Beck v Clayton RSL Club
[1996] IRCA 235
•31 May 1996
DECISION NO: 235/96
C A T C H W O R D S
INDUSTRIAL LAW - Termination of Employment - Allegations of misconduct - whether valid reason for termination - whether termination harsh, unjust or unreasonable
Industrial Relations Act 1988 ss.170DC, 170DE, 170EA
CASES:
Jones v Dunkel (1959) 101 CLR
Puccio and Catholic Education Office and Catholic Endowment Society (Incorporated), Decision 198 of 1996 (17 May 1996)
STEPHEN BECK -v- CLAYTON RSL CLUB
No. VI-6440 of 1995
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 31 May 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-6440 of 1995
B E T W E E N :
STEPHEN BECK
Applicant
AND
CLAYTON RSL CLUB
Respondent
MINUTES OF ORDERS
Judicial Registrar Ryan 31 May 1996
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI-6440 of 1995
B E T W E E N :
STEPHEN BECK
Applicant
AND
CLAYTON RSL CLUB
Respondent
Before: Judicial Registrar Ryan
Place: Melbourne
Date: 31 May 1996
REASONS FOR JUDGMENT (EX TEMPORE)
THE CLAIM
The Applicant claims unlawful termination of employment. He seeks compensation.
The Respondent is a licensed club. The club provides gaming facilities, food, liquor and entertainment for members and guests.
THE EMPLOYMENT
The Applicant was a security officer and crowd controller at the club. He worked on a part-time basis and had and has other employment in addition to his security work. He worked at the club on an average of two out of every three weekends between 26 March and 24 December 1995. He occasionally worked on other days or nights. He appears to have worked at the club on 26 of the 39 weeks of his employment there.
THE TERMINATION
On 28 December the manager of the club spoke to the Applicant by telephone. The manager has stated in evidence that he outlined to the Applicant “a serious allegation of assault made by a patron”. It is clear that the manager did not name the person described initially in his evidence as a “patron”. In fact, he refused to name the complainant and he never gave the Applicant any details of the allegation other than to describe the circumstances as “bordering on sexual assault”.
The substance of the manager’s evidence is that the Applicant denied that he was involved in any activity which could presumably fit the description of “a serious allegation of assault...bordering on sexual assault”.
Some detail of the manager’s evidence as to the Applicant’s reaction will be given later in the judgment.
The manager gave evidence to the effect that:
he believed the allegation was well founded
he was not prepared to compromise the integrity of the club
he was removing the Applicant from the security roster
the decision (which was a decision to terminate the Applicant’s employment with the Respondent) was final
The manager also stated in his evidence that he mentioned other allegations and investigations in the course of this telephone conversation. This is a reference to complaints against the Applicant by a young woman who worked at the club as a waitress.
THE EVIDENCE
The Respondent called the manager of the club (the manager), the young woman who worked as a waitress (the first complainant), and a more mature woman who worked as a vocalist with a band at the club (the second complainant).
The Applicant gave evidence on his own behalf.
Ms Patrick appeared as counsel for the Applicant. Mr L’Estrange appeared as counsel for the Respondent.
THE EVIDENCE OF THE FIRST COMPLAINANT
The first complainant stated that she worked as a waitress at the club from February 1995 to January 1996. She knew the Applicant who worked primarily at the front desk of the club. In about September 1995 (the witness could not remember the day or date) she was entering the club to go to work. The Applicant got up from behind the front desk in the foyer area, came around to the front or side of the desk, placed his arm across onto the desk and blocked access to the main entrance to the club. He asked the first complainant for a kiss to let her in through the main entrance. She states that she “said no” and that, at this stage, a customer came out from inside the club through the main door. The Applicant glanced back and she ducked under his arm and in through the main entrance and into the club.
The witness states that she told her father who also works at the club and that he told her to leave the matter to him and that he would speak to the manager.
She states that after this incident she tried to avoid the Applicant whenever possible but that she was required to serve him meals from time to time in the bistro as part of her duties.
She states that on two occasions while she was serving meals to the Applicant, “he asked for a kiss to go with the meal”, that she “said no” and reported the both incidents to her father who again stated that he would speak to the manager. She also claims that the Applicant called her “honey” and “sweetie” on a number of occasions when they were alone and that the manner in which he did this made her uncomfortable. She admitted in cross-examination that there was a friendly atmosphere in the club and that a number of patrons used words like “honey” and “sweetie” from time to time but that these patrons were “elderly and very sweet”.
She also claims that she complained to her immediate boss, the chef in the kitchen but that “he did not take it seriously...and he teased me”.
She also claims that, on one occasion, the Applicant said to her boss, in her presence, that the two of them “would have to take Kellie (the first complainant) out some time and show her a good time”. She claims that this was said “in a sleazy way” and made her uncomfortable.
The witness stated that she knew of no policy on sexual harassment provided by the club and no advice on policy of that nature was given to her. The Court also notes that the Respondent did not produce any evidence of any such policy developed or conveyed to staff.
THE EVIDENCE OF THE SECOND COMPLAINANT
The second complainant gave evidence that:
she worked at the club on two Saturday nights each month with a band of which her husband was the leader and with which she was a vocalist
she knew the Applicant as a security guard at the club but “only to say hello to”
late last year, “around December”, the Applicant telephoned her at home and asked for words of two songs entitled “Crazy” and “Advance Australia Fair” and that her husband typed out the words of both of these for the Applicant
on Saturday 2 December 1995, at about 11:30 pm, she had gone out through the foyer of the club and down the front steps and spoken to her daughter and that as she returned up the stairs and into the foyer to re-enter the club the Applicant called to her saying “come here, come here...don’t you like me...don’t you like me?”, and that the Applicant then prevented her from going through the front door to the main area into the club proper
that the Applicant then grabbed her while she was near the desk in the front foyer and pushed her (she thinks she was pushed against a wall) and then forcibly kissed her and pushed his tongue down her throat
that the Applicant also said “do you like me...do you like me...would you like to fuck me?” and that it was after he had said these words that he forcibly kissed her and put his tongue down her throat
that the Applicant “eventually opened the door” and that she ran back into the band who were packing up but did not say anything to anyone because she “was too frightened and did not want to upset anyone”
about twenty minutes later she was taking a dress out to her car in the car park and the Applicant followed her in the car park and may have touched her on the shoulder but left when her husband questioned what he was doing
in the week following 2 December the Applicant telephoned her at home and he called two or three times a week for the next three weeks and that on each occasion he said words like “don’t you want to see me?” and “are you by yourself?” and “can you talk?” and that her husband answered the phone on some of these occasions and that she told her husband what it was that the Applicant said to her and that she told the Applicant on each occasion that she did not want to speak to him
she attended the club again on Saturday 23 December 1995 and another security officer, Mr Simon Evans and a barman, Mr Philip Coelho, asked her whether “she had had any trouble with the Applicant” and that they said “you must tell us or write a letter” and that “if you don’t do something it could happen to a twelve or fourteen year old”
“next week Mr Deller, (i.e. the manager) phoned me....he asked me would I be interested in giving a statement to a lawyer...I said yes”
“on the Saturday...New Year’s Eve (31 December 1995 was actually a Sunday)...Mr Bailey came to my house...I made a statement”
The Court noted that the second complainant appeared distressed and confused at times while giving evidence and that she was uncertain about times and dates, other than in respect of the incidents on 2 December, and that she gave very limited evidence as to a time and date and nature of the telephone conversation with the manager, Mr Deller, when he telephoned her and, according to her, asked her was she prepared to make a statement to a lawyer.
THE EVIDENCE OF THE MANAGER
The manager stated that:
he began at the club on 5 September 1995
about three weeks after he began the father of the first complainant told him that his daughter was having problems with the Applicant and that the Applicant was making improper suggestions and that he (the manager) should “get (the Applicant) off Kellie’s back and get him (the Applicant) to leave her alone”
he (the manager) told the Applicant he had received “allegations that he (the Applicant) was acting improperly to staff and that he (the manager)” told the Applicant “this was not to occur”
that this conversation took place in the foyer and that the Applicant reacted with words like:
“not me?...it could not be me....it is certainly not me”
that the manager said that “it was not a fitting manner for a security officer to behave if it was the case”
that the Applicant asked for the name of the complainant but that he refused to divulge that information to him
that about three weeks later the first complainant’s father came and saw him again and that this was mid to late October and that he said that the Applicant was still making improper suggestions and that Kellie was very frightened of the man and that if (the manager) did not do something he (the first complainant’s father) would have to deal with it himself
the next weekend, in the car park the manager says he told the Applicant that he had received “allegations of improper conduct again” and that he (the Applicant) was the person involved and that “it was time he had a good look at his behaviour”
the Applicant responded along the lines “it could not be me...are you sure it is me?...are you sure someone is not trying to set me up?”
the manager states that he then made inquiries of other staff including two women whom he named and who he said worked in the office at the club and that he then formed the view that “the protestations of innocence (by the Applicant) were not completely correct”
at 6:00 am on Sunday 24 December he found on his desk a note which had been signed by Mr Evans and countersigned by Mr Coelho and that the note referred to a statement made by the second complainant
on 27 or 28 December (the Court finds it was Thursday 28 December) he telephoned the second complainant and asked her whether the “serious allegations” apparently referred to in the note from Messrs Evans and Coelho were correct and that the second complainant indicated that the allegations were correct and that while he did not describe the nature of the allegations to her she “elaborated over the phone on what had happened”
he states that he then rang the Applicant (the Applicant states that he returned a telephone call from the manager but nothing turns on that). He states that he told the Applicant that he had “some letters of complaint” but that he was not prepared to divulge the nature of the allegations over the phone more than describing them as “serious allegations of assault...bordering on sexual assault’” and that he indicated as the Court has already indicated earlier in this judgment, that:
(i)he believed the allegations were well founded
(ii)he was not prepared to compromise the integrity of the club
(iii)he was removing the Applicant from the security roster
(iv)the decision was final
In cross-examination the manager indicated that the issue that led to the termination of the Applicant was the issue of the serious allegations in the note from Messrs Evans and Coelho.
The Court notes that earlier in his evidence he had indicated that he had also taken into account the earlier complaints from the first complainant but it seems clear that the primary motivation for the termination was the allegations of the second complainant which the manager believed to be well founded.
THE EVIDENCE OF THE APPLICANT
It must be said immediately that the evidence of the Applicant was indirect, unimpressive, at times contradictory. Furthermore, in cross-examination and in questions from the Court, the Applicant tended to give altered versions of what he says occurred.
He denies that the manager ever confronted him in the foyer in respect of the first complaint from the first complainant. He states that when he was confronted in the car park by the manager, about what would appear to have been the second complaint by the father of the first complainant, he was told by the manager that claims of “intimidation” were made against him. He denies that the manager used the words “serious allegations”, at any time and that, in the car park, the manager simply asked him to “be aware of his actions when on duty”.
He confirms the evidence of the manager that at no stage was he provided with any detail of any allegations. He also confirms that on the occasions when he requested the names of those who made complaints against him the manager refused to divulge that information.
Nevertheless, the Applicant describes what he says was a claim of intimidation made against him by the manager in the car park as “unbelievable...just pathetic”. He also said that “I don’t know why, if it ever occurred...it should have been reported...I could not pinpoint any incident”.
In respect of the complaints from the second complainant, none of which were put to him until he had the telephone conversation with the manager on 28 December, he states that he rejected totally what was put to him.
It is not necessary to set out in this judgment any further detail of the evidence given by the Applicant.
SUPPLEMENTARY SUBMISSION BY THE RESPONDENT
After final submissions yesterday, in fact by facsimile at 12:36 pm today, the Court received a supplementary submission from the Respondent that the Court was entitled to draw the inference that any evidence from Mr Coelho (who the Applicant alleged was present in the foyer on 2 September when the second complainant alleges she was assaulted) would not have been favourable to the Applicant, Jones v Dunkel (1959) 101 CLR.
A submission was made with leave and Ms Patrick responded in writing also with leave.
The Court declined to make the inference for the reasons given prior to judgment today.
CREDIBILITY OF THE WITNESSES
Before turning to the termination of the Applicant and issues such as valid grounds for termination pursuant to S170DE(1), and the opportunity, if any, given to the Applicant to respond to allegations against him pursuant to S170DC, and the fairness or unfairness of the termination pursuant to S170DE(2), it is necessary to determine whether the Applicant was involved in conduct which, if established, might constitute valid grounds for termination.
The Court can only reach that conclusion on the evidence given and the credibility of the witnesses is crucial to that determination.
For whatever reason, the Respondent did not call Messrs Evans, Coelho and Bailey. Mr Evans and Mr Coelho appear to be the authors of the note of 23 December and Mr Bailey seems to have taken the written statement from the second complainant.
Ms Patrick called for but did not use the note of 23 December. Under S35 of the Commonwealth Evidence Act 1995 she could not be required to tender the note. I declined to allow the Respondent to tender the note pursuant to S60 of the Commonwealth Evidence Act 1995. Mr L’Estrange sought to tender the note on the basis that it was relevant for a purpose other than proof of the fact intended to be asserted by the representation, i.e. representations in the note. However, I was not prepared to allow admission of the note as evidence in circumstances in which the authors were not called to give evidence and the Applicant appears to have had no notice of the existence of the note until the cross-examination of the manager of the club.
Despite these difficulties, and perhaps because of these difficulties, the assessment of credibility of the witnesses who did give evidence is even more crucial although such assessment in such a case is always a major factor.
Here, the Applicant is, in essence, putting up a case which, if accepted, means that the other three witnesses are all untruthful and, in effect are engaged in an active collusion or conspiracy to manufacture grounds for termination of employment.
Having observed the witnesses and considered their evidence I have concluded without any doubt that the Respondent’s three witnesses are all generally witnesses of truth, albeit witnesses with inadequate recall in some areas. Conversely, I have already commented unfavourably on the evidence of the Applicant. Where his evidence conflicts with any and all of the evidence of the Respondent witnesses I prefer the evidence of the latter.
VALID GROUNDS
The conduct of the Applicant, in respect of both complainants, is conduct I find to have occurred generally as asserted by each of them.
The conduct, in respect of the second complainant, clearly was a valid ground for termination.
The conduct, in respect of the first complainant, could, in certain circumstances, even if taken alone, found a valid termination of a security officer in a licensed club. Indisputably, such conduct, when assessed in addition to the conduct in respect of the second complainant, constituted part of a valid ground of termination for misconduct.
FAIRNESS
I was concerned and remain concerned about the lack of detail in respect of the allegations. By that I mean I am concerned that the manager of the club, on his own evidence, gave the Applicant inadequate detail when he presented the Applicant with very general, non-specific information of the first and second complaints of the first complainant (made to the manager via her father), and when he presented the complaints of the second complainant by telephone on 28 December. Furthermore, the manager gave no further detail when he met the Applicant face to face in the club later on 28 December after the termination of employment.
The Court is not suggesting that the manager should have necessarily identified and named the complainants but he should have given more detail than he appears on his own evidence to have given to the Applicant.
Be that as it may, I am not only satisfied that the Applicant was guilty of the misconduct alleged against him in this hearing by both complainants, I have, after observing him giving evidence, concluded, using a strict test of balance of probability, that he knew when confronted by the manager on all three occasions what it was to which the manager referred even though the references were oblique and inadequate.
In particular, I accept that the manager did indicate in the telephone conversation on 28 December that the allegations were “serious” and bordered on “sexual assault”.
In all the circumstances I do not find the summary dismissal of the Applicant in any way harsh, unjust or unreasonable.
I am fortified in that conclusion by the statements of all the judges in Byrne and Frew and Australian Airlines Limited in the passages cited by Mr L’Estrange. These same passages were cited by Von Doussa J in Puccio and Catholic Education Office and Catholic Endowment Society (Incorporated), a decision of this Court as yet unreported. It is Decision 198 of 1996 (17 May 1996). At 32 the learned judge states:
“It does not necessarily follow that because a shortcoming is demonstrated in the procedures followed by the employer to bring about the dismissal, that the dismissal occurred in contravention of the Act. If the established facts show that the employer had a valid reason for dismissal, and the fact of dismissal in all the circumstances is not harsh, unjust or unreasonable, there is no contravention even though the employer’s procedures are open to criticism: Byrne and Anor. v Australian Airlines Limited (1995) 131 ALR 422 at 433 and 462 to 464.”
In this case, for the reasons already given, I am satisfied that the conduct of the Applicant constituted a valid reason for dismissal and that, in all the circumstances, the dismissal was not harsh, unjust or unreasonable.
In my opinion the application should be dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
That the application be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding 10 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.
Associate:
Dated: 3 June 1996
Solicitors for the Applicant: McKean & Park
Counsel for the Applicant: Ms J Patrick
Solicitors for the Respondent: Bailey Timms & Nicholson
Counsel for the Respondent: Mr P L’Estrange
Date of hearing: 30 May 1996
Date of judgment: 31 May 1996
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