Brian Gerard "Mick" Doyle and Western Suburbs District Rugby League Football Club Ltd

INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

SYDNEY DISTRICT REGISTRY N^o. NI 527 OF 1994

BETWEEN
BRIAN GERARD “MICK” DOYLE
Applicant

AND
WESTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB LTD
Respondent

Coram: Patch JR
Place: Sydney

Date: 25 November 1994

MINUTES OF ORDER

That the termination of the Applicant’s employment by the Respondent contravened s. 170DC, s. 170DE (1), and s. 170DE (2) of the Industrial Relations Act 1988;
That the Applicant be reinstated by the Respondent by being reappointed to the position        occupied by him immediately before the termination of his employment, and that that    reinstatement take effect forthwith;
That the Respondent, on or before 21 November 1994, pay to the Applicant the sum of         $10,590.04, for remuneration lost by the Applicant because of the termination of his     employment;
That the period from 27 June 1994 to 31 October 1994, inclusive, be treated, for all purposes, as        continuous employment of the Applicant by the Respondent in the position occupied by the     Applicant immediately before the termination of his employment.

Note: Settlement and entry of orders is to be dealt with in accordance with Order 36 Of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

SYDNEY DISTRICT REGISTRY N^o. NI 527 OF 1994

BETWEEN
BRIAN GERARD “MICK” DOYLE
Applicant

AND
WESTERN SUBURBS DISTRICT RUGBY LEAGUE FOOTBALL CLUB LTD
Respondent

Coram: Patch JR

Place: Sydney

Date: 25 November 1994

REASONS FOR JUDGMENT

This is an application under section 170EA of the Industrial Relations Act 1988 (“The Act”).

The Applicant seeks the following orders:

(a) An order declaring the termination of the employer’s employment of the employee to have contravened Division 3 of Part VIA of the Act;

(b) An order requiring the Respondent to reinstate the employee in employment; and

(c) An order that the Respondent pay compensation to the employee.

Such other order or orders as will put the employee in the same position (as nearly as can be done) as if the employment of the employee by the Respondent had not been terminated.

On 31 October 1994, I made various orders. I now publish my reasons.

THE EVIDENCE

It was not in dispute that, from 11 July 1992 until 27 June 1994, the Applicant was employed by the Respondent as the Respondent’s Coaching and Development Officer. As such he was the club official with principal responsibility for the coaching and development of the junior teams, and players.

It was also not in dispute that the Applicant’s employment was terminated by the Respondent on 27 June 1994.

On 24 June 1994, the Applicant gave a speech at the presentation evening for the junior representative teams of the Western Suburb District Rugby League. There were 3 such teams - the Under 15’s, the Under 17’s, and the Under 19’s. The Under 15’s were also called the “Harold Matthew’s” squad, as that was the name of the competition they played in.

In Paragraph 2(e) of his affidavit sworn 11 July 1994, the Applicant said:

“The reason given by the Respondent for summarily dismissing me was that I had allegedly made comments in the speech at the presentation night for the Junior League on 24 June 1994 which had upset certain people.”

In Paragraph 2(c) of his affidavit, made 1 August 1994, Steven Noyce, the Secretary (that is to say, Chief Executive Officer) of the Respondent said:

“The reasons for the termination of the Applicant’s employment were comments made in a speech at the presentation night of the Junior League on the 24th June, 1994, which constituted serious misconduct and were contrary to the employed position that the Applicant held.”

The issues as to what the Applicant said in that speech, and why he said them, were therefore of central importance in the hearing of the case.

In his second affidavit, sworn 6 October 1994, the Applicant went into some detail on what he had said on the night of 24 June 1994, and the events surrounding his speech. He said:

“On Friday the 24th of June 1994 at approximately 3 pm, I was approached by Ms Jackie Small, the Club’s Function and Sponsors Manager, to inquire whether I would be prepared to give a report on the Rugby League year at a function arranged for the under 15, under 17 and under 19 Junior Representative Teams which was being held that evening.
I spoke immediately after the Chairman of the Club and after thanking sponsors for their Support I discussed the years performance. In discussing the performance of the Under 15 side I commented that the side commenced the season with great promise and described the teams that had defeated (sic) in trial matches. I commented that a number of players commenced the year with as much promise as I had seen in players of that age. I mentioned that at the beginning of the year the teams performance was such that they could be confident of making the finals. I expressed regret at the teams performance during the year and noted that they came tenth after being beaten by teams which, in my opinion they could have easily defeated. In the context of that overall account I said that the boys had been a disappointment to what they expected from themselves, and by their families and the club.
My sole purpose in making my comments was to firstly let the boys know that they had real potential and then to state in the clearest terms that they had not lived up to that potential. I meant to be blunt and to the point as I saw no point in deluding them as to what was required if they were to be successful individually and as a team. In the context where the boys know me for speaking honestly and directly I saw it as counter productive for me to bestow honour and praise for simply being selected as representative players. Such comments from me would have been seen as shallow and would not have encouraged required effort and dedication.
While I had my reasons for making my comments I appreciate that I should have been more diplomatic and in retrospect my comments were inappropriate.
During the course of the evening on the 24th June I was approached by one of the parents of the Under 15 side and he criticised me for my comments. I endeavoured to express that I did not wish to cause offence but had made my comments to get the boys to live up to their full potential”.

The Applicant also gave oral evidence. He said that he had never previously been asked to speak at a social function of the club. He said that, in addition to making some comments about the under 15’ s representative side (it was these comments for which his employment was terminated), he also made some comments about the under 17s and the under 19s. He also said:

“I also made a comment about a trainer that we had there, a Mr Laurie Farrugia, and I commented on the coach’s 3 sides.”

The Applicant denied that he had made any reference to any individual players. When asked about this he said that he had said:

“Nothing individually, it was collectively.”

He gave the following evidence:

Q: Did you read from any document when making your speech?

A:I did read off the back of the program that was provided which had the sponsors’ names on it and I read the sponsors’ names out.

Q: Why did you do that?

A:Well the Chairman, when he had given his speech previously, had said that he couldn’t remember who the sponsors were and they knew who they were so it didn’t matter, and he had thanked the kids for winning the competition, which they hadn’t done. So when I got up to give the speech I thought I better make sure that the sponsors get - who are sponsoring Western Suburb do get a mention. I was only trying to cover for him, actually.

Q: “Did you read from any other document?”

A: “No.”

The Applicant was asked the purpose of the comments that he had made and gave the following answer:

“Well, I think in the position I was employed in as a Coach and the Development Manager, I’d seen all those kids from last years. I’d seen them on trial, I’d seen them play all the games of football, I’d seen them trial this year and how well they had performed and the high expectations that myself and the club did have on them in the competition proper and after the six rounds of the competition, after they had won only one game and drew one, they were very disappointing, after showing what they could have done in the trials and then in the games they just didn’t put in.”

The Applicant also said:

“Natural ability will get you to a certain degree but after that it’s just hard work and generally what I was trying to tell them was that if you do put in the hard work, you do keep your discipline off and on the field, you had the ability to play the game to a higher level that what they were at the time.”

The Applicant went on to say that he had always attended the training sessions for the under 15s side and that he “just knew that they just weren’t giving a 100% of training”.

He also gave evidence about some disciplinary problems which had occurred in relation to the under 15’s side.

He was asked what the relationship between the players was like and answered as follows:

“There was animosity between the players. The side was made up ... primarily of two sides, one from Eaglevale St Andrews and one from Macarthur Saints and they’d been the two top sides in their age group for the last three or four years and they’d played off in the Grand Finals ... so we had animosity between them and on two occasions the coach had come to see me and asked me would I go up and talk to them about the animosity between them that they had to pull together as a side”.

The Applicant, when giving evidence in chief, denied ever using the words “a bloody disgrace” during his speech.

The Applicant was cross-examined at length.

A considerable part of that cross-examination focused on what was said by the Respondent to be aspects of the Applicant’s speech which amounted to divergences by the Applicant from the “policies” of the Club in respect of the junior representative teams.

It was argued on behalf of the Respondent that the termination of the Applicant’s employment was for a valid reason at least partly because the Applicant had, in his speech on 24 June, breached the policies of the Club in respect of the junior representative teams.

The particular problem that the Respondent said it had with the Applicant’s speech (in respect of a supposed breach of the Club’s policies) was that it was claimed that the speech somehow asserted that the under 15 side in particular had to “win at all costs”.

The Applicant was asked this question:

Q.“But you understand the policy of the Western Suburbs Club was, in relation to its under 15 side, in relation to its junior teams, but in particular I refer to the under 15’s side, was not to win at all costs but also to create an atmosphere of which the players would enjoy the game of rugby league, a development role”?
In relation to that proposition the Applicant said as follows:
A.“Certainly, but I don’t think you’re going to enjoy getting beat 58-nil if you don’t try”.

He also said, “That was my policy, that wasn’t the Club’s policy. My policy is for the kids to enjoy themselves, you’re dead right there.”

He also said, “Course they’re in to enjoy themselves. We’re talking about a rep side here, we’re not talking about an under 14 division 3 side of kids who get out there and have fun at the game, you’re talking about your first representative - or some of these kids have played for three years representative side, some of these kids have represented NSW Combined High Schools, so they were pretty good footballers.”

The question of whether or not the Applicant’s speech had somehow breached the “policies” of the Club in respect of the U15 side was the subject of a considerable body of evidence in the Respondent’s case, to which I will return.

In cross-examination, the Applicant agreed that he had said that “the under 15s side had let down the Club as a whole”. He also agreed that he had said that “the boys, the players in that team, both individually and as a team lacked a sense of discipline both on and off the field”. He agreed that, in hindsight, those comments were “inappropriate”.

He agreed with the proposition that the comments that he did make “were inappropriately made in front of the parents of the boys”, but disagreed that the boys had been embarrassed or discouraged by the comments.

The Applicant was asked this question:

Q. “Why did you think it was necessary to make those comments at that presentation night.”?

A.“It was an off the cuff speech. It was the last time I was going to see them. I wouldn’t see them again until, say, March of 1995. The kids knew how much time I’d spent with them. They knew my attitude towards them because I’d been to training. It wasn’t the first time it was said to them. It still didn’t make any difference. They had been spoken to by their junior rep secretary about exactly the same thing. They had been spoken to by their coach about exactly the same thing.”

The overall effect of the Applicant’s evidence was that he agreed that it was inappropriate to make the comments he did in his speech in front of the parents of the players, but that the comments themselves were fair and accurate - that it would be fair to say that they were the sorts of comments that would better have been made in the dressing room during or after a match.

Mr Robert Prenter was called by the Applicant. He was the master of ceremonies at the presentation night on 24 June. He was also a “representative of a major sponsor of the Club”. That sponsor is Ampol. He was asked:

Q. “What was (sic) the general topics covered in Mr Doyle’s speech.?

A.“Well, there are three age groups that this night was to make presentations to, the representative junior teams from the western suburbs competition. ... he gave a bit of a history on each age group ... and said how they went through the year and when he came to Harold Mathew’s he said that they were a bunch of boys, a group of young men he called them actually, with outstanding ability if they applied themselves and he said that ... if they were going to go anywhere in life, both in private life and their football sporting careers, then they want to have a good look at themselves over the off season if they’re going to come back to West’s next year. He believed they had a lot of ability but that it was being channelled in the wrong areas.”

He was also asked this:

Q. “Was it your impression that Mr Doyle was trying to ridicule anyone.”?

A.“No, I wasn’t aware of any problems at the time that existed in that representative team. I have since become aware of certain aspects of their behaviour. But I admired him for what he said for his frankness. I thought that he was quite open and fair about the whole thing. I mean ... if there was a problem there, he put it to them quite diplomatically and upfront.”

Mr Prenter was asked in cross examination if he recalled the Applicant using the words “bloody disgraceful” to describe the performance of the under 15 team, and he said, “no, no, I don’t”. He was also asked:

Q. Do you recall him making any other comments in terms of the under 15’s team in terms of their performance apart from the comments that you have already told the Court earlier on in your evidence.”

A. “No, his comments basically were just about their application throughout the year.”

Mr Paul Lake was called by the Applicant. He is the Chairman of the Western Suburbs Junior Rugby League Ltd. In that capacity he has had, since the beginning of Mr Doyle’s employment, regular and frequent contact with Mr Doyle. He strongly supported the reinstatement of the Applicant.

In his affidavit made 7 October 1994 he stated that the board of the Western Suburbs Junior Rugby League Ltd had, on Friday 1 July 1994, “unanimously resolved to express confidence in Mr Doyle and resolved to seek a meeting with the Board of the Respondent company with a view to attempting to ensure continuity of Mr Doyle’s employment.”

Paragraph 5 of that same affidavit is as follows:

“On or about Tuesday the 20th day of September, 1994 I attended a meeting of the Secretaries of Clubs involved in the Western Suburbs Junior League Ltd. Ten (10 ) Clubs were represented at the meeting and all Secretaries there in attendance voiced there continuing support for Mr Doyle and specifically expressed the desire that he continue in his employment as Development Officer.”

His affidavit went on to say that, on 27 September 1994, the Board of the Junior Rugby League had again expressed its support for the reinstatement of Mr Doyle.

Paragraph 7 of his affidavit is as follows:

“It is my experience that Mr Doyle has been devoted to his job as Development Officer. He has worked extremely long hours and very effectively. The communication I have received from member clubs of Western Suburbs Junior Rugby League Ltd indicates that there is widespread support for Mr Doyle and a desire that he be reinstated to his position as Development Officer.”

Paragraph 8 of his affidavit is as follows:

“I personally regard the termination of Mr Doyle’s employment as a real loss to the youth of the Western Suburbs who are involved in Rugby League.”

Mr Lake was present on 24 June when the Applicant made his speech. He was asked if it was his impression that Mr Doyle attempted to ridicule anyone, and said: “I don’t believe he ridiculed anyone at all.” He gave this evidence:

Q “What was Mr Doyle’s tone in making the speech”?

A “I suppose his tone would be just a normal tone in making a speech, just a general speech that I would normally make at any presentation night on behalf of the Junior League. Just normal tone, normal speech that Mick normally makes.”

In cross-examination, he was asked whether the comments that the Applicant had made about the Under 15s team “would have been embarrassing for the players of that team and their parents?” He answered: “I was surprised because the first time, I suppose, that somebody has been open about actually representative sides.” He was asked if he would agree that the comments that Mr Doyle made “were offensive insofar as they refer to the Under 15s players”. He answered: “What I remember of the comments etc. there was no individual singled out. It was regarding the team and their performance and not performing up to expectation. I don’t know that I would take that as being offensive. I’d take that as probably a point of view of the development that he saw how the team performed, but I don’t know if I would take it as offensive in that sense, not in my eyes anyway and what I think is offensive.” He then gave this evidence:

Q “Would you say that the comments that Mr Doyle were made was inappropriate in the forum in which he expressed them?”

A “I might say that, yes. I would agree that it is inappropriate at that type of forum.”

He was asked if he recalled the applicant using the words “bloody disgraceful” to describe the performance of the players in the Under 15s side. He said that he did not recall that and that if it had been said he would have recalled it.

Mrs Julie Luke was called by the Applicant. She is the Executive Officer of the Western Suburbs Junior Rugby League Ltd.

Her affidavit made 6 October 1994 was tendered. She said that she had a close working relationship with the applicant and, in paragraph 4 of her affidavit, said: “Mr Doyle has performed his duties extremely enthusiastically and competently and has made a great contribution to Junior Rugby League in the district.” Paragraph 5 of her affidavit said in part: “Mr Doyle has the overwhelming support of participants in the Western Suburbs Junior Rugby League.”

Annexed to her affidavit where letters of support for Mr Doyle from clubs which participated in the Western Suburbs Junior Rugby League competition. There were 15 such letters.

The evidence of Mr Lake and Mrs Luke clearly establishes that Mr Doyle does indeed have the “overwhelming support of participants in the Western Suburbs Junior Rugby League.”

These are the people with whom Mr Doyle would have to work closely if he were reinstated, and the fact that he has such a degree of support from them is an important consideration in respect to the question of whether it is impractical to order the reinstatement of Mr Doyle to his former position.

She was also present at the function 24 June and heard Mr Doyle’s speech. She gave this evidence:

Q “Mrs Luke, in your impression, did Mr Doyle seek to ridicule anybody during the course of his speech?”

A “No, I don’t think so.”

Q “What tone was used by Mr Doyle?”

A Disappointed I’d say mostly. He didn’t single out a person, or player, he spoke collectively of a side of disappointed of their achievements.”

She also said that she was “disappointed and astonished that Mick made the comments that he made at the time”. She denied that the applicant had made reference to any particular persons as individuals and agreed that the comments the applicant made “were inappropriate for the forum.” However, in her next answer, she said that she did not believe that the comments had the potential to cause great damage to the Junior Rugby League.

Subsequently, Mrs Luke was asked if she would agree, “that the comments Mr Doyle made were derogatory, humiliating and degrading to both the players and coaching staff as well as extremely embarrassing to the guests attending the presentation?”

A “ I don’t say degrading, I wouldn’t say derogatory.”

Q “Would you say humiliating?”

A “I would say embarrassing, I wouldn’t say humiliating.”

Q “Would you say extremely embarrassing?”

A “Embarrassing, I said.”

When asked to whom they were embarrassing she replied, “they would have been embarrassing to the parents of the players”. She went on to say, “my opinion is it was embarrassing and disappointment to the parents of those children. It was not the forum for it, which I have said before.”

She was asked if she would agree that while the speech was being made the boys had “their heads down in humiliation”, and whether this was “sickening and not in the spirit of Rugby League”. She gave this evidence:

A “Well, I’d have to disagree, because there was players laughing”.

Q “Players of the Under 15 team?”

A “That’s correct.”

The first witness for the respondent was Mr Wayne Ellis. He is the football manager of the Respondent club. His affidavit sworn 1 August 1994 became Exhibit “J” in the proceedings.

He was not present at the presentation night on 24 June.

Paragraphs 4 and 5 of the affidavit were as follows: “Following the completion of the representative season for the Harold Mathew’s Under 15 side, discussion took place between myself, the Applicant, and Mr Steepen Noyce.”

“These discussions centred around the problems experienced with the failure of the Harold Mathew’s Under 15 representative side to compete at the level which had been expected of them before the start of the season.”

It was, therefore, common ground that the Under 15 side had performed poorly that season.

Mr Ellis agreed that Mr Doyle had performed his job satisfactorily prior to the termination of his employment, and said that he would be able to work with him if Mr Doyle was reinstated. Again, this is an important consideration in respect to the question of whether it is impractical to order Mr Doyle’s reinstatement.

On the question of reinstatement, he gave the following further evidence:

Q “What is your view of the practicality of Mr Doyle being reinstated to his position as Coaching and Development Officer?”

A “I think that we have a situation now where it seems to me that there is so much rancour between Mr Doyle and Mr Noyce that it could make it untenable for a situation to start up again. That is to me regretful.”

The above occurred in examination-in-chief.

In re-examination the following occurred;

Q “Earlier in your evidence in a question asked by myself you told the court that if Mr Doyle was to be reinstated it would be an untenable position; were they the words that you used?”

A “Yes”

Q “What did you mean by that?”

A “I just mean it would be untenable for Mr Doyle and the Club Chief Executive to have to interact in a workplace environment and a social environment because of the ramification .....”

Q “Is it a small working environment?”

A “Sure the ramifications that have gone on so far in this case”

Q “In your opinion, would that untenable situation create difficulties for the working of the club?”

A “Well, the largest group of difficulties it would create would be between those two gentlemen”.

Q “And in your opinion, would it create difficulties for the performance of the duties of the Coaching and Development Officer?”

A “No, I couldn’t say, I couldn’t say honestly that it would, no, no to be truthful, no.”

Q “Are you of the opinion that if Mr Doyle was reinstated to his position he would be able to perform his duties adequately - given these proceedings?”

A Well, as I said before, given these proceedings and the rancour that there is between the two gentlemen that I imagine that it would create difficulties in the working environment. I mean, you don’t have to be probably Einstein to work out that there is not much love lost between Mr Noyce and Mr Doyle, and after having these proceedings think it would make it difficult to have a working environment with those two gentlemen, and as I say, I mean, that goes without saying.”

It is important to analyse the evidence of Mr Ellis carefully.

Firstly, Mr Ellis did not agree that it “would create difficulties for the performance of the duties of the Coaching and Development Officer” if the applicant were to be reinstated.

Secondly, the only difficulties that would be created by the reinstatement of Mr Doyle would be in relation to the personal interactions between the applicant and Mr Steven Noyce. He himself would have no difficulties working with Mr Doyle.

Thirdly, those difficulties are entirely the result of the termination of Mr Doyle’s employment and the institution of these proceedings. It is important to note in this respect that no evidence has been adduced establishing that the applicant has done or said anything since the termination of his employment which could be said to have induced what Mr Ellis calls “rancour” on behalf of Mr Noyce - apart from the institution and maintenance of these proceedings.

I will return to the question of reinstatement later in this judgement.

The next witness for the respondent was Mr Steven Noyce, the Secretary (Chief Executive Officer) of the Respondent club. He was the Club official who terminated the employment of the Applicant, and was the “key” witness in the Respondent’s case.

He was present when Mr Doyle made his speech on 24 June 1994.

A large part of his evidence had to do with supposed breaches of the Club’s policies in relation to the U15 team which Mr Doyle had committed during his speech. He was asked this:

Q “What was the concern that you had about the speech that Mr Doyle gave that night?”

A “I believe that the speech was against the policies of the District Club against the policies of senior management and was damaging to the Club.”

Q “When you say speech that Mr Doyle gave was against the policies of the Club what do you mean by that?”

A “In relation to on field performance. That’s not the barometer that we use to measure success at Western Suburbs. The younger players, that’s their first formal year of Junior Representative Football and hopefully a stepping stone for playing for Western Suburbs throughout their senior football career and also their first year of their junior league apprenticeship at which time their are other skill factors that we think are more important than just on field results.” .

Mr Noyce also gave this evidence:

Q “The conduct of Mr Doyle on 24 June 1994 at the presentation night, in your view, did that contravene or offend the role of Junior Development Officer with the Club?”

A “Yes very much so.”

Q “How did that conduct contravene or offend the role of Development Officer?”

A “Obviously with the entrustment of the development of these young men we play an important role in making them and their lives go forward. Depending on what age they are they have either only started out, and if we were talking about the under 15s, they have only just started out in their goal to play Winfield Cup football. As young men at age 14 I guess they’re reaching that stage in life where, you know, things are starting to change for them, they’re starting to develop differently from when they were young, of course. The - I’ve spoken previously when giving evidence about what the role of that particular evening was about. It certainly was about, again, looking forward and not looking backwards. It was about praise. It was about acknowledging that Wests very much feel for these boys and want them to be part of our future, not just today, not just tomorrow, but for a long, long time. The night was special because, again as I have said earlier, there were a number of hand-picked sponsors who were there. Football is a business. It requires money to run the sport and it is important that those people understand what the philosophy of the club is; what work people involved - their main role is the development of those young people. I guess you are showing - it is a showcase to those people to provide financial support. Parental support is obviously important. Our role doesn’t take over from the parents in terms of off field development. It runs with them. Obviously in some cases, you know, there are parental problems and we’re there to provide some guidance. So it is important again on the night that when the parents are there that we again talk about going forward and be positive and portray all the virtues and philosophies and policies of the club. A number of officials who were there give of their time in a voluntary capacity and again it is a way of saying thank you to them; thank you for the work you’ve done in helping, you know, someone like Mr Doyle who, full time, has a number of jobs. It is important we thank those officials again, show them the way to go forward; show them what the club is about, and also there were representatives of my board, the district club board, who are attendants on the evening. They, again, give up their time. Through their efforts and the efforts of our two leagues club and staff we raise in the vicinity of $4.3 million to run our business and again and especially for Western Suburbs, because of the focus we have on youth development, again it gives them a night to feel proud of what we are doing to develop these young men and make them proud to play for Western Suburbs. We had other people representing the junior league board. A number of those people have been involved in these proceedings. Of a weekend a lot of these - the majority of these players represent various junior league clubs and play under the banner of the Western Suburbs Junior League. Again, they have a role in the overall development of these people and again it gives them the opportunity to come to this night and feel very proud to be part of an association that treats its boys well and wants to go forward with them. So for all those reasons I found Mr Doyle’s comments to be contrary to everything that the club believed in and that myself, as chief executive, believed in.”

I have quoted that answer in full because, although it is long and convoluted, it neatly illustrates two things:

When asked specific questions by the Respondent’s counsel in an attempt to focus on the particular way in which the Applicant’s speech constituted misconduct, Mr Noyce was simply unable to specify anything of real substance;

In his evidence he consistently overstated his position. In particular, the last sentence, “so for all those reasons I found Mr Doyle’s comments to be contrary to everything that the club believed in and that myself, as chief executive, believed in,” is an obvious overstatement. To put it in the vernacular he had a tendency to “gild the lily” if to do so would bolster the Respondent’s case - a case which he regarded, for all practical purposes, as his own.

At another point in his evidence, Mr Noyce was asked this question:

Q “What was the aspects of Mr Doyle’s speech that caused you concern?”

His answer to that was another mini-speech about how the junior representative teams, in particular the Harold Mathew’s (Under 15) team had performed in the year and how it is important to give boys the opportunity to develop themselves at that age, and the steps that were taken following the unsuccessful year that the Under 15 team had had in order to improve their coaching and training for the next season. His answer really had nothing at all to do with the contents of Mr Doyle’s speech.

Once again, Mr Noyce was simply unable to pinpoint anything concrete that Mr Doyle had said in his speech that was of such a serious nature as to warrant Mr Doyle’s dismissal. Attempts by the Club’s counsel to adduce evidence of that nature failed repeatedly.

In re-examination Mr Noyce was asked this:

Q “The fact that Mr Doyle made comments in relation to the Under 15 team, did that cause you concern about his fitness to be the Development Officer of the Club?”

A “Yes it did”

He was then asked why that was so, and again gave a long explanation, concerning the supposed breaches of the Club’s policies in relation to the Under 15 side. But again, he was unable to be specific.

The subject of supposed breaches of Club policy was first mentioned in paragraph 2 (c) of Mr Noyce’s affidavit dated 1 August 1994 (quoted above).

In paragraph 2 (d) of that affidavit Mr Noyce also said:

“the speech contained remarks which were highly offensive and embarrassing to the players in the junior representative teams, the parents of those players, the Members of the Boards of both the Junior Rugby League and the District Rugby League, and to various sponsors, all of whom were in attendance on the evening of 24 June, 1994.”

Mr Noyce made two affidavits: one on 1 August 1994 and another on 10 October 1994. In neither of those affidavits did he say that he spoke to Mr Doyle concerning any alleged breach of the policies of the club in relation to the Junior Representative teams before he terminated Mr Doyle’s employment.

Mr Noyce gave extensive evidence, both in examination-in-chief and in cross-examination. But it was not until he was re-examined that he gave any evidence that he had said, in the discussions leading up to the termination of the Applicant’s employment, anything to Mr Doyle concerning these alleged breaches of policy. If this was of such central importance, one would expect that Mr Noyce would have made it clear, at the first available opportunity, that he had raised the matter Doyle prior to the termination of his employment.

The Applicant denied that Mr Noyce had raised the question of any breaches of Club policy with him prior to the termination of his employment.

I do not accept Mr Noyce when he says that supposed breaches of the Club’s policies were discussed with Mr Doyle prior to the termination of his employment. I find that the assertion that this was done is an attempt, after the event, and after the commencement of these proceedings, to justify the termination of Mr Doyle’s employment.

Furthermore, if Mr Noyce was so seriously concerned about Mr Doyle’s supposed serious breaches of club policy, one would expect that Mr Noyce would have spoken directly to Mr Doyle about it.

I find that the attempt by the Respondent to assert that a reason for the termination of the Applicant’s employment was a supposed breach of the policies of the Club in relation to the junior representative teams is an attempt, after the event, to bolster their case. I do not believe Mr Noyce when he says that supposed breaches of the Club’s policies had something to do with the termination of the Applicant’s employment.

Mr Noyce gave this evidence:

Q “On the presentation night 24 June 1994, did Mr Doyle make comments in his speech about the personal and football qualities of the players of the Under 15 Harold Mathew’s representative side?”

A “He didn’t talk about any one player individually, but spoke about certain characteristics of the team both on and off the field.”

Q “When you say certain characteristics what do you mean by that?”

A “He spoke about the failure to win games that were expected normally football expectations at that age are obviously from adults so he spoke about that aspect he spoke about discipline, lack of, sorry, lack of discipline both on and off the field. He spoke about a lack of respect of the coach and the management people that were involved in that team.”

Q “That was the lack of respect of the coach, did you say?’

A “Towards the coach and the other management people involved with that team.”

Q “By the players?”

A “By the players. He spoke about difficulties at training in terms of attendance and attitude. I mean, the speech obviously went longer than the things that I’ve just said but I think, you know, you sort of got shellshocked”

Q “The things that you’ve just told the court, are they the things that Mr Doyle addressed?”

A “They were. There were other topics but those ones were specifically mentioned”.

It is interesting that the Applicant was cross-examined by counsel for the Respondent to the effect that he had indeed made remarks concerning individual players. This was presumably done on instructions. If that was the case, then one would expect that evidence would be adduced in the Respondent’s case to that effect. No such evidence was ever adduced.

The above evidence of Mr Noyce is as specific as he ever got. There seems, in fact, except for the possible use of the words “bloody disgraceful” by Mr Doyle in his speech, very little difference between the Applicant’s version of what was said and the version given by the witnesses for the Respondent

Even if I were to accept Mr Noyce when he says that he spoke to Mr Doyle about serious breaches of Club policy, and that this was a reason for the termination of Mr Doyle’s employment, I would find that there was no basis for Mr Noyce reaching such a conclusion.

No specific words were ever put to the Applicant by which it could be concluded that he had said in his speech that the under 15 representative side was expected “to win at all cost”. Nor is there any evidence that such words were ever said by him.

I find as a fact that the Applicant neither said words which, examined objectively, could have had that effect, nor said any words intending them to have such an effect.

I accept that Mr Noyce was very concerned about what he perceived to be the effect that Mr Doyle’s speech had had on the parents and sponsors who where present on the 24 June. I accept that a number of parents and sponsors on the night, and subsequently, did complain to Mr Noyce about the speech.

However, when pressed in cross-examination, the impression that Mr Noyce had given during his examination-in-chief of a large number of serious complaints was shattered. Instead, it was established that the fact of the matter was that there were a relatively small number of complaints. When pressed in cross-examination to specify the complaints that the parents had made Mr Noyce had this to say “the parents obviously take it personally when you criticise offspring, and a number of the people took personal offence that their son - that the discipline - in one instance- that the discipline of their children was questioned by Mr Doyle, and obviously they believed that a parental type role and a criticism of the role they play as parents.” When pressed, Mr Noyce was able to specifically name three parents who had specifically complained to him to the effect “that Mr Doyle didn’t have the right to criticise her son, her son’s off-field discipline”. And said that there were “a couple of other mothers” who said that.

In addition to that he gave evidence that a number of parents (his evidence was not clear but certainly no more than 5, and probably only 3) came up to him on the night of Mr Doyle’s speech and complained.

For example, one mother came up to him and said “I was going allright till that bloke got up and had a go at my boy”. Two of the parents who complained on the night were the husbands of women who telephoned Mr Noyce in the days after the speech to complain. These 4 parents have children in the same junior rugby club (Macarthur Saints) that Mr Noyce’s son is a member of. I believe that this close association was a factor which led to Mr Noyce over-stating the seriousness of the effect of Mr Doyle’s speech.

When Mr Noyce was specifically asked to list the complaints from parents that he had repeated to the Applicant, he said this “well, again, criticism that the development manager was trying to play a parental - or criticise the parental role in the boys off-field development; criticising their ability to play the game of rugby league individually and as a team; that they hadn’t - that they hadn’t represented there club with pride; that the forum-that the forum was not the place to, you know, bring up those sort of - sort of issues; parents were concerned - sorry, I said to Mr Doyle why was all the blame put at the feet of the young boys, surely there were other people that played a part in non-performance if that was what he believed to me the case. That’s - I don’t know, there’s probably more of them ......”

Later in cross-examination Mr Noyce agreed that it was the phrase “lack discipline on and off the field” which, in his opinion, had given rise to the criticism by some parents that Mr Doyle was interfering in their role.

It is important to note that it has not been established that any damage had been done to the Club, or to the Junior League, as a result of the speech - apart from the fuss which occurred in the days following the Applicant’s speech, which hardly fits into the category of “damage”. In particular, no evidence was adduced suggesting that sponsors had withdrawn any support - yet Mr Noyce, at several points in his evidence, expressed concern at the reaction of the sponsors who had been present during the speech.

Finally, it was apparent that Mr Noyce was very concerned with maintaining his authority as the Chief Executive Officer of the Respondent Club, and he felt that his authority had been undermined by what he perceived to be a challenge to it constituted by the implementation by these proceedings. It is clear that Mr Noyce believed that “winning” these proceedings was very important to him, personally and professionally.

The next witness for the respondent was Mr Emmanuel Farrugia. He was a former trainer with the Western Suburbs Junior sides. He was present at the presentation night on 24 June 1994. He could not remember the actual words used by Mr Doyle, but gave evidence that Mr Doyle’s speech had contained terminology to the following effect::

“I’d like to start off with the Harold Mathew’s side. Here we had a team that promised so much and delivered so little.”

“This team was a disgrace to Western Suburbs. This team was a disgrace to their coach. This team was a disgrace to their trainers and their manager.”

“Well, they’ve got their tracksuits now, and I hope they live with that tracksuit.”

“These boys have to look deep into their own soles and minds and hearts and asked why they didn’t perform.”

It was never put to Mr Doyle that he had actually said the team was a disgrace to Western Suburbs, to their coach, to their trainers or to their manager - although it was put to him that he used the word “bloody disgrace”. As these words were not put to Mr Doyle when he was cross-examined by counsel for the Respondent, I give Mr Farrugia’s evidence in this respect very little weight.

Even if one were to except everything that Mr Farrugia said in his evidence concerning what Mr Doyle said in his speech on the 24 June, there is nothing in that evidence which would prove that Mr Doyle’s speech was conduct amounting to a valid reason for the termination of his employment.

On the question of the practically of Mr Doyle’s statement, Mr Farrugia gave evidence that he was not aware, until it was put to him in cross-examination, that Mr Doyle himself now concedes that his comments on the evening were inappropriate.

His attitude to working with Mr Doyle in the future underwent a change as soon as he was informed of that fact. He said:

“If you’re asking me would I work with Mr Doyle again in the future, given what you just said, the possibility would be yes, but that would depend on me and Mr Doyle coming to terms with that.”

The next witness called by the Respondent was Mr Raymond Corkery. He is the Chairman of the Western Suburbs Leagues Club at Campbelltown.

There are two leagues clubs affiliated to Wests. Firstly, there is their “traditional” home base at Ashfield. Secondly, about 8 years ago, as I understand it, they established another “home base” at Campbelltown.

He was present when Mr Doyle made his speech. However, he was unable to remember any of the words or phrases used by Mr Doyle during the speech.

He was able to say this: “Mr Doyle was speaking to the various teams and the tone of the speech was they hadn’t been very successful during the year, and that his words were intimating that they hadn’t lived up to their expectations nor their abilities.”

“He addressed the three teams in order of their presentations, and particularly, from memory, the youngest team. He was rather scathing of their efforts during the year.”

“The tone of the presentation part of it was that he was being sarcastic or scathing towards their efforts during the year; and I believe they were entitled to be encouraged and congratulated, rather than put down.”

Mr Corkery also gave evidence as to his opinion of what might happen if Mr Doyle were to be reinstated to his former position.

He was asked this question:

Q “If Mr Doyle was reinstated to the position as Development Officer of the Club, would that, in your view, affect the Leagues Club?”

A There are certain members of the Leagues Club that would not be very impressed with it to the extend, I would say, that we could lose some support from them.”

He was cross-examined about that and eventually it came down to this:

Q “And that is as high as you are putting it; you’ve got the feel that people would not come through the front door of the club?”

A “Yes”

He also gave evidence as to how Mr Doyle’s reinstatement might affect the relationship between the football club (the Respondent in these proceedings) and the Leagues Club (the organisation of which Mr Corkery is the Chairman). The Leagues Club provides funds to the Football Club, as it is the Leagues Club that owns and runs the licensed premises. He gave evidence as follows:

Q “If Mr Doyle was to be reinstated, would that jeopardise the relationship between the Leagues Club and the Football Club?”

A “Most certainly”.

When asked how, he said: “Well, the support that the Leagues Club can give the running of Junior League, besides facilities within the Club, obviously is financial assistance. Now, of the money that was spoken of earlier not all of that goes to Junior Representative development or use, it is also involved in the senior situation. But as a Chairman of the Board that is responsible to allocate funds, promulgate funds to League, be it the Senior League to use and Junior League or the Junior League Representative teams, I would find it difficult to be recommending that funds be allocated to a situation where Mr Doyle has been reinstated.”

In cross-examination, Mr Corkery’s attitude to funding the Football Club at first became harder. At first he said this; “I would go so far to say that we, as a board, would have to look carefully at our supplying of funds to the Football Club, in future if Mr Doyle is reinstated”.

He then gave this evidence:

Q “You would be prepared to recommend the withholding of funds to the Football Club if Mr Doyle was reinstated”?

A “Yes.”

Q “And solely on the basis of what you heard him say on 24 June?”

A “As a result of what was said on that date.”

However, when pressed, he was forced to significantly qualify what he had said:

Q “I put it to you that is a very poor business decision if that is the way you make business decisions?”

A “There’s also eight other Directors, isn’t there? I’m only one of them.”

Q “So you’re not sure your recommendation will be accepted is that right?”

A “It may not be. There are other Directors.”

Q “Right, so it is only your personal view?”

A “Yes.”

In his affidavit sworn 12 October 1994, Mr Corkery said nothing about the possibility of withholding funds from the Leagues Club. I regard that as a significant omission.

That, when taken together with the fact that, on analysis, Mr Corkery’s evidence as to that possibility became harder, or more extreme, the more questions he was asked, but then, under pressure, had to be qualified, leads me to conclude that he was exaggerating the possibility that that would occur. He is a friend and close working associate of Mr Noyce, and I believe that he, too, had a tendency to “gild the lily”.

An affidavit of Paul Wakeling was tendered (without objection - despite the fact that he was not available for cross-examination) and became Exhibit P.

I have regard to that affidavit as evidence in the case, but it must be accorded somewhat less weight than the evidence of those persons who were available for cross-examination.

Mr Wakeling is a sponsor of the Wests Football Club, and was present during the speech.

In his affidavit, Mr Wakeling said that it appeared to him that Mr Doyle was reading from a prepared transcript and that his comments were prepared and premeditated.

This was put to Mr Doyle, and there was some evidence as to one or two other witnesses’ belief that that was the case. However, there is nothing concrete to support that. No one gave evidence that they actually saw any substantive prepared script from which Mr Doyle was reading. It appears that he had scribbled a few notes on the back of the evening’s program, and read out the names of the sponsors which were printed on the back of the program. I do not accept that the speech was in any way made from a prepared transcript or was pre-planned in any but the briefest and most cursory way.

In paragraph 7 of his affidavit Mr Wakeling said this:

“the comments of Mr Doyle centred round the personal and football qualities of both the Junior Representative team and the team as a whole. Mr Doyle alleged that the Under 15 Representative side had failed to perform to their potential, had disappointed and let down the Western Suburbs Club as a whole and that the boys, both individually and as a team, lacked a sense of discipline both on and off the field.”

Subsequently, Mr Wakeling said, in paragraph 9 of his affidavit:

“the reaction of our table to the comments made by Mr Doyle was silence and astonishment. We were simply dumbstruck that as an evening designed to recognise and congratulate the efforts of the Junior Representative teams and the future of the Western Suburbs District Rugby League Football Club, that a representative of the Western Suburbs District Rugby League Football Club would stand before sponsors, players, parents, and other Board Members and proceed to harangue and insult the players so openly.”

The intemperate language that Mr Wakeling used in that paragraph significantly reduces his credit as a witness. No other witness accused Mr Doyle of “haranguing” and “insulting” the players. I do not accept that that occurred.

This, in turn, also leads me to significantly discount the value of his evidence when he says that the people at his table reacted with silence and astonishment and were dumbstruck.

Overall, with the exception of Mr Ellis, the Respondent’s witnesses were not impressive, They had a tendency to exaggerate, and make sweeping assertions which do not stand up to analysis.

The Applicant’s witnesses, including the Applicant himself, impressed me as witnesses who were willing to be frank and direct.

THE ISSUES

Did the Respondent breach the provisions of section 170DC of the Act?

ie: Given that the Applicant’s employment was terminated for reasons related to his conduct or performance:
(a)did the Respondent give him the opportunity to defend himself against the allegations which resulted in the termination of his employment;
or
(b)is it that the Respondent could not reasonably have been expected to give the Applicant that opportunity?

Did the Respondent breach the provisions of 170DE (1)?

ie: Was the Applicant’s employment terminated for a valid reason connected with his capacity or conduct?

Was the termination of the Applicant’s employment by the Respondent a breach of 170DE(2)?

ie: Was the termination “harsh, unjust or unreasonable?”

If the termination of the Respondent’s employment was unlawful, is reinstatement “impracticable”, as per section 170EE(2) of the Act?
What orders in respect of monetary payment by the Applicant to the Respondent should be made (in accordance with 170EE (1) or 170EE(2), as the case requires)?
What other orders, if any, should be made?

The Respondent submitted that the Applicant’s conduct on the evening was “serious misconduct”, such as to warrant his dismissal. The Applicant also addressed this issue. This reveals a misunderstanding of the legislation. The concept of “serious misconduct” arises under section 170DB (1) (b). The section provides that an employer is excused from giving notice, or compensation instead of notice, if:

“The employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period.”

The Applicant was given pay in lieu of notice. It is apparent that the parties have confused “serious misconduct” with “a valid reason” for the termination of employment under section 170DE (1) - although there may well be, when examining those phrases outside the context of the legislation, that there is much overlap in their everyday meaning.

Issue 1. Did the Respondent give the Applicant the opportunity to defend himself against the
allegations which resulted in the termination of his employment?

Section 170DC of the Act is as follows:

“An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:

(a) the employee has been given the opportunity to defend himself or herself against the allegations made; or

(b) the employer could not reasonably be expected to give the employee that opportunity.”

Mr Noyce, the Chief Executive Officer of the Respondent, the person whose decision it was to terminate the employment of the Applicant, had two meetings with the Applicant prior to informing the Applicant that his employment had been terminated. One of these was on 25 June 1994, and the other was at 8.30 on 27 June 1994. His employment was terminated at about 1.30pm on 27 June 1994.

It is apparent that Mr Noyce received a number of complaints from parents and sponsors who had been present at the presentation night on 24 June 1994. It is apparent that he reacted strongly to the receipt of those complaints.

Nonetheless, the evidence establishes that reactions varied. Mr Prenter, for example, was a sponsor and he thought that the Applicant’s comments were entirely appropriate.

The reaction of the parents has to be put into context. They were there with their sons, who had been chosen as district representatives. They were up and coming “stars”. It is not surprising, in that context, that they would react against any criticism of their sons. If there had been evidence which established that Mr Doyle had used words which were actually offensive, then his conduct would have been far more serious. But there is no suggestion at all that that was the case. Various of the Respondents witnesses used such words as “derogatory” “scathing” “humiliating” and “offensive” to describe what Mr Doyle had said. However, in the absence of any evidence as to words or phrases reasonably capable of having those effects, I find that the evidence as to reactions of that nature, is evidence of an over-reaction to a speech which more properly should have been made in another forum.

I find that the employment of the Applicant was terminated by the Respondent for a number of reasons, all centring around the affect that the Applicant’s speech had had on those present on 24 June 1994. These reasons were:

a) Mr Noyce was concerned about the content of the Applicant’s speech, because of the effect it had on those present; and
b) Mr Noyce believed that, at the meetings on 25 June and 27 June, the Respondent had not expressed sufficient remorse or apology to him for his speech.

I should here add that Mr Noyce has asserted in his evidence that one of the principal reasons why he terminated the Applicant’s employment was because of the breaches of Club policy contained in the Applicant’s speech. I do not believe Mr Noyce when he says that. The question of whether the Applicant was given the opportunity to defend himself against that allegation is thus irrelevant.

In respect of the first reason above I find that Mr Noyce spoke to the Applicant in the most general terms about the content of his speech, and about the reaction of the sponsors and parents. I find that he did not give the Applicant sufficient time to respond to those allegations, and did not specify those allegations sufficiently to enable the Applicant to respond to them.

I therefore find that (putting aside, for the moment, the question of whether this was a “valid reason” for the termination of the Applicant’s employment) that the Respondent did not give the Applicant an opportunity to defend himself against that allegation.

In respect of the second reason above, (again putting aside, for the moment, the question of whether this was a “valid reason” for the termination of the Applicant’s employment) there was no evidence that established that Mr Noyce had clearly required the Applicant to apologise, or show remorse in some way. The evidence did establish that Mr Noyce had repeated, in general terms, that some sponsors and parents had complained to him, and this may well have prompted Mr Doyle to offer (as I accept he did) to meet with the players and parents to try and defuse the situation. However, this falls well short of either Mr Noyce expressing some requirement for an apology or an expression of remorse, or Mr Noyce giving the Applicant the opportunity to respond to such a requirement.

I therefore find, in respect of the second reason above, that the Respondent did not give the Applicant an opportunity to defend himself against that particular allegation.

It follows that the Respondent has breached 170DC of the Act, and that, for this reason alone, the termination of the Applicant’s employment was unlawful.

Issue 2. Was the termination of the Applicant’s employment by the Respondent for a valid reason?

Section 170DE(1) of the Act is as follows:

“An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.”

The reasons for the termination of the Applicant’s employment are set out above.

In order to determine whether or not the content of the Applicant’s speech (and the affect that it had on those present) constituted a “valid reason” for the termination of his employment, it is necessary to decide what the Applicant said.

As I said earlier in this judgement, I find that the Applicant did not use the words “bloody disgrace” when describing the under 15 representative team, or their performance. It is possible that he used the word “disgrace”, but I find, on balance, that that was not said by him.

Even if the Applicant had used the words “bloody disgrace”, I would regard that as a relatively minor matter - certainly not a valid reason for his dismissal. Such terminology, in the Australia of today, is to be found in normal, everyday use. If the word “bloody” had been used by the Applicant, I would find that, in the context in which it was said, that it was not offensive - merely blunt, perhaps inappropriate, but not offensive.

In any event, the evidence leads me to conclude that he did not say those words.

I am unable to say from the evidence what particular phraseology Mr Doyle used in his speech. However, I am satisfied that he quite bluntly criticised the performance of the under 15 representative team. He criticised them for a lack of discipline, both on and off the field. He criticised them for showing a lack of respect to the coach. He criticised them for not trying hard enough, both in games and in training. He made it clear that, in his opinion, the team had failed to live up to the expectations that the Club had had of them at the beginning of the representative season. He made it clear that, in his opinion, they should have won more games than they did.

I do not accept that the Applicant said anything in relation to any particular individual player. He criticised the team collectively.

Furthermore, the Applicant’s motives in saying what he said were not improper. As he said in his affidavit and in his oral evidence, he wanted to make the boys aware that they had not lived up to their potential and that, if they were to live up to their potential, both in sport and in life, they had to apply themselves with greater diligence and dedication. He was simply trying to pull them into line. I do not believe that the Applicant was attempting to humiliate them or abuse them at all.

As I have said, the reaction of the parents was understandable. The annual presentation night was a night at which, normally speaking, the parents would have expected their sons to have received praise for their skill and achievements. Instead, the Club official most closely associated with the junior league criticised their sons’ performance, achievements and attitudes. This must have been a considerable shock at the time. It could well have taken most of the pleasure out of the evening for them.

As the Applicant himself has conceded, it was “undiplomatic” and “inappropriate” to make those remarks at that forum. They were the sorts of remarks that a coach could be expected to say to a team at half-time, when they were losing to a team they were expected to beat.

However, it was simply an over-reaction by Mr Noyce to dismiss the Applicant for that reason.

The Applicant had, on the evidence, been a fine Coaching and Developing Officer, one that had performed his duties in that position well, and to the obvious satisfaction of all, or nearly all of those involved with him. In that context, to terminate the Applicant’s employment for this single incident was wrong. Mr Noyce made an error of judgement, probably at least in part because of personal pressures that were placed upon him by some of those present that night.

I find, therefore, that the content of the Applicant’s speech, and the reactions that it produced on those present, did not constitute a “valid reason” for the termination of his employment.

In respect to the second reason for the termination of the Applicant’s employment, (insufficient expression of apology or remorse) I find that there was very little for which the Applicant could be expected to apologise or show remorse, despite the fact that his speech was undiplomatic and inappropriate in that forum.

However, what Mr Noyce was really requiring was the personal expression to him of apology or remorse.

Such a requirement was unreasonable. Even if it were reasonable, to dismiss the Applicant for a failure to express sufficient remorse, in the context of what he had actually said in the speech, (see above), would not be for a “valid reason”.

It follows from the above that the reasons for which the Applicant’s employment was terminated were not valid reasons, and the termination of his employment was a breach of section 170DE(1) of the Act, and unlawful.

Issue 3. Was the termination of the Applicant’s employment by the Respondent harsh, unjust or unreasonable?

Section 170DE(2) is as follows:

“A reason is not valid if, having regard to the employee’s capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This sub-section does not limit the cases where a reason may be taken not to be valid.”

There is considerable overlap between section 170DC, which requires an employer to give an employee the opportunity to respond to allegations, and the requirements of section 170DE(1).

However, in my opinion, section 170DE (1) imposes obligations on employers which are broader than those imposed by section 170DC.

In my opinion, the word “harsh” in section 170DE (1) requires the Court to take into account the effect on the employee of the termination of employment.

Mr Doyle had given up a similar job in Canberra to take the position at West’s. He had moved from a settled environment in that city, and had brought his family to live in Sydney. The opportunities for him to obtain similar employment are extremely limited. It is unlikely, at least for the reasonable future, that he would be unable to obtain employment in his chosen field. The evidence establishes that he and his family have been very upset by what has occurred.

All of these are relevant considerations.

They are not necessarily conclusive, but are things to be weighed in the scale.

In Bostik (Australia) Pty Ltd v Gorgevski (1) (1992) 41 IR 452, Sheppard and Heerey JJ, in considering the meaning of the phrase “harsh, unjust or unreasonable” in an industrial award, said, at page 459:

“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a Court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.”

In Byrne & Frew v Australian Airlines Ltd (1994) 52 IR 10, their Honours Beaumont and Heerey JJ adopted what was said above in Bostik.

The Applicant’s speech on 24 June 1994 was clearly an isolated incident, which followed an entirely satisfactory 2-year period of employment. The transgression involved (making comments which were undiplomatic and inappropriate at such a forum) is of a relatively minor nature. When weighed in the balance against the severe effects that the termination of his employment had on the Applicant and his family, in my opinion, in these circumstances, the termination of his employment was “harsh”.

In Byrne & Frew v Australian Airlines Ltd, his Honour, Gray J, said, in considering the use of the term “harsh, unjust or unreasonable”, in an industrial award, said at page 63:

“So far, the procedural aspects of a clause such as cl 11(a) have been seen as confined to the need for the employer to make a proper investigation of the facts and to consult with the employee about those facts and their possible consequences........ ........ ...In my view, that analysis has been inadequate. The use of the word “unjust” in the clause is intended to import the requirements of natural justice or procedural fairness into the process of terminating employment.”

His Honour went on to say, at page 64:

“........ ..I am of the view that a clause such as cl 11 (a) requires that an employer contemplating terminating the employment of an employee is obliged to afford procedural fairness to that employee. Not to do so would be “unjust”.”

In my opinion, the Applicant was denied procedural fairness in a number of ways. They are:

(a)Mr Noyce was influenced in making his decision to terminate Mr Doyle’s employment by correspondence he received and conversations he had with other people between the second meeting with Mr Doyle at 8.30am on Monday 27 June 1994 and the meeting at about 1.30pm when he informed Mr Doyle that his employment had been terminated.
That correspondence and those discussions were not discussed with the Applicant so as to give him the opportunity for comment or explanation. The limited, and general, way in which Mr Noyce conveyed what (in his terminology) were “complaints” to the Applicant was insufficient to accord him procedural fairness.
(b)At the meeting on Saturday 25 June 1994, Mr Doyle may have been asked “why he made the comments” in his speech. However, this was not sufficient to require Mr Doyle to give a detailed explanation to protect his employment. In my opinion, this also means that he was denied procedural fairness.
(c)Mr Noyce did not refer specifically to any of the comments that Mr Doyle had made on the night. In my opinion, to quote Beaumont and Heerey JJ in Byrne v Australian Airlines, at page 39:
”........ .the conduct of the respondent, in attempting to bring the attention of (Mr Doyle) exactly what it was that the respondent was complaining about so far as (it was) concerned, fell short of the standards that are reasonably to be expected of a reasonable employer. The respondent failed to indicate to (Mr Doyle) in a way that could be clear to (him) the misconduct on (his) part.”
It was not sufficient, and thus unfair, merely to refer, in a limited and general way, to the “complaints” that Mr Noyce had received.
(d)In Byrne v Australian Airlines, Gray J, at page 65, said:
“Procedural fairness required that the Appellants be given a fair hearing on any question of penalties.”
In this case, the Applicant was not given the opportunity to discuss with Mr Noyce why he should not be dismissed. Mr Noyce had an obligation to directly put to the Applicant that he was about to be dismissed and to give the Applicant the opportunity to discuss that with him. It may be that the Applicant could have persuaded Mr Noyce that some other mechanism, or penalty, would have been sufficient.

For all of the above reasons, the determination of the Applicant’s employment was unjust and unreasonable, and therefore unlawful.

Issue 4. Is the reinstatement of the Applicant impracticable?

Section 170EE(1) and (2) are as follows:

“In respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, the Court may make the following orders:
(a)an order requiring the employer to reinstate the employee by:
(i)reappointing the employee to the position in which the employee was employed immediately before the termination; or
(ii)........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .....
(b)If the Court makes an order under paragraph (a):
(i)any order that it thinks necessary to maintain the continuity of the employee’s employment; and
(ii)an order requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.
If the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) constituted by the termination of employment of an employee, that the reinstatement of the employee is impracticable, the Court may make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate.”

The Applicant seeks reinstatement to the position he occupied prior to the termination of his employment.

Section 170EE (as now amended) requires the Court to first consider whether reinstatement is “impracticable”.

There is a distinction between compensation in lieu of reinstatement, which may be awarded under sub-section (2) of section 170EE, and an order requiring the employer to pay to the employee remuneration lost by the employee because of the termination, which may be awarded under sub-section (1) of section 170EE.

Compensation under sub-section (2) may only be ordered if the Court finds that the reinstatement of the employee is impracticable. In the case of Ian Samuel McGregor Nicholson v Heaven and Earth Gallery Pty Ltd (No. NI 127 of 1994) (unreported, 20 September 1994) his Honour Wilcox CJ said, at page 25:

“It is important to note that Parliament stopped short of requiring that, for general compensation to be available, reinstatement be impossible. The word “impracticable” requires and permits the Court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a reinstatement order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments, or seriously affect productivity, or harmony within the employer’s business, it may be “impracticable” to order reinstatement, not withstanding that the job remains available.”

I approach the facts of this case bearing in mind what his Honour said in that case.

In Graham Foxcroft v The Ink Group Pty Ltd (No. NI 447 of 1994) (unreported, 14 October 1994) his Honour Wilcox CJ said, at page 6:

“Especially since the June 1994 amendments to Part VIA of the Act, which substituted a new s. 170EE, the legislative emphasis has been on reinstatement of unlawfully terminated employees.”

It follows that the primary remedy for an unlawful termination of employment is reinstatement, but that the Court should not order reinstatement if it is “impracticable”.

In my opinion, the reinstatement of the Applicant is not impracticable.

I have already canvassed the evidence in respect of reinstatement, and it is important to note that the only person who would have difficulties working with the Applicant is Mr Steven Noyce.

It is also important that the evidence establishes that all, at least for practicable purposes, of the persons with whom the Applicant would be working in the Junior League, have strongly supported his reinstatement, and are both willing and able to work with him.

Mr Noyce is the Chief Executive Officer of the Respondent. The Applicant would have to interact with him frequently. Their offices would be situated close to each other. I have no doubt that the termination of Mr Doyle’s employment by Mr Noyce, and the institution and maintenance of these proceedings, have created considerable personal friction between Mr Noyce and Mr Doyle.

However, that does not mean that Mr Doyle’s reinstatement is impracticable. Mr Noyce and Mr Doyle worked amicably together for almost 2 years prior to Mr Doyle’s dismissal. Mr Doyle was dismissed as a result of a single, and isolated, incident. There is nothing to suggest that he was doing anything other than a good job up to 24 June 1994, when he made that fateful speech.

In these circumstances, I believe that, although there will be some difficulties, they will be able to work together and, in time, the working relationship between them will return to normal. I would urge both gentleman to put this matter behind them, and concentrate on the future.

The Club, to its considerable credit, and the credit of Mr Noyce, whose decision it was, has refrained from employing someone else in the Applicant’s position until this case is concluded. The potential for goodwill, and plain old commonsense, which this demonstrates, augers well for the future.

In ordering reinstatement, I also bear in mind what I consider to be some important policy considerations. These are:

Reinstatement is the primary remedy, and the opportunities for the Applicant to obtain another job in his chosen field are extremely limited. In these circumstances, a remedy which involved less than reinstatement would not be a satisfactory or just remedy;
It is almost inevitable that friction will be created by the termination of a person’s employment and the institution of proceedings under the Act. If the Court were to give undue emphasis to what are inevitable frictions, that would seriously undermine the principle that reinstatement is the primary remedy. This case illustrates that consideration very well.

Issue 5 What orders in respect of monetary payment should be made?

As I propose to order the reinstatement of the Applicant to his former position, the power to make an order for monetary payment is to be found in s. 170EE (1) (b) (ii) which gives the Court the power to make an order:

“requiring the employer to pay to the employee the remuneration lost by the employee because of the termination.”

In my opinion, the word “remuneration” is not limited simply to monetary salary, but includes other benefits that an employee receives by way of a “package”.

In addition to a gross salary of $35,000 per annum, the Applicant was given the use of a motor vehicle, and free accommodation.

The Applicant and his family have remained in that accommodation and have not paid any rent to the club since the termination of his employment. He has, therefore, continued to receive that benefit, and no order will be made in respect of it.

Exhibit “H” is a booklet from the NRMA, published in June 1994, entitled, “What it costs to run your car.”

The car provided to the Applicant was a Holden Commodore sedan, more than 3, but less than 5, years old.

On page 16 of Exhibit “H” it states that the total average cost per week of owning and running such a motor vehicle is $138.35. I therefore access the value of that motor vehicle to Mr Doyle at that weekly figure.

The Applicant returned that motor vehicle to the Respondent on 22 July 1994. He therefore has been deprived of the value of it for 14 weeks. 14 weeks at $138.35 per week comes to the sum of $1936.19.

The Applicant’s gross salary was $30,000. This works out at $576.92 per week. He was deprived of that salary from 27 June 1994 to 31 October 1994, when his reinstatement was ordered by me. He has, therefore, lost 18 weeks salary at $576.92 per week. This comes to the total sum of $10,384.61.

The Applicant was paid $1,730.76 by way of pay in lieu of notice when his employment was terminated. I deduct that from the total of his lost salary and the loss of the value of the motor vehicle and arrive at the figure of $10,590.04 as the remuneration lost by the Applicant because of the termination of his employment.

Issue 6 What other orders, if any, should be made?

Section 170EE (1) (b) (i) empowers the Court if it orders the reinstatement of an employee, to make:

“any order that it thinks necessary to maintain the continuity of the employee’s employment.”

The Applicant’s employment ceased on 27 June 1994. As I have found that the termination of his employment was unlawful, and as I propose to order that he be re-appointed to his former position, it is appropriate that any other damage done to him because of the termination of his employment be undone. I will therefore order that the period between 27 June 1994 and 31 October 1994 be treated, for all purposes, as continuous employment of the Applicant by the Respondent in the position occupied by the Applicant immediately prior to the termination of the Applicant’s employment by the Respondent.

I certify that this and the preceding thirty-five (35) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.

Associate:

Dated: 25 November 1994

APPEARANCES

Solicitors for the Applicant: Turner Freeman

Counsel for the Respondent: A. Moses

Solicitors for the Respondent: Marsdens

Dates of hearing: 13, 14, 27 & 31 October 1994

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Citations

Brian Gerard "Mick" Doyle and Western Suburbs District Rugby League Football Club Ltd [1994] IRCA 114

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[1994] IRCA 114

25 Nov 1994