Bartucciotto v Euro Printing Co Pty Ltd
[1996] IRCA 68
•29 February 1996
DECISION NO: 68/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim for UNLAWFUL TERMINATION - whether termination for prohibited reason of race - whether VALID REASON - whether HARSH, UNJUST OR UNREASONABLE
INDUSTRIAL RELATIONS ACT 1988 Ss 170DE(1), 170DE(2), 170DF(1)(f)
ALFREDO YAMZON TENGTIO AND EUGENE SILVANO KING -v- VICTORIA CO. (HOTEL MANAGEMENT) PTY LTD TRADING AS BURSWOOD RESORT HOTEL - WI 95/1584 & WI 95/1585
BEFORE: BOON JR
PLACE: PERTH
DATE: 29 FEBRUARY 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1584 & WI 95/1585
BETWEEN: ALFREDO YAMZON TENGTIO
AND EUGENE SILVANO KING
- Applicants
AND: VICTORIA CO. (HOTEL
MANAGEMENT) PTY LTD
TRADING AS BURSWOOD
RESORT HOTEL
- Respondents
MINUTE OF ORDERS
BEFORE: BOON JR
PLACE: PERTH
DATE: 29 FEBRUARY 1996
THE COURT ORDERS THAT:
In relation to Mr King, the application be dismissed.
In relation to Mr Tengtio:
(a) he be reinstated to his former position within fourteen days of the date of this order, and
(b) the respondent pay compensation to Mr Tengtio being the remuneration lost by Mr Tengtio because of the termination between the date of termination and the date of reinstatement.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No. WI 95/1584 & WI 95/1585
BETWEEN: ALFREDO YAMZON TENGTIO AND EUGENE SILVANO KING
- Applicants
AND: VICTORIA CO. (HOTEL MANAGEMENT) PTY LTD
TRADING AS BURSWOOD RESORT HOTEL
- Respondent
BEFORE: BOON JR
PLACE: PERTH
DATE: 29 FEBRUARY 1996
REASONS FOR JUDGMENT
The two applicants in this matter, Mr Tengtio and Mr King, filed applications under Section 170EA of the Industrial Relations Act seeking reinstatement and compensation arising out of the alleged unlawful termination of their employment by the respondent.
Mr Tengtio and Mr King had been employed as full time porters with the respondent, Burswood Resort Hotel, since 1989. There was evidence that the hotel had been experiencing problems with its concierge department in that porters had been giving preferential treatment to those guests who were known as "junket" guests. The "junket" guests came predominantly from Asia and regularly stayed at the hotel for short periods for the purpose of gambling at the adjacent Burswood Casino. The "junket" guests often gave the porters tips in return for their services. They often did so at a higher rate than the ordinary guests at the hotel. The problem occurred because the porters gave preferential treatment to "junket" guests in the hope of receiving tips. This was done at the expense of the ordinary guests of the hotel. The Burswood Resort Hotel is a five star hotel and as such should give excellent service to all of its guests.
At a meeting in October 1994, which will be dealt with in more detail later on in these Reasons for Judgment, it was decided that in future all tips received by porters would be pooled and distributed on an equal basis. On 23 April 1995, an employee of the respondent, Shane Launder, alleged that Mr King and Mr Tengtio conspired together to keep a $20 tip allegedly received by Mr King for distribution between Mr King, Mr Tengtio and Mr Launder to the exclusion of the other porters on duty at that time. As a result of this alleged incident, the employment of both Mr Tengtio and Mr King was terminated.
At the hearing of this matter, it was alleged on behalf of Mr Tengtio and Mr King that the respondent had breached the provisions of the Industrial Relations Act in a number of ways. In the first place, it was said that the employer did not have a valid reason for the termination connected with the employee's capacity or conduct in contravention of Section 170DE(1). Both Mr King and Mr Tengtio denied the allegations of Mr Launder.
Secondly, it was alleged that in any event the termination was harsh, unjust or unreasonable within the meaning of Section 170DE(2). It was alleged by Mr Tengtio and Mr King that other employees of the respondent had contravened the pooling system or had been guilty of serious misconduct in other ways but their employment was not terminated by the respondent.
In the third place, it was alleged on behalf of the applicants that the respondent contravened the provisions of Section 170DF(1)(f) in that their employer terminated their employment on the grounds, in part, of race. Evidence was led at the hearing that the respondent's employees referred to Mr King, Mr Tengtio and several other employees as being members of a group know as the "Filipino Mafia". Mr King and Mr Tengtio alleged that they were treated differently from other employees in a similar position and that this was because of their race.
The way in which the case was presented to this Court by the respondent was that it was not simply a question of looking at the alleged incident on 23 April 1995. It was said on behalf of the respondent that this incident must be looked at in light of an alleged course of conduct by the applicants over a sustained period of time. Counsel for the respondent put it as follows:
"... There is ample evidence, which will be adduced on behalf of the hotel, that there was a racket operated by the applicants or at least a racket in which they were active participants which was designed to corner the market on tips and which had a detrimental effect on the hotel's concierge department and on its services to guests. The evidence will be they were part of a cartel and manipulated the system so that they could personally profit from it. The evidence will be that their ultimate aim was not to provide a service to guests, as one would have expected from the position of porters, but rather to milk the system for what it was worth. The evidence will also be that they used all sorts of ingenious devices and techniques to keep their system going. Some of these devices were sophisticated, they knew the systems, they were there for a long time. Other devices were lesser and they relied on force and intimidation. There will, the evidence of - and these are my words - a reign of terror which prevailed while they were in the hotel's employ.
The evidence will be that their specific targets for tips were junket players who stayed in the hotel and who were gamblers in the casino; that they were identified by the applicants as junket players and as the patrons of the hotel who gave tips to staff much more than any other guests and much more generously so. And their scheme was aimed at cornering this market. The evidence will be that the hotel management was made aware of questionable practices by them and others but no-one was prepared to come forward to do so for various reasons."
It was put on behalf of the respondent that because of this so called "reign of terror" by the applicants, their termination occurred for a valid reason, was not harsh, unjust or unreasonable and that reinstatement could not be considered to be an option.
CONDITIONS AT THE BURSWOOD RESORT HOTEL PRIOR TO THE POOLING SYSTEM
The respondent's witnesses gave evidence of a number of different ways in which Mr King and Mr Tengtio were alleged to have to tried to "corner the market on tips". These included the following:
(a) Operating as a Group
Mr Tengtio, during cross examination, said that he was not aware that his fellow porters saw him as being part of any particular group. He had heard the term "Filipino Mafia" but he said that there was no such thing as a Mafia. It was put to him that he, Mr King, and five other named persons were part of a group called the "Filipino Mafia". Mr Tengtio said that they could not be part of a little group because most of the people named worked on different shifts. Mr Tengtio said that before the pooling system was introduced occasionally he shared in a pooling of tips when there was a very big checkout so that one porter could not do it by himself. Mr Tengtio said that he was not aware of any pooling system operated by Mr King. His evidence was that only when he helped was he part of the pooling of tips.
Mr King said that he was aware that the other porters referred to him and others as the "Filipino Mafia". He said that other porters said that he, Mr Tengtio and several others were in the Mafia.
Mark Clayton, the executive assistant manager of the Burswood Resort Hotel, gave evidence that over a period of a number of years he had been having reports from staff that there was a group of people causing problems to the other staff members. He had heard reports that Mr King was "King of the Mafia" and that Mr Tengtio was also part of this group. He had been unable to act in relation to this as he had no personal knowledge of the matters complained of and the staff members who had made reports to him were not prepared to take the matter further.
Both Garry Russell, the concierge supervisor, and Dennis Nicholson, a employee in the concierge department, gave evidence that they perceived Mr King and Mr Tengtio as being part of a group of porters who worked together. One example given by them was that when Mr King or Mr Tengtio finished a shift they would hand over any business relating to a "junket" guest to another member of the group.
Although I am satisfied that there was a general perception throughout the concierge department that Mr King and Mr Tengtio operated as part of a group, from the evidence it was difficult to pin down the reason for this on anything in particular.
(b)Preferential Treatment of "Junket" Guests
Although Mr King said in his evidence that he was concerned about making as much money as he possibly could out of tips, he denied that he ever gave preferential treatment to "junket" guests. Mr Tengtio said that money didn't matter to him and denied that he ever gave preferential treatment to "junket" guests. He said that any problems in the concierge department prior to the pooling system were caused because some of the porters were slack.
Garry Russell, however, gave evidence that on many occasions he observed Mr King and Mr Tengtio focussing their attention primarily on Asian guests. Similarly, Dennis Nicholson said he often saw Mr King and Mr Tengtio chasing the "junket" guests. He saw Mr King often start at 6.00 or 6.30 am when he was not rostered to start until 7.00 am so that he could catch most of the "junkets" who left early in the morning. He said that Mr King swapped his shifts all the time so that he could be on during the morning shift.
Sean McKeown, who has worked in the concierge department since 1987, gave evidence that at times he had been totally disappointed with the work of Mr King and Mr Tengtio. He said that they appeared to be working for themselves rather than servicing guests. They seemed to want to make as many tips as they could. With the "junkets", they would move quickly but with normal guests they would not be as fast. The evidence of the witnesses was that the problem with giving the "junket" guests preferential treatment was widespread, in that a number of porters seemed to be involved in this practice. The evidence was also that once the pooling system was introduced, this situation improved dramatically.
(c)Threats of Violence
The respondent alleged that Mr King and Mr Tengtio used threats and intimidation to corner the market on tips. Mr King and Mr Tengtio both steadfastly denied that they did this. Mr King admitted to having had some arguments with other porters but although there was evidence that several of these arguments became heated, this did not involve any threat or any physical violence.
Mr Clayton said that several staff had complained of being bullied. Although reports were made, not once did he have a particular porter come forward and make a complaint which could be followed up. Other witnesses said that although they had heard complaints of threats and intimidation, they themselves did not feel personally threatened by either Mr King or Mr Tengtio.
The only incident of which there is direct evidence was one involving Garry Russell. On one occasion Mr Tengtio approached him about a misunderstanding about a tip. Shortly afterwards a similar occasion occurred in the reverse and Mr Russell raised this with Mr Tengtio. Mr Russell said to Mr Tengtio "What's good for the goose is good for the gander" and then swore at Mr Tengtio. Mr Tengtio turned to Mr Russell with a clenched fist and said "Don't you want to go downstairs and talk about it". Mr Russell said that this incident occurred when he was a casual porter when he was first employed by Burswood. It appears from this evidence that Mr Tengtio was provoked by Mr Russell. As this is the only direct evidence of any physical threat, I am not prepared to conclude that there is evidence of sustained threats and intimidation by the applicants.
(d)The Use of Computers
It was alleged by the respondent that Mr King and Mr Tengtio would look at the computer behind the concierge desk in order to find out which "junket" guests were departing on a particular day. It was alleged that they would then try to contact those guests and assist them with their luggage before any other porter could have a chance to do that. Both Mr King and Mr Tengtio denied using the computers for this reason. Mr Russell said that he had observed both Mr King and Mr Tengtio going through the computer to check which "junket" guests were leaving. When pressed during cross examination, he admitted that he only assumed that this is what they were doing, although he said that when he was first employed he was told that as a porter one doesn't go behind the desk unless the supervisor is on the phone or you need to check the room number on the computer.
Mr Nicholson said that he had observed Mr King and Mr Tengtio looking at the computer terminal to check on when certain guests were leaving. He said that they did this quite often. Mr Nicholson said that he heard Mr King and Mr Tengtio calling guests on the telephone at the concierge desk to ask what time they would like their luggage collected. Mr Nicholson said that porters could use the computer to read messages for guests but they were told not to access any other information. He said that if they were in charge of the desk they could look at the computer. He said, however, that Mr King and Mr Tengtio were not in charge of the desk at the times that he saw them looking at the computer.
Mr McKeown said that only people working behind the desk could access the computer. If a porter was in charge of the desk while the others were at lunch or on a break then he could use the computer. Mr McKeown said that both Mr King and Mr Tengtio tried to get information from the computer. His evidence was that they could access departure dates but not departure times. Mr McKeown's evidence was that they would have a valid reason to use the computer if they were doing a check-in or if they were in charge of the desk, if he was on the phone or if a guest needed information.
It appeared to me from the evidence of the respondent's witnesses that they either assumed Mr King and Mr Tengtio were using the computers to find out prohibited information, or, if they were in fact using them to obtain this information, Mr King and Mr Tengtio were not challenged about this.
(e)The Use of Master Keys
There were two sets of master keys to the guests' bedrooms which were supposed to be kept at the concierge desk. The porters would use the master keys to get into guests' bedrooms when guests were not there to collect or deliver their luggage. Porters were supposed to use the master key, go to the bedroom, fetch or deliver the luggage and then bring the key straight back so that other people could use it. It was alleged that Mr King and Mr Tengtio would keep the master keys to themselves when they knew the "junkets" were going to depart. Mr King and Mr Tengtio denied doing this. Mr Russell said that he saw Mr King and Mr Tengtio use the master keys and then keep the keys amongst themselves to prevent others using them to assist the "junket" guests. Mr McKeown's evidence, however, was that porters often took the master keys and hung onto them if they were doing a number of checkouts on the same floor. He said that there would be a valid reason to hang onto the master key if a porter was doing checkouts, and he should then hand it back once the checkout was completed.
(f)Hanging Around "Junket" Guests
It was alleged on behalf of the respondent that the group of porters to which Mr King and Mr Tengtio allegedly belonged would stay with the luggage of "junket" guests contrary to their instructions. Further, it was alleged that they would try to position themselves in strategic places so that they could be the first people to assist "junket" guests as they arrived. It was put to Mr King that if "junket" guests were checking out he remained with their luggage up to forty minutes and refused to do other duties. Mr King denied this. A similar allegation put to Mr Tengtio and was also denied by him. Mr Russell gave evidence that he had seen Mr Tengtio and Mr King waiting by the luggage of "junket" guests for up to ten minutes at a time. If they were asked to do something else they would ask one of their friends to do it. Mr Nicholson said that contrary to instructions, Mr King and Mr Tengtio would stay with a "junket" guest at reception and stay with their luggage for fifteen minutes at a time and not let the luggage out of their sight. If he spoke to them about it, they would say that they were just doing their job and helping the guest. Mr McKeown gave evidence that Mr King and Mr Tengtio would wait with the "junket" guests for periods of between five minutes to half-an-hour at a time. He once saw Mr Tengtio, Mr King and other porters hang around the luggage of "junket" guests for up to forty-five minutes. Mr McKeown said that it would be hard to prove that they were simply standing around waiting for a tip. If he challenged them, they would reply that they were busy with a guest.
(g)Working Slowly Except When Assisting "Junket" Guests
Mr King and Mr Tengtio both denied that they only hurried when assisting "junket" guests. They denied that they walked slowly when doing their other duties. Mr Tengtio said that on some occasions, when called for, he would walk slowly but this was not just when he was assisting ordinary guests. Mr Clayton said that Mr King and Mr Tengtio walked very slowly except when they were assisting "junket" guests. He gave an example of an incident at the time of the Skyshow on 26 January 1995. There was a function in the Presidential Suite and he noticed that the windows were dirty. He telephoned to Sean McKeown and asked a porter to bring cleaning equipment immediately. He stressed that it was urgent. It took some time for a porter to arrive. Mr Clayton went to the corridor and saw Mr King sauntering slowly down the corridor. Later on, Mr Clayton rang Sean McKeown and said "Next time I ask you to get someone to do something fast, get them to move fast". Mr King remembered the incident and said that he was walking slowly at the time because he had a sore foot. He had a bandage on his foot and there was blood coming from his toe through the bandage. When Mr McKeown spoke to him he took off his shoe and showed him the bandage. Mr McKeown confirmed that he had spoken to Mr King at the time and that Mr King said that he had a sore foot. He saw Mr King remove his shoe and sock but he was too busy to notice whether there was anything wrong with his foot. On balance, I have no hesitation in accepting Mr King's version of this incident.
(h)Selectively Taking Checkout Slips
The system at the concierge department for guest checkouts was that a guest would ring down from his or her room and advise of their imminent departure. The person at the concierge desk would write the room number on a red slip. The red slips were placed on the concierge desk in the order in which the telephone calls were received. The porter's job was to take the first slip, go to the guest's room and collect the luggage. The respondent alleged that Mr King and Mr Tengtio would rifle through the red slips, choose the slips relating to "junket" guests and take those out of sequence. Mr King and Mr Tengtio both denied doing that. Mr King admitted that sometimes he would look at all of the slips on the desk and choose several to take at once. He said that this was because he would look to see how many people were departing from the same floor. He would then take those slips and then do them all at once to save time. He said that this was done in consultation with the senior porter on duty.
Mr Russell gave evidence that on many occasions he observed Mr King and Mr Tengtio playing around with the red slips. He said that they would read the checkout slips and if they recognised the name of a "junket" guest they would take that slip out of order so that the other porters would not be able to deal with that guest.
Mr Nicholson said that he also saw Mr King and Mr Tengtio take the red slips out of order. He said that he saw them give the slips to another porter belonging to their group if they finished the shift before the "junket" guest departed. Mr Nicholson said, however, that it was true that it was standard practice for porters to take a number of slips at once if several guests were departing from the same floor. Mr McKeown confirmed that this was the standard practice, especially if the porters were very busy.
An Incident Captured on Video
The respondent produced a video taken on 15 September 1994. The video showed a view of the front of the hotel. Mr King was seen talking to a guest who was known to be one of the high tipping "junket" guests. The video showed that whilst Mr King was speaking to this guest, a Falcon station wagon pulled up a short distance from Mr King, before the front revolving doors of the hotel. A guest alighted from the vehicle and was seen to struggle with his brief case and other items. The guest went to the rear of the vehicle, opened the back of the car and took out some luggage. Neither Mr King nor the doorman came to the guest's aid. The video appears to show Mr King looking at the guest and then turning his back on him while he continued to talk to the "junket" guest. The guest from the Falcon station wagon put his luggage down and walked into the hotel. There were two porters standing inside the hotel lobby and they also apparently ignored the guest. The guest went to the concierge desk. Another porter was sent outside to assist the guest. Mr Clayton was critical of both Mr King and the doorman, both of whom were talking to the "junket" guest. One of them should have come to the aid of the ordinary guest who was struggling with his luggage.
Mr King was shown the video and he said in his evidence that he didn't notice the ordinary guest's luggage as he was talking to another guest. He said that he noticed the ordinary guest in the Falcon station wagon but he was only carrying a brief case. He said that he saw the guest opening the boot of his vehicle but he was not sure at the time if there was any luggage or not. He said that he did not go to the ordinary guest as he was talking to the other guest. He said that the other guest wanted a taxi and he motioned to the doorman to call a taxi. I had the benefit of viewing the video several times and I found Mr King's version to be not particularly credible. Mr Clayton gave evidence that he spoke to both the doorman involved and Mr King in the weeks following this incident. It was partly as a result of viewing this incident on video that he decided to call a meeting to institute the pooling system for tips.
(j)The Complaint by Matthew Rigby
The Court heard evidence from Matthew Rigby, a finance broker who stayed at the hotel with his girlfriend on around 10 August 1994. Mr Rigby is a friend of several people who worked at the hotel, including Garry Russell. Mr Rigby wrote a written complaint about his treatment at the hand of some porters whilst he stayed at the hotel. The complaint reads as follows:
"I was recommended by a Burswood employee to come to Burswood for a short stay. I am a businessman who does a small amount of travelling inter and intrastate and I know what is good and bad service. When I arrived I was given what I hoped was an incorrect impression of the Burswood Resort. My first contact was with a couple of porters who began to arrange to valet park my car and carry my luggage. A bus full of tourists pulled in behind me and before I knew it I was standing in the driveway holding my own bags and not knowing what to do with the car. I then carried my bags across the foyer to reception with no help whatsoever. Aside from that, the porter was less than polite. It's only a small thing, but that was my first impression. The two porters seemed more intent on receiving tips than offering a service".
During cross examination, Mr King denied that he was the porter involved in this incident. Mr Rigby gave evidence that the porters abandoned him in favour of a bus full of Asian tourists. He recognised one of the porters by the name of Eugene. His name was on his name tag. Mr Rigby identified Mr King in Court as one of the porters involved. He said that his report did not mention the name of a porter because at the time he wrote it he did not want to cause a sacking. He said that he merely wanted to draw to Burswood's attention that there was a problem. I accept Mr Rigby's evidence in this regard.
THE INTRODUCTION OF THE POOLING OF TIPS
Mr Clayton gave evidence that following the incident captured on video, he decided to attend the next porters' meeting on 18 September 1994. Mr King and Mr Tengtio were present at the meeting. The minutes show at item 1.3 that the following occurred:
"Mr Clayton informs staff the biggest percentage of hotel business was from the Corporate guests and although Burswood was the market leader in Perth, both the Sheraton and Hyatt Hotels were doing exceptionally well. If Burswood Hotel were to lose the return business of guests because of the standard of service by the Porters and this service was only being directed to the Casino guests, then the problem of tipping was a major concern to the whole Hotel operation. If this was the case, two proposals would be submitted to the Casino:-
(1)To make tipping strictly forbidden by guests on the Casino programme who arrive and depart with luggage.
(2)To charge Casino guests with a porterage so that tipping did not take place on arrival or departure.
1.4Discussion took place with all staff and it was felt that the problem was pooling of tips and not all staff on shift were in the pool, therefore some service to guests was divided. It was unanimously decided that all staff on a shift would pool their tips and at the end of shift this would be equally divided to all staff, both full time and casual staff.
1.5In the interests of the Hotel and staff, Mr Clayton stressed that the implementation of the pooling system must work for the benefit of everyone, so that the quality of service is given to all guests visiting and staying at Burswood Hotel."
Mr Clayton confirmed that this correctly reflected what he did in fact say at the meeting. Mr Clayton said that "We were basically making this a company policy, so anybody that did not abide by that company policy would be subject to disciplinary action, possibly termination". The pooling system commenced immediately after the meeting. During cross examination, it was pointed out to Mr Clayton that the minutes did not refer to the threat of termination if somebody was caught not pooling tips. Mr Clayton's answer was "I do not believe that was said at that meeting or it would be in there because that is important". Some of the other witnesses for the respondent said that the threat of termination was mentioned at the porters' meeting. Mr King said that he did not remember that termination was mentioned at the porters' meeting but he did acknowledge that Mr Clayton warned that anyone caught contravening the pooling system would be subject to "stiff penalty". Mr King also acknowledged that he knew that if he did not pool tips then perhaps he might be dismissed.
THE SITUATION AT THE HOTEL SUBSEQUENT TO THE POOLING SYSTEM
Mr King acknowledged that he was happy with the introduction of the pooling system subsequent to the porters' meeting on 18 September 1994. Mr King said that he was aware of three other people in the concierge department who have been in trouble for not pooling tips since the introduction of the pooling system. Mr King named those three people as Bill Sutherland, the doorman, Brady Scarfe, the casual porter, and Shane Launder, the doorman. Those three people were reported to the senior porter. Mr King himself reported Bill Sutherland and Shane Launder. Only Bill Sutherland admitted to breaching the pooling system. Mr King said not one of those other people had their employment terminated for breaching the system. These incidents will be dealt with in greater detail below.
Mr Russell gave evidence that after the introduction of the pooling system he saw a significant improvement in the operation of the concierge department. He felt that the guests were receiving a much better service from the porters.
Mr Nicholson gave evidence that there was a lot of bickering amongst the porters before the introduction of the pooling system. He said that since the introduction of the pooling system there has still been a bit of bickering but it has not been as bad as it was previously. Mr Nicholson said that the guests received a much better level of service once the pooling system was introduced. He said that the system improved even more once Mr King and Mr Tengtio left Burswood's employment.
THE PERFORMANCE APPRAISALS
Both Mr King and Mr Tengtio tendered written employee performance appraisal forms relating to the last four years of their employment with the respondent. The appraisal forms were completed by their immediate supervisor and it would be fair to describe the appraisals as excellent. This stands in stark contrast to the comments made about Mr King and Mr Tengtio by the respondent at the hearing of this matter. In his evidence, Mr Clayton was critical of the performance appraisals. He said that he told the applicants' supervisor, Mr Roberts, that:
"These appraisals sounded like these guys are good people yet he's provided me with all these complaints about them previously. The appraisals didn't reflect those complaints the way that Roberts was expressing it to me. I told him that if he is going to do appraisals to do them properly and to express - to - to do them so that it reflects a proper appraisal of the person, not just good points."
Mr McKeown gave evidence that he carried out the last two appraisals for each of the applicants. Mr Roberts had asked him to do this. Mr McKeown had never completed an employee performance appraisal form before and he asked Mr Roberts for guidance. Mr Roberts had said to Mr McKeown that the object was to build up the person, not to have any major negative remarks about them. Mr McKeown said that he was told that if he couldn't prove something, not to put that in the report. Consequently, the only negative remarks Mr McKeown put into the performance appraisals related to incidents which he could prove. Mr McKeown made a few negative remarks in the employee performance appraisal forms and when questioned about them, it appeared that those remarks related to incidents of which he had personal knowledge. Not one of these incidents was serious enough to warrant termination.
CRITICISMS OF THE APPLICANTS' WORK PERFORMANCE
The respondent raised a number of incidents involving either Mr King or Mr Tengtio, for which their performance was criticised. Some of these incidents were alleged to have occurred as far back as 1990. Some of them happened more recently. Mr King and Mr Tengtio were spoken to about these incidents at the time they happened, or else they were recorded in a log book kept by Mr Nicholson. None of them was serious enough to warrant termination. Mr King admitted to a few incidents in which he was involved. These related to arguments he had with other staff members. Mr Tengtio also remembered having a few arguments. Mr Tengtio also said in relation to Dennis Nicholson that "His hobby is reporting on the log book anything. Any day that he don't have any reports, well, it is just not a day for him". Mr Tengtio also said that some matters which were reported in Mr Nicholson's log book were matters for which he had an explanation. Mr Nicholson himself admitted that he didn't record Mr Tengtio's explanation for any matter reported in the log book. The sorts of matters reported by Mr Nicholson were complaints about Mr Tengtio parking cars in the VIP car park contrary to instructions and about a number of porters, including Mr Tengtio, standing around outside, apparently wasting time. Once again, the matters complained of were not so serious as to warrant termination of employment.
THE INCIDENT LEADING TO THE TERMINATION
It is the respondent's position that somewhere around 7.30 am on 23 April 1995 Mr King and Mr Tengtio were involved in a checkout of some "junket" guests who were departing by bus. It is alleged that Mr King received a $20 tip from those guests and that he split that tip three ways between himself, Mr Tengtio and Mr Launder. It is alleged that Mr King told Mr Launder about the tip but to keep it quiet. It is alleged that he put $6 in Mr Launder's pocket after he and Mr Tengtio had been on a morning coffee break. The respondent alleges that Mr King told Mr Launder to keep it quiet and to just keep the money between the three of them as otherwise they would have to split it between sixteen porters. It is common ground that there were in fact sixteen porters on duty at the hotel for that day. However, at the time of the alleged incident, only five people were actually on duty and would have been entitled to a split of any tip money received. Both Mr King and Mr Tengtio deny the incident. They both say that the party departing on the bus consisted largely of women. Women are known to tip less frequently than men. Mr King said that he heard from another employee, Saroj, that the "junket party" had already given a tip of $10 for the porters. Saroj was not called to give evidence. Mr King denies that he received any tip from the party. He said that at 9.00 am, at the end of that particular shift, he distributed the tips in the tip box between the porters on duty. Mr Tengtio confirmed this in his evidence.
Mr Launder gave evidence that he has been employed by the hotel since 1989. For just over two years he has been employed as a doorman. In that capacity, he directs porters as to how to perform their duties. He is situated at the front of the hotel on the red carpet. Mr Launder said that on 23 April 1995 a Thai "junket" was departing. At the time he was stationed alongside the bus side entrance as the trailer was being loaded with the luggage. He said that the party consisted of men, women and some children. Mr King and Mr Tengtio were loading the luggage and there were also another couple of porters standing by. Mr Launder said that he did not have a full view of the trailer as one half of the door obscured his view. Mr Launder said that once the luggage had been loaded Mr King came towards him and said that he had received a tip. Mr Launder said he didn't physically see him receive the tip because of the door to the trailer. Mr King and Mr Tengtio were smiling when they walked away from the group, so he assumed they had received a tip. According to Mr Launder, Mr King said that he had received a $20 tip. Mr King referred to the amount of porters that were on duty and as there were sixteen porters in total, he said that he would split the tip between three people. He said that Mr King told him not to mention it to anyone. Mr Launder said that he then saw Mr King go to the porters' desk and he assumed he said to the senior porter that he was going on his coffee break. Mr Launder said that he assumed he was going down for the coffee break in order to break the $20 up into three portions. Mr Launder said that he said to the senior porter, Dennis Nicholson, that Mr Tengtio would want to go down for a coffee break soon and that he should be allowed to do so. Mr Launder's evidence was that he said this because he assumed they were going to split, or discuss the splitting of, the $20. Mr Launder said that he did mention to Dennis Nicholson at the time that Mr King had offered to split the tip with him. At that stage they looked in the tip tin and there was only a $5 note in the tin. Mr Tengtio did go down for his coffee break. After this, Mr Launder went out onto the driveway and continued his duties. He said that later that morning Mr King came up from the coffee break, walked towards him and put $6 into his waistcoat pocket. He said it was a $5 note and some coin. According to Mr Launder, Mr King said that that was the split. Mr Launder said that he then went to the desk and said to Dennis Nicholson that he was going to Mark Clayton's office, which he did. Mr Launder said that he then said to Mr Clayton that he hoped that the hotel would stand behind him if he made a statement.
During cross examination, Mr Launder indicated that Mr Tengtio was never mentioned by Mr King. He just assumed that that Mr Tengtio was the other person involved as he was within earshot of Mr King. Mr Launder said that he knew there were sixteen porters on roster that day as he had read the roster when he came on duty that morning. Mr Launder acknowledged that Mr King and Mr Tengtio would normally go for a coffee break at around the time that they did actually go for the break, but "in this specific case I got vibes" that the reason they were going for a break was to split the tip. Mr Launder's evidence during cross examination seemed to change somewhat from his evidence during examination in chief. For example, the transcript shows as follows:
"Eugene has approached you and said to your story, that we will split $20 between us instead of sixteen porters. He then goes on a tea break and you go to Nicholson. Nicholson tells you ....? - no no he went on the tea break and came upstairs and gave me the $5 with some coin.
Before you spoke to Nicholson? .... And that is when I went into Nicholson and said that I was going to Mark Clayton ....
Now, did you report it then or did you report it after you had the $6 in your pocket? .... After I had the $6 in my pocket ..... How did it happen if it happened after you had the $6 in your pocket? ..... Because the $6 - when Eugene came up and put the $6 into my waistcoat pocket I went in and said to Dennis, he showed me the $5 note in the bottom of the tin and that's when I went to Mark Clayton"
Mr Launder, despite giving several versions as to the sequence of events, remained steadfast that Mr King had said that he had received a $20 tip and would split it three ways.
Mr Nicholson gave evidence that he started his shift at 6.45 on that morning. The "junket" group was departing that morning at around 7.30 am. He said that Mr King and Mr Tengtio were loading the "junket" guests onto the bus. He had a conversation with Shane Launder, during which Mr Launder "mentioned to me he'd like to see what tip they'd get off the group". Mr Nicholson said that he told Mr Launder to keep an eye on them in the driveway and see what happened. He said that Shane Launder came in and told him that he had seen them receive a $20 tip. Mr Launder said to Mr Nicholson "We'll see if they put it in the tin". After loading the "junket" guests, according to Mr Nicholson, Mr King went down on a coffee break. Mr Tengtio also went on a coffee break. Mr Nicholson checked the tip box in front of Mr Launder after they had gone down. He found a $5 note and a couple of coins in the box, and nothing else. After they returned from their coffee break, according to Mr Nicholson, Mr King and Mr Tengtio went out to the driveway. Mr Launder then showed Mr Nicholson a $5 note and some coin he had and said he'd been asked to split the tip. Mr Nicholson said that he then told Mr Launder to see Mark Clayton. Mr Nicholson said that he didn't remember the occasion of the splitting of the tips at 9.00 am on that day. He said that as far as he knew he would have distributed the tips himself. He said he would not have allowed Mr King to distribute the tip. Mr Nicholson said that he vaguely remembered the "junket" group and said that there were more men than women in the group.
THE MEETING WITH MR CLAYTON ON 23 APRIL 1995
After the alleged incident, Mr Launder reported to Mr Clayton and told him his version of what had happened. Mr Clayton then called Mr King and Mr Tengtio into his office. According to Mr Clayton, he put the allegation to the two men without mentioning Shane Launder's name. He offered to Mr Tengtio and Mr King the option of having another meeting the next morning with a union representative present. According to Mr Clayton, neither Mr King nor Mr Tengtio denied the allegations but merely said that they wanted to have another meeting with representation. Mr Clayton had a witness present at the meeting, Mr Ezio Russa, the assistant products manager. Mr Russa confirmed Mr Clayton's account of the interview. Mr Clayton advised the men that they were suspended for 24 hours until they could discuss it at 10.00 am the following morning with a union representative present.
Both Mr King and Mr Tengtio say that Mr Clayton said at the initial meeting that it was Shane Launder who had made the allegation against them. They confirmed that they decided to defer the matter until a union representative was present on the following morning.
Mr Clayton gave evidence that the two men left his office together. Shortly afterwards, he went out of his office and walked down the corridor. As he reached the corner of the corridor, Mr King was in front of Mr Tengtio and he heard Mr Tengtio say to Mr King "It must have been Shane that told". According to Mr Clayton, the men didn't know that he was behind them and Mr Clayton said "It might have been Shane that said something", and "They jumped about fifty feet in the air". Mr Clayton said that on the following morning when they had another interview with the union representatives present, he raised the question of this comment with Mr Tengtio who merely said "No comment". Both Mr King and Mr Tengtio deny this incident in the corridor. Further, they point to the fact that it was their normal practice to converse in their own language when talking between themselves. They said they would not have been speaking English to each other in any event.
Mr King gave evidence that after this meeting with Mr Clayton on 23 April, he went home and prepared a statement in writing setting out his version of the events of that day. Mr King and Mr Tengtio contacted their union and arranged to have representation at the meeting to be held on the following morning.
On 24 April, the two men met Mr Clayton in the presence of two union representatives. Mr Clayton was handed a copy of Mr King's statement. Mr Clayton said that they discussed the matter and during the course of the discussions he became more and more confused. This is because Mr King and Mr Tengtio were making allegations about other "unrelated issues" and at the end of the meeting he found it difficult to determine which story was which. Mr Clayton undertook to investigate the allegation, think about it, make a decision and get back to Ms Mead who was representing the men. He held a number of discussions with Ms Mead over the ensuing days. He was unable to arrive at any conclusion so he arranged to have another meeting on 2 May. At that meeting Mr Clayton, Mr King, Mr Tengtio and the two union representatives were present. Mr Clayton suggested that the matter be handed over to Mr Kunzman, to conduct a "mock trial" and then make a decision. This was rejected by Mr King and Mr Tengtio. Mr Tengtio's evidence was that he followed the union's advice which was not to take part in the proposed proceedings with Mr Kunzman. According to Mr Clayton, the men then said that "they'll see us in court".
THE TERMINATION
Mr Clayton's evidence was that after the meeting on 2 May 1995 he went to speak to Mr Kunzman about it. On the following day he made the decision that this situation couldn't go on any longer. He was satisfied with the evidence that Shane Launder had given. According to Mr Clayton, he found that the stories given by Mr King and Mr Tengtio didn't make sense to him. He found that Mr Launder and Mr Nicholson's stories tied in. He felt that "The fact that they didn't want to take another meeting with Mr Kunzman left me no other decision other than to terminate them".
Mr Clayton said that he had made enquiries before arriving at this decision. He viewed the videos taken in the area in which the incident was alleged to have occurred but the videos didn't reveal anything. According to Mr Clayton, it wasn't possible to see the incident as a bus was actually obstructing the camera at that time. This contradicted Mr Launder's evidence which was that there was no bus present at the time that the transaction is alleged to have happened. Mr Clayton said that he also called the international marketing manager of the casino to try to find out which groups had left that morning to see if he could contact the leader of the "junket" group to determine whether a tip had actually been given or not. According to Mr Clayton, they couldn't come back with the required information as a number of groups had left that morning and he couldn't determine which one it would be. This also contrasted with Mr Launder's evidence that there was only one Thai "junket" group leaving that morning and it would have been easy to find out which group it was. The applicants also point to the fact that Mr Clayton did not attempt to interview the men with whom Mr King and Mr Tengtio shared their morning break in an attempt to find out whether the money was split at that time.
In any event, Mr Clayton satisfied himself that Mr Launder's allegation was correct. He terminated the applicants' employment on 4 May, for the reason that they breached the company policy in that they did not pool a tip.
THE CREDIBILITY OF THE WITNESSES
Both Mr King and Mr Tengtio maintained in the witness box that they had never given preferential treatment to "junket" guests. The weight of the evidence, including the video evidence against Mr King, is that Mr King, Mr Tengtio and various other porters did give preferential treatment to "junket" guests prior to the introduction of the pooling system. This, in my view, affects the credibility of both Mr King and Mr Tengtio. It does not necessarily follow, however, that I therefore reject all of their evidence and unreservedly accept the evidence of the witnesses for the respondent. I have reservations about Mr Launder's evidence in view of the fact that he gave several different accounts of the incidents on 24 April 1995. Further, I was left with the impression that Mr Clayton's view of both Mr King and Mr Tengtio was somewhat coloured by his perception of their supposed bad character because of the complaints he had received about them in the past. For example, Mr Clayton stated:
"I believe that they're just trying to manipulate the situation at the moment and blow it out of proportion because they know they are wrong. Also, the fact that all the allegations and things that we have about the problems in the department have always gone back to them. They have always been included in the group of people that did the things that they shouldn't be doing.
Q. That you do not have any proof of? ... Well, I haven't got first hand experience in it but I have a whole department of people that are all basically saying we hope these people don't come back because we don't want to have to work in that situation again."
Mr Clayton's reaction was perhaps understandable given the problems suffered by the concierge department, particularly prior to the introduction of the pooling system.
THE "REIGN OF TERROR"
I have already set out what counsel for the respondent said in his opening remarks in relation to the alleged bad character of Mr King and Mr Tengtio. It was said that Mr King and Mr Tengtio engaged in a "reign of terror" and that by the use of various devices they manipulated the system so that they maximised the number of tips they received. On the evidence I find that although the concierge department was experiencing problems with its porters giving preferential treatment to "junket" guests prior to the introduction of the pooling system, there is insufficient evidence to suggest that Mr King and Mr Tengtio engaged in what amounted to a "reign of terror". The problems seem to have been widespread and the situation improved considerably after the introduction of the pooling system. In relation to the other specific matters complained of, which have been listed above, the evidence consisted either of broad assertions such as "they used to stay with guests' luggage for up to 45 minutes" which I do not find of very much assistance, or they consisted of relating specific incidents which did not in themselves amount to very much and for which, in most instances, Mr King or Mr Tengtio had an explanation. For example, it was said on behalf of the respondents that the applicants used threats and intimidation. None of the witnesses called on behalf of the respondent said that they felt personally intimidated by either of the applicants except for Mr Russell, who related the incident concerning Mr Tengtio in which Mr Tengtio clenched his fists. The behaviour of Mr Tengtio on that occasion was in response to being sworn at by Mr Russell. The other major concern I have about the evidence of the respondent's witnesses in relation to these allegations is that these behaviours by Mr King and Mr Tengtio, if they did occur, seem to have gone unchallenged. In view of this, it appears to me to be unfair to now criticise Mr King and Mr Tengtio for these alleged behaviours, particularly in view of the fact that the main formal written response they received from their employer, namely the employee performance appraisals, were written in very complimentary terms. It was telling that Mr McKeown said that he only included negative comments in the performance appraisals if he had proof of anything against the two men.
Although Mr King and Mr Tengtio were subject to a lot of rumour about their performance, I consider that their employment would have been terminated long before May of 1995 if there had been evidence of such improper conduct. The respondent does not appear to have had access to such evidence in the past and I do not consider that there was sufficient evidence of their alleged bad character before this Court.
FINDINGS ON THE EVIDENCE
Because of the reservations I have about the credibility of some of the witnesses involved in the hearing, I have found it very difficult to arrive at a decision in this matter. I have, however, carefully read the transcript and notes of evidence, and I have a clear impression in my mind of the demeanour of the witnesses involved. I make the following findings:
There is insufficient evidence to persuade me that Mr King and Mr Tengtio were involved in any "reign of terror", or in any group or cartel aimed at keeping tips from "junket" guests to themselves after the introduction of the pooling system in October 1994.
Although I have reservations about Mr Launder's evidence, I find on balance that Mr King did tell Mr Launder that he received a $20 tip and that he wanted to divide it between three people.
Despite the fact that I tend to accept Mr Clayton's evidence of the conversation overheard in the hallway during which Mr Tengtio is alleged to have said "It must have been Shane that told", I consider that there is insufficient evidence to prove that Mr Tengtio was in fact involved in any conspiracy to keep the $20 tip out of the pooling system. Apart from the remark overheard by Mr Clayton, there is no direct evidence that Mr Tengtio was in any way involved. There was evidence that the porters on duty on the morning of 23 April were aware that Mr Launder had been to speak to Mr Clayton immediately before Mr King and Mr Tengtio were called to Mr Clayton's office. Even though Mr Tengtio denied any knowledge of the incident at all, I am not satisfied on the balance of probabilities that he was involved in the scheme.
Although I am in some doubt about whether the men were in fact told at the porters' meeting in October 1994 that failure to pool tips might leave to termination of employment, it is clear that Mr King knew that there would be serious consequences, possibly termination, if there was a breach of the pooling policy.
Although Mr Clayton may perhaps have investigated the incident more fully, Mr Tengtio and Mr King were at all times represented by their union officials and no issue was made of the investigation process or the question of procedural fairness.
DID THE TERMINATION OCCUR FOR THE REASON OF RACE?
It is alleged on behalf of the applicants that the respondent has breached the provisions of Section 170DF(1)(f) in that the employer terminated the employees' employment for a reason including the reason of race. It was pointed out that Mr King, Mr Tengtio and a group of others were collectively known by their fellow employees as the "Filipino Mafia". Mr Clayton himself acknowledged that those words had been uttered by him in relation to the two men, albeit on the basis that that was the name the porters gave to the group. The evidence was that only two or three people who were allegedly members of the group, including Mr King and Mr Tengtio, were in fact Filipino. Mr King considers that he was discriminated against on the ground of race as he says that other people who had been in trouble for not pooling tips were not terminated. Mr Tengtio gave evidence that he had been called "black" as a joke and that he had heard the term "Filipino Mafia" and classed it as a racist remark. On behalf of Mr King and Mr Tengtio, a number of incidents were raised as examples of other employees who were not members of the "Filipino Mafia" being treated more leniently than Mr King and Mr Tengtio. I have carefully considered these examples and have arrived at the conclusion that they were easily distinguishable from the case at hand. For example, Bill Sutherland, a doorman at the hotel, disagreed with the pooling system and refused to pool tips in order to take a stand. He was very open about it and told management what he was doing. There was a process of negotiation during which Mr Sutherland was threatened with termination if he did not comply with that policy. The end result was that Mr Sutherland did comply with the pooling policy. That is quite a different situation from pretending to comply with a policy but in fact not pooling a tip in an underhand way.
I am concerned about the fact that management did nothing to stop its employees referring to a group of fellow employees as "the Filipino Mafia". In my view, this constituted an undercurrent of racism in the workplace and is not appropriate. However, I am satisfied that Mr Clayton made the decision to terminate, not on the grounds of race, but because in his view there had been a serious breach of company policy. On balance, I do not consider that there is sufficient evidence to prove that there has been a breach of the provisions of Section 170DF(1)(f).
WAS THERE A VALID REASON FOR THE TERMINATION?
For the reasons given in my findings of fact, I consider that there was a valid reason for the termination of Mr King. He breached a company policy and was aware that a possible consequence of the breach was termination of employment. I am not satisfied that there was a valid reason for the termination of Mr Tengtio. Although I am not satisfied that Mr Clayton acted in bad faith, I consider that his judgment was coloured by his perception of Mr Tengtio's character. I have already indicated my finding that this perception was based on rumour rather than on any real evidence. For this reason, I consider that Mr Tengtio must succeed in his application.
WAS THE TERMINATION HARSH, UNJUST OR UNREASONABLE?
It is submitted on behalf of the applicants that the terminations were in all the circumstances harsh, unjust and unreasonable, contrary to the provisions of Section 170DE(2) of the Act. In relation to this, the applicants point to the examples of other employees being allegedly treated more leniently than they were. I have already indicated that the examples they point to are easily distinguishable from the question at hand. I do not consider that the applicants have discharged the burden of proof in relation to this matter.
In view of these findings, I consider that Mr King must fail in his application.
THE APPROPRIATE REMEDY
The respondent submits that even if this Court finds that there was a breach of the provisions of the Act, then this Court should find that reinstatement would in all the circumstances be impracticable. The respondent called evidence from a number of witnesses to the effect that since Mr King and Mr Tengtio have left the respondent's workplace, the morale in the concierge department has improved considerably. It was submitted that if there ever was a case of impracticability, this would be it. This was on the basis of the alleged bad character of Mr King and Mr Tengtio. I have already indicated that I found there was insufficient evidence to establish the alleged bad character of the two men. In any event, the thrust of the evidence was that if there was a group, then Mr King, not Mr Tengtio, played the major role in it. There are many decisions from Judges of this Court to the effect that reinstatement is intended to be the primary remedy. On balance, I do not find that it would be impracticable to reinstate Mr Tengtio to his former position. In saying this, I wish to stress that this decision is based on my finding that there was insufficient evidence to prove that Mr Tengtio had any direct involvement in this incident, or any involvement in dishonest schemes which would be detrimental to the employer's efficient operation of the workplace. I stress that this decision is in no way to be taken as condoning any breach of the pooling policy. For the policy to work properly, the members participating in it must be honest. It follows that the appropriate orders are as follows:
In relation to Mr King, the application be dismissed.
In relation to Mr Tengtio:
(a)he be reinstated to his former position within fourteen days of the date of this order, and
(b) the respondent pay compensation to Mr Tengtio being the remuneration lost by Mr Tengtio because of the termination between the date of termination and the date of reinstatement.
COSTS
The respondent applied for an order that the applicants pay to the respondent the costs associated with the hearing of this matter. It was alleged by the respondent that the applicants made the application frivolously or vexatiously. As I have found in favour of Mr Tengtio, that does not apply in his case. In relation to Mr King, I am not satisfied that he did make the application frivolously or vexatiously. I do not consider it appropriate to award costs in this case.
I certify that this and the preceding 29 pages are a true copy of the Reasons for Judgment of Judicial Registrar Boon.
Associate
Date:
Representative for the applicant: Ms R Meade
Australian Liquor, Hospitality and
Miscellaneous Workers' Union
Counsel for the respondent: Mr L Levine
Solicitors for the respondent: Parker and Parker
Hearing date: 31 October, 1 November & 2 November 1995
16, 17 & 18 January 1996
Judgment date: 29 February 1996
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