Bryant v City of Fairfield RSL Memorial Club Ltd
[1997] IRCA 302
•16 December 1997
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged unlawful termination of employment - VALID REASON - SEXUAL HARASSMENT - allegation of indecent assault made by male employee on fellow male employee - whether “horseplay” - use of offensive nicknames - need for development of guidelines and Code of Practice or plans to encourage reporting and prevention of sexual harassment in the workplace - MISCONDUCT - ASSAULT - indecent assault - common assault - previous scuffle with fellow employee where applicant threatened with beer keg stem by fellow employee - long history of aggravation between two employees - Occupational Health and Safety Legislation - violence in the workplace - need for development of guidelines and Code of Practice or plans to reduce or prevent violence by reference to Workplace Health and Safety Committee - OPPORTUNITY TO RESPOND - termination interview of Applicant interrupted - when Applicant asked representatives of management to have union delegate leave the meeting - purpose of presence of union delegate twofold - union delegate there as witness to events complained of by management about performance of Applicant in his day to day work - same union delegate recipient of complaint of indecent assault by Applicant - also there as representative of Applicant - in such circumstances failure to provide opportunity for another person to assist Applicant when defending himself may be contravention of legislation - EXTENSION OF TIME - no prejudice to respondent - legal representation obtained after fellow employees decide in Union Meeting not to support reinstatement of Applicant - initial application filed in state jurisdiction - application for extension of time granted - REPRESENTATION - Union to consider need for separate representation of employee when interests of individual member and fellow workers conflict - not advisable for Applicant to be represented by Union delegate who was providing evidence of poor performance at termination meeting - PRACTICE AND PROCEDURE - application for disqualification on grounds of apprehended bias against interests of respondent refused - ADJOURNMENT - Applicant unable to be present on pre arranged hearing date due to new work commitments - adjournment refused.
Crimes Act (NSW) 1900 Pt 15A, ss 61, 61L
Workplace Relations Act (Cth) 1996 (formerly known as Industrial Relations Act 1988) ss 170DB, 170DC, 170EA(3)(b), 170ED(1), 170ED(2)
Evidence Act (Cth) 1995 ss 60, 128
Workplace Health and Safety Act (Qld) 1995 s 90
Industrial Relations Act (NSW) 1991 s 246
Occupational Health & Safety Act (NSW) 1983 ss 19, 24(1)(a), 44(a)
Sex Discrimination Act 1984 s 28A
AWU-FIME v Queensland Alumina Limited (1995) 62 IR 385;
Bostik (Australia) Pty Limited v Gorgevski No. 1 (1994) 41 IR 425;
Jacqueline Brodie-Hans v MTV Publishing Ltd (1996) 67 IR 298;
Victoria v Commonwealth of Australia & Ors (1996) 138 ALR 129;
Yew v ACI Glass Packaging Pty Ltd (unreported) IRCA, Wilcox CJ, 11 December 1996;
Transport Workers Union of Australia v National Dairies Limited No 2. (1994) 57 IR 186;
Turner v K & J Trucks Coffs Harbour Pty Limited (unreported) IRCA, Beazley J, 10 August 1995;
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349;
Tisdell v Woolworths (unreported) IRCA, Wilcox CJ, 30 April 1997;
Perrin v Des Taylor Pty Limited (1994) 58 IR 254;
McLean v Tedman and Another (1984) 56 ALR 359;
BRYANT V CITY OF FAIRFIELD RSL MEMORIAL CLUB LTD
NI 3608 of 1995
MCILWAINE JR
SYDNEY
16 DECEMBER 1997
IN THE INDUSTRIAL RELATIONS ) ) COURT OF AUSTRALIA ) NI 3608 of 1995 ) NSW DISTRICT REGISTRY )
BETWEEN: Barry John BRYANT
ApplicantAND:
CITY OF FAIRFIELD RSL MEMORIAL CLUB LTD
Respondent
JUDICIAL
REGISTRAR:MCILWAINE
PLACE: SYDNEY DATED: 16 DECEMBER 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The time for lodgement of the application be extended until 11 September 1995.
Application be dismissed.
The question as to whether costs are to be payable is reserved for further consideration until 4.00 pm on 23 December 1997.
Note: Settlement and entry of orders is delt with in Order 36 of the Federal Court Rules.
IN THE INDUSTRIAL RELATIONS )
) COURT OF AUSTRALIA ) NI 3608 of 1995 ) NSW DISTRICT REGISTRY )
BETWEEN: Barry John BRYANT
ApplicantAND:
CITY OF FAIRFIELD RSL MEMORIAL CLUB LTD
Respondent
JUDICIAL
REGISTRAR:MCILWAINE
PLACE: SYDNEY DATED: 16 DECEMBER 1997
REASONS FOR JUDGMENT
APPLICATION
This is an application made to the Court under Division 3 Part VIA of the Industrial Relations Act 1988. Since 26 November 1996 the Act has been known as the Work Place Relations Act 1996 (“the Act”).
This application by Barry John Bryant (“the applicant”), who was formerly an employee of the City of Fairfield RSL Memorial Club Limited (“RSL Club”) was filed in the then Registry of the Court on 11 September 1995. The application was signed by the applicant and his solicitor on 25 August 1995.
He was employed, according to his application, in April 1989 and remained in employment at the Club until 9 August 1995. His application calls for reinstatement to his position and compensation.
RESPONDENT
The Respondent is a large licensed club situated in the Western Suburbs of Sydney which employs more than 100 employees. He was terminated by written notice handed to him in an interview on 9 August 1995. The notice was issued on the letterhead of the City of Fairfield R.S.L. Memorial Club Ltd A.C.N. 000 953 355 (“RSL Club”) as follows:
“President: D.B. Short
Sec. Manager:
Gen. Manager: T.M. Buck
Telephone: 727 5000
Fax: 727 9718
9th August, 1995
Mr. B. Bryant
. . . . .
. . . . .
Dear Mr. Bryant,
Re: Suspension of Employment Relating to Serious and Wilful Misconduct
I advise that you are hereby terminated from the employment from the City of Fairfield R.S.L. Memorial Club, effective 9.30 a.m. Wednesday 9th August, 1995.
The reason for your dismissal is “Serious and Wilful Misconduct” in that you did assault another employee using your genitals. Such conduct is not condoned.
Yours faithfully
(signed)
T.M. Buck
General Manager”
It is not disputed in the evidence that the letter was handed to the applicant in an envelope during or at the end of his termination interview on 9 August 1995. I am satisfied that the applicant received written notice of his termination of employment from the respondent.
The case was referred to the Australian Industrial Relations Commission by the Registry of the Court on 14 September 1995. I have a certificate dated 11 October 1995 by Commissioner Oldmeadow of the Australian Industrial Relations Commission which states:
“in accordance with subsection 170ED(2) of the Industrial Relations Act 1988, the Commission hereby certifies that it has been unable to settle this matter by conciliation.”
Leaving aside the question of the out of time aspect of these proceedings, which I will deal with separately, I am satisfied that the matter is properly before the court.
HEARING
Originally the case was listed for one day which was a grossly inaccurate estimate. The hearing of evidence proceeded over five days in which evidence was heard from Mr Bryant and eight witnesses for the Respondent. On the fourth hearing day the applicant, although represented by his Counsel, did not attend the hearing.
At the start of the proceedings Counsel for the applicant suggested that he did not believe that the applicant could realistically now go back to his former employment after the nature of the allegations that have been forthcoming since his dismissal. He emphasised this statement by suggesting that there was now a fresh allegation: “He had an erect penis and was fondling it.” The applicant denied these allegations during his evidence. He admitted he would be embarrassed about going back to work at the club given the nature and extent of the allegations.
EVIDENCE OF THE APPLICANT
The applicant, gave evidence that at the time of the hearing he was 23 years of age. He left school in year 10 and obtained his first employment with an engineering firm.
The applicant said he started as a casual at the RSL Club in early August 1990 and was made permanent on 28 August 1990. He was not sure about the exact starting date. His earnings in this position were $380.00 a week net in hand. He had obtained his job at the RSL Club through the intervention of his grandfather who was well known at the RSL Club. His work with the RSL Club consisted of general maintenance including mowing lawns, changing light bulbs, general cleaning, fixing tables, chairs and other broken property. He worked on a Monday to Friday basis at the RSL Club from 5.00am to 2.30pm in the afternoon. The RSL Club issued its staff with a regulation navy blue uniform which included a shirt, shorts and socks.
The applicant would normally come to work in casual dress at about 4.45am, attend the locker room and change into the RSL Club uniform. Then after cleaning himself up he would come out and have a cup of coffee with his fellow workers in the staff room. On his evidence, this process allowed the applicant only about five minutes to drink his coffee before the 5 o’clock start. The staff room of the club was described as having a security coded door with a surveillance camera. To enter you had to punch in a code so you could then walk through into a room with a table, a few chairs, coffee machine and next door was a locker room.
His first task of a morning was to go upstairs to an area of the club called the sports area and maintain that section. That job would usually take a couple of hours work. The applicant detailed the work as: “Check tables, chairs, put out ashtrays, make sure they were clean, coasters, check the snooker room, torn material on the tables, generally vacuum up the loose chalk. Check the scoreboards as well, check table tennis tables, dart board area, just generally check for any damaged property and make sure the area was clean”.
At around five o’clock in the morning on 4th August 1995 David Pickering, a Cleaning Supervisor, Ray Carta and Justin Moloney, General cleaners, as well as Cellarman, Joe Titon and the applicant were initially present in the staff room. Asked in evidence in chief to respond to allegations that he was seen by a number of persons to be “playing with himself at various stages throughout the morning of 4 August 1995”. He responded:
“I can't say much. Only you know, I've got a girlfriend, I've had a girlfriend for the last three years. I'm not gay, I don't think about being gay, I don't think of men. I'm in love with my girlfriend. Hopefully soon we wish to be engaged. I thought I got on pretty well with all the guys at the RSL club and I don't know, it's a - like it's an embarrassment to me, I don't know, I don't know how to put it into words, you know”.
He amplified this by saying he had: “on occasions before had drinks with a couple of the guys at the local community club. At lunch times we always, sit together and have lunch”.
Subsequently he was asked:
“How did you get on with Mr Titon?”
He replied:
”Joe Titon and I got on well I thought. There was an incident, a couple of years ago Joe tried to attack me with a pole over an accidental matter. I accidentally ran into Joe, I was carrying a load of boxes, they were fairly heavy and Joe and I had a collision and I tried to apologise to Joe Titon and later on in that morning, not long after, there was a sprinkler fitter, at the club we had sprinkler fitter at the RSL club and he advised me to turn around and when I turned around Joe Titon was coming to me with a pole that it runs down the middle of a keg.
Right?‑‑‑And I was lucky enough to take the pole away from Joe and Joe was upset and later he picked up a champagne bottle and come towards me with that. The assistant - there's a gentleman there that works in the cellar as well with Joe. His name is Tony Mills, he took the champagne bottle off Joe and Joe was very upset and I advised management, Richard Seddon”.
Asked if his relationship with Mr Titon was the same after that? He said:
“Not really. Joe's got two little girls, I tried to comfort him, they're very sick little girls and whenever he was upset and that I always tried to comfort Joe. Sometimes they spent a lot of time in hospital and you know, I used to try to be there for Joe because I've got a sick grandmother and I live with her and I know what it's like, it's upsetting”.
The applicant testified that no one contacted him about the complaint between 4th and 8th August 1995. His first knowledge was a request on his pager by vibrating message to go to the office and he testified:
“When I went there I was approached by Mr Terry Buck and Mr Richard Seddon to attend the office”.
There Mr Buck, the General Manager of the Club had told him that Joe Titon had made an official complaint about a sexual harassment allegation he continued:
“I asked Terry what the matter was, and he said he has approached us, the manager of the club, that you have like, rubbed an erection - erected penis against him, and made sexual advances, and I was quite upset, and I didn't want to get . . ”.
The applicant mentioned that:
“All I could say was, "no, I didn't do anything, and they advised me that they don't tolerate that behaviour at the club”.
The applicant testified that he asked Mr Terry Buck about other witnesses. He said he was told:
"That's got nothing to do with you, for their protection, and we'd like your side of the story". And that's when he gave me the opportunity for the 24-hour.”
Well, ‑ ‑ ‑?‑‑‑And they give me a chance as a - a 24 hour chance to write a -like a statement on my side of the story, and then I come in the next day with nothing. I couldn't write anything. All I could think of was I didn't do it, and I didn't know whether to write, "I didn't do it", and sign that, and bring that in, or not. Maybe I thought - maybe they'd laugh at me, you know”.
On 9 August 1995 the applicant came to work and went to the top office and waited for the meeting to start. Present at the meeting was Mr Terry Buck, Mr Richard Seddon, the applicant, and initially there was a union delegate, Mr Joe Incorvil. The applicant described the meeting as follows:
“Richard Seddon introduced me into the meeting to sit down with the gentleman there, Terry Buck, and Joe Incorvil.”
The applicant said he asked Mr Terry Buck for a copy of the statement from Mr Joe Titon but he was told that it wasn't necessary and that the club wasn't going to tolerate that sort of action, and he was handed a letter of dismissal.
He amplified this by saying:
“The management, Terry Buck, he had just told me that I had made sexual advantages to Joe, and - and that's all that I knew, that, ‑ ‑ ‑”
Counsel for the applicant asked:
“But had you not also been told that there was the suggestion that you pressed your erect penis against Mr Titon?‑‑‑That's right, yes.”
Later on he said:
“All - all that Mr Terry Buck said to me was "Are you aware that you have Joe Titon making an - like, statement against you that you have put an erected penis against his - against his back?" And I said "No".”
On the 9th August 1995 when the applicant came into the office the letter of dismissal was already typed and on the table. This fact was acknowledged by Mr Buck in his evidence under cross-examination. According to the applicant it was already signed. This was denied by Mr Buck although I note that when he was giving his evidence in chief he said: “I gave him the letter of termination which I had already pre-prepared in case of, and I signed that letter and gave it to him in an envelope”.
At the time of the trial, the applicant was currently working for a recruiting firm as a casual labourer. Since being terminated the applicant had only part-time work although he said he had tried hard to get full time work. He explained the situation: “I tell them that I’m currently, you know, in a court situated matter from my old employment, like, a sexual allegation against me, and that I’m trying to get my name back through the courts, and they tell me that they understand but they don’t ring me back.”
At the conclusion of his evidence, the applicant through his Counsel tendered a number of references from friends, a former employer and his grandmother in support of his case. These references, parts of which I have not admitted into evidence, testify that he is of good character. His former employer stated that he had been employed for two years and he was regarded as a “hardworking, honest and trusted worker.” I have not taken into account any comments which directly reflect on the circumstances of this case and where the referees were not called to give oral evidence.
Under cross-examination by Mr Murphy, Counsel for the respondent, the applicant denied a number of allegations put to him as follows:
It was true that Joe Titon and he were not particular friends.
He was fondling his penis in the staff room.
A further suggestion that he was fondly his penis and had an erection.
That he approached Mr Titon who was sitting on a chair at the table from behind and thrust his erect penis, with his shorts still on, into the back of the shoulder of Mr Titon.
The following conversation:
“And as he pushed you away he said to you, what are you doing, mate, or words to that effect. - Do you recall that time? - No, I do not.”
And you were laughing and said, “do you like it? - No.”
And he became angry and upset and said, “leave me alone?--No.”
With respect to his denial of the first allegation above, he added as an explanation: “Joe and I always say hello to each other”.
During further cross-examination it was put to him that at the time he committed the act the subject of these allegations, Mr Pickering and Mr Carta had left the staff room but Mr Justin Moloney was still there and saw what happened. The applicant admitted Justin Moloney was there saying “but I did not do anything of those allegations.” Subsequently another allegation was put to the applicant about a different employee:
“Yes, I will suggest to you that on at least two occasions in the 12 months leading up to your termination, you approached Mr Ray Carta in the staffroom and rubbed your penis into his back in a similar fashion that you did to Mr Titon. What do you say to that?‑‑‑No, that's not correct.
And that you had an erection at the time?‑‑‑No, that's not correct.”
In response to a question raising a different type of misbehaviour directed at Mr Titon: “You called him “wing nut” on occasions?” The applicant replied: “What does “wing nut” mean?” In my opinion this was an evasive answer. He subsequently denied calling Mr Titon “wing nut” and harassing him. The applicant also refuted the suggestion that he saw Mr Titon as an easy mark as he was only a small man and an easy person to get upset. He supported his denial by saying that “there is not much size difference between Joe and I.” To some extent this was not an inaccurate summation of the physical differences between the two men although the applicant seemed to me to be taller than Mr Titon who was shorter and stockier in build.
The applicant also denied that on the morning 4 August 1995 he left the staff room and then went to the cleaner's room, which is another room nearby. He maintained that he went up to the sports room. It was then suggested that in the cleaner’s room he meet Mr Carta and said to him, "I've upset Joe Titon". The applicant initially says he didn’t recall making such a statement and then denies it under further cross-examination. The conversation was further put to him as:
“And he said to you, What do you mean you have upset him and you said, "I rubbed my dick on him?‑‑‑No, they're false.
Do you deny that?‑‑‑Yes.”
In his evidence, the applicant said he did not remember using the lift that morning to get to his workplace and he suggested he had to walk up through the main stairs of the RSL club. He described that area: “There's a set of stairs to take you up into a section there, you turn off, veer off into the sports area”. It was then suggested that the applicant and Mr Carta got in the lift and Mr Carta held the lift for Mr Titon who was approaching at that time:
“and you were laughing and holding your penis through your shorts, pointing at Joe and thrusting your penis in his direction, in a thrusting motion?‑‑‑No, that's false. Sir if Joe doesn't like it so much, why would he come towards me if I'm doing that”.
Again, in my opinion, an evasive answer.
It was then put to him that later on that same day the applicant saw Mr Titon at the back of the club where there is an industrial waste bin:
“Do you remember that? Between 12.30 and 1 o'clock on that same day?‑‑‑No, I don't.”
Right. And I suggest to you that when you saw him there you had your hand down your shorts, again holding your penis and you said to him words to this effect, "If you like it I'll do it again". Do you recall that?‑‑‑No, I don't.
Do you deny that?‑‑‑I do.
And he said:
Leave me alone, piss off?‑‑‑No, I deny that.
And you walked away laughing because you had managed to upset Joe Titon again?‑‑‑No”.
The applicant was cross examined about those present at the meeting on 8 August 1995. It was put to him that in addition to himself, Mr Brian Jackson, the maintenance supervisor, Mr Terry Buck, the general manager, Mr Richard Seddon, the Assistant General Manager and Mr Joe Incorvil, a union Co-delegate were also present at the meeting.He agreed that these men were present. He was then asked:
“And at that meeting you were asked about a number of matters. The first was your refusal to follow a direction to relation to the fixing of extension leads to conduit in the directors' car park on the previous Friday. Do you recall that being raised with you?‑‑‑Yes, I do.
And is it true that you were able to offer no explanation for refusing that direction.
MR MURPHY: To fix extension leads to conduit in the directors' car park?‑‑‑I felt that I did that correctly.
I see. Then the next matter that was raised with you was the complaint by Mr Titon; that is true, is it not?‑‑‑That's true.
And you were quite clear what Mr Titon had alleged?‑‑‑I had what?
It was made clear to you what the allegation was?‑‑‑That's right.
That you rubbed your erect penis into his back in the staff room on the previous Friday?‑‑‑That was advised by management; that's right.
You had no doubt that that was the nature of the allegation that had been made, did you?‑‑‑I didn't have any idea on what the nature of the situation was going to be.
But once you were told about the allegation you knew what the allegation was?‑‑‑Only to what they have explained.
Yes. It was not suggested that you pulled your pants down and did it, was it?‑‑‑No.
The applicant was shown Minutes of the Meeting held at 9.23am on Wednesday 8 August 1995 (Exhibit A). It should be recorded that these minutes exhibit “A” do not accord with the hand-written note made by Mr Buck in item 8 of exhibit “P”. The order of the discussion of the issues at the meeting is reversed. He was then asked:
“And would you agree that it is an accurate record of what occurred at the meeting, in summary?‑‑‑I agreed to the writing of that form.”
Counsel for the respondent then read through the document (Exhibit A) seeking to obtain the detailed concurrence of the applicant to the points recorded. In addition to matters I have already mentioned the applicant maintained: “That he didn’t fit the extension leads to a sprinkler system.” He confirmed as correct the statement: “The manager, Mr Buck, informed you there will be no further warning given in regards to non-compliance with work instruction.” The applicant also agreed that he had understood Mr Buck's warning and that it was right that he was “informed of a complaint by a staff member?”
Further details of the issues raised in the minutes were put to the applicant: “You were acquainted with the complaint by cellarman, Joe Titon, of action against him by yourself on Friday, 4 August? That’s right.” The applicant said it was correct that he had: “denied that you had committed any such action.” The applicant concurred that he was: “informed that the incident was witnessed and you were advised that in the opinion of management it is considered serious and wilful misconduct? That happened.” He also agreed he was: “informed that he was suspended from employment until 9 o’clock Wednesday 9 August 1995”, by which time he was required to provide a written explanation as to why he should not be dismissed for serious and wilful misconduct.
There was further extensive cross examination of the applicant. This resulted in denials as follows:
“And you answered, you said, according to my notes, that you are not gay, you love your girlfriend and you don't know how to put it in words. But I did not recall you denying that you had been playing with your penis?‑‑‑I deny that.”
Under cross examination the applicant confirmed that Mr Titon had used “a beer stem that goes into a keg”, and that it happened: “a few years ago now.” The applicant although not adopting the word, agreed it was possible that Mr Titon has carried a grudge against them. He was denied the names of the witness to the incident on the basis that Mr Buck: “was concerned for the welfare of that person or those persons?” It was also suggested to the applicant that Mr Buck had good reason to be concerned about their welfare, because of a history of the applicant threatening other employees with violence. The applicant admitted he had previously said to the maintenance supervisor, Jim Mitchell that: “he deserved to be shot.” The applicant then denied that he meant Mr Jim Mitchell deserved to be shot by himself and agreed that on another occasion he had threatened to assault him. He clarified the position as:
“I suggested to Jim Mitchell that after work Jim Mitchell and myself handle the situation between two adults.”
“Yes. So you give him a thumping. That was what your intention was, was not it?‑‑‑I just wanted to sort it out, whether it was a thumping or a conversation between two men, just to sort - sort out differences.
Well, it was going to be a fight, was not it, it was not going to be a conversation, it was going to be a fist fight?‑‑‑No, it wasn't going to be a fist fight.”
He was then shown a record of a meeting that took place on 19 May 1994 which followed up on this incident and which he had signed. The applicant accepted that the circumstances which lead to this meeting was his proposition to Mr Mitchell that they meet off the club premises to see who is the better man. He denied that he had said that it was going to be determined by a fist fight. Counsel then asked:
“Well, it was not going to be determined by a game of scrabble?‑‑‑If he would have hit me first I would have defended myself.
You were challenging him to a fight?‑‑‑No, I wasn't.”
The applicant continued to deny that he wanted to fight Mr Mitchell. “Well, when you say - see, the words ‑ ‑ ‑ ?‑‑‑False that I was going to fight him but true that it was in the presence of Mr Buck.” Well, look at the words - focus on these words: “To see who is the better man.”
I then asked the applicant what words did he say to Mr Mitchell. Initially he said he couldn’t remember and then settled on: “That I'd like to see him after the work hours.” The applicant agreed that he did not deny such threats to his supervisor. It was also suggested that in the presence of Mr Buck he renewed this threat with unsavoury language. He maintained, although it is not recorded in the document, that he had apologised for his conduct. He then added as an explanation for his signing a document that was an incomplete record of the meeting that he thought he should have more respect for the RSL Club and Mr Jim Mitchell. The applicant further explained the situation as Mr Mitchell never understood the way he felt as he: “was a very hard man, very strict man”. He continued to deny that he wanted to fight him or shoot him . Although he accepted that Mr Mitchell was a much older man. He testified: “I wouldn't want to be violent with a man at 63 years of age. It'd be a little bit disadvantaged towards him, I think”.
Over the objection of Mr Niven, Counsel for the applicant, I allowed cross examination about an “Apprehended Violence Order” taken out by Mr Titon against the applicant. An allegation was then put to the applicant that on 22 September, 1995 at 4.45pm, he was in a White Diahatsu Feroza. Although admitting he owned such a vehicle he said: “I wasn't in there on that date”. It was then suggested that the applicant was in the car and saw Mr Titon walking along Hamilton Road in Fairfield on his way to work and the applicant drove the vehicle in his direction with the car lights on high beam. This was denied by the applicant. Some extracts from the transcript of the cross examination on this issue are:
“You stopped and from the vehicle, said to him words to this effect, "You shouldn't work at the club because I'm going to shoot you, you bastard poofter"?‑‑‑No, incorrect...
Mr Titon went to the police after that time and made a statement?‑‑‑Right...
You are aware of that?‑‑‑Yes.
And you were served with a complaint and summons seeking an apprehended personal violence order?‑‑‑Yes.
And that was heard in the Fairfield local court on 20 October?‑‑‑That's right.
And you attended the court on that day?‑‑‑Yes, I did.
And did you deny the contents of the statement that had been made by Mr Titon?‑‑‑Yes, I did.
But you agreed to the issuing of the order against you?‑‑‑That's right.
And I suppose you did that without admission type basis, is that right?‑‑‑Meaning - what do you mean?
Well, you were not admitting anything but you did not oppose the order being issued, is that correct?‑‑‑That's right.
I would have liked to have taken the order further to try and prove my innocence. I just couldn't afford to.”
Without objection, Counsel for the Respondent then tendered a copy of the Apprehended Violence Order. To be fair to the applicant I gave him the chance of explaining the situation further. He then recalled that he had stood before the Magistrate in the Court:
“Just in front?‑‑‑Just two microphones, yes. He asked me if this is true and I said "No". He said, "Okay", and he asked Joe and Joe said this was true and then he asked me if I would like to take it further and I said, I can't afford to take it further but I don't agree to the things but to settle the Court matter so there are no more dramas with the situation, I will admit to the two-year order".
He said:
"All right, from now - two years to stay away from Joe Titon".
The order prohibiting or restricting behaviour was issued pursuant to Part 15A Crimes Act, 1900 (NSW). Under the order and prohibition the applicant is:
“-Not to stalk the protected person.
-Not to engage in conduct that intimidates the protected person or a person with whom the protected person has a domestic relationship.
IN ADDITION THE DEFENDANT IS:-
-Not to assault, attempt to assault, intimidate, threaten, molest, harass or otherwise interfere with the person in need of protection.
NOT TO CONTACT THE PERSON IN NEED OF PROTECTION BY ANY MEANS WHATSOEVER”
The order agreed to by the applicant was effective for two years.
Mr Carta testified he saw the car in Railway Parade, Fairfield on his way to work. The evidence of Mr Carta supports the allegation made by Mr Titon that the applicant was in the White Diahatsu Feroza. The applicant claimed that he was not in the car on that date in Hamilton Road. The applicant did not volunteer any information about who else could have driven the car. The applicant also denied that there was an incident with Mr Titon of that nature. If I reject the denial of the applicant it does not necessarily follow that I should totally accept the evidence of Mr Titon as to what occurred. I believe the evidence of Mr Carta that he saw the car of the applicant heading towards the Club at that time of the morning, I am therefore of the view that there was contact between the applicant and Mr Titon of some nature at that time. I do not accept the denial of the applicant with respect to this incident. In the light of the background of disputation between the two men I formed the impression that Mr Titon is not beyond exaggerating his claims, this however is not to down-grade the seriousness of the conduct of the applicant. It may well be that Mr Titon was genuinely frightened of the applicant.
Exhibit “D” purports to be minutes of a meeting with the applicant and is headed:
“MEETING WITH BARRY BRYANT
Official Counselling and Warning Session
Thursday 2 July, 1995
Meeting commenced 10.45a.m.”.
The applicant was closely questioned about this document and then gave additional explanations in an endeavour to exculpate himself from blame for some of the other issues raised about his conduct and performance in Exhibit “D” as follows:
“Yes?‑‑‑The local sandwich shop incident. I'd - I'd asked Ron Moran, who was our maintenance supervisor, on many occasions: If it's all right to go to the shop? He - he said, yes, and then he - he come to me and said that it was management that wasn't happy about the situation and from then on - it was a morning tea break - and from then on in he wished to - to go to the shop and buy my - by my required food for me. So I admit that I was going to the shop early but I - I had supervision assistance. I always asked Ron first of all.
The second one:
“complaint about the supervisor ...... instructions cleaning the paint brushes.
“Barry leaves the brushes soak for a few days claiming it's easier to clean.
The applicant said in response to the allegation:
I did a lot - most of the painting at the RSL club. I have a lot of respect when I'm - when I paint. These days, like, the fashion in the clubs and everything else has to be neat and I've got pride in my work and I used to like to let them sit for a couple of days and really - really let them soak and soften them up. That way next time when I use them ‑ ‑ ‑
Well, who complained about you doing it that way?‑‑‑I think it was Ron Moran, the head supervisor. Yes.”
The third allegation was:
“Mr Bryant was reminded of the requirement to wear his work uniform in the required manner.
Yes. Yes?‑‑‑On - on a number of occasions earlier, through my employment with the RSL, I was asked to wear the right uniform and I didn't obey those orders ‑ ‑ ‑ ”
He admitted he had his white shirt collar coming out over the blue one and that he was “pulled up” for this uniform infringement. The applicant demonstrated in the witness box by holding apart the front of a collared shirt that he had on which revealed another collared T-shirt underneath. He explained that at work the collar of the white T-shirt had come out over the top of the blue shirt. Another problem was his leaving at home an identification tag which the applicant claimed was not deliberate. He gave further explanations as follows:
“5. The Maintenance Supervisor claimed that Mr Barry Bryant failed to complete tasks allocated to him and on occasion had disregarded his instruction:-
The most recent was the setting up and wiping of tables and chairs in the function room, the tables only were done when it is established practice that both tables and chairs are cleaned when setting up”.
Answer:
“I always did it. I was the only one who did upstairs”.
The next proposition was:
“6. Mr Bryant on returning to work after a day absent, proceeded to log the day absent as an A.R.D.O. This was picked up by management.
Mr Bryant was informed that A.R.D.O.s are rostered, or taken after consultation and mutual agreement by management not when he decides not to attend work. Mr Bryant confirmed he will in future follow the correct procedure.”
Response:
“I think it means that I had a day off after a rostered day off as well which -I didn't know, I think it's offensive towards the rules of the club. Any time I have time off I always fulfil the club with doctors' certificates or a reason on that and - and that was it, you know, that I know, unless there's any more that anybody would like to inquire.
Finally he was asked about the following:
“Mr Bryant informed that other staff are dissatisfied with his attitude and complaints have been received regarding his laziness. Mr Buck advised Mr Bryant to do an honest days work.
Right? What is that all about?‑‑‑Well, I don't really know. As far as I knew the maintenance supervisor had told Dave Pickering who is the cleaning supervisor on many a time that he is so satisfied with my work and I can't do nothing wrong by him. And then I had this meeting and he's brought this up.
Mr Buck asked me: "Have I got any excuse for that? and I - and I denied it all. And that's the only reason I didn't sign the back of it because I felt that I was being a little bit victimised towards this - numerous pages of statement.
I do not think I am a lazy worker. I was proud. I was told by Terry Buck that three strikes and I am out, after the second official warning. I did not wish for that. I loved that job, and I regret that I still have not got it, and that is - the least that I was trying to do was to stir somebody up or try and get terminated. If I wanted to leave I would have just left on my own behalf.”
Originally the respondent claimed that the incident was a one off situation. However the complaint dealt with on 20 July 1995 included a claim that the staff were complaining about his attitude. The Macquarie Dictionary defines “Attitude” as: “position, disposition or manner or regard to a person or thing: a menacing attitude. position of the body appropriate to an action, emotion, etc.” This definition is wide enough to encompass problems of the nature now revealed in these proceedings. It is also wide enough to cover a “horseplay” situation as described by some of the witnesses for the respondent. It should also be recorded that there was no other background detail given by any of the witnesses for the respondent in support of the general allegation that: “Staff are dissatisfied with his attitude” as claimed in this document.
Counsel for the applicant objected to the evidence and cross examination based on the past employment history of the applicant because the letter of termination clearly states the reason for the dismissal as:
“The reason for your dismissal is serious and wilful misconduct in that you did assault another employee using your genitals. Such conduct is not condoned.”
It was also argued that his employment history was not relevant. The objection was not allowed on the basis that evidence of past conduct may be admissible in order to assist in determining the issue as to whether it is impracticable to reinstate the applicant in his former employment.
EVIDENCE OF UNION OFFICIAL
By an arrangement between Counsel, Mr John Walter Barry, Director of Industrial Relations, Australian Liquor and Hospitality Branch of the Miscellaneous Worker’s Union was the first of the witnesses who gave evidence on behalf of the respondent. He advised that he received information about the incident with Mr Titon from the Local Representative or Collecting Officer for the Union. He was informed the applicant had rubbed an erect penis against another employee. He was also told that the applicant had witnesses in support of his case and one of those was off sick. He was asked to attend the RSL Club because some of the delegates were unhappy about the situation. He was also told that the applicant did not want the delegate on duty to attend the meeting and did not want his job back. He testified that he had a discussion with the applicant who raised the possibility that he wanted possible “defamation” or “slander of character” court actions taken out against the RSL Club or the individuals involved in making the allegations against him. The applicant was advised by Mr Barry to speak to a solicitor about these issues.
Contrary to the advice Mr Barry had received it appeared the applicant did in fact want reinstatement, therefore a Section 246 application under the then New South Wales legislation was made on his behalf by his Union. Section 246 Industrial Relations Act 1991 (NSW) was in the following terms:
“Applications
246. (1) If an employer dismisses, or threatens to dismiss, a person who is an employee of the employer and the person claims that the dismissal was, or that the threatened dismissal would be, harsh, unreasonable or unjust, the person (or an industrial organisation of employees on behalf of the person) may apply to the Commission for the claim to be dealt with under this Part.
(2) Any such application should be lodged with the Industrial Registrar not later than 21 days after, or (in the case of a threat of dismissal) may be lodged with the Industrial Registrar before, termination of the employment.
(3) The Commission may accept an application that is lodged out of time if the Commission considers there is a sufficient reason to do so.
(4) In deciding whether there is a sufficient reason, the Commission is to have regard to:
(a) the reason for, and the length of , the delay in lodging the application; and
(b) any hardship that may be caused to the applicant or the employer if the application is or is not rejected; and
(c) the conduct of the employer relating to the dismissal or threat of dismissal; and
(d) such other matters as the Commission considers appropriate.”
Mr Barry informed the Court there had been a subsequent discussion amongst union members as to the events that lead to the termination of the applicant. At a meeting with delegates on 18 August 1995 there was general view expressed by the members present that the applicant should not be supported in any application for reinstatement. At 4.00pm on 25 August 1995 there was a meeting between the applicant and Mr Barry. On 28 August 1995 Mr Barry was advised that the applicant would have his solicitor represent him. There after he took no further part in the matter.
EVIDENCE OF COMPLAINANT
Mr Joseph Ivan Robert Titon (Mr Titon) gave evidence that he had been employed at the club as a cellarman since February 1988. He had known the applicant as a fellow employee and that he worked on a similar shift with him from 5.00am to 3.30pm. The relationship between them was that of a fellow worker but he didn’t regard him as a friend as the applicant liked to make fun of him. He suggested that the applicant often played with his penis and that he often used words such as: “I am going to fuck you.” However, when he was asked how frequently did that happen he could not recall more details. He had also seen the applicant walk around, with his hands on his penis. Mr Titon said that he usually got angry and walked away.
Mr Titon testified that at 5.00am on 4th August 1995 he was in the staff room getting ready for work, Justin Moloney, Ray Carta, Dave Pickering and the applicant were also there. The applicant was talking to Justin, Ray and Dave, after a while he approached Mr Titon with his hand inside his shorts and it was obvious he had an erection. He came up to Mr Titon from the side and behind and pushed his erection into the armpit of Mr Titon. It was suggested that the applicant said words to the effect: “Do you like it?” Mr Titon pushed him away and said to him: “Leave me alone.” Mr Titon testified that he felt really upset and disgusted and the applicant went out of the staff room laughing and rubbing his penis. He then walked to the lift pointing to him saying things that he couldn’t hear. Mr Titon waited until he saw him go up in the lift and then he also went up the stairs. This is in conflict with the evidence of the applicant. It also conflicts with the evidence of Mr Carta about the conversation occurring with the applicant in the cleaners room at this time. Mr Titon testified that he then went to find Joe Mamri or Joe Incorvil who were the Union Delegates as he thought that what had happened was wrong and he was upset and wanted to talk to someone about it.
At about one o’clock he was outside near an industrial wastebin. The applicant approached him again and said “If you like it, I’ll do it again.” Mr Titon said that he told the applicant to “piss off and leave me alone” and the applicant went away laughing. Mr Titon then went to see Mr Richard Seddon, the Assistant Manager of the Club.
On the 8th August 1995 Mr Titon was told to report to Mr Buck’s office. He was then shown a document and he recognised that as a report of the meeting between himself with Joe Incorvil, Richard Seddon and Terry Buck. That report became part of the exhibits in the proceedings.
Mr Titon also disclosed that on 22 September 1995 at 5.00am, he was walking along Hamilton Road Fairfield going to work, when a vehicle slowed down and the high beam of the headlights were flashed at him. He described the vehicle as a white Daihatsu Feroza and alleged the driver of the car was the applicant. He stopped in the street and suggested that the applicant said “You shouldn’t work at the club because I am going to shoot you.” He then used other words like “fucking” and then drove off looking back at Mr Titon. Later in the day, Mr Titon made a statement to the police.
Under questioning Mr Titon admitted that he tried to attack the applicant with a beer keg stem, although he suggested that it was about 4 years ago. His explanation for the attack was that, Mr Bryant had done something wrong to him, he had a beer keg stem in his hand and he pushed him. He confirmed that he meant to scare the applicant and in retaliation the applicant then grabbed a champagne bottle. The applicant denied grabbing a champagne bottle as a defence and suggested that such a bottle had been used by Mr Titon as a further weapon.
On cross-examination it was put to Mr Titon that the incident involving the “penis” didn’t happen. Mr Titon maintained that it did happen. As to the incident on the morning of 4 August 1995. Mr Titon was cross-examined in relation to the type of chair he was sitting in and he admitted that he didn’t see the penis. He maintained that the applicant was playing with his penis beforehand. It was put to him, that he remained in the room after Mr Bryant left. This was denied by Mr Titon. He agreed that it was about 6.00am when he reported the matter to some of his fellow workers. It was suggested by Mr Titon that the applicant often did not wear the uniform. When testifying Mr Titon did not mention the trolley which he brought into the lift.
Also on a couple of occasions he dropped his voice so I found there was a difficulty in hearing what he said. Whether this was due to his nervousness, modesty or a deliberate ploy on his part I am unable to make a definite finding. Except to say that I believe he overemphasised the modesty aspect of his evidence. In making this observation I have taken into account the fact that he was from a non-English speaking background. Moreover his ability to describe distances correctly is not very satisfactory and cannot be accepted with any assurance of accuracy.
EVIDENCE OF WITNESS TO INCIDENT
Mr Justin Moloney was also a cleaner who had been employed with the Club for 3 years. He confirmed that he noticed the applicant on a few occasions grabbing his penis outside his shorts and sometimes inside his clothing. The applicant had often held his hand outside his shorts with an obviously erect penis and bragged about it. The applicant never said anything directly to Mr Moloney. He had seen Mr Titon object on at least one occasion to the applicant. His remarks were not taken very kindly by the applicant. Mr Moloney expressed the view that the more persons who objected to his actions the more that the applicant would do it. The applicant would often “flick the ears” or otherwise “pick” on Joe Titon. He regarded some of these incidences as “horseplay” and “mucking around” although many went beyond that stage.
Mr Moloney testified that he was putting his shoes on when Joe Titon, the applicant, Dave Pickering and Ray Carta had been directly opposite him against the wall in the staff room. He noticed that the applicant was walking with his penis outside his shorts. He saw him pressed up against Mr Titon with his pelvis. He also saw Mr Titon pushing him away with his elbow. The applicant seemed to think it was funny and he thought he heard the words “Hear this, feel this” or “cop this”. The contact lasted for only about one or two seconds. Under cross-examination he suggested no more than ten seconds. The applicant proceeded to walk out of the room and Mr Moloney shook his head and thought to himself - “dirty bastard.”
He did not report the incident because he thought Mr Titon could look after himself. At that time he was rostered off for five days commencing on Saturday 5th August 1995. He had been contacted at his girlfriend’s place by Mr Seddon asking him to confirm the incident.
I was impressed with the evidence of Mr Moloney who clearly regarded himself as a work mate of the applicant as they had been to hotels drinking together and he publicly expressed the view that he did not want to be present in court and gave honest straight forward answers and opinions. His testimony was most important because it enabled the past history between the applicant and Mr. Titon to be put aside in considering the evidence of the two of them. Any reservations which I held about him not being in a position to testify as to what went on between the two men at 5.00 am on that morning were dispelled by the following answers which he gave during his Cross examination by Counsel for the applicant:
“It was always been the position that you have said that Mr Barry Bryant’s back was towards you?---Yes, he was.
It has always been your position has it not, that you saw him push his pelvis into the back of Joe’s shoulder, is that not it?---Yes.
Nothing about an erect penis being rubbed on his shoulder in the words that you used earlier on in your evidence, is that right?---He had an erect penis.
When you last saw it?----Well, a second in between - it must have been pretty much to go down pretty quick. Cold spoon or something.
...Sorry?----A cold spoon or something like that.”
The conduct alleged against the applicant may only be explicable if it is compared to what occasionally happens in a football dressing room amongst some males after the exhilaration of a win in the match is mixed with alcohol. Such conduct is not acceptable in the workplace although it sometimes also occurs as a result of “horseplay” amongst employees in a male dominated employment situation.” Again the testimony of Mr Moloney in response to a question from me is illustrative of the likelihood of a wider attitudinal problem or culture of horseplay of a sexual nature in this place of employment:
“Yes, just wait a minute or so that we are both clear. You have told me that you have seen, apart from this incident that we are talking about that is the penis or the pelvis being pushed into Mr Titon, that you have seen Mr Bryant five or six times do something similar with his penis; do you understand what I mean?---Yes.
Now, what I am asking you, is he the only person at that work place that you have ever seen do that sort of action?---Not to the extent, can I say that.
Not to the extent?---Not to extremes.
Not to the extremes?---Mm”.
EVIDENCE OF WITNESS FOR RESPONDENT:
Mr Raymond Charles Carta, a cleaner of the club also gave evidence on behalf of the Respondent. He testified that the applicant had on a couple of occasions rubbed his penis into his back. This had happened at least twice in the last twelve months. He had told the applicant that he didn’t like it saying: “piss off Barry”. He didn’t witness any incident in the staff room on 4 August 1995. Although he testified that when he was in the cleaners room about three or four minutes later, the applicant had joined him and said: “I’ve rubbed my dick on him.” When the applicant left the cleaners room he was using a pelvic thrusting motion again laughing and saying: “I’ve just upset Joe Titon”. He testified that they left the room and got in the lift together.
Mr Carta reported that he noticed Mr Titon coming towards him in the lift and that the applicant was holding himself and laughing and pointing to Mr Titon through the glass of the lift. Mr Carta said that he noticed that Mr Titon had immediately become upset. He had held the lift open for Mr Titon who had got in the lift with his trolley and they went up to the first floor. Nothing further was said between Mr Titon and the applicant in the lift.
Mr Carta, in answer to questions from me admitted he had not reported that the applicant had carried out a similar action as had been described by Mr Titon to himself. This had occurred over a 6 to 12 month period prior to the 4th August 1995 incident. His response revealed that similar conduct had occurred over an extraordinary length of time without any apparent action by management or the employee either individually or collectively through their union or the Workplace Health and Safety Committee to prevent these happenings. In the circumstances I made the following observation to Mr Carta:-
“If someone did that I would feel under an obligation to tell management about it. Do you understand what has happened? If you had done that then, management perhaps could have intervened and we might not all be sitting here for 3 days? Do you understand that?----Yes, I understand what you are saying.”
Finally I said to Mr Carta:
“You understand Mr Carta that sort of conduct by anyone should not be allowed in the workplace. Should not be tolerated by the other employees, should not be let go on the basis that you do not want to dob somebody in. Do you understand that?”
Mr Carta replied: “Yes.”
Subsequently he was contacted by Mr Seddon. Initially he told him that he had not seen anything, later on he told him that there had been previous examples of horseplay before but nothing as bad as this incident.
He further testified that one morning in September on his way to work at about 4.30am, he saw a white Diahatsu Feroza heading towards the Club which he knew belonged to the applicant. He confirmed that he would no longer like to work with the applicant again. Mr Carta concluded his evidence on the third day of the trial.
APPLICATION FOR ADJOURNMENT - FOURTH DAY OF TRIAL
By agreement with the parties, the next hearing date was set on a basis which would allow the applicant to be present as he had ample time to make arrangements to be absent from his new workplace. On that day he did not attend the Court as had been arranged. The explanation given by his Counsel was that he feared leaving his employment as he may lose his job. There was an application by his Counsel for an adjournment on the basis that he needed the applicant present for instructions as to his cross examination of witnesses. Counsel were given an opportunity to discuss an adjournment on agreed terms. There being no agreement and after hearing from both parties, I refused the adjournment and continued hearing the case in the absence of the applicant. I suggested that any prejudice to the case for the applicant could be overcome by an application for leave to further cross examine a particular witness. I also indicated that approval of such an application could not be expected.
FURTHER WITNESSES FOR RESPONDENT
Mr Anthony Raymond Mills, a Cellar Supervisor, gave evidence in relation to his witnessing the incident between Mr Titon and the applicant involving the beer stem. He testified that when he saw them, there was a space between the two of them, although he couldn’t remember much of the details except that he took the beer stem from Mr Titon and he told them to: “piss off and go away”. He confirmed that no-one had got hurt and there were no punches. He remembered that some words such as “arsehole” and “prick” had been used and that there had been a real loud argument.
There was a tendency on Mr Murphy’s part to lead evidence from his witnesses. One example from the evidence of Mr Mills was “did he wave the stem at Mr Bryant? ---No, he did not.”
“Mr Murphy: “Did he threaten Mr Bryant, with the stem?----No he did not.”
In my view the effect of this leading requires there to be considerable discounting of the evidence given by Mr Mills. Nevertheless, I am inclined to accept the statements by Mr Mills that the applicant was in the practice of stirring Mr Titon by calling him names or playing practical jokes on him. Mr Mills testified that he had the same experience with the applicant. Mr Mills showed a reluctance to also be frank and forthright with the Court. One inconsistency which I noted in his evidence occurred in relation to him saying that he was called names and other things by the applicant. However he could not remember the details. I am of the view that this memory loss was not genuine. His failure to recollect could be explained by embarrassment about these issues or an attempt to give only a censored version of the conduct in the workplace.
By taking into account the evidence of Mr Mills I am satisfied that there was an assault by Mr Titon of the applicant although no physical contact was made by him upon the applicant. It was suggested during the trial that this was not an assault. An assault is an act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence. (See discussion of definition in Criminal Practice & Procedure, NSW. Page 2598.2 Butterworths). This incident and, no doubt other occurrences, should have been reported by Mr Mills and he did not do so. Had Mr Mills reported the assault then action might have been taken at an early date by the Management of the Club to ensure that the friction between Mr Titon and the applicant was brought under control.
EVIDENCE OF UNION CO-DELEGATE
Mr Incorvil was employed as a maintenance carpenter and had been since January 1995. In March 1994 he was elected Co-delegate of the Liquor Trade Union for the Club. Mr Incorvil commenced his evidence in response to the following question from Mr Murphy. “Have you seen Mr Bryant avoid work or defy instructions?” Mr Incorvil replied that this had happened on numerous occasions saying: “Barry would have been asked to do a particular job which he would do his best to avoid.”
He also confirmed that he had seen the applicant pick on Mr Titon, calling him names. He suggested that he called him anything at random including his pet name, “wingnut” and “monkey”. He also testified that he was aware of an incident where Mr Bryant threatened to shoot or assault a Supervisor. Again this was a matter which occurred some four years ago. Mr Mitchell, the supervisor, was apparently not worried about it.
He described Mr Titon’s advice to him when he approached him in the morning. He testified that Mr Titon seemed quite upset and when he was asked what the reason was, he replied: “Barry was being silly with him and he put his penis in his back”, at which he said “that he should take it up and report it to management.”
He recalls being called into a meeting where there was present Mr Buck, Mr Seddon, Mr Jackson, Mr Titon and himself. There was a further inconsistency with the written record maintained by Mr Buck arising out of the evidence given by Mr Incorvil about the meeting when he testified that the applicant was first asked about his work performance and then about the allegation made by Mr Titon.
Despite this reservation, Mr Incorvil tends to confirm the evidence of the applicant in relation to the order in which issues were raised at that interview. He confirmed on Tuesday 8 August 1995 that the first issue raised was failure to comply with work directions and that Mr Buck had asked Mr Bryant, why he didn’t do the job the supervisor had asked him to complete.
The incident that the applicant had been asked about was described as follows:
“Can you tell the Court what the job was? The job was that there were cables hanging in the director’s carpark that had to be strapped up, so that they were all tucked away. Mr Bryant did not do it that way, as he was requested to do with cable ties and as a consequence there was no power actually after the end of the shift in that area.”
He reported the response of the applicant as being:
“said he had done it the way he was asked but I know he hadn’t because I was present”.
He testified that Mr Buck had questioned the applicant:
“well he asked if he had pushed his penis into Joe Titon’s back and Barry Bryant said that he could not remember, it didn’t happen, words to that effect.
He said that:
“then Barry asked why I was present?” Mr Buck said that “as part of the union I was there virtually to represent him and he said that he didn’t wish to have me there”.
Mr Incorvil attended a meeting in Mr Buck’s office the next day being Wednesday 9 August 1997. Present at that meeting was Mr Buck, Mr Seddon the applicant, and he thought, the Union Co-delegate, Mr Mamri. Again Mr Buck asked about the incident involving Mr Titon and he confirmed that the applicant denied it happened at all. At that stage the applicant objected to his presence in the meeting and Mr Buck asked him to leave.
Mr Incorvil said that on 18th August 1995 there had been a meeting with Mr Buck and Mr Seddon, Mr Mamri and Ms Highgate, the other Co-delegate and Mr Barry from the Liquor Trade Unions together with Mr Jones from the Registered Clubs Association. Afterwards there had been a further meeting with Mr Barry and at that meeting with Mr Barry the representatives of the workforce present had told them that they were not prepared to work with the applicant because of what had happened. In addition, other members of the workforce had stated, they would take stronger action if the applicant had remained employed. He understood that to mean that they would take strike action.
There are several other inconsistencies between the written records kept by Mr Buck and the evidence of Mr Incorvil. For instance according to the written records, Mr Mamri was not present at any meeting before 18 August 1995. Mr Mamri gave no testimony of being present at either the 8 August 1995 or 9 August 1995 meetings. The written records only suggest that Mr Incorvil was asked to leave one meeting and not two as his testimony suggests.
Mr Incorvil clearly misunderstood the role in which he was participating in the meetings. He confirms in his evidence that he was there to support the complaint made by Mr Jackson the acting maintenance supervisor against the applicant of alleged failure to carry out a work direction. However at the same time he was there as a Co-delegate to provide proper representation for the applicant. In an answer to a question from Counsel for the applicant under cross-examination, Mr Incorvil gave the following answer:
“Q: You did not like Barry Bryant did you?
A: Barry was alright, we worked together for nearly five years.”
In the light of his earlier evidence that answer was either evasive or not truthful. I reminded him of the inconsistency with his earlier evidence:
“But you earlier started off by telling me that he was “always avoiding work” so that he can hardly be said to be working with you if he is always avoiding work.
Well, that’s true to.
Yes, alright you are better off coming clean, Mr Incorvil.”
Mr Murphy then objected to my observation. The impression I had formed of Mr Incorvil was that he was not being frank and forthright in his evidence to the Court. It was necessary that I should give him the opportunity of explaining the inconsistencies that were emerging in his evidence as a result of his failure to be frank and forthright. It should not be forgotten that Exhibit “D”, which relates to a meeting on 20 July 1995, had already been tendered in the proceedings, and it contained the following general allegation against Mr Bryant:
“Mr Bryant was informed that other staff are dissatisfied with his attitude and complaints have been received regarding his laziness.”
It can be said in favour of Mr Incorvil that he was not present at this meeting but his fellow Co-delegate Mr J. Mamri was present and signed the minutes.
Mr Incorvil then disclosed that there were other nicknames used by persons other than the applicant in the workplace. Under cross-examination Mr Incorvil also had to acknowledge his awareness of the beer keg stem incident between Mr Titon and the applicant. This appeared to be inconsistent with earlier evidence that he had given.
Another informative response by Mr Incorvil in his testimony occurred as a result of answering my questions:
“Q: Have you seen him do that on previous occasions?
A: Well yes, during lunch and morning tea.
Q: Describe for me what you regard as an obscene gesture.
A: Well he would flaunt his erection by sitting down in a chair lay back and you know.
Q: You have seen him do that on previous occasions?
A: Well, yes during lunch and morning tea.
Q: Did you see anyone else do anything of that sort of nature?
A: No.
Q: Never?
A: No, not that I can recall.”
This apparent memory loss, is a further indication of him not being frank and forthright in his answers.
There was uncontested evidence that Mr Incorvil was not welcome by the applicant at any meeting as his representative or to assist him in any way.
APPLICATION FOR DISQUALIFICATION ON GROUNDS OF APPREHENDED BIAS AGAINST THE INTERESTS OF RESPONDENT
After the evidence from Mr Incorvil had been completed, Mr Murphy, Counsel for the Respondent submitted that I disqualify myself from further hearing the proceedings on the grounds of apprehended bias against the interests of the respondent. Mr Murphy stated that his application was based on three matters and I quote from his submissions to the Court:
1. “The first is repeated observation of events that there either is or is likely to be a culture of sexual behaviour of the sort being examined in this case at the Club.” There is not the slightest evidence about that and we say those observations would or could cause a fair minded observer to apprehend bias.
2. The second point that we rely upon was the statement made today to Mr Mills concerning his non-reporting of the beer stem incident, if I can describe it that way and the observation from the bench that had it been reported we may not have been here today. Our submission is that there is absolutely no connection between that incident, its non-reporting and the events that led to Mr Bryant’s termination and again we say that observation from the bench could in the mind of a fair mind observer cause an apprehension of bias.
3. The third matter and perhaps the most important of the three that we rely upon, is the observation or at least direction to Mr Incorvil when he was giving his evidence to come clean or words to that effect. The basis of that as I recall it is that it was thought that there was some conflict between evidence Mr Incorvil had given. The evidence that Mr Bryant was always avoiding work, and then at a later stage, he was asked about his attitude to Mr Bryant in a more general way and his answer was to this effect he was all right, we worked together for five years. Now, we say that there is absolutely no conflict between those two pieces of evidence and for the bench to say to Incorvil words to the effect “come clean” is a further matter which would in the - or could is the test, in the mind of a fair mind observer create an apprehension of bias so for those reasons we would ask that you no longer continue to hear this matter and that this matter be assigned to another member of the Court.”
This application was refused I gave an ex-tempore judgment on the motion after a short adjournment. In that judgment I mentioned that I would give additional reasons incorporating my findings about the various witnesses. In this case, I carefully observed the witnesses as there was a strong contest between the versions given by Mr Titon and the denials made by the applicant. In detailing the evidence of each of the preceding witnesses. I have now given specific reasons for accepting or rejecting their evidence.
Originally, in his evidence, the applicant denied the conduct which led to these proceedings. However, by way of an aside or after thought he first mentioned the alleged assault with the beer keg stem with which I dealt with earlier. During the course of his evidence, I formed the view based on this aside, that it may be that there were other incidences between these two men which had not been disclosed. See for example, the allegation of the use of a champagne bottle made by each of them against the other. The resolution of this conflict involved a consideration of the actions or inactions of fellow staff members. The evidence of the applicant suggested to me that there may have been a history of either work place violence and/or unwelcome conduct of a sexual nature. Because of the conflict between the two key witnesses I made close observations of the remaining witnesses it seems to me that they were being either more nervous or apprehensive about the giving of their evidence than might normally be expected. This could, of course, be because it involved sensitive, personal issues, which whilst people have no difficulty talking about in the hotel bar or in the locker room after a game of sport, may not be considered appropriate discussion in a court. I formed the view that the witnesses had either been very carefully briefed about the evidence that they were to give, or alternatively they could have been less than forth-coming when providing proofs of evidence to the legal advisers to the respondent. Based on these observations I formed the view early in the proceedings, and I expressed it accordingly, that I felt that this incident may be part of a larger problem which had not been acknowledged either by the employees or management of the respondent. Written reasons for the decision to refuse the application of the respondent are published separately and may be read in conjunction with this decision. The evidence of the remaining three witnesses was then completed.
EVIDENCE OF SECOND UNION CO-DELEGATE
Mr Mamri is also a union delegate and he testified that Mr Titon had approached him early in the morning and said that the applicant had “stuck his thing into him.” Shortly afterwards Mr Mamri clarified his use of the words “his thing” to describe a penis. Later on under cross-examination he used the phrase “stick his dick in his back.” Mr Mamri said that he and Mr Titon then discussed what to do and he had advised reporting the incident to Management. Initially Mr Titon had not accepted this advice. However, later in the morning, Mr Titon had again approached him and said that the applicant had come to him and said that if he liked it so much he would do it again. In those circumstances a decision was then taken to go straight to the Assistant Manager Mr Richard Seddon. Mr Titon then told Mr Seddon what had happened between the two of them. Mr Mamri said that Mr Titon had told him a few times about the unwelcome conduct and he also added that the applicant had done it on a few occasions to himself.
In his evidence Mr Mamri suggested that on a number of occasions he, as the Union Co-delegate had gone to the “assistance of Mr Bryant in clashes with management” and that “I got him off the hook three times. I kept telling him, I say Barry, please you don’t do that. Which is no good for me, no good for you.”
Mr Mamri at first denied that he had ever seen any incident involving the applicant doing anything else with his penis to anyone else. However in response to a question from me, he admitted the following:
“So the first that you have ever heard Mr Bryant doing something with his penis, was Mr Titon told you that he had done it?-------------When he told me and he did a few times, I did not take any notice that he had done it to me a few time, but I didn’t take any notice of him.
Q: What had he done to you?
A: Well he use to put his hand on it and say look I am on hard - but because I never take any notice of it. He called me that a few times in the front foyer. He put his hand on it but I never told anyone about it because you ask me the question, Your Honour, I answer your question. He did put his hand on his thing and he called me Joe, Joe as soon as I looked behind. He says look I am on hard. He did say that to me.”
Here again, is another instance of a reluctant witness who was originally not forthcoming in his evidence.
EVIDENCE OF ASSISTANT GENERAL MANAGER
Mr Richard Alexander Seddon, Assistant General Manager of the RSL Club also gave evidence. He has been at the Club since 1990 and Assistant General Manager since July 1995. He received a report from Joe Mamri and Joe Titon that the applicant shoved a penis in the back of Mr Titon. He investigated the matter and reported it to the General Manager. He recounted that Mr Ray Carta reported to him that he didn’t see anything on that occasion but that the applicant had done it before. When it happened he could not recall. He admitted that he knew that there was a problem between the applicant and Mr Titon. There had been no official complaints and the video surveillance did not cover the area involved in the “beer keg stem” altercation.
He was present at the two meetings with the applicant on 8 August 1995 and 9 August 1995. He did not add further to the description of these meetings to that already given by Mr Incorvil.
Mr Seddon confirmed that the RSL Club had a functioning Workplace Health and Safety Committee. The RSL Club did not have a policy on violence in the workplace but that was because there really had not been any previous incident of violence amongst employees. The activities of the members of the RSL Club was a distinctly separate situation. He also acknowledged that the Club had a policy on Sexual Harassment in the workplace as being part of the Equal Opportunities policy of the Club and that it had been placed on the notice board. Of the two witnesses from the Senior Management of the RSL Club I found Mr Seddon to be more impressive.
EVIDENCE OF GENERAL MANAGER
Mr Buck gave evidence that he had been the General Manager of the Club since 1985. Since 1990, he had counselled the applicant on a number of occasions including at least one instance where a maintenance supervisor had been threatened. He tendered a series of documents some of which were signed by the applicant and others which were not. Mr Buck revealed he had a philosophy of not pursuing complaints unless the complainant was prepared to “stand up and be counted”. I will return to this issue later on. This particular view of Mr Buck has apparently been adopted as a result of some unfortunate prior instance.
Mr Buck testified : “I run two diaries, a day book and a 2-page Diary.”. The day book was kept on an extraordinarily comprehensive, but not necessarily accurate, basis. Copies of selected pages of his day book and 2-page diary were tendered in evidence. Mr Buck interestingly described his day book as “a contemporaneous note book.” Such notes are usually only admitted into evidence if the witness cannot accurately recall the evidence without reference to these notes. As some of his records had already been admitted into evidence reliance was placed on these documents rather than have Mr Buck give his recollection.
In the Fortieth edition of Archibold - Pleading Evidence & Practice in Criminal cases: “Contemporaneous” in this context is defined in paragraph:
515c(b): “Contemporaneous”. The question of whether a note is to be regarded as contemporaneous is a matter of fact and degree: R v Simmonds (1967) 51 Cr.App.R. 316 at p.330. The mere fact that the note was not written at the first available opportunity does not mean that it fails the test of contemporaneity. The true test is that the document must have been written (or checked) either at the time of the transaction or so shortly afterwards that the facts were still fresh in the witness’s memory. “This definition does provide a measure of elasticity and should not be taken to confine witnesses to an over-short period”: R. v. Richardson (1971) 55 Cr.App.R. 244 at p. 251, C.A.
A delay of a fortnight may not be fatal: R. v. Langton (1876) 2 Q.B.D. 296, but intervals of several weeks: R. v. Kinloch (1746) 18 St.Tr. 395, three months: R. v. Woodock [1963] Crim.L.R. 273 and six months: Jones v. Strond (1925) 2 C. & P. 196 have resulted in exclusion. In R. v. Graham [1973] Crim.L.R. 628, C.A., it seemed to the court that a lapse of 27 days between the event (oral statements made by the defendant) and the making of a statement to the police was such as to lead a judge to hesitate before giving a witness leave to refresh his memory. However, bearing in mind the nature of the true test, it is submitted that although the interval involved is a highly relevant consideration in determining whether the document is “contemporaneous” for the purposes of the rule, it is not the only consideration- regard should also be head to the nature and extent of the evidence involved.”
The General Manager of the RSL Club, was a man committed to recording the minutiae of his administration of the Club. He made copious notes and he testified that he was careful about the contents. He used to write them every night so that they were up to date and he maintained that he realised the value of having “contemporaneous notes”. In fact, that phrase is an unusual phrase for most people to use, unless they are familiar with the jargon lawyers use in litigation. Section 60 of the Evidence Act , 1995 (Cth) provides as follows:
“60. The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation.”
The notes made by Mr Buck were tendered to prove the contents of the meetings and discussions with the applicant. However once tendered for that purpose they are capable of being used for other purposes in the proceedings. (See the discussion by Moore J on this section of the Evidence Act 1995, in Cecile Reader v Wyndham Lodge Nursing Home Inc. an (unreported) IRCA Decision No. 91/97, and in Norman Ernest Herdegan v Woolworths Ltd an (unreported) IRCA Decision No. 86/97 by Patch JR at page 11.)
There was no evidence that such an opportunity was given to the applicant after Mr Incorvil left the meeting on 9 August 1995. In order to provide the applicant with an opportunity to defend what had happened it would have been a simple matter to defer the meeting until an official of the union who was without any conflict of interests could be present.
There are discrepancies in the evidence of the applicant and Mr Buck about the course which the interview took. I have preferred the version given by the applicant because it is largely supported by the oral testimony of Mr Incorvil.
I also find it highly unlikely that after preparing the letter, Exhibit “A”, before the meeting the General Manager would then sign, fold and place in an envelope during the meeting so that he would then have to read from a copy. The evidence is clear that the General Manager read to the applicant from a copy of a letter which he had with him. The notes of the General Manager record that the applicant asked if the letter which had been read to him was the same as the one in the envelope. Moreover, Exhibit “M”, being a photocopy of Exhibit “A”, with an additional endorsement tends in my opinion to show the letter to be pre-signed. The signature of the General Manager is photocopied on the document. I find that the letter was pre-signed before the interview commenced. There is some scope for adopting the view expressed by Mr Niven, that the termination was predetermined before the second interview took place.
I also find it highly unlikely that after preparing a letter before the meeting the General Manager would then sign, fold, and place it in an envelope. He read a copy of that letter to the applicant. Moreover Exhibit “M”, being a photocopy of Exhibit “A” with an additional endorsement tends in my opinion to show the letter to be pre-signed. I find that the letter was pre-signed, particularly as the signature of the General Manager is on the copy. before the interview commenced. There is some scope for adopting the view expressed by Mr Niven that the termination was pre-determined before the second interview commenced.
In his recent review of the case of Morris Tisdell v Woolworths Ltd (unreported) IRCA, NI 1067/97), Wilcox CJ made the following observations:
“I do not think it necessary to go into the facts in any great detail. I am content to adopt the views expressed by the Judicial Registrar, with one exception. The exception is that the Judicial Registrar was critical of the extent of the opportunity given to Mr Tisdell to defend his conduct. He suggested, without reaching any conclusion on the matter, that Woolworths may have failed to comply with s.170DC of the Industrial Relations Act 1988, as the legislation then was.
I do not think there was a failure to comply with s.170DC. I think Ms Salkeld gave Mr Tisdell a clear intimation as to the incident in relation to which he was being interviewed. He understood, from the outset, that the problem was that he had been caught smoking by another company employee. He readily agreed. Various company documents were referred to; he admitted he knew of them and knew they forbade smoking. According to the evidence of Mr Stephen Mayers, the assistant manager of the store, after Mr Tisdell was first interviewed there was a break during which Ms Salkeld spoke to Ms Lisa Murphy, another Woolworths employee (at head office, I understand). Mr Tisdell was then brought back into Ms Salkeld’s office and was asked, in effect, whether he had anything to say as to why he should not be terminated. He answered “no”. I think Mr Tisdell knew what the interview was about; he knew this was his opportunity to say whatever he wished about the incident, and he did so. There are other matters he might have put, had he thought of them or, perhaps, been more experienced in dealing with problems such as this. But he did not fail to put them because of any lack of opportunity.” (my emphasis)
Early in his evidence the applicant gave as his reason for requesting the Union Delegate to leave the meeting of 9 August 1995:
“They asked me, or Terry had asked me if I had the written statement on the situation. I advised him that I didn't have anything and that I didn't know what to say because to me the allegations were false. So therefore there was nothing for me to write. I - I asked not to have a union delegate there at the meeting, I tried to keep the meeting as privatised as I could because I was embarrassed about the situation, so I just wanted to try and handle the situation with a minimum.”
There remain reservations about the way in which the interview was conducted together with the strong likelihood that the decision to terminate the applicant was taken by the management of the RSL Club, before the interview commenced. As well there is the paucity of the investigation which was conducted. Whilst, it is a marginal case, I find on the balance of probabilities, after taking into account the views expressed by the applicant about the need for the meeting to be private that this applicant was given the opportunity to defend himself as was required by the then legislation.
In other circumstances, I might have been prepared to hold that the inadequate way in which the allegations were put to him was sufficient to lead to a contravention of Section 170DC. I base this on the fact that the note made by the General Manager agrees with the order of the discussions as recollected by the applicant. However, I am satisfied that the applicant did have an opportunity in the circumstances to respond to the allegations of a complaint by Mr Titon that he engaged in unwelcome conduct of a sexual nature that he did so, denying them, and accordingly there will be no finding that Section 170DC was breached.
However, that finding is not made with any great reliance placed on the evidence which was give to me by the General Manager. I have expressed some reservations about the conduct of the management of this club. In my view, a number of members of the senior management, including the General-Manager knew that this sort of conduct was occurring. It was ignored because of his dictum that those complaints, where an employee would not stand up to be counted, were not investigated. In my view, such an issue did not stop the club, through its Occupational Health and Safety Committee, of raising the problem with its employees and seeking its help to resolve these concerns. The RSL Club needed to do more than pin notices on a notice board. In other words, what could have happened, for example, was for a delegation of employees from the committee to speak with the individuals concerned and give them a warning about the inappropriateness of their conduct.
The Occupational Health and Safety Legislation of NSW places an obligation on all employees to ensure the health, safety and welfare of fellows employees (see s19). In the light of that legislative prescription I also regard the actions of the applicant as being improper.
EXTENSION OF TIME
The principles covering an extension of time have been set out in a number of cases. These include the decision of von Doussa J in John Neale Nelson v Scholle Industries, (unreported) IRCA, 1234R of 1995, dated 17 October 1995) at page 9 and following. The principles governing an extension of time are also conveniently set out by Marshall J. in Jacqueline Brodie-Hans v MTV Publishing Ltd (1996) 67 IR 298:
“The relevant principles which should govern the Court’s discretion to extend the time within which an application under s170EA of the Act may be lodged are set out in the decisions of Keely J in Transport Workers Union of Australia v National Dairies Limited (No 2) (1994) 57 IR 186 and Beazley J in Michael Turner v K and J Trucks Coffs Harbour Pty Limited, Industrial Relations Court of Australia, NI 1246 of 1994, 10 August 1995, as yet unreported. In each case the Court applied the tests referred to by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 349.”
I agree, with respect, that those principles are appropriate to be applied in the circumstances of this matter. Briefly stated the principles are:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant an other persons in a like position are relevant to the exercise of the Court’s discretion.”
I propose to consider just briefly under similar headings as set out by Marshall J in his judgement, the position as I see it in relation to this application.
SPECIAL CIRCUMSTANCES
The difficulty which arose for the applicant as a result of the Union delegate pursuing a dual role at the meeting which resulted in his termination is, in my view a special circumstance. The decision of his former fellow employees at the RSL Club to oppose his return to the workforce whilst he was being represented by the union, appears to me to also distinguish this case from other situations. There is clearly a conflict of interests.
EXPLANATION FOR THE DELAY
The delay is explained by the earlier lodging of the Section 246 Application under the N.S.W. Legislation. It should be recalled that a 21 day time limit applies in that jurisdiction. In addition it was the policy of the union to apply for reinstatement under the state jurisdiction. As well the change in representation from the union to the solicitors was also a contributing factor. Although I note the elapse of time which occurred between the signing of the application on 25 August 1995 by the applicant and his solicitor, and its lodgement in the court, I do not consider an extension of time to be out of the question solely on the basis of this delay.
OTHER ACTION TAKEN BY THE APPLICANT
It is clear that the applicant was contesting the decision through his Union and by other means at all times.
PREJUDICE TO THE RESPONDENT
The respondent in my view would have suffered no prejudice during the delay. It was aware that the decision was being contested. As a large Club it could quite easily have accommodated the reinstatement of the applicant. Having regard to these factors, I find that there was no prejudice to the respondent.
MERITS OF THE APPLICATION
At the time of lodging the application the applicant had the prospect of arguing the case under Section 170ED(2) that the decision was harsh unjust or unreasonable. The decision of the High Court in Victoria and Commonwealth of Australia & Ors (1996) 138 ALR 129 was handed down the day before the final submissions were made by Counsel in the case. The fact that his denials of conducting himself in the manner alleged have not been accepted is not sufficient. It should also be remembered that he was initially denied access to the statements of his accusers.
FAIRNESS AS BETWEEN OTHERS IN LIKE POSITIONS
There is no question of fairness as between the applicant and other employees of the RSL Club given the decision of his former fellow employees to oppose his continued employment.
CONCLUSION ON EXTENSION OF TIME APPLICATION
The relatively short length of the delay and the explanation, require that the discretion be exercised in favour of the applicant. Time should be extended until 11 September 1995.
VIOLENCE IN THE WORKPLACE
Although the circumstances of this case and the nature of the assault is slightly different there are some parallels with the case of Paz v Mack Trucks (unreported), McIlwaine JR, IRCA, 13 September 1996. Paz was an incidence of a physical assault by the throwing of a bolt by the applicant, Paz, which struck a fellow employee following his use of vilifying and racist based nicknames directed at Paz. Moreover in the case of Paz he was the recipient of a “brown eye” which was probably wrongly believed by Paz to be an “unwelcome sexual advance”. It is both relevant and important to repeat what I said in Paz v Mack Trucks (supra) at pages 26 to 31.
“This was a matter where the respondent could have done much more to minimise workplace violence. In this respect the views expressed in the practice book: Australian Industrial Safety Health and Welfare, page 46-111 to 112, (paragraph 50-028), CCH Publication Australian Occupational Health and Safety Journal in Volume 3 under the title are pertinent:
“Violence in the workplace can constitute an unsafe and dangerous condition for which employers may be liable if an employee or other persons get injured.
A person is likely to be violent in the workplace will typically display warning signs before engaging in violent conduct. People who can identify and understand the warning signs of a potentially violent person may be able to prevent a tragedy in the workplace.”
I agree with the conclusion made in the service that:
“Violence in the workplace can constitute an unsafe and dangerous condition for which employers may be liable if an employee or other persons get injured” and there are “typically warning signs which can be displayed and may be identified by informed or trained personnel.” It recommends that “employers should consider recommending counselling through employee assistance programs for employees under stress who exhibit warning signs that they could become violent.”
Additional helpful suggestions for employers are made under the heading “Violence and work stress” at page 46,115 (paragraph 50-034):
“Industry experts at a conference on work stress and health in Washington, DC. in September 1995 concluded that employers should develop education and training programs to address internal and external threats of violence in the workplace.
At the conference, a report of a survey of nearly 500 members of the Labourers’ International Union of North America revealed that 37.9% of the respondents had personally witnessed an assault, violence or harassing behaviour in the workplace.
It was recommended that companies develop guidelines for recognising and thwarting all levels of threats and violence that may occur within their workplaces. As part of the program, a company might develop a threat/violence assessment team which would respond swiftly to reports or threats of violence. In order for violence to occur, the perpetrator must have sufficient time, opportunity, ability, desire or stimulus. The objective of the threat/violence assessment team would be to remove some or all of those enabling factors.”
There was also the need for the company to have a code of practice in relation to the display of notices and education of workers in other languages which appear to me to be sadly lacking in this case.
I repeat that nothing I say in this judgement should be taken as in any way condoning the use of physical force or violence in the workplace by an employee. However, it seems to me there is an obligation clearly placed on an employer to deal with violence in the workplace through its Workplace Health and Safety Committee as a result of the Workplace Health and Safety Act 1995 of Queensland:-
“90(1) The primary function of a workplace health and safety committee is to assist co- operation between employer, principal contractor and worker in developing and carrying out measures to ensure workplace health and safety at the workplace.
(2) Also, a workplace health and safety committee may give information and advice to an employer or principal contractor about workplace health and safety.
(3) Without limiting subsection (1) and (2), a committee may seek to discharge its functions by -
(a) encouraging and maintaining at the workplace an active interest in workplace health and safety; and
(b) considering measures for training and educating persons at the workplace about workplace health and safety issues; and
(c) telling workers about the formulation, review and distribution (in appropriate languages) of standards, rules and procedures about workplace health and safety at the workplace; and
(d) reviewing the circumstances surrounding work injuries, work caused illnesses and dangerous events referred to the committee for review; and
(e) telling the employee or principal contractor of the results of the review and making recommendations arising out of the review; and
(f) helping in the resolution of issues about workplace health and safety at the workplace.”
There was in this case no evidence of any educational process to highlight the need for the prevention of violence in the workplace. There was no suggestion made that Mr Paz could seek help from the workplace health and safety committee.
The issue of the adequacy of the communication of workplace rules and procedures is discussed in the case of Bostik (Aust) Pty Ltd v Gorgevski (No 1) 41 IR at page 452, and in particular in the judgement of Sheppard and Heerey JJ at page 454, when their Honours referred to a “no smoking notice” issued to all staff as follows:
“This notice and the ones previously referred to were published only in English despite the fact that of the 200 to 220 employed at the plant nearby all were people who did not have English as their first language. About 35 were Macedonian. The respondent’s evidence was that he saw the circular of 19 March and knew there was a new policy but did not know that anybody smoking in a non-smoking area would be instantly dismissed. His state of mind as to this was influenced by the fact that recently somebody had been caught and suspended for two weeks.”
The Judges also discussed the belief of the company that it had reasonable grounds to understand that the respondent knew of the sanction of instant dismissal, and the Judges further stated at page 459 under the heading “A One-Way Ticket to High Street”:
“While one might accept that it was used and understood as a vernacular euphemism for dismissal, it by no means follows that it necessarily conveyed the meaning that the company now seeks to place on it, namely that a breach of the no smoking rules, however inadvertent or trivial in consequence, or good the record of the employee, would result in instant and automatic dismissal, however devastating the effect on that employee. It is equally open to the construction that dismissal was a possible penalty that anyone breaking the rules risked.”
As an alternative, the company argued that it had reasonable grounds to believe and did in fact believe that the respondent knew of the sanction of instant dismissal. This argument does not appear to have been put to the learned trial judge. In any case, we think there would be difficulty in accepting such an argument in light of the inadequacy in the way in which this policy was brought home to the company’s multi- lingual workforce.”
Further at page 465 their Honours state:
“However, in the circumstances of the present case the point seems rather artificial. The underlying cause of this dismissal was that the company took the view that, having formulated its no smoking policy it had no option but to dismiss the respondent, notwithstanding the long and good service he had given the company, the catastrophic financial consequences for him, the lack of any actual danger in his conduct, and the inadequacy of the way in which the new policy was communicated. It seems that even if the company had carried out the most formal and meticulous procedures the decision would have been no different. That decision to dismiss was we think rightly held by the learned judge to be harsh, unjust and unreasonable and the actual procedure which the company adopted was merely incidental.”
It is clear, based on these observations that it is accepted that much more can be done by this employer and its employees to reduce or prevent further incidences of violence in the workplace.
At page 466 Gray J observed in the same case:
“In the present case, the learned trial judge clearly found that the respondent was dismissed in breach of cl 9(b)(vi) of the award on both substantive and procedural grounds. In so finding, his Honour was undoubtedly correct. The applicant could not be criticised for desiring to adopt a strict no smoking policy, for the safety of its employees, its premises and the public. It can be criticised for the manner in which it adopted that policy, and for the inflexible application of the policy to the respondent’s case. The policy of instant dismissal was plainly adopted without regard to the provisions of cl 9(b)(vi), which it could not override. Instead of following the procedures required by s 37 of the Occupational Health and Safety Act 1985 (Vic), under which a health and safety committee is, ‘to formulate, review and disseminate (in such languages as are appropriate) to the employees the standards, rules and procedures relating to health and safety which are to be carried out or complied with at the workplace’, the appellant treated the question of a no smoking policy as one for management, after consultation with health and safety representatives. Had there been a health and safety committee, and had it been entrusted with the performance of its statutory function, the no smoking policy and its possible consequences might have been disseminated to the appellant’s employees more effectively than was the case. The ‘Interoffice Correspondence’, dated 19 March 1990, which was the primary means of communicating the new policy to employees, was totally inadequate for the purpose. Even those skilled at reading the English language would have found it difficult to follow its officialese to the end of the third paragraph, where the words ‘INSTANTLY DISMISSED’ appeared. A serious safety policy requires more than one such written notice and a single meeting of leading hands to be conveyed adequately.”
In applying the policy inflexibly to the respondent’s case, the appellant obviously failed to take into account many relevant circumstances which were known to it. These included the lack of any actual risk from smoking at the place where the respondent was smoking, the respondent’s long and unblemished record as an employee and a leading hand and the poor prospects of the respondent obtaining employment elsewhere. The appellant also failed to investigate adequately the respondent’s actual knowledge of the no smoking policy and its announced consequences. The interview which was afforded to the appellant was wholly inadequate, especially given his limited use of the English language. It is a nice question whether these shortcomings are characterised as substantive or procedural. To the extent to which the appellant failed to investigate, the breach of cl 9(b)(vi) is procedural. To the extent to which it failed to take into account the relevant circumstances, the breach is substantive. This case illustrates the difficulty of separating the two.
No question can therefore arise of reduction of the damages awarded by the learned trial judge on the basis that only a procedural breach was established. On the evidence, given the absence of cross-examination of the witness who gave evidence as to the respondent’s prospects of obtaining employment, the amount awarded was plainly correct.”
It is clear that based on these observations much more can be done by this employer and its employees to develop a code of practice to prevent violence in the workplace.”
I have taken into account the admissions which have been made by most of the witnesses for the Respondent as to the use of inappropriate language. The tacit concessions on their part that similar conduct, though not to the same extent as carried out by the applicant has occurred at the RSL Club. Such “horseplay” amongst male employees, would clearly fall within the meaning of “unwelcome conduct of a sexual nature” contained in the Sex Discrimination Act 1984. This testimony clearly shows that much more needs to be done to prescribe, warn, command or prevent violence or sexual harassment in the workplace of the RSL Club.
N.S.W. OCCUPATION HEALTH AND SAFETY LEGISLATION
The New South Wales Occupation Health & Safety Act 1983 contains similar provisions as are expressed in the Queensland & Victorian legislation quoted earlier, although they may not be as extensively enunciated. See for example Section 24(1) (a) Occupation Health and Safety Act, 1983. The principle outlined in that section is similar and is reinforced by the High Court decision of McLean v Tedman and Another to which I have previously referred.
I do not accept the suggestion made by Mr Buck in his evidence that questions of assault or violence or issues involving sexual harassment in the work place do not involve the health and safety of the employees at their place of work.
In this case it was confirmed in evidence that the RSL Club does have a functioning Occupational Health and Safety Committee. I see no reason why the Board of Directors of the Club ought not to refer the issues that have arisen in this case to that Committee for its consideration and recommendations. This would include the conduct of the employees towards one another, the violence that has occurred in the workplace, the use of nicknames, together with the failure of employees, supervisors and management to report such conduct over a lengthy period of time. The Committee could review and suggest an appropriate Code of Practice and Guidelines for both employees and the employer in relation to the best method of dealing with these issues.
There are a number of publications which are now readily available which would provide a source of material for the development of such a Code of Practice. Alternatively and probably preferably assistance might be sought from the Workcover Authority in N.S.W. towards formulating and preparing an industry code for the practical guidance of management and its employees at the RSL Club. See section 44A Occupation Health & Safety Act 1983. I again emphasis that the importance of the role of Occupational Health and Safety Committee in dissemination of such policies is more than adequately set out by Gray J in Bostik & Gorgeviski as quoted above.
NEED FOR ADDITIONAL ACTION
I reiterate what was said in Paz v Mack Trucks that there is a necessity for employers to develop strategies to deal with violence in the workplace whether it arises out of a non-sexual physical contact or alternatively by a sexual assault or sexual harassment or by the use of offensive nicknames or horseplay.
It is quite common in the workplace for incidences of “sexual assault” to be called “sexual harassment”. The latter phrase; depending on the circumstances, may be an inappropriate terminology. Because a “sexual assault” occurs in the workplace it does not in my view, ensure that the actions of a fellow employee supervisor, manager or employer is taken to be outside the scope or reach of the criminal law. I have seen and heard sufficient cases to understand that there are major problems in the workplace involving these issues. This is so, despite all the efforts which have been undertaken by the various authorities towards publicising the necessity for employers and employees to take appropriate action to ensure that these situations do not occur.
Despite the protests of Counsel for the respondent in this matter; I remain convinced that there was a history of the use of vilifying, physically belittling or ethnic based nicknames amongst the employees of the RSL Club. There is a sufficient indication of a level of violence to require the Directors of the RSL Club to take action to meet their obligations under the Occupation Health and Safety legislation in NSW and at Common Law. In this I would expect the Union and the current employees to be supportive.
In some cases, it has been my practice to refer to appropriate authorities for investigation possible breaches of the law. In this case I am convinced to at least the civil standard of proof, that there has been a breach of the obligations imposed by the Occupational Health and Safety legislation by the previous inaction of the management of the RSL Club. However, I do not propose to refer the matter to the authorities for further investigation as I believe that all parties to this matter have been involved in sufficiently lengthy court proceedings so as to not require further allocation of scarce government resources or RSL Club funds for this purpose. However, I strongly recommend to the Board of the RSL Club that it give consideration to the way in which incidents of this nature are investigated within the Club. Particularly there should be a review of the views expressed by the General Manager that no matters are investigated unless other employees are prepared to stand up and be counted. Whilst this may be a wise precaution in some incidences it does not cover every case because it enables a predatory person to prey on the weaker employee without fear of retribution. In my view this is a “head in the sand” attitude that should not be tolerated in the workplace or by the Board. I again emphasise that such a management style allows the weakest person in the workplace situation to be preyed upon with the knowledge by the predator that unless the complaint is formerly placed before management no action will be taken.
I am satisfied that his conduct was such as to justify the applicant being charged with an offence under Section 61L Crimes Act 1900 (NSW):
“61L. Any Person who assaults another person and, at the time of, or immediately before or, after the assault, commits an act of indecency on or in the presence of the other person is liable to imprisonment for 5 years. “
Similarly I am satisfied that his conduct was such as to justify Mr Titon being charged with an offence under Section 61 Crimes Act 1900 (NSW):
“61 whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”
In some incidences I am prepared to recommend to the Attorney General that the transcript of evidence and the reasons for my decision be referred by him to the authorities responsible for prosecuting such offences. I do not think the circumstances justify such an inquiry being conducted at the expense of the Australian Taxpayer. I make that observation based on the history of a prior assault and constant aggravation and disputation between both men. The fact that these incidences were known to management at senior level and little was done is also a contributing factor. In the case of the “beer keg stem” altercation the age of the incident strongly mitigates against such action. The tension between the applicant and Mr Titon, has no doubt continued for some time, because of the failure of the managers of the RSL Club to intervene until the situation was beyond repair. In making that observation I am not making any finding adverse to Mr Titon except to the extent that he did not earlier make a complaint about the unwelcome conduct of the applicant. The fact that the applicant consented to the making of an Apprehended Violence Order is also an important factor as to why no further action is needed toward initiating a prosecution.
Members of the Boards of licensed clubs in this State give much of their free time for very little financial reward and sometimes even less recognition from their fellow club members for their extensive contribution to the well being of the club and the community generally. I am satisfied by the interest shown by the attendance, on a rotating basis during the hearing by several members of the Board of the RSL Club including members of the executive such as the Senior Vice-President and Treasurer that they will ensure that action is taken to adopt a proper Code of Practice dealing with workplace violence and sexual harassment in the workplace thus contributing to the continued good health and safety of its employees and the future well being of the club.
In the light of the conclusion which I have reached with respect to Section 170DE and 170DC the following orders will be made immediately.
1. The time for lodgement of the application be extended to 11 September 1995.
2. The application is dismissed.
COSTS
Before I formally issue an order in respect of costs. It occurs to me that counsel for the respondent may wish to make submissions about the question of the payment of the costs of these proceedings. I propose to give an opportunity of addressing the Court on that issue if that is desired by the respondent. Within a period of 7 days from today the respondent may issue a Notice of Motion, together with an outline of any claim for costs. The applicant may also need an opportunity to provide additional material by way of affidavit if necessary in response to any claim for costs. I will then set a programme for response by the applicant to that claim.
However I observe that a difficulty facing the respondent in this matter, is that section 170EHA was not effective prior to its commencement date of 16 January 1996. It is well settled that Section 170EHA of the Act does not cover matters lodged in the Court prior to the commencement date. These proceedings were lodged on 11 September 1995, and accordingly Section 170EHA does not apply. Under that Section, there is no doubt that the respondent in my view, would have had a much better case upon which to base a claim for costs. Indeed, it would seem to me that it could be strongly argued that a crucial turning point in the case was the evidence given by Mr Moloney as to what he had witnessed. This of course, was further reinforced by the evidence of both Mr Carta and Mr Mamri to the effect that the applicant had made similar gestures to them in the past.
The cost provision now contained in s170CJ (2) (b) of the Act if it had applied to this case could have been even more devastating in respect of the case against the applicant for costs:
“170CJ(1) If the Commission is satisfied that a person or organisation made an application under section 170CE vexatiously or without reasonable cause, the Commission may, on an application by the employer under this section, make an order for costs against the person or organisation.
(2)If:
(a) the Commission has begun arbitrating a matter the subject of an application under section 170CE; and
(b) the Commission is satisfied that a party to the proceeding has acted unreasonably in failing to discontinue the matter before the Commission or to agree to terms of settlement that could lead to the discontinuance of the matter before the conclusion of the arbitration;
the Commission may, on an application under this section by the other party to the proceeding, make an order for costs against the first- mentioned party.”
However, the respondent is faced with Section 347 of the Act, as it then was, as the applicable section:
“347(1) A party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.
347(2) In subsection (1): “costs” includes all legal and professional costs and disbursements and expenses of witnesses.”
Before finally concluding my remarks and to assist the parties, I note prima facie, that I consider there is currently no evidence before me, that the applicant acted in a vexatious way. The fact that I have not accepted his denials, in my view, does not necessarily lead to the conclusion that he acted vexatiously. It would require additional detailed factual material, in my view, to assist the respondent to establish such a case. The respondent may be on stronger grounds in relation to the phrase “without reasonable cause”. In the circumstances I propose to give both parties an opportunity to further argue the question of costs should such an argument be needed.
In the event that action is not taken to file a Notice of Motion within 7 days then in addition to the orders which I have earlier indicated. There will be an additional order entered: no order as to costs. That order will not be made until after 4.00pm seven days from today. The intention being that prior to that time the respondent may lodge with the Court an application for costs by way of Notice of Motion and supporting material in accordance with the applicable rules of the Court. If that action is taken then I will set the matter down for a short directions hearing at a time convenient to the parties early in 1998.
The Court orders:
1. The time for lodgement of the application be extended to 11 September 1995.
2. Application is dismissed.
3. The question as to whether costs are to be payable is reserved for further consideration until 4.00pm on 23 December 1997.
I certify that this and the preceding thirty-nine (39) pages
are a true copy of the reasons for judgment herein of
Judicial Registrar McIlwaine
Associate:
Dated: 16 December 1997
Counsel for the Applicant: Mr G Niven
Solicitors for the Applicant: Ghaith Krayem
Counsel for the Respondent: Mr J Murphy
Solicitors for the Respondent: Minter Ellison
Dates of Hearing: 1 February, 29 April, 17 May, & 5 & 26 September 1996
0
11
0