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[Extract from Queensland Government Industrial Gazette,

dated 2 December, 2005, Vol. 180, No.18, pages 942-946]

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Industrial Relations Act 1999 – s. 74 – application for reinstatement

David Michael Weston and Barrier Reef Institute of TAFE (B/2005/909)

COMMISSIONER FISHER

18 November 2005

Application for reinstatement – Allegations of performance and conduct – Absences from work – Instruction of apprentices – Encouraging an employer to move apprentices to another training provider in competition with TAFE – Code of Conduct – Contract of employment – Number of findings by employer not substantiated at hearing – Soliciting support to become a registered training provider – Duty of fidelity – Dismissal harsh, unjust or unreasonable – Reinstatement or re-employment not practicable – Earnings of applicant since dismissal – Compensation not a bonus – No remedy ordered.

DECISION

This is an application by David Weston seeking his reinstatement to his former position of Electrical Teacher with the Barrier Reef Institute of TAFE (BRIT). Mr Weston commenced employment in September 2004 on a three year temporary full-time contract. He was dismissed on 9 June 2005. It seems that the contract was not a fixed term contract in the sense that it allowed for the termination of employment during its life.

At the hearing Mr Weston represented himself. He relied on his comprehensive application and a very brief statement in reply to the statements filed on behalf of BRIT. Because Mr Weston was unfamiliar with hearing procedures, the Commission permitted Mr Weston to give oral evidence in response to the statements filed on behalf of BRIT. In addition, the Commission was required to ask questions of several of the witnesses called by BRIT in order to ensure sufficient relevant evidence was before the Commission to make a decision.

Background to the Dismissal

On 17 January 2005, George Peever, Director of Studies for Townsville City Campus of BRIT, was approached by John Bell, Acting Director of BRIT, to investigate certain allegations made against Mr Weston by students (apprentices) and employers of those students. Mr Peever interviewed several apprentices; other teachers; the Co-ordinator of Apprentices; Wendy Hillman, the then Training Co-ordinator for Transfield Holdings and Mr Weston.

In his report Mr Peever recommended to Mr Bell that disciplinary action be taken against Mr Weston in respect of certain matters. As a result of those recommendations, Mr Bell wrote to Paul Casey, Acting General Manager, Workforce Management Services of the Department of Employment and Training (DET) in Brisbane, recommending that disciplinary proceedings be commenced against Mr Weston. Lyndall Vaughan, Senior Consultant, Workforce Management Services, was given carriage of the matter for DET.

As a first step Mr Weston was removed from student contact until the matter was resolved. Initially, Mr Bell proposed that Mr Weston perform electrical duties around BRIT. Quite naturally and properly, given his role within BRIT, Mr Weston objected. Mr Bell accepted the validity of his objection and assigned him to update teaching resources. Mr Weston performed those alternative duties from 24 March 2005 until his dismissal.

The next step was to notify Mr Weston of the eight allegations made against him. Not all of these had resulted from Mr Peever’s investigation. Mr Weston was also informed that as a result of the investigation report and his alleged inappropriate behaviour in relation to allegation 8, he may be liable for disciplinary action arising from breaches of the Code of Conduct. Mr Weston was invited to respond to this letter, dated 1 April 2005, within seven days.

By letter dated 5 May 2005, Mr Weston was informed by Mr Casey that the first six allegations had been substantiated but the last two had not been. As a result Mr Casey advised Mr Weston that his behaviour constituted a breach of his contract of employment and the Departmental Code of Conduct. Mr Casey said that he found Mr Weston liable for disciplinary action and serious consideration was being given to his dismissal. Mr Weston was invited to show cause within seven days of his receipt of the letter as to why his temporary employment should not be terminated.

After considering Mr Weston’s response, Mr Casey determined to terminate Mr Weston’s employment.

The Reasons for Dismissal

1.  Absent from work on Monday 13 December 2004 and Wednesday 15 December 2004 without approved leave.

Mr Weston freely admitted being absent on sick leave on the two days in question. He said he had contacted BRIT on each occasion to advise of his absence.

The particular complaint against Mr Weston is not that he did not notify of his absences but that he had not entered his application for leave in the computer system as required. Because leave records cannot be adjusted without the employee making the entry, it was put to Mr Weston at the hearing that he was not intending to claim for that leave. That was not the issue raised in the discipline process and in any event, was rejected by him.

Mr Weston said that he did not receive instruction in the computer system until January 2005. While Mr Casey noted this excuse in his 5 May 2005 letter, he said it was “irrelevant as institute records show that you still have not applied for sick leave for these two days”. In her evidence to the Commission, Kelly Edwards, who was the Acting Manager, Human Resources at the relevant time, said that Mr Weston had used the system in December 2004 to record non-attendance time and annual leave, thus disputing his claim that he did not know how to use it.

In cross-examination Ms Edwards acknowledged that BRIT’s administrative processes relating to the recording of leave had broken down with respect to Mr Weston. Under that procedure, the Human Resources section is supposed to email the relevant staff members when leave has not been entered into the system. The process allows for two reminders to be sent but none were sent in the case of Mr Weston.

I accept that Mr Weston had a responsibility to enter his sick leave into the computer system and failed to do so. I further accept that he was aware of how to use the system in light of his leave entry made on 8 December 2004. It is clear that while the responsibility rested with Mr Weston, the problem could have been rectified much earlier had BRIT’s own administrative processes been followed.

2.  Left BRIT at approximately 9.30 a.m. on Tuesday 14 December 2004 without approved leave after telling students to work in the library because he was going fishing.

Mr Weston was ill on 13 December 2004. He attended work on 14 December 2004 but said he was still affected by the complaint that afflicted him the previous day. During class Mr Weston received a text message from another teacher to say that he had gone fishing. As Mr Weston said he needed to leave BRIT quickly because of his health, he told the students that he was going fishing. Mr Weston said that he had not in fact gone fishing but had gone home ill. The other teacher confirmed that Mr Weston had not gone fishing with him.

Mr Weston confirmed that he told the students to go to the library as that seemed to be the practice as evidenced by the actions of his colleagues.

In his letter of 5 May 2005 Mr Casey said that the allegation had been substantiated on the basis of Mr Weston’s confirmation that he left BRIT at 9.30 a.m. Comment was made that sick leave had not been applied for that day. While noting that a teacher would not be expected to disclose an illness to students, it was expected that teachers conduct themselves professionally having regard to student learning.

I accept from the evidence that Mr Weston gave about the nature and effects of his disposition that he was unwell on the day and should not have been at work. However, telling the students that he was going fishing rather than he was unwell was immature as well as unprofessional.

3.  Provided students with no instruction in Transformers leaving them with one day to learn the competency prior to an exam.

The reason is quite specific: that Mr Weston provided no instruction in Transformers. The allegation was considered to have been substantiated by Mr Casey on the evidence provided by a number of students and Ms Hillman. Further, another teacher confirmed that he had provided instruction so that the students could sit the exam. Mr Casey found that it was unlikely that the complaints would have been made had the necessary instruction been provided.

The evidence referred to by Mr Casey was the material collected by Mr Peever during his investigation. Mr Peever and Ms Hillman gave evidence to the Commission about the matter.

I am satisfied on the basis of the student complaint forms that were tendered as part of Mr Peever’s statement and Ms Hillman’s evidence that students were dissatisfied with the amount of instruction they had received on the subject. I also accept that another teacher had stepped in and taught the students on one of the day’s Mr Weston was absent. On Ms Hillman’s evidence the students passed the exam but did not feel confident with the subject so re-sat the exam sometime later.

What I cannot be satisfied about is the contention that Mr Weston provided no instruction to the students at all in the subject. In his reply of 6 April 2005 Mr Weston said that all of the students had been provided with work books at the beginning for the unit. In addition he had provided them with one week of instruction in the competency and they had already been assessed on elements of the competency.

Mr Weston also noted his sick leave only constituted 10½ hours of the 35 hours instruction and given his notified illness, the employer should have ensured his absences were covered.

On the material before me it does not seem that Mr Weston’s responses were investigated, simply that the evidence of Ms Hillman and the students was preferred. Mr Anderson, who appeared for BRIT, argued that Mr Weston should have provided the work books to substantiate his claim. That would have been practically impossible given the work books would have become the property of the students. He could have sought to discover the curriculum but such a step for a self-represented litigant was probably unknown. In my view, given that DET had the role of prosecutor, as well as judge, jury and executioner, the responsibility rested with it to test the veracity of Mr Weston’s claims. Its apparent failure to do so means that I cannot be satisfied that Mr Weston did not provide any instruction at all and neither can I be satisfied that as a result only one day was left for the students to receive instruction.

4.  Encouraged Ms Hillman to move her apprentices to Ergon because he was in the process of arranging employment with them in competition with BRIT.

In November 2004 Ms Hillman was introduced to Mr Weston by one of her apprentices. During their conversation Ms Hillman expressed concern that TAFE was the only provider of training to electrical apprentices and as a result it could not accommodate the number to be trained. This led to a discussion about the possibility of Ergon providing training. In her evidence Ms Hillman said it was Mr Weston who raised the issue of Ergon providing training and advised that he was considering working for them. As Ms Hillman was interested in pursuing other training provider options she left her telephone number with him.

On 15 December 2004 Mr Weston telephoned Ms Hillman. A brief conversation ensued with respect to the training options with Ergon. Ms Hillman claimed that during that conversation Mr Weston asked her to provide a letter of support for him to become registered as a training provider.

On 16 December 2004 Ms Hillman and Mr Weston exchanged emails about training options. Ms Hillman contacted Mr Weston by email the next day ceasing her involvement because student complaints about Mr Weston’s teaching of the Transformer unit had come to light.

Mr Weston acknowledged making enquiries with the Electrical Safety Office and other authorities about the recognition of overseas skills qualifications and conveying this information to Ms Hillman. He denied at any time suggesting she remove her apprentices from BRIT.

In relation to the allegation he was looking to work for Ergon, Mr Weston admitted to making an application for employment. He said he had to look elsewhere for employment as he was encountering some difficulties in having delivered benefits he said were promised to him before commencing employment. Further, he said that the Director of Studies had told him that if he was dissatisfied he could “piss off”.

On the evidence available I am not satisfied that Mr Weston encouraged Ms Hillman to move her apprentices to Ergon. I am satisfied that a conversation took place about Mr Weston providing training to her apprentices at a location other than TAFE. I think it is more likely that any encouragement would have occurred once Mr Weston had obtained the relevant registration. At that point he would have been well placed to offer alternative training. It is also evident that Ms Hillman did not need any encouragement to move all or some of her apprentices from TAFE because of her concern that TAFE did not have the resources to meet her training requirements. Any reasonable alternative training provider would have been considered because of the need to train apprentices immediately due to the skill shortage being experienced.

I am satisfied however that Mr Weston asked Ms Hillman to provide him with a letter of support to establish himself as a registered training provider. That much is evident by the email of 17 December 2004 from Ms Hillman to Mr Weston (attachment WHA 1 to exhibit 5) where she writes: