"Further to"? --- Yes.

And why is it further to the diary of September the 5th, not September the 4th? --- Because on September the 5th there I have there that I had spoken with Adam Whitfield and then I have expanded on actually what it was.

Okay.  So you just felt that you had to emphasise something about your discussion with Mr Whitfield? --- Made reference to the fact that it is in that diary, yes.

Yeah.  So you made a diary entry on the 5th of September about what you say was about that discussion? --- Uh-huh.

Why isn't this note also in that diary entry, your work diary? --- Because I've placed it in here.[65]

  1. [111]
    The nature of the diary entries is self-serving and appear to be written for the benefit of a third party.  I find it hard to accept that the notes were made contemporaneously as asserted by the Applicant.  This is particularly so having regard to the inconsistent style of the Applicant's notetaking in relation to other matters at hand.
  1. [112]
    It is apparent to me that the Applicant was well aware of his obligations in respect of how he should deal with Council property.  Tellingly, the Applicant gave the following evidence:

So while you were a supervisor at Kilkivan, Mr Granger, if Mr Taylor had come to you and said that he wanted to use a council truck to take council property back to his property without paying - without having, at that point, paid for it, what would you have said to him? --- I would have said no.

And why would you have said no? --- Because there was no - I didn't have any specifics on what the material was, what the arrangement was for purchase or what the process was to allow that to happen.  So until I could get that information it would not have occurred.

And because it would have been plainly wrong for you to authorise that for one of your employees, wouldn't it? --- Well, I wasn't in a position to authorise that.  No.  If you had been in a position to authorise that, it would have been plainly wrong because it would've been quite inconsistent with the values and the obligations of the code of conduct, wouldn't it? --- I believe so, yes.[66]

  1. [113]
    As the above extract from the transcript reveals, it was acknowledged that the Applicant would not himself have authorised his staff to take Council-owned property home in those circumstances. Regardless of the Applicant's intentions to purchase the railway iron for some uncertain price and at an unascertained time in the future, such conduct is clearly in breach of the Council's Code of Conduct.
  1. [114]
    The evidence before the Commission is that the Applicant took possession of the Respondent's property, namely the railway iron for his personal use;[67] without any arrangement being in place to pay for the iron; and used Council property to return the iron.[68]  The return of the railway iron only occurred when it became apparent to the Applicant that inquiries were being made as to its whereabouts.[69]
  1. [115]
    It is submitted that the evidence supports the finding that the Applicant was aware of his obligations as an employee of the Respondent under the Code of Conduct because he attended Code of Conduct training on 2 November 2016 (prior to the conduct in question).  The Applicant also attended Code of Conduct training on 25 October 2018 (prior to the investigation occurring).[70]
  1. [116]
    If an employee is responsible for managing or supervising others, the following additional requirement is imposed:
  • you model the values and principles outlined in this Code and ensure that employees within your area of responsibility understand and comply with the Code.[71]
  1. [117]
    This additional requirement is relevant to the Applicant as he was a supervisor who oversaw approximately 11 employees.
  1. [118]
    The demotion of the Applicant is reasonably justified having regard to the substantiated allegations concerning the Applicant as an individual employee, but also give reasons why the demotion was reasonably justified to maintain public confidence that employees of the Respondent, in particular, employees who hold a supervisory role will comply with the standards expected of them as set out in the Code of Conduct.
  1. [119]
    The conclusion which was reached by the CEO can be drawn from the factors considered by him.  The decision made by the CEO was open to be made on the evidence.  The imposition of a demotion fell within a range of possible, acceptable outcomes.[72]
  1. [120]
    I am reasonably satisfied that the sanction imposed by the CEO sufficiently had regard to the nature and seriousness of the misconduct, the public interest and the need to maintain proper standards as expressed in the PSE Act, the Code of Conduct and the desire to protect the Respondent's reputation.
  1. [121]
    For these reasons, the decision to demote the Applicant was reasonable in the circumstances and a proper exercise of power by the Respondent's then CEO.
  1. [122]
    The Commission should not interfere with an administrator's exercise of discretion just because the Commission would have exercised the discretion in a different way.[73]

The Termination Proceedings

  1. [123]
    The Applicant contends that the decision of the Respondent to terminate his employment was unfair within the meaning of s 316 of the IR Act.
  1. [124]
    The Respondent's decision to dismiss the Applicant in relation to the manner in which he operated machinery was submitted to be unfair because:
  • He was never provided any induction or training in relation to the machinery he was directed to operate;
  • The incidents are explicable by lack of training, accident or misadventure;
  • He was never properly warned in relation to his operation of the machinery, particularly that it may result in dismissal;
  • Dismissal was a harsh and unreasonable sanction for the conduct complained of.[74]
  1. [125]
    The Applicant contended that the Respondent's decision to dismiss him in relation to the alleged incidents involving the safety controller should be set aside because:
  • Council failed to properly investigate the disputed facts, rendering the decision unsafe and unfair.
  • The allegations put to Mr Granger were factually inaccurate, which denied him the opportunity to properly respond.
  • Council failed to consider whether the incidents were the result of misunderstandings and miscommunications between the parties, which could have been remedied by counselling and education.
  • The sanction of dismissal was harsh, unjust and unreasonable.
  • Council denied the Applicant natural justice by failing to investigate or consider his response to the Show Cause Notice.[75]
  1. [126]
    In the letter of 18 February 2021, the Solicitors on behalf of the Applicant responded to the Show Cause Notice as follows:

11 February 2021 Incident

On this occasion, the work site had been properly set up and a traffic controller was within sight when Mr Granger commenced slashing.  Mr Granger was executing the "outside cut", approximately four metres from the road edge.  His operation of the slasher was no risk to vehicles approaching from the rear due to his distance from the road.  The traffic controller on site had full view of all approaching traffic prior to Mr Granger commencing work.

15 February 2021

The allegations contained in the correspondence are completely false.  Mr Granger did not slash the round about.  Mr Granger operated the slasher approximately 15 to 20 metres from the traffic area.  All safety signage was in place and a traffic controller was in attendance the entire time.[76]

  1. [127]
    Pivotal to the termination of the Applicant was the argument that the Applicant was involved in conduct which was a direct contravention of the SWMS for the task at hand.  In operating the slasher without a shadow vehicle, the Applicant failed to follow the TGS.
  1. [128]
    The system established by the TGS is designed as a control measure to ensure the safety of the slasher operators; employees, contractors, and other road users.  The scheme was  formed as part of the Respondent's safety measures.
  1. [129]
    It is not in contention that in relation to the 11 February 2021 incident, the Applicant was executing the "outside cut", approximately four metres from the road edge.  It is contended on behalf of the Applicant that the work site had been properly set up and a traffic controller was within sight of the Applicant.  In operating the slasher, the Applicant posed no risk to vehicles approaching from the rear due to his distance from the road.  The traffic controller on site had full view of all approaching traffic prior to the Applicant commencing work.
  1. [130]
    The Applicant concedes that there were occasions where he acted outside the TGS and, in particular, in relation to the necessary position of the shadow vehicle when commencing slashing operations.  The Applicant accepts that this was a breach of the safety requirements.[77]
  1. [131]
    In oral submissions, Mr Kuskie for the Applicant told the Commission:

But your Honour heard Mr Granger's evidence at the hearing - as at the date of hearing, he obviously thought he was doing the right thing.  He was cross-examined at some length about the proper position of the shadow vehicle and he consistently said that his understanding was that the role of the shadow vehicle was to notify the slasher operator, so the important thing was the line of sight of the shadow vehicle, not the actual physical position behind the tractor.  Now, your Honour - which, in my submission, that your Honour will find that that's wrong.  So in that regard, he was mistaken.[78]

  1. [132]
    It was accepted by the Applicant that he had crossed the road and was coming back the other way.  The Applicant contended that Mr Woodman had a clear view behind him and as such the TGS was sufficiently complied with.
  1. [133]
    Evidence was adduced from Mr Dion Woodman, a Traffic Controller in the employ of AAction Traffic.  During examination-in-chief, Mr Woodman was asked:

But did you call - when you saw Mr Granger slashing, did you call him on the two-way radio?---Yeah, I asked him to stop till I got back and I heard no answer and he's still going, so - - -

Well, can you remember what the exact words you said or close to the words that you said?---"Oh, can you please give me a few more seconds?  I've only just - I've only got this sign to do and I'm on my way back.  I can see what you're doing, mate.  Just give me two more seconds so I can get back to be a shadow vehicle".  And I heard nothing.  No radio contact. So - and the other slasher driver was parked up ready to go and he heard me no problem.[79]

  1. [134]
    In examination-in-chief, Mr Draicchio, the Respondent's traffic management designer was asked:

Are the operators permitted to commence slashings before the support or shadow vehicle is in place?---No.  No.  We need to get shadow vehicle and signage in place prior to works.  Yeah.

To your understanding, is that a mandatory rule?--- Say again?

Is that a man - is that a rule which all operators are required to follow?---Yes.[80]

  1. [135]
    Mr Draicchio told the Commission that a slasher operator required a 'spotter' while slashing[81] and crossing the road.[82]
  1. [136]
    It was the clear evidence of both Mr Woodman and Mr Draicchio, that the whole purpose of the TGS was to have a tail vehicle as a spotter.[83]
  1. [137]
    The evidence of Mr Woodman was that on 11 February 2021, he telephoned Mr Darryl Busiko, the Respondent's supervisor to complain that the Applicant had not waited for the shadow vehicle to finish one work zone before Mr Granger had turned around and started slashing back the other way.
  1. [138]
    Following the incident on 11 February 2021, Mr Sam Murphy asked Mr Busiko to speak with the Applicant.  Mr Busiko told the Applicant that 'he had to have the shadow vehicle behind you'.[84]
  1. [139]
    In cross-examination, the following exchange took place:

So, Mr Granger, I suggest that what that means is that if the work method is to go up two kilometres and then come back two kilometres, on the way back you do exactly the same as you've done on the way up? ---Yes, which is what I was doing.

Well, I'm not so sure.  Wouldn't that require the traffic guidance controller to put the sign in place at the commencement of the new work zone, heading back the other way? ---It was already in place.  Both ends of that worksite are zoned up before we commence regardless of which side of the road we're on.

All right.  And if that's true on a particular day - if that's true, it also requires the traffic controller to be in place behind you, signs visible to oncoming - to approaching traffic before you commence operation?---As I say, that's not my understanding of it and I believe that my operation was within safety parameters and also - the main focus and the main reasons for that traffic controller is also the safety - the person who is at the most risk if that tractor that is operating the closest cut to the travelled path.

Absolutely? ---The tractor that is conducting wider is at minute risk from passing traffic and it is a significant reduction of risk of throwing projectiles to passing traffic.

Yes.  But, see, these are – you might be right, Mr Granger, but that's not what the scheme says? ---I think the scheme is open to interpretation and I don't believe that I've interpreted it incorrectly.

Open to interpretation by who? --- By those people looking at it...[85]

  1. [140]
    Mr Draicchio's evidence was that if an operator was concerned about the application of the scheme or he was unsure of what he was required to do then he needed to 'contact their immediate supervisor, go through the chain of command, or - and which would come to me.  Contact the TMD for advice'.[86]
  1. [141]
    On 15 February 2021, the Applicant was again engaged in work on a slasher. The Applicant does not dispute that Mr Woodman needed to be positioned behind him. In examination-in-chief the following exchange took place:

Okay. So Mr Woodman suggested that you were – had to wait for him to be in place before you commence slashing on this particular instance; what do you say about that?---Well, that's correct. We had not commenced slashing while we were travelling up to get in place to do so.

Well, they were – just to – so what's your understanding of your obligations under the TGS performing the action that you were at that time? ---Okay. At that – at that situation, Dion Woodman was coming down, had full view of the roadway behind us, we hadn't commenced slashing operations, we were moving from a position to the next area within that signed up area to commence slashing operations. There was enough area there at the shoulder or side of the road to allow us to travel up. So everything was in a safe manner for us to advance up to the area to get off the side of the road to commenced slashing.

So do you believe that your actions complied with the TGS? ---Yes, I do.[87]

  1. [142]
    The Applicant maintained in his examination-in-chief and in cross-examination that at the particular point in time he was not slashing; he was moving his vehicle further down the road to commence slashing.
  1. [143]
    Mr Woodman told the Commission that the Applicant was slashing.  During examination-in-chief, Mr Woodman was asked:

But what did you observe that made you confident that Mr Granger was actually slashing at the time?---Well, the grass coming out the side of the slasher and dust and dirt kicking up.  So the only way that happens is the blade is turning.

And you've got a clear recollection of that? ---Yeah.  Yeah.[88]

  1. [144]
    It was put to the Applicant in cross-examination that .... what seemed to me to be a very odd proposition that he could suddenly suspend or lift the operation of the TGS by lifting the slasher.  That is, it applied when the slasher's down but not when the blades are up.[89]
  1. [145]
    In cross-examination, the Applicant told the Commission:

I believe that I was not conducting works within there by transporting to a point to commence work.  So I was moving from point A to point B.  So transporting the same as I would be outside of a work zone, moving to a point.  When I put my slasher down and commence works, that is my belief that I have commenced operations within that worksite.[90]

  1. [146]
    The Applicant's opinion appears to be premised upon a belief that the TGS only operates when slashing is in progress but otherwise has no application.  Such an approach seems to me to be counter intuitive.
  1. [147]
    The Applicant argues that his actions were not 'wilful' but were the result of a misunderstanding of what was required under the TGS.
  1. [148]
    The Applicant operated the slasher on 11 February 2021 absent a shadow vehicle.  I accept that the Applicant ignored the request of Mr Woodman to stop the slasher until the shadow vehicle was in position.  It will be recalled that on instructions from Mr Murphy, Mr Busiko spoke to the Applicant following the 11 February incident to remind him of the need to have a shadow vehicle in position.  Notwithstanding that reminder, the Applicant again operated the slasher on 15 February 2021 without a shadow vehicle.  This was in contravention of the TGS.  In support of that finding, I accept that Mr Woodman observed the Applicant operating the slasher.
  1. [149]
    I do not accept the Applicant's argument that he had some misunderstanding as to the application of the TGS.  The Applicant signed the SWMS on both 11 and 15 February 2021.  In doing so, the Applicant acknowledged that he understood the requirements that have been established to carry out the work, in particular work involving the movement of mobile powered plant, in a safe manner.  Moreover, I do not accept the Applicant's argument that the TGS only had application in circumstances where slashing was in progress but otherwise has no application.
  1. [150]
    The termination letter set out the following in response to the Applicant's claim that the Respondent had failed to provide adequate training:
  • You had signed the SWMS on 11 February 2021 before commencing work on the day in question;
  • You attended a session covering "WHS in Construction Work, Safe Work Method Statements, Hazard Management" on 13 February 2019, at which time your workplace health and safety duties and the importance of following a SWMS was discussed;
  • Instructions for filling out SWMS for traffic control were sent to you via email on 17 April 2019 and again on 2 May 2019; and
  • An internal memorandum explaining the requirements of SWMS and traffic control was emailed to you on 20 June 2019.[91]
  1. [151]
    The above response from the Respondent sets out relevant training undertaken by the Applicant.  The matters identified do not support a conclusion that the Applicant was required by the Respondent to operate under an unfamiliar safety regime and that lack of familiarity was as a consequence of a lack of training.
  1. [152]
    The evidence before the Commission was that the Applicant had previously held TMI accreditation; when at the Kilkivan Depot he held a supervisory position responsible for a slasher crew; undertook training in both the SWMS and the TGS; acknowledged on the SWMS for both 11 and 15 February 2021 the TGS applicable to the work to be completed; received one on one refresher training of the TGS requirements with Mr Murphy during his tenure as supervisor at Kilkivan;[92] (including an explanation that the shadow vehicle must be located behind the tractor to provide advance warning for the traffic coming from upstream) and received communications from Mr Murphy about the SWMS and the TGS in 2019.[93]
  1. [153]
    I accept that the Applicant was engaged in slashing activity without the support of the shadow vehicle, in breach of the SWMS and the TGS.  In doing so, the Applicant breached a critical safety procedure and that this breach was done so in defiance of the established safety procedures and in apparent contradiction to the instructions of his employer.

Speed and Damage Issues

  1. [154]
    The second limb to the disciplinary process involved what can be described as the speed and damage issues.
  1. [155]
    The show cause letter of 15 February 2021 relevantly particularised the following concerns:
  1. e)
    On numerous occasions you have been counselled by your Supervisor and Coordinator in relation to excessive speed whilst operating the Slasher.  On 13 May 2020 you were cautioned by Sam Murphy, Manager Assets, Design and Maintenance regarding incidents involving damaging the slasher on a light pole and damaging a vehicle passing by.  This was accompanied by previous concerns of possible speeding creating what is known as rooster tails in long grass.
  1. a)
    [sic] In the past 6 months, whilst operating Plant Number 323 (Slasher), you have been involved with 7 incidents of damage or malfunction including significant damage to tyres and rims.  The total cost of that damage to Council has been $3,040.
  1. b)
    Of the 7 incidents of plant damage which has required repair, 2 incidents have been reported via an Incident Report.[94]
  1. [156]
    What is specifically contended by the Respondent, and as substantiated by the evidence is as follows:
  1. (a)
    The Applicant consistently operated his machinery at speed,[95] in contravention of his obligation to take reasonable care for his own safety and his responsibility to operate the Council's plant in a responsible manner.  This was in circumstances where the Applicant had been spoken to in relation to his speed on multiple occasions,[96] with no change in his behaviour.[97]
  1. (b)
    The Applicant incurred damage to his slasher on multiple occasions,[98] that was well beyond fair wear and tear;[99] which indicated being hit with fair force at a speed,[100] which largely correlated to the operation of machinery at speed;[101] and was more excessive than that incurred by other employees.[102]  Repairing such damage came at considerable cost to the Council.[103]
  1. [157]
    A series of incident reports concerning damage to the slasher were admitted into evidence.[104]  The damage identified in those incident reports was not insignificant.
  1. [158]
    The incident report of 30 April 2020 completed after the Applicant struck the light pole recorded the following: 'slashing, reversed, tractor blade struck light pole.'[105]  One of the causal factors identified on the form was: 'poor or no hazard control' and '[o]perating too close to light pole'.  Earlier on the same day, the Applicant damaged a mirror on the slasher.
  1. [159]
    Mr Mark Cousins, the Respondent's former workshop coordinator told the Commission that he could not describe the level of damage on the equipment used by the Applicant as normal wear and tear.[106]The level of damage to the Applicant's equipment was higher than other operators.[107]
  1. [160]
    In regard to the report of damage arising from the incident on 7 January 2021,[108] Mr Cousins said: "[w]ell if we just look at the rim damage in EX22, that's a fair hit.  Like - like, you know if you hit something - that's a iron rim and it was - what sort of, was brought to my attention was my service mechanic.  He said to me, '[h]ave a look at this, how much this is bent'.  So I'm surprised actually, that there wasn't injury that come out of that sort of force or other damage".[109]
  1. [161]
    Mr Cousins had a recollection that he had a conversation with the Applicant at the John Street depot to the effect that '[y]ou just got to slow down.  We can't keep having this'.  The Applicant was said to have responded that '... he was getting his kilometres done or he's getting his slashing done'.[110]In examination-in-chief, Mr Cousins was asked: '[d]id - to your observation, did anything change in relation to Mr Granger's pattern of damage after that? ... I - no.  No, I just think it stayed the same'.[111]
  1. [162]
    It was Mr Cousins' view that the damage to the Applicant's equipment was because of a lack of care and speed.
  1. [163]
    In cross-examination, the Applicant was asked:

And I suggest that in response you responded on at least one occasion with words to the effect, "[f]uck that.  I'm getting 16 kilometres a day done, not fucking four to give kilometres like the other guys"? ---Definitely not.

And I suggest that on occasion, after you had slashed an area and rooster tails were left, that required other crews to come along behind and fix up the rooster tails? ---I'm not aware of that.[112]

  1. [164]
    However, in re-examination the Applicant said:

There's reference made to a conversation purportedly with Mr Buzicko [sic] where you made reference to the fact that you got 16 kilometres a day done.  To be clear, did you ever have a conversation with anybody where you made a comment like that? ---Yes, once, there was a comment.

Who was that with? ---That was in the office at the end of a day's operations where myself and Colin Klem, who was a contractor at the time for Campbells, we were slashing along the roadway - Tin Can Bay Road.  There was one day that we completed 16 kilometres.  Very open, wide country, easy-going.  Came back to the office, handed paperwork in for the day.  Cliff Ricardson, who was responsible for administering the Main Roads contract with slashing and road repairs - Cliff made a comment, "How was your day?" And I said, "We had a good day.  We got 16 completed today, 16 kilometres completed".  That discussion was directly with Cliff Richardson.  There were other people in the office and I have no doubt that that would have been heard.

And who else was in the office? ---Rob Dwine, Darrell Buzicko.  I believe Matt Boyd was in there.  Amy Bowman, who was in the corner.  They're - they're the ones that I recall.[113]

  1. [165]
    The Applicant accepts that he was spoken to by Mr Murphy and Mr Busiko that they thought that he was operating the slasher too fast.  The Applicant told the Commission that sometime in May 2020 Mr Murphy had supplied the Applicant with a letter cautioning him in respect of an incident involving a light pole.[114]
  1. [166]
    In examination-in-chief, the Applicant was asked:

Okay.  So what did Sam Murphy say to you about your operation of the tractor? ---That I was operating, obviously, too fast, and due to the rooster tails, that's indicative of speed in operation of a tractor and slasher.[115]

  1. [167]
    The Applicant refuted Mr Murphy's claim that he was driving the slasher too fast.  The Applicant's evidence was as follows:

I refute the claims of driving too fast.  There is - speed is - speed is subjective.  There is no set speed for the recommendation operation of a tractor and slasher.  It is to - dictated by the terrain, the vegetation, the weather conditions.  All of those things are taken into consideration when you're operating a machine especially when you have an implement on the back, which is cutting.[116]

  1. [168]
    Mr Busiko also spoke to the Applicant suggesting that the Applicant was driving too fast.[117] Mr Busiko's evidence was that the Applicant '... was always trying to get the biggest bang for his buck and get up the road as far as he could, which is okay as long as the job is being done neatly and completely.'[118] Mr Busiko advised the Applicant: '[t]hat sometimes he needed to slow down'.[119]
  1. [169]
    Mr Robert Dwine who was employed by the Respondent as a maintenance coordinator also drew a conclusion that the Applicant "was probably travelling too fast".[120]
  1. [170]
    The Applicant contends that he was never trained on the John Deere 6110.
  1. [171]
    The evidence before the Commission was that the Applicant was an experienced operator, and had undertaken training on the John Deere 6230 which was, as Mr Pitt explained, not materially different to the John Deere 6110.  The Applicant was familiar with the operation of slashers because of his service with the Respondent, and in his previous role was involved in the direct supervision of slashers.[121]  All workshop staff and operators were provided with an induction on the John Deere 6110, run by the company who sold the equipment to the Respondent.  The Applicant attended for part of that induction.[122]
  1. [172]
    Moreover, as the evidence suggests, the Applicant was under an obligation not to operate machinery on which he had not been trained.  Indeed, to do so was against the Respondent's policy.[123]
  1. [173]
    The evidence before the Commission demonstrates in my view a pattern of behaviour which reflects a lack of care and concern for safety and the Applicant's duty to ensure his safety and the safety of others.[124]  The level of damage to the Applicant's equipment cannot be attributed to normal wear and tear, a lack of training or the terrain in which he was operating.  Rather, excessive speed was a significant factor in the damage sustained to the Respondent's equipment.  One would reasonably expect that if the Applicant held concerns regarding the use of the John Deere 6110 then he might wish to operate it at a reduced speed until he familiarised himself with driving it.
  1. [174]
    The Commission's determination of fairness, as it correlates to the safety related reasoning behind the decision to terminate the Applicant's employment, is relevantly guided by a decision of the Full Bench of the Fair Work Commission in BHP Coal Pty Ltd t/a BMA v Schmidt,[125] as follows:

The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is "a fair go all round".  This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees - especially in inherently dangerous workplaces.  The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer's obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.[126]

  1. [175]
    On the evidence before the Commission, I find that the Applicant's employment was terminated because of his disregard and non-compliance with the Respondent's safety protocols and procedures; his speed whilst operating machinery; and the nature and extent of the damage to the Respondent's plant incurred by him.
  1. [176]
    In particular, the evidence supports a finding that that the Applicant's disregard for the Respondent's safety management system placed himself, other workers and the public at risk and that such conduct is in breach of the Respondent's Code of Conduct and the LG Act.

Matters to be considered under s 320 of the IR Act

  1. [177]
    The decision that the Commission is required to make is a judgment as to whether in all the circumstances the dismissal was "harsh, unjust or unreasonable".
  1. [178]
    That judgment is both informed and constrained by s 320 of the IR Act which prescribes the circumstances which must be considered in such an assessment.
  1. [179]
    Guidance on what might constitute "harsh, unjust, or unreasonable" can also be found in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited ('Byrne'):[127]

… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust.  In many cases the concepts will overlap.  Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."[128]

  1. [180]
    In G A Stewart v University of Melbourne,[129] Ross VP considered s 170CG(3) of the Workplace Relations Act 1996 (Cth) in which he followed the joint judgment of McHugh and Gummow JJ in Byrne.  Ross VP wrote:

… a termination of employment may be:

harsh, because of its consequence for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

unjust, because the employee was not guilty of misconduct on which the employer acted; and/or

unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.[130]

  1. [181]
    Let me now address the matters to be considered in deciding whether the dismissal was harsh, unjust or unreasonable for the purposes of s 320 IR Act.
  1. (a)
    Was the Applicant notified of the reasons for his dismissal?
  1. [182]
    The evidence before the Commission shows that the termination letter of 6 May 2021[131] from Mr Gray clearly, and in some detail, notified the Applicant of the reasons for his dismissal.
  1. [183]
    Accordingly, for the purpose of satisfying s 320(a) of the IR Act, I conclude that the Applicant was notified of the reasons for his dismissal.

(b)  Did the dismissal relate to operational requirements of the Applicant's conduct, capacity or performance?

  1. [184]
    For the purpose of satisfying s 320(b), I conclude that, as the termination letter of 6 May 2021 made clear, the Applicant's dismissal related to his conduct as an employee of the Respondent.

(c) Had the Applicant been warned about the conduct, capacity or performance, or was the Applicant given an opportunity to respond to the claim about the conduct, capacity or performance?

  1. [185]
    It was argued by the Applicant that following the issuing of the Show Cause letter, the matter proceeded automatically to the predetermined decision to dismiss.
  1. [186]
    It is contended by the Applicant that the Respondent has denied the Applicant natural justice and failed to undertake an essential step in the process.  On this basis alone it was submitted that the decision to dismiss the Applicant was unfair.
  1. [187]
    In Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam ('Lam'),[132] Gleeson CJ in discussing the way that procedural fairness cases are approached by the Courts wrote the following:

Fairness is not an abstract concept.  It is essentially practical.  Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[133]

  1. [188]
    The Applicant argues that no proper investigation was carried out by the Respondent.  In the Applicant's Statement of Facts and Contentions, the argument is advanced that the Respondent failed in its duty to conduct any or any proper investigation into the truth of the allegations.  The contention is advanced on the premise that the allegations in respect of the events of 11 and 15 February 2021 did not occur.
  1. [189]
    The factual matrix in respect of the allegations is a relatively simple one.  Mr Woodman made a complaint to Mr Busiko that the Applicant had been operating the slasher without a shadow vehicle.  This was said to be a contravention of the TGS.  Ms Moir, the Respondent's acting HR Manager, spoke to Mr Busiko and Mr Woodman in advance of the show cause process to verify the information.[134]  In respect of the allegations concerning the damage to council property, the information was already in the possession of the Respondent.  Ms Moir undertook investigations in respect of the damage to the Respondent's plant;[135] Mr Dwine, the Respondent's maintenance coordinator and Mr Busiko both said they had knowledge of the damage caused by the Applicant;[136] and Mr Murphy had already issued the Applicant with a caution on 13 May 2021 regarding incidents involving damage to the slasher.[137]  I accept that there were sufficient investigative steps taken in order to commence the show cause process.
  1. [190]
    The Applicant was given an opportunity to respond to the conduct during the course of the show cause process.  In this regard, he was provided with an opportunity to respond to the show cause notice and the show cause on penalty notice.  The Applicant's responses were considered and referred to in the decision on findings made by the CEO and the decision to terminate the Applicant's employment was made by the CEO.  Consequently, the Applicant was given an opportunity to respond to the allegations and the proposed disciplinary action.
  1. [191]
    It was raised by the Applicant that Mr Gray did not fully consider the Applicant's response to the Show Cause Notice.  Mr Gray gave a clear and fulsome account of how he approached the show cause process and confirmed in evidence that the Applicant's response was considered prior to making the termination decision.[138]
  1. [192]
    Mr Gray said that his concern was that if the Respondent did not respond to the issues raised that the Applicant could injure himself, continue damage to equipment, damage to a workmate or injury to workmate or potentially a member of the public.  Mr Gray formed the view, after considering the Applicant's responses that the risk was significant enough for a decision to be made terminating the Applicant's employment.[139]
  1. [193]
    The requirements of fairness which are implicit in s 320 of the IR Act mean that the "opportunity to respond".  As Moore J said in Wadey v YWCA Canberra[140] "… the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance".  So far as this issue is concerned there is no relevant difference between an "opportunity to respond" and an "opportunity to defend".[141]
  1. [194]
    The allegations leading to the Applicant's dismissal were put to him in a letter from the CEO dated 15 February 2021 and were set out in clear terms and particularised.  Moreover, it set out the disciplinary action to be taken; the grounds on which the disciplinary action was taken; and gave the Applicant a reasonable opportunity to respond to the information contained in the written notice.
  1. [195]
    The statute requires the Commission to give consideration as to whether or not an opportunity was afforded the Applicant to respond.  In this case, it was.
  1. [196]
    It was further argued by the Applicant that he never received any proper warning in relation to his operation of Council machinery, or the opportunity for further training.  In the absence of a formal warning, Council's decision to dismiss, insofar as it relates to the Applicant's general operation of the machinery, is harsh, unjust and unreasonable.
  1. [197]
    Whilst it is true that the Applicant did not receive any formal warning, he was made aware of the Respondent's concerns.  The evidence before the Commission is that on 13 May 2020 the Applicant was cautioned by Mr Murphy, Manager Assets, Design and Maintenance regarding incidents involving damaging the slasher on a light pole and damaging a vehicle passing by.  Further, the Applicant was spoken to by Mr Busiko regarding the need to ensure a shadow vehicle was in place when operating the slasher.
  1. [198]
    The substantiated conduct is not consistent with the Applicant's obligations as an employee of the Respondent.  Prior to his demotion, the Applicant was a supervisor, a position which brought with it a reasonable expectation that he would exhibit a certain standard of behaviour; a position which is to role model desired behaviours to staff of the Respondent.  Given these matters, I do not find that the failure to warn the Applicant about his conduct can or should materially contribute to a finding that his dismissal was unfair.

(d) Any other matters that the Commission considers relevant

  1. [199]
    The question of whether the Respondent had complied with the provisions of the LG Act or the LG Regulation was not argued before the Commission.  Nevertheless, I am satisfied that letter of 15 February 2021 is sufficient to comply with s 283 of the LG Regulation.  The allegations leading to the Applicant's dismissal were put to him in a letter from Mr Gray dated 15 February 2021.
  1. [200]
    The allegations were set out in clear, although economical terms, and particularised.  The letter set out the disciplinary action to be taken; the grounds on which the disciplinary action was taken; and gave the Applicant a reasonable opportunity to respond to the information contained in the written notice.

Conclusion

  1. [201]
    The demotion of the Applicant is reasonably justified having regard to the substantiated allegations.  Moreover, the action taken by the Respondent to change the remuneration and duties of the Applicant consequent upon a disciplinary process could not constitute a dismissal where the change was one authorised by the LG Act.
  1. [202]
    The Respondent was entitled on the evidence before it to come to the conclusion that the Applicant should be dismissed.  The conclusion of the Respondent to dismiss the Applicant was formed on reasonable grounds and followed a show cause process.
  1. [203]
    Having regard to the factors that the Commission must consider in s 320 of the IR Act, the case advanced by the Applicant has failed to discharge the onus of establishing that the dismissal was harsh, unjust or unreasonable.  It was not, therefore, unfair.

Order

  1. [204]
    That applications D/2020/3 and TD/2021/46 be dismissed.

Footnotes

[1]D/2020/3.

[2]TD/2021/46.

[3]Employer response to application for reinstatement, Attachment D, Letter from Council to Applicant - 'Termination of Employment' dated 6 May 2021, p 3.

[4]Applicant's Statement of Facts and Contentions filed 27 August 2021, 1

[5]Ibid.

[6]Applicant's Statement of Facts and Contentions filed 27 August 2021.

[7]Respondent's Statement of Facts and Contentions filed 13 September 2021.

[8]Applicant's summary of submissions filed 19 November 2021, [4].

[9]Ibid, [5].

[10]Applicant's summary of submissions filed 19 November 2021, [14]-[15].

[11]Applicant's summary of submissions filed 19 November 2021, [18 (b), (c)].

[12]Ibid, [21].

[13]Ibid,[22]-[23].

[14]Ibid, [24]-[25].

[15]Local Government Act 2009 (Qld), s 13.

[16]Local Government Regulation 2012 (Qld), r 280.

[17]Exbibit 17.

[18]Ibid, p 2.

[19]Respondent's outline of submissions filed 29 November 2021, [13].

[20]Ibid, [14].

[21]Respondent's outline of submissions filed 29 November 2021, [27]-[28]; See also Investigation Report, [1.4 (o)].

[22]Respondent's outline of submissions filed 29 November 2021, [35].

[23]Ibid, [43].

[24] Respondent's outline of submissions filed 29 November 2021, [45].

[25] Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 425; Consolidated Press Ltd v Thompson (1952) 52 SR (NSW) 75.

[26] (1995) 64 IR 169.

[27] Ibid.

[28] Exhibit 8.

[29] NSW Trains v Mr Todd James [2022] FWCFB 55, [5].

[30] Visscher v Honourable President Justice Giudice (2009) 239 CLR 361; 258 ALR 651; [2009] HCA 34, [30].

[31] [2003] AIRC 1006.

[32] Ibid.

[33] Blair v Chubb Security Australia Pty Ltd, [2003] AIRC 1006.

[34] Elizabeth Gorczyca v RMIT University [2002] AIRC 1115; Hermann v Qantas Airways Ltd [2001] AIRC 316;  Boo Hwa Chan v Christmas Island Administration [1999] AIRC 1371; Charlton v Eastern Australia Airlines Pty Ltd [2006] 154 IR 239;  Michelle Holland v Qantas Airways Limited [2011] FWA 3778;  Teece Lollback v University of Southern Queensland [2014] FWC 2011.

[35] (2006) 154 IR 239.

[36] Ibid.

[37] (1999) 74 SASR 240.

[38] Advertiser Newspapers Pty Ltd v. Industrial Relations Commission of South Australia and Grivell (1999) 74 SASR 240, [25].

[39] Ibid, [48].

[40] [1999] AIRC 1371.

[41] Ibid, 19.

[42] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

[43] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 351 [29], 362 [63], 370-371 [88]-[92].

[44] Kruger v The Commonwealth (1997) 190 CLR 1, [36].

[45] (2018) 264 CLR 541.

[46] Minister for Immigration and Border Protection v SZVFW & Others.

[47] Exhibit 5, p 3.

[48] TR3-73, LL26-28; TR3-88, LL29-35.

[49] TR3-73, LL7-15; TR2-88, LL21-23.

[50] TR3-80, LL3-8; TR3-88, LL21-36.

[51] Exhibit 16.

[52] Section 4(2).

[53] Exhibit 16, s 3A.

[54] Exhibit 16, s 4A.

[55] Ibid.

[56] Ibid.

[57] Exhibit 16, s 4B.

[58] Exhibit 16, s 4A.

[59] Exhibit 17, 1.4(i).

[60] Exhibit 17.

[61] Exhibit 1.

[62] TR1-89, LL36-42.

[63] TR1-91, LL12-19.

[64] TR1-91, LL27-28.

[65] TR1-91, LL30-47.

[66] TR1-79, LL22-37.

[67] TR1-12, LL15-21.

[68] TR1-98, L41;  TR1-78, LL32-33.

[69] TR1-101, LL1-7.

[70] TR3-73, L17-TR3-74, L10;  Exhibit 39.

[71] Exhibit 16.

[72] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, at 375 [105] per Gageler J.

[73] Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, at 574 [85]-[86] per Nettle and Gordon JJ.

[74] Applicant's amended summary of submissions filed 21 January 2022, p 11.

[75] Ibid.

[76] Exhibit 15.

[77] TR1-13, LL36-38 ( 22 February 2022).

[78] TR1-13, LL4-11 (22 February 2022).

[79] TR3-15, L46-TR3-16, L4.

[80] TR3-42, LL41-47.

[81] TR3-47, LL29-33.

[82] Ibid.

[83] TR3-10, LL1-8;  TR3-47, LL43-44.

[84] TR3-33, LL43-44.

[85] TR2-17, L26-TR2-18, L5.

[86] TR3-43, LL30-33.

[87] TR1-45, LL21-35.

[88] TR3-15, LL30-34.

[89] TR2-12, LL38-43.

[90] TR2-12, LL38-43.

[91] Exhibit 30.

[92] TR2-93, LL4-23.

[93] Exhibit 34.

[94] Exhibit 10.

[95] TR3-4, LL1-6; TR3-32, LL19-25, LL39-42.

[96] TR1-50-TR1-51.

[97] TR2-52, LL42-45; TR2-96, LL30-46; TR2-97, LL1-3; TR2-37, LL31-32; TR3-4, LL4-9; TR3-35, LL29-33.

[98] Exhibits 20, 21, 22, 23, 25 and 28.

[99] TR2-52, LL12-13; TR3-57, LL14-18.

[100] TR2-51, LL7-20; TR3-4, LL4-6.

[101] TR2-55, LL7-20; TR2-55, LL42-46.

[102] TR2-51, LL24-29.

[103] TR2-54, LL1-5; TR2-85, LL31-33; Exhibit 28.

[104] Exhibits 12, 21, 22 and 23.

[105] Exhibit 12.

[106] TR2-53, LL12-13.

[107] TR2-53, LL14-17.

[108] Exhibit 22.

[109] TR2-51, LL7-12.

[110] TR2-53, LL1-3.

[111] TR2-53, LL5-6.

[112] TR2-42, LL25-31.

[113] TR2-43, LL6-24.

[114] TR1-49, LL14-20.

[115] TR1-49, LL25-27.

[116] TR1-50, LL35-41.

[117] TR1-50, LL44-47.

[118] TR3-32, LL39-43.

[119] TR3-32, LL44-45.

[120] TR3-4, LL28-30.

[121] TR2-41, LL14-21; TR2-92, L44-TR2-93, L2; TR2-94, LL16-37; TR3-49, LL1-9.

[122] TR1-54, LL29-44.

[123] TR2-58, LL19-35; TR2-90, LL1-4.

[124] Work Health and Safety Act 2011, s 28.

[125] [2016] FWCFB 1540.

[126] BHP Coal Pty Ltd t/a BMA v Schmidt [2016] FWCFB 1540, [8].

[127] Byrne v Australian Airlines Limited (1995) 185 CLR 410.

[128] Ibid, 465.

[129] [2000] AIRC 779.

[130] G A Stewart v University of Melbourne [2000] AIRC 779, [74].

[131] Exhibit 30.

[132] (2003) 195 ALR 502.

[133] Re Minister for Immigration and Multicultural Affairs; Ex Parte Lam (2003) 195 ALR 502, [37].

[134] TR3-56, LL39-44.

[135] See: Exhibit 35.

[136] TR3-3, LL45-46.

[137] TR2-96, LL25-46.

[138] TR2-69, LL19-31.

[139] TR2-70, LL26-30.

[140] [1996] IRCA 568.

[141] Costello v Queensland [2020] ICQ 3.

Close

Editorial Notes

  • Published Case Name:

    Granger v Gympie Regional Council

  • Shortened Case Name:

    Granger v Gympie Regional Council

  • MNC:

    [2023] QIRC 80

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    13 Mar 2023

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
Advertiser Newspapers Pty Ltd v Industrial Relations Commission of South Australia and Grivell (1999) 74 SASR 240
4 citations
Jump To
Cite 1 - (1999) 74 SASR 240
Cite 2 - (1999) 74 SASR 240
Cite 3 - (1999) 74 SASR 240
Cite 4 - (1999) 74 SASR 240
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 425
2 citations
Jump To
Cite 1 - (1946) 72 CLR 425
Cite 2 - (1946) 72 CLR 425
BHP Coal Pty Ltd t/a BMA v Schmidt [2016] FWCFB 1540
3 citations
Jump To
Cite 1 - [2016] FWCFB 1540
Cite 2 - [2016] FWCFB 1540
Cite 3 - [2016] FWCFB 1540
Blair v Chubb Security Australia Pty Ltd [2003] AIRC 1006
3 citations
Jump To
Cite 1 - [2003] AIRC 1006
Cite 2 - [2003] AIRC 1006
Cite 3 - [2003] AIRC 1006
Boo Hwa Chan v Christmas Island Administration [1999] AIRC 1371
3 citations
Jump To
Cite 1 - [1999] AIRC 1371
Cite 2 - [1999] AIRC 1371
Cite 3 - [1999] AIRC 1371
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
3 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Cite 3 - (1995) 185 CLR 410
Charlton v Eastern Australia Airlines Pty Ltd [2006] 154 IR 239
3 citations
Jump To
Cite 1 - [2006] 154 IR 239
Cite 2 - [2006] 154 IR 239
Cite 3 - [2006] 154 IR 239
Consolidated Press Ltd v Thompson (1952) 52 SR (NSW) 75
2 citations
Jump To
Cite 1 - (1952) 52 SR (NSW) 75
Cite 2 - (1952) 52 SR (NSW) 75
Costello v State of Queensland (Department of Health, Queensland Ambulance Service) [2020] ICQ 3
2 citations
Jump To
Cite 1 - [2020] ICQ 3
Cite 2 - [2020] ICQ 3
Elizabeth Gorczyca v RMIT University [2002] AIRC 1115
2 citations
Jump To
Cite 1 - [2002] AIRC 1115
Cite 2 - [2002] AIRC 1115
G A Stewart v University of Melbourne [2000] AIRC 779
4 citations
Jump To
Cite 1 - [2000] AIRC 779
Cite 2 - [2000] AIRC 779
Cite 3 - [2000] AIRC 779
Cite 4 - [2000] AIRC 779
Hermann v Qantas Airways Ltd [2001] AIRC 316
2 citations
Jump To
Cite 1 - [2001] AIRC 316
Cite 2 - [2001] AIRC 316
Kruger v The Commonwealth (1997) 190 CLR 1
2 citations
Jump To
Cite 1 - (1997) 190 CLR 1
Cite 2 - (1997) 190 CLR 1
Michelle Holland v Qantas Airways Limited [2011] FWA 3778
2 citations
Jump To
Cite 1 - [2011] FWA 3778
Cite 2 - [2011] FWA 3778
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
3 citations
Jump To
Cite 1 - (2018) 264 CLR 541
Cite 2 - (2018) 264 CLR 541
Cite 3 - (2018) 264 CLR 541
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
4 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Cite 3 - (2013) 249 CLR 332
Cite 4 - (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502
3 citations
Jump To
Cite 1 - (2003) 195 ALR 502
Cite 2 - (2003) 195 ALR 502
Cite 3 - (2003) 195 ALR 502
NSW Trains v Mr Todd James [2022] FWCFB 55
2 citations
Jump To
Cite 1 - [2022] FWCFB 55
Cite 2 - [2022] FWCFB 55
Russian v Woolworths (SA) Pty Ltd (1995) 64 IR 169
2 citations
Jump To
Cite 1 - (1995) 64 IR 169
Cite 2 - (1995) 64 IR 169
Teece Lollback v University of Southern Queensland [2014] FWC 2011
2 citations
Jump To
Cite 1 - [2014] FWC 2011
Cite 2 - [2014] FWC 2011
Visscher v Giudice (2009) 239 CLR 361
2 citations
Jump To
Cite 1 - (2009) 239 CLR 361
Cite 2 - (2009) 239 CLR 361
Visscher v Giudice [2009] HCA 34
1 citation
Jump To
Cite 1 - [2009] HCA 34
Visscher v Honourable President Justice Giudice (2009) 258 ALR 651
2 citations
Jump To
Cite 1 - (2009) 258 ALR 651
Cite 2 - (2009) 258 ALR 651
Wadey v YMCA Canberra [1996] IRCA 568
2 citations
Jump To
Cite 1 - [1996] IRCA 568
Cite 2 - [1996] IRCA 568

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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