Connor v Grundy Television Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 5390 of 2004

SHANE CONNOR	Plaintiff
v
GRUNDY TELEVISION PTY LTD	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21, 24-28 OCTOBER, 2-4 NOVEMBER 2005
DATE OF JUDGMENT:	30 NOVEMBER 2005
CASE MAY BE CITED AS:	CONNOR v GRUNDY TELEVISION PTY LTD
MEDIUM NEUTRAL CITATION:	[2005] VSC 466

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Summary termination of employment pursuant to fixed term agreement – Onus on defendant to demonstrate 'negligence or misconduct' – Alleged cumulation of misconduct or negligence - 'Last straw' principle – Alleged failure to comply with terms of final warning – Evidentiary considerations - No satisfactory evidence of misconduct or negligence.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Hore-Lacy SC with Mr J. Gray	Slater & Gordon
For the Defendant	Mr H. Borenstein SC with Mr P. O'Grady	Holding Redlich

HIS HONOUR:

The plaintiff is aged 46 and is an actor by profession. On 16 June 1999 he entered into a contract with the defendant to play the role of Joe Scully in the television series Neighbours. Prior to this he had been acting for 17 years and had performed successfully in a variety of films, television mini series and on stage.

Neighbours has for many years enjoyed international success as a continuing melodrama or "soap opera" based on the lives of the residents of a fictional street in suburban Melbourne.

The plaintiff was employed in part because of his capacity to play a strong male character in a "down to earth way". His character was that of Joe Scully, a self-employed builder, married to Lyn Scully with three daughters and a son. The family had "come up" from a tough background and a central element of the character was that he lived for his family. Scully was described by one witness as "a very strong minded, strong willed character" and by another as "grumpy but with a heart of gold."

The plaintiff's contract required a substantial commitment. The program was produced over a 48 week continuous period each year. Episodes were written by teams of different writers and directed by four different directors each taking responsibility for a four weekly cycle of pre-production, location shots, studio recording and post-production with respect to groups of five episodes. The plaintiff's character was one of approximately 24 leading characters and was integrally involved in the ongoing plot.

Actors were generally required to rehearse on Monday and Wednesdays and to shoot scenes on Tuesdays, Thursdays and Fridays. Episodes were in part rehearsed and shot on set and in part rehearsed and shot on location. In the plaintiff's case they included scenes shot on a building site depicting aspects of his working life.

The working days were also potentially long requiring early starts and extended hours. The weekly hours required varied between 30 and 50 hours.

The plaintiff initially undertook his role with evident success and on 11 April 2001 the defendant extended his contract by one year.

During that year, however, and dating from a time shortly after the death of one of his brothers in June, the plaintiff developed personal difficulties and commenced using amphetamines both orally and intravenously on a recurrent basis.

Not surprisingly perhaps, although he did not use drugs at work, his behaviour at work was less positive and on 24 July 2002 two of the defendant's managerial staff met with him to address perceived problems with his performance. The outcome of this meeting was confirmed in a warning letter sent to the plaintiff's agent on 7 August 2002. This letter stated:

"Re Shane Connor – Neighbours
As discussed with Peter Dodds and Stanley Walsh, Grundy has some concerns regarding Shane Connor. We believe these are significant enough to necessitate this correspondence.
By way of a record:
Lately there has been an increase of Shane calling in sick during rehearsal days.
Shane's claim that he was sick all day on Monday 22^nd July, yet able to attend a paying backpacker engagement that evening was not satisfactory.
Some of the crew have complained about Shane's attitude, he is often abrupt and uncooperative. He was also advised that a number of his fellow cast members have found his behaviour unacceptable at times and they have represented this to the M.E.A.A. representative on Neighbours – Alan Fletcher.
It was pointed out to Shane that an artist does not have the right to refuse a reasonable request to work during the contracted hourly week, regardless if there is an amendment to the shooting schedule already issued, unless they are genuinely ill.
At the meeting with Stanley Walsh and Peter Dodds on Wednesday 24^th July Shane was assured that he was valuable to the show and his acting work was not in question. It was made clear to Shane that our concerns were also for him personally as well as the programme, and that we are willing to help him if he needed assistance.
However, it was determined that:
a)any future absenteeism by Shane will have to be supported by a doctor's certificate or written evidence on each occasion.
b)If Shane is ill or cannot attend work for any reason he should ring Linda Walker or Peter Dodds only, not other members of the crew.
c)That the schedule is there to be worked as determined, notwithstanding that Shane can be called upon at any time to work any number of the forty hours and overtime if required.

These points were understood and agreed to by Shane.
We do regard all of the other above matters as being sufficient to place Shane in breach of his basic obligation to Grundy pursuant to the long standing provisions of the industry Performer's Standard Contract under the Australian Television Repeats and Residuals Agreement (ATRRA). Specifically clauses 2, 3 and 4(a), (b), (c) and (e) of ATRRA General Conditions Schedule B are not being met by Shane.
This letter therefore constitutes formal notice of those shortcomings and, in the interests of the program and other individuals working on it, Grundy has to give serious consideration to the remedies available to it if we do not receive an assurance that the matters will be rectified and actually see these problems being addressed by a change in Shane's behaviour.
It is of course regrettable that Grundy has had to address these matters in writing with you, but in the circumstances and in the interest of Shane and the programme it is appropriate action for us to take."

There is some dispute as to the degree to which the plaintiff had caused difficulties prior to this date. On the one hand it is apparent from the defendant's records that there were recurrent incidents of lateness, and it might be thought that this alone coupled with his subsequently admitted use of amphetamines suggests the view that his performance was less than satisfactory.

On the other hand the plaintiff has an explanation for a number of the matters complained of and the defendant was content to renew the plaintiff's contract for a further fixed term of two years on 8 August 2002 immediately after giving the warnings I have referred to.

Having regard to subsequent events the most significant matter is perhaps that the plaintiff denied having any problems when interviewed in July 2002 and in particular did not acknowledge a continuing problem with recurrent substance abuse.

During 2002 and early 2003 the plaintiff's drug problem increased and his performance deteriorated.

By April 2003 he was failing to fulfil core obligations of his contract in that:

(a)He was not performing his obligations in good faith and to the best of his ability. In particular he was concealing his drug taking from his employer and not taking steps to address it while regularly attending at work suffering from hangovers and tiredness.
(b)His onscreen performance was affected. Video film taken on 13 February 2003 and 26 April 2003 demonstrates this. His performance deteriorated to the point where he was on occasions "shaky" making exaggerated facial movements, moving in an uncoordinated manner and failing to play his role in accordance with the intention of the script.
(c)He was not working in a co-operative manner with other cast members, directors and crew. He was abrupt and irritable. I accept the evidence of fellow actors that working with him was very difficult.
(d)The effect of his drug taking hangovers was such that he was unable to reliably see himself as others saw him. He was not fully aware of the deterioration in his performance.

These difficulties led to two further meetings with managerial staff at which he was warned that he must improve his performance. The first took place on 20 February 2003 and was followed up by an email from Mr Pellizzeri (executive producer of Neighbours) to the plaintiff's agent recording in detail the course of the discussion on that day. The notes recorded discussion of a particular performance, a sequence of late arrivals, a dispute about the conduct of a photo shoot, and discussion as to whether the plaintiff suffered from any health or personal problems. In relation to the last matter the plaintiff denied that he had any such problems. Specific concerns were recorded as to whether the plaintiff would be able to work satisfactorily with a baby on set as it was proposed that the plot would include the birth of a child "Oscar" to the Scully family in a forthcoming episode. The flavour of the most relevant notes is conveyed by the following extract:

"Ric said that he was really concerned about Shane because over the last couple of weeks Shane had been face pulling, jerking his head uncontrollably, and his speech was somewhat erratic. Shane replied that he was working with Jay and that [it] was harder to 'nail' his scene especially with dialogue not always in Joe's vernacular. He said that, more often than not, Joe was always the antagonistic [sic] in the scene – often he will come in with only that function, which was difficult to play and he was always supporting someone else in the scene."

The plaintiff was next called in for a meeting on 29 April 2003 and was given a final warning by Messrs Pellizzeri and Dodds (producer of Neighbours). This warning was both oral and embodied in a letter of the same date in the following terms:

"Re Your employment with Grundy Television Pty Ltd as a cast member of "NEIGHBOURS"
I refer to the meeting on 20 February 2003 attended by you, Peter Dodds, Jan Russ and Ric Pellizzeri. I also refer to your meeting with Ric Pellizzeri and Peter Dodds on Thursday 24 April 2003.
At the meeting on 20 February 2003 you were advised and warned that your lateness for call times, your difficult and agitated behaviour working with the Neighbours cast and crew and erratic speech and behaviour were of concern to Grundy and not acceptable. Grundy also had reason to address these issues with you in July 2002.
At the meeting on 24 April 2003, you were advised by Ric Pellizzeri that your argumentative, incoherent and erratic behaviour on set that morning was offensive and confrontational and that various cast and crew members had therefore had cause to complain about your demeanour and attitude to them and your work. You were not in a fit or proper state to remain at work and you were asked to leave.
Before leaving you were also warned again that your behaviour was unacceptable and you were asked to report to work on Friday 25 April 2003 having rectified the situation and your behaviour.
Friday April 25^th passed without incident, but at the recording on Saturday April 26^th 2003 your behaviour in the latter scenes was again agitated, uncoordinated, clumsy and your behaviour upset other cast and crew members on set.
All of the above instances can be construed as a breach of your employment agreement with Grundy. As a minimum expectation under that agreement you are to perform in good faith and to the best of your ability, but specifically you have also failed to arrive on time for call times and failed to adequately prepare your scenes for rehearsals and recordings.
In addition your behaviour raises grave concerns for the safety of Neighbours cast and crew around you and constitutes misconduct.
This letter is therefore a final notice to you that on any recurrence of:
(a)       lateness, or
(b)      difficult or argumentative behaviour, or
(c)       agitated, incoherent or erratic behaviour, or
(d)      offensive or confrontational behaviour,

and if your behaviour and demeanour are not corrected generally, Grundy shall have no alternative but to terminate your employment forthwith.
Grundy of course finds it regrettable that this warning need be given however, your behaviour over the past few months has left us with no alternative."

At both the February and April meetings the plaintiff continued to deny that he was suffering from any personal problems. This he says was due to feelings of guilt and shame. Following the April meeting, however, the plaintiff confronted his situation. At the April meeting he had stated that he understood he was on a final notice and at the end of that meeting he assured Dodds and Pellizzeri that he would try and change his behaviour.

Several days later he asked to meet Pellizzeri at the defendant's Richmond office. The plaintiff attended with his agent and solicitor brother and admitted to both Pellizzeri and Dodds that he had a drug problem.

Pellizzeri offered the plaintiff some time off but reiterated that the final warning of 29 April still stood. He reiterated that if the plaintiff offended in the way identified in the letter of 29 April his employment would be terminated if it was thought he was again affected by drugs or if his behaviour was unprofessional or intolerable. The plaintiff accepted this warning.

Pellizzeri confirmed the outcome of the meeting in a letter to the plaintiff's agent of 2 May 2003 which stated:

"Thank you for the meeting on Friday. I know that the admission by Shane was difficult, but I hope it will be his first step to total recovery.
I just wanted to reconfirm with you and Shane that, in spite of him coming forward about his drug problem, the final warning still stands.
Even though I feel sympathy for his situation, Shane is presently in breach of his contract and I cannot allow a further breach to occur. I have a production to run and the care and responsibility of many people and I cannot allow further actions by Shane to jeopardize the production or the people working on it.
You are aware I did offer him some time off to deal with his initial effort to counter his addiction. I understand the reasons this was rejected. I just hope it doesn't put him in a position that he cannot deal with.
We will monitor Shane's future conduct on the show fairly, but I expect him to act professionally, as is commonly understood in the industry, and if he does not do this or if I consider him to be under the influence of any substances while at work, he will be sacked immediately.
I also want to restate that he will not hold the baby Oscar under any circumstances and that all personnel on the floor will be instructed to follow this directive.
It is difficult to appreciate what Shane must be going through, but he has come this far and I hope he can now travel the rest of the journey."

Thereafter the plaintiff sought and obtained medical assistance for his drug problem. A condition imposed by his treating doctor was that he provide weekly urine samples in order to confirm he was continuing to stay clean. He successfully undertook this regime and remained drug free at the time of his sacking.

Again, perhaps not surprisingly, this change was accompanied by a dramatic improvement in his performance at work. Evidence from actors and crew describes both a change in character and a direct engagement and consequent improvement in his work.[1] The evidence further indicates that his work during the following months was of high quality. There is corroboration of this evidence in the video tapes tendered to me of performances in September 2003. In the latter he is animated, engaged and gives controlled performances demonstrating a range of emotions. In the tapes from the earlier parts of the year all of these qualities are to a greater or lesser extent lacking.
[1]Woodburne, another actor called by the defendant, stated:
".. His behaviour completely changed. He was pleasant, well rehearsed, well prepared, he interacted with other cast and crew and he was – most helpfully he was predictable and even tempered."

There is also corroboration in the defendant's late book which records 13 episodes of absence by the plaintiff in the months of January to April and one only in the subsequent five months.

It might have been hoped in these circumstances that the plaintiff would successfully complete his two year contract. In September 2003, however, he became involved in some conflict with other cast and crew members. One of these incidents led to a complaint to Dodds, who made inquiries of a limited number of employees and crew selected by him, uncovering other complaints. Dodds reported his understanding of these complaints to Pellizzeri, who in turn reported them to members of the defendant's senior management in Sydney. A decision was made to terminate the plaintiff's employment and he was summarily dismissed on 27 September 2003 at a meeting at which Pellizzeri and Dodds were both present.

At this meeting the plaintiff stated that he disputed the complaints made about him, but he was given no opportunity to answer them.

Following the meeting he was sent written confirmation of his dismissal in the following terms:

"Re The termination of your employment with Grundy Television Pty Ltd as a cast member of "NEIGHBOURS"
In a letter sent to you dated 20 April 2003 you were warned that your behaviour: continuous lateness for call times, incoherent and erratic behaviour on set, difficult and agitated behaviour working with the Neighbours cast and crew, erratic speech and general argumentative attitude to your work, was not acceptable to Grundy Television and that the incidents listed in this letter placed you in breach of your employment with Grundy.
The letter contained a final notice to you that on recurrence of any of;
(a)       lateness, or
(b)      difficult or argumentative behaviour, or
(c)       agitated, incoherent or erratic behaviour, or
(d)      offensive or confrontational behaviour,

Grundy would have no alternative but to terminate your employment forthwith.
In the period leading up to Friday 26^th Sept you have done the following on a persistent basis
(a)Aggressively complained about your part, the storylines and your character
(b)Behaved unacceptably in rehearsal and on the set by arriving unprepared, refusing to take direction and reacting aggressively towards directors.
(c)Been absent without authority during rehearsal and recordings.
(d)Behaved in an aggressive and threatening manner toward wardrobe staff.
(e)Subjected other 'Neighbours' cast and crew to offensive and confrontational behaviour.

The above recent incidents have been witnessed by and reported to Grundy by certain members of the Neighbours cast and crew. These incidents described above are unacceptable and constitute gross misconduct, a further breach of the terms of your employment agreement with Grundy and are grounds for instant dismissal.
Furthermore the listed behaviour presents a risk to the safety and well-being of other Grundy employees on 'Neighbours' and cannot be tolerated.
Notwithstanding that the recent incidents constitute gross misconduct, and are grounds for instant dismissal in their own right, our letter of the 29^th April was your final warning that reoccurrences of the behaviour exhibited by you prior to 29^th April would result in your instant dismissal.

This letter is therefore to confirm that your employment with Grundy was terminated with immediate effect on Monday 29^th Sept – as advised to you by the Executive Producer of 'Neighbours' in your meeting with him in the afternoon of that date.
Grundy finds it regrettable that it has had to take this course of action but your actions have left us with no alternative but to terminate your employment."

The plaintiff now claims damages for the wrongful termination of his employment and the repudiation of the employment agreement.

The fundamental dispute between the parties is whether the plaintiff's actions in late September 2003 justified the summary termination of his employment. That dispute is in the first instance a dispute of fact in respect of which the defendant bears the onus of demonstrating conduct by the plaintiff amounting to misconduct or negligence.

The plaintiff's case is put in the alternative on the basis that the defendant did not adopt procedures required by a relevant enterprise agreement and accordingly the dismissal was implemented in a form which repudiated the employment agreement.

The defendant contends that the plaintiff was guilty of conduct justifying his summary dismissal in September 2003. It further counterclaims for additional expenses incurred by it as a consequence of the plaintiff's alleged breach of the employment agreement and the consequent summary termination of his employment.

The Employment Contract

The framework within which the disputed facts fall to be assessed is that of the second employment agreement ("the agreement").

Clause 1 of Schedule B of the agreement provides:

"1.This agreement incorporates and includes all the terms and conditions of the Actors Television Programs Agreement, 2000 ('the Enterprise Agreement') as varied or as replaced and of the Australian Television Repeats and Residuals Agreement (hereinafter called 'A.T.R.R.A.') as if those terms and conditions were written herein. In the event of any inconsistency between the terms of this Agreement and the provisions of A.T.R.R.A. or the Enterprise Agreement then A.T.R.R.A. and/or the Enterprise Agreement shall prevail."

Clause 2 in turn imposes fundamental obligations of performance upon the plaintiff.

"2.The Performer shall perform in good faith and to the best of his ability all of the services to be rendered by him for which he is engaged and as required by the Producer and he shall comply with all of the Producer's reasonable directions and requests."

Clause 4 sets out a series of subsidiary obligations including the following:

"4.The Performer hereby agrees and undertakes that during the period of engagement under this agreement he will:
(a)Make himself available at all such times and places as he may be directed by the Producer or the Director of the Program or their authorised representatives to attend production conferences, rehearsals, recording and filming sessions in relation to the said production."

Clause 7 provided for termination of the agreement. It firstly provided for a fixed term from the date specified in the contract. It then provided:

"(b)Notwithstanding the provisions in Clause 7(a) any engagement of a Performer under this agreement may be terminated by the Producer without notice for negligence or misconduct."

Clause 10 provided that:

"10.The Performer authorises and empowers the Performer's Agent (if any) to deal with the producer on the performer's behalf on all matters arising out of this Agreement unless the Producer has been advised by the Performer in writing to the contrary."

Clause 6 of Schedule C provides that:

"6.The Performer acknowledges that in the event of this engagement being terminated as a result of the Performer refusing or failing to perform the role referred to in this Agreement or in any or all the obligations hereunder such refusal or failure shall constitute the misconduct in accordance with the terms of Clause 7(b) of the General Conditions as set out on Schedule B. (sic)"

The plaintiff's case is firstly that the defendant cannot establish negligence or misconduct justifying termination of the agreement in accordance with cl.7(b). Alternatively, it is contended that the defendant did not adopt procedures required by the Enterprise Agreement referred to in cl.1 and that the defendant's termination of the agreement was accordingly wrongful.

The primary dispute between the parties is one governed by the terms of cl.7(b). Both the notions of negligence and misconduct have a developed meaning in the context of employment law.[2]
[2]The potential flexibility of the ordinary meaning of "misconduct" is illustrated by the discussion of the meaning of the word "misbehaviour" in Clark v Vanstone (2004) 211 ALR 412 at 437-441.

At common law, misconduct justifying summary dismissal must be:

"Conduct which, in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee. … But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not sufficient that ground for uneasiness as to his future conduct arises."[3]

[3]Blyth Chemicals v Bushnell (1933) 49 CLR 66 at 81-82 per Dixon and McTiernan JJ

In Laws v London Chronicle (Indicator Newspapers) Ltd[4] the Master of the Rolls stated:

"To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that a general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service."[5]

[4][1959] 2 All ER 285 at 287

[5]Quoted with approval by Smithers and Evatt JJ in North v Television CorporationPty Ltd (1976) 11 ALR 599 at 609.

In Rankin v Marine Power International Pty Ltd Gillard J summarised the law as follows:

"The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer‑employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature."[6]

[6](2001) 107 IR 117 at [250]

An employer may dismiss an employee summarily if the employee is negligent in the course of the employment. The law is summarised by Gillard J in Rankin v Marine Power International Pty Ltd[7]:

"On the other hand, there is a good ground for the dismissal of an employee if he is negligent in the course of his employment. However, it would indeed be a very grave case of negligence, causing substantial damage, to justify dismissal for a single act of negligence. As a general proposition, the neglect would have to be habitual.
In Baster v London and County Printing Works (1899) 1 QB 901 at 903, Darling J said –
"Neglect as often arises from forgetfulness as from anything else; and, if the forgetfulness is with respect to an important thing it may well, in my view, be good ground for dismissal of the servant without notice. I do not say that it would be a good ground for dismissal in every case. Some trivial acts of forgetfulness might not even justify a complaint or remark; but to forget to do a thing which, if not done, may cause considerable damage to the master, or to his property, or to fellow servants, may be a serious neglect of duty."

[7](2001) 107 IR 117 at [267] – [269]

Both the notions of misconduct and negligence must of course be applied and understood in the context of the particular contract in issue.

"Until the terms of the contract are known and identified it is impossible to say whether or not any particular conduct is in breach thereof or is a breach of such gravity or importance as to indicate a rejection or repudiation of the contract. One cannot begin the inquiry without ascertaining what work … the employee was employed and had undertaken to perform. It is also necessary to ascertain what particular obligations the parties had agreed upon as important or even vital."[8]

[8]North v Television Corp Pty Ltd (1976) 11 ALR 599 at 609 per Smithers and Evatt JJ

The defendant further contends that the terms of the contract, including in particular cl.6 of Schedule C set above, augment the employer's rights at common law.[9]
[9]Concut Pty Ltd v Worrell 176 ALR 693, 699 [23] per Gleeson CJ, Gaudron and Gummow JJ

The latter clause raises the question whether any refusal or failure to perform the role referred to in the agreement (presumably other than a trivial failure) entitled the defendant to terminate the engagement summarily or whether the clause requires a refusal or failure such as to show the plaintiff disregarded essential conditions of the agreement. Accordingly, a question of construction may arise depending on the relevant facts.

It can be seen that at common law both the notions of misconduct and negligence involve considerations of proportionality.

The negligence or misconduct may be sufficient to justify summary dismissal either if it is a substantial enough breach of the employee's duty or if its consequences are sufficiently damaging to the employer.

Further, the accumulation of minor breaches may amount to a breach of duty warranting dismissal. Thus, persistent and wilful minor breaches e.g. with respect to lateness may be sufficient although no one incident in itself would be sufficient.

In addition, a major breach or breaches of duty justifying dismissal which the employer elects to accept without dismissing the employee may still remain relevant as background to the assessment of the cumulative significance of subsequent less serious conduct. The relevant principle was stated by Shepherd J in John Lysaght (Australia) Ltd v Federated Iron Workers Association; Re York[10]:

"It is no doubt possible for the company to waive particular acts of misconduct that would otherwise have justified dismissal without notice. These particular acts could not subsequently be used for this purpose once the decision was made not to rely on them. The act of misconduct, however, does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act or misconduct should not bring about a dismissal."

[10][1972] AILR 517; McCasker v Darling Downs Co-op Bacon Association (1988) 25 IR 107 at 114

In the present case the defendant puts its case on the facts in two principal ways. It says first, that the plaintiff's conduct in September 2003, added to his conduct prior to the final warning in May 2003, constituted misconduct or negligence sufficient to justify summary dismissal.

Alternatively, the notice given on 29 April 2003 and affirmed thereafter, constituted a "reasonable direction and request" of the defendant within the meaning of the agreement. In turn the breach of the terms of that notice in September itself constituted misconduct or negligence sufficient to justify summary dismissal.

It would seem, however, that the right to summarily terminate consequent upon a failure to comply with a reasonable direction or request must also be conditioned by proportionality. As Isaacs ACJ stated in Adami v Maison Deluxe Ltd[11]:

"It was contended that in all cases of employer and employee irrespective of the nature of the employment … the phrase 'wilful disobedience of a lawful order' means simply conscious disobedience of an order obedience to which is found after litigation to be in fact and in law within the range of duties. The proposition asserts that, provided ultimately the order is found to be within the scope of the contract, it matters not how isolated and trivial the occasion may have been, how unimportant the disobedience in relation to the employer's affairs, how doubtful in fact or law the legality of the order may have been, how bona fide and reasonable may have been the contention of the employee or how clearly his action was intended and explained at the time as defence only and not in any way as defiance. That is a proposition I find it impossible to accept."[12]

[11](1924) 35 CLR 143 at 148

[12](1924) 35 CLR 143 at 148-149

In support of its case with respect to cumulative misconduct the defendant seeks to invoke "the last straw principle". I accept that an offensive statement or other conduct may amount to the "last straw" justifying summary dismissal even though it would not justify such dismissal if it were an isolated incident. So much is necessarily implicit in the proposition that misconduct or negligence in the relevant sense may be cumulative.

In Pepper v Webb[13] the plaintiff was a gardener who had refused to carry out instructions to put in certain plants. When his employer later that day asked him a question concerning arrangements for a greenhouse the plaintiff stated, "I couldn't care less about your bloody greenhouse or your sodding garden" and walked away. Harman LJ analysed the facts as follows

"Now what would justify an instant dismissal? – something done by the employee which impliedly or expressly is a repudiation of the fundamental terms of the contract; and in my judgment if ever there was such a repudiation this is it. What is the gardener to do? He is to look after the garden and he is to look after the greenhouse. If he does not care a hoot about either then he is repudiating his contract. That is what it seems to me the plaintiff did, and I do not see, having done that, that he can complain if he is summarily dismissed. It is said on his behalf that one act of temper, one insolent outburst, does not merit so condign a punishment. But this, according to the defendant, his employer, and I think rightly on the evidence, was the last straw. He had been acting in a very unsatisfactory way ever since April. He had that morning refused to obey his mistress' quite reasonable instructions, and when he, in addition, behaved in this way to the remonstrances of his employer I think he brought his dismissal upon himself and cannot complain of it." (my emphasis).

[13][1969] 1 WLR 514

In the present case, however, the defendant seeks to go further than simply to rely on the notion of cumulative conduct. It seeks to invoke the principles that have been developed in the context of constructive dismissal cases by reference to the concept of "the last straw". I have difficulty in accepting that the concept should be applied in full to the actions of an employee in the same way as it is applicable to an employer. It might be thought the positions of the contracting parties are in most cases fundamentally different in terms of the capacity to oppress.

The principle relied upon by the defendant was stated in Omilaju v Waltham Forest London Borough Council[14]:
[14][2005] 1 All ER 75 at 82 [15]–[21]

"15.The last straw principle has been explained in a number of cases, perhaps most clearly in Lewis v Motorworld Garages Ltd [1985] IRLR 465, [1986] ICR 157. Neill LJ ([1985] IRLR 465 at 468, [1986] ICR 157 at 167) said that the repudiatory conduct may consist of a series of acts or incidents, some of them perhaps quite trivial, which cumulatively amount to a repudiatory breach of the implied term of trust and confidence. Glidewell LJ said ([1985] IRLR 465 at 469, [1986] ICR 157 at 169):
'(c)The breach of this implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the last action of the employer which leads to the employee leaving need not itself be a breach of contract; the question is, does the cumulative series of acts taken together amount to a breach of the implied term? See Woods v WM Car Services Ltd. This is the 'last straw' situation.'

16.Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim de minimis non curat lex) is of general application.
…
19.The question specifically raised by this appeal is: what is the necessary quality of a final straw if it is to be successfully relied on by the employee as a repudiation of the contract? When Glidewell LJ said that it need not itself be a breach of contract, he must have had in mind, amongst others, the kind of case mentioned in Woods' case [1981] IRLR 347 at 351, [1981] ICR 666 at 671 where Browne-Wilkinson J referred to the employer who, stopping short of a breach of contract, 'squeezes out' an employee by making the employee's life so uncomfortable that he resigns. A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase 'an act in a series' in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.
20.I see no need to characterise the final straw as 'unreasonable' or 'blameworthy' conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.
21.If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.

22.Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective …"

In the present case the plaintiff was under an express duty to perform his part of the agreement in good faith and to the best of his ability. The defendant did not fully articulate the application of the last straw concept as formulated in Omilaju in these circumstances. As I understand it, however, the defendant seeks to contend that by analogy with the reasoning in Omilaju even if the plaintiff's September 2003 conduct did not in itself amount to negligence or misconduct and may have been "relatively insignificant", it nevertheless contributed to a cumulative breach of the plaintiff's express duty of good faith. If this framework of analysis were to be accepted such conduct would, however, in accordance with the observations in Omilaju as a minimum still necessarily involve unprofessional behaviour which was not of an utterly trivial nature before it could operate in the manner contended.

Moreover, whether this refinement of the defendant's case is open to it or not, it is apparent that the question whether the plaintiff's conduct in September cumulatively demonstrated negligence or misconduct justifying termination of his engagement is critically concerned with whether he performed his duties in good faith and to the best of his ability and complied with all of the defendant's reasonable directions and requests. The defendant's case would still require it to establish a factual basis and it is the facts of the matter which will crystallise the relevant questions of law. I turn then to the case on the facts.

Evidentiary Considerations

The defendant's case as to the events of late September 2003 turns on proof of the objective facts of the matter. The Court is not concerned with a review of the reasonableness of the decision of management having regard to the material before it. The Court is concerned with whether in fact the plaintiff was guilty of the acts relied upon to establish negligence or misconduct within the meaning of the agreement.

The defendant is entitled to rely on the cumulative force of the evidence in support of its case as to the happening of individual incidents.[15]
[15]Chamberlain v R (No. 2) (1984) 153 CLR 521 at 535; Transport Industries Co Ltd v Longmuir [1997] 1 VR 125; Nolan v Nolan (as Executrix of the Estate of Nolan (dec'd)) [2004] VSCA 109 at [119]-[120] per Chernov and Eames JJA.

The defendant's case is put forward in part on the basis that it is supported by the following contextual considerations:

(a)The defendant's witnesses acknowledge the high quality of the plaintiff's performance in the months intervening between April and late September. It is submitted that it should be accepted the defendant's witnesses bore the plaintiff no ill will when he did his job properly.
(b)The cluster of complaints relating to incidents centred on 23 and 24 September 2003 is submitted to support the view that after a relatively extended period of no reported complaint the plaintiff's behaviour in fact materially deteriorated.
(c)The need to comply with a strict schedule tended to encourage crew and cast in practice to get on with production and overlook relatively minor problems. This is said to explain the failure to respond directly to behaviour of which complaint is now made in a number of instances. It is also said to explain the failure to take the matter up with the plaintiff at the end of a performance or to refer matters directly to management.
(d)The defendant kept a Daily Log on set. This recorded the sequence of takes for each scene and further recorded any unusual incidents. Insofar as the matters in issue before me are concerned, one incident is identified, which on one view lies at the core of the case.

The plaintiff relies both upon the fact that the onus to establish the incidents alleged falls upon the defendant[16], and that the consequences of the facts in issue here are so serious that the Court must be correspondingly satisfied by evidence of sufficient weight. As Dixon J stated in Briginshaw[17]:

"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."[18] (My emphasis)

[16]Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 at [24]; [2001] VSC 150

[17](1938) 60 CLR 336

[18]Approved in Neat Holdings Pty Ltd v Krajan Holdings Pty Ltd (1992) 110 ALR 449.

Insofar as the defendant's case turns on allegations of offensive behaviour (which it does in large part) it will be necessary for the defendant to prove to the reasonable satisfaction of the Court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct offensive. In my view the observations of McClelland CJ in Equity in Watson v Foxman[19], as to proof of misleading conduct should be adapted and applied to the problems of proof attending questions of proof of offensive conduct in the present context.

"Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading [offensive] in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading [offensive] may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

[19](1995) 49 NSWLR 315 at 318-319

It will also be necessary to consider whether conduct even if objectively offensive may have been done in good faith. Insofar as the acts complained of concern the manner in which the plaintiff engaged with others in performing his duties by arguing over outcomes this may be particularly problematic. It may be that:

"He committed an act susceptible to criticism as being potentially detrimental to the interests of the respondent. But in committing the act he was acting, as he thought, in a manner calculated to further the interest of the respondent, and not in any way detrimental to it."[20]

[20]North v Television Corp Pty Ltd (1976) 11 ALR 599 at 610

The plaintiff's case may be regarded as gaining some support from the following contextual matters.

(a)The plaintiff's evidence that he had successfully remained free from drug use for almost five months up to his dismissal is uncontested.
(b)It is also uncontested that he performed his duties in a professional manner at least until the very end of this period and in a manner which contrasted dramatically with his prior behaviour. The evidence of a number of the defendant's witnesses directly supports this fact.
(c)There is no evidence of behaviour in September having the florid quality shown in the videos during the period he was taking drugs.
(d)There is in fact no video film evidence directly demonstrating poor performance during the September period, despite the fact such film constitutes an extended record of his daily work.
(e)It is apparent that neither the principal actors nor the directors were intended to be free of ego in the performance of their jobs. The plaintiff's role was one which he was called upon to perform with personal initiative and a degree of drama was acceptable in his behaviour.
(f)The plaintiff was to a significant degree at the time of events in issue cast in an antagonistic role, i.e. one which called upon him to portray emotions in conflict with his on-screen wife Lyn and his on-screen son Jack. In particular, he was required to portray a degree of abrasiveness and a substantial lack of enthusiasm over many hours of repeated takes.
(g)The plaintiff was also expected to voice opinions as to the script and in particular the continuity of his character's story line and the consistency of his character's presentation. He was expected to make suggestions as to possible refinements of the script in order to improve it.
(h)There is no confirmation whatsoever by way of contemporaneous records made in the course of the usual operations of the defendant that the great bulk of the alleged behaviour on which the defendant relies occurred.
(i)There is no evidence of actual delay in completion of any schedule or any other consequence causing the defendant commercial loss as a result of the plaintiff's alleged behaviour.
(j)The plaintiff was given no opportunity to answer the allegations now made. He made no relevant admissions in September as to any of the matters now in issue and the failure to give him an opportunity to answer the allegations made against him raises the possibility that he had answers to them which he was not permitted to give.
(k)Ms Russ, the casting director for Neighbours since 1983, gave evidence that after the plaintiff was given the final warning and confessed to drug taking in 2003, directors and other staff were instructed by the defendant's management to be aware of the plaintiff's behaviour. Further, she recollects a meeting in the boardroom with Pellizzeri and Dodds at which Pellizzeri stated of the plaintiff: "I want him out." This conversation was denied by Pellizzeri and Dodds and in cross-examination Ms Russ conceded she could not be sure of its definite date. Nevertheless, the evidence raises the real possibility that the reaction of management to complaint about the plaintiff in September was motivated by pre-existing animus. This possibility is also supported by the evidence of Pellizzeri that at the time of first complaint in September he regarded complaints from Dodds with scepticism because Dodds' tolerance of the plaintiff "ended last time".
(l)It is apparent that the chain of reports upon which the defendant relied in making the decision to terminate was flawed by very serious exaggeration. Thus, the report forming the basis of the sacking stated in part of the plaintiff's recent performance in September 2003:
"Does not know any of his lines and blows take after take. He is not washing and smells noticeably. He has started again with his facial tics and looks as if he is not in control."

The extensive video film evidence from the days in question simply does not show the plaintiff "blowing" lines any more than other actors and certainly not "take after take". It does not show facial tics nor does it show the plaintiff out of control. It is in marked contrast to the video evidence from April which shows all these matters. Further, there was no evidence adduced before me whatsoever which referred to uncleanliness or smell, facial tics or looking out of control at this time.
The report also stated in part as to the process of complaint:
"Peter Dodds has already had one first assistant and one actor threaten to quit if he (the plaintiff) doesn't go. Janet Andrewartha told Peter that she didn't care what we did but if he remained she was going to walk out immediately."

None of these threats were verified in evidence, indeed the evidence was that they were not made.
The report which formed the basis of the plaintiff's dismissal was in my view fundamentally flawed by significant inaccuracies.
(m)Pellizzeri gave evidence that he and in turn senior management relied on Dodds to investigate the facts. The evidence of Dodds discloses grossly exaggerated and inaccurate reports of the plaintiff's behaviour. I instance the evidence of Dodds that Noel told him of the plaintiff's behaviour on location on 24 September 2003:
"He's been unco-operative with doing lines, he's been lying down on the footpath and the nature strip asleep."

The evidence demonstrates the plaintiff had no lines. He did not lie down on the footpath. He did sit and on occasion lie on the nature strip in the absence of the provision of chairs for the cast, but he did not go to sleep. The demonstrable exaggeration and inaccuracy in the reporting process makes it difficult to give any weight to the fact that Dodds elicited a series of complaints from the persons he selected to speak to.

There are other circumstances which may be said to create some difficulties for both the defendant and the plaintiff's case. The most significant of these in my view are that :

(a)The principal witnesses on both sides as to the plaintiff's actual conduct are actors and directors all of whom might fairly be said to have told their stories like professionals. This does not make the resolution of conflicts in the oral evidence particularly easy.
(b)There is an obvious risk that a desire, perhaps in part unconscious, to either justify the defendant's decision or to impugn it may have affected the evidence given.
(c)The matters in issue involve in most cases differences of emphasis and degree and not differences of core fact. Such matters are particularly difficult to resolve satisfactorily on the basis of competing oral accounts.
(d)I accept as inherently probable the evidence of Dodds that around about October (in which period I include the last weeks of September):
"… It's been a very long year because we've been working since mid January. The cast and crew are tired because we really don't take any breaks other than the Easter break and then we have to work Saturdays to have the Easter break either side of Easter."

The behaviour of the cast generally at about this time was such as to require a series of reminders over the years from Dodds of the importance of avoiding lateness and focussing on rehearsing and recording.

The Alleged Negligence and Misconduct

The defence sets out a series of detailed allegations concerning conduct of the plaintiff on and between 16 September 2003 and 25 September 2003. Only some of these were pursued by the defendant in evidence.

The matters in issue focus upon three types of alleged behaviour:

(a)alleged incidents of offensive argument with directors namely Ms O'Shaughnessy on 16 and 24 September and Mr Walker on 23 September;
(b)alleged instances of failure to be properly attentive on 23 and 24 September; and

(c) alleged rudeness to other actors on 23 and 24 September.

16 September 2003

[12AA] of the defence alleges that on 16 September 2003 Ms O'Shaughnessy, the director, gave the plaintiff some direction notes about his performance and the plaintiff replied in a rude and dismissive tone.

Ms O'Shaughnessy gave evidence that on 16 September during the course of a shoot she, as director, gave the plaintiff a note of a direction about when to say or do something. The plaintiff replied "yes, yes, go away" in a dismissive manner and waved her away.

The plaintiff says that what he said was "yes, yes, I've got it." It was not put to him in cross-examination that he waved Ms O'Shaughnessy away. Nor is this circumstance pleaded.

In cross-examination the plaintiff's version of what was said was put to Ms O'Shaughnessy. She said "I don't recall that being what he said to me. I recall what I said."

It is common ground that the exchange took place when the production was under pressure to complete on time. Further, there is no suggestion the plaintiff did not comply with the direction he was given. The essence of the complaint is as to the manner in which the plaintiff responded to the direction. I am not satisfied the evidence of O'Shaughnessy should be accepted as to the detail of the plaintiff's behaviour.

(a)The incident was not recorded in the defendant's log book and no note of the words used was made at the time;
(b)No opportunity was given to the plaintiff in cross-examination to respond to the allegation that he waved O'Shaughnessy away. This was an integral part of the incident as she described it to me;[21]
(c)No other witness was called to support the defendant's case although it is apparent that there were both other actors and other crew on set. (These included Fletcher and Woodburne who were called as witnesses but did not give evidence of the alleged incident). The failure to call further evidence was not explained and tends to suggest the exchange was trivial;
(d)The difference between the plaintiff's account of the words used and the defendant's account is one only of a shade of emphasis;
(e)It is apparent that the conversation took place when both parties were under pressure; and
(f)It is entirely possible that the incident constituted a misunderstanding. O'Shaughnessy did not take it up with the plaintiff at the time and her evidence is one of personal impression.

[21]Bulstrode v Trimble [1970] VR 840 at 848

Accordingly, I am not satisfied that as alleged the plaintiff used a rude and dismissive tone.

[12BB] alleges that on 18 and 19 September 2003 the plaintiff was unco-operative and surly with his fellow performer Ms Andrewartha. This allegation was not pursued in evidence although Ms Andrewartha was called as a witness.

[12CC] makes three allegations concerning interaction with director Jeffrey Walker. It is alleged the plaintiff:

(i)complained to Walker about his dialogue for that afternoon's location shoot in an aggressive and offensive manner;
(ii)during the rehearsals read his lines very sarcastically and subsequently changed a large part of his dialogue, instructing other actors to follow suit; and
(iii)missed a take during a scene because he was off set reading a newspaper without permission.

The afternoon in question involved a series of scenes shot on a building site location. A central theme of the scenes was continuing tension between the plaintiff's character Joe and his son Jack played by Jay Bunyan. Jack had commenced working for his father as a builder's labourer a few days earlier. This course had his mother's support but Joe remained ambivalent. The story line on 23 September included the following elements: a scene demonstrating that Jack was not yet one of the boys but had an aptitude for interpreting and appreciating the architect's plans for the development; a scene in which Jack demonstrated no enthusiasm for rendering; a scene in which Jack is complimented for rendering work which has in fact been done by his co-worker Jim; and a scene in which Joe dismissed the other workers on site but required Jack to stay on and pick up sharp rubbish in a bucket thereby emphasising his menial role as a labourer. There were multiple takes of each shot in each scene including five takes of each of a sequence of shots in which the plaintiff was involved.

Walker gave evidence that on the morning of 23 September before the crew went out on location, the plaintiff stated to him "Have you read the shit that we've got to do this afternoon" and that thereafter they had a brief discussion.

Subsequently on location at the building site the plaintiff said that he hated the story line, that he was only there really to service the Jack character and that the story line and dialogue were terrible. Walker was concerned because he didn't feel it was a two-way conversation, the plaintiff was aggressive and swore. Walker felt intimidated and undermined as a director. Walker's response was to commence a line run (first rehearsal) during the course of which he says the plaintiff made a mockery of lines by putting on a voice and changing lines without discussing the relevant changes. Walker further says that at one point in the afternoon shoot the plaintiff missed a cue and failed to come out from behind a wall when required. Walker says the plaintiff was reading a newspaper at the time.

In cross-examination it was put to Walker that the plaintiff suggested that lines be changed in order to provide a better excuse for getting the co-workers off screen at the conclusion of the working day when Joe and Jack had their final conversation about picking up sharp objects. Walker agreed there was a conversation about this but had no recollection of what was said about this change.

The tape demonstrates that a change was made from a reference to battening down sarking which would have required further work by the crew, to an invitation by Joe for them to retire and enjoy some drinks he had provided at the back of the site.

It was further put in cross-examination that the plaintiff took substantial issue with a story line which required Jack in the first days of his job as a labourer to express detailed opinions about architect's plans. Walker agreed the plaintiff took this stance but said that he remained of the view that the script was appropriate.

The video tape demonstrates that the script was not changed.

Walker also agreed that at the end of the day's filming he said "Well done all round."

Evidence was also called from the first assistant director Adam Noel. He observed the plaintiff having an animated discussion concerning the script with Walker prior to the commencement of shooting. He also says that at one point during rehearsals the plaintiff was absent for five minutes which required Noel to substitute briefly for the plaintiff and read some of his lines during on site rehearsal. He does not corroborate the other allegations of conduct during rehearsal made by Walker.

The plaintiff admitted in evidence that he did complain to Walker about the script but denied that he did so in an offensive manner. He gave details of the nature of his complaint which was fundamentally that the proposed discussion between his character and Jack was unrealistic. The plaintiff gave evidence (consistent with other evidence in the case) that it was part of his job to make suggestions about the script and indeed such suggestions were regularly made. He agreed that during rehearsal he emphasised lines which he thought were inappropriate, but denies that he was sarcastic or encouraged other actors to change their lines. He further denies that he changed lines without Walker's approval.

The plaintiff said it was his habit to take a newspaper on set to read to relax when appropriate. Other people did likewise.

In answer to questions as to whether he was absent from the set he said that at one stage on the afternoon in question he left the set to go to the toilet and was walking back as he was called.

He denies that he missed a take because he was reading a newspaper off set (as alleged in the defence) but agrees he missed a cue at one point due to the noise of the wind.

Jay Bunyan gave evidence that it was part of the job for actors to create their characters by giving and taking bits and pieces during the course of production. He recalls the plaintiff suggesting changes to the script for reasons relating to his character on the afternoon in question. He does not recall the plaintiff being rude. He says that the fast turnaround in programs such as Neighbours inevitably results in some degree of frustration and complaint. He says that on one occasion the plaintiff missed a cue when he was waiting on the other side of a wall. It was very windy and this was why the plaintiff missed the cue. The plaintiff apologised and there was another take. The plaintiff had a newspaper but was not reading it during filming. In cross-examination he conceded that he developed a close relationship with the plaintiff while working with him and that the plaintiff became his friend. He said that his memory of the events in issue is good. He agreed there was an occasion when the plaintiff was called for and was off set.

I am not satisfied the plaintiff acted in bad faith or unprofessionally or breached his contract either in the manner in which he made suggestions as to script changes or by reason of absence from the set as alleged. Insofar as script changes are concerned:

(a)I accept that it was part of the plaintiff's duties to make suggestions of the type identified in evidence. This is reflected in a letter sent to all cast members on 15 October 2003 (shortly after the plaintiff's dismissal) by Dodds which stated in part:
"If you feel that dialogue needs adjustment or is inconsistent with character continuity, then bring alternative suggestions to rehearsal."

(b)The video film available of shooting on the afternoon shows that one of these suggestions was accepted and one was rejected. The outcomes reflect the scheme described in evidence by Fletcher (an actor) and O'Shaughnessy. This was that suggestions which assisted in delivery of the story would be accommodated in rehearsal but suggestions which interfered with the scripted story line would not.[22] The video film simply does not bear out any suggestion that the plaintiff overbore the director with respect to the plaintiff's principal complaint. It demonstrates the reverse.
(c)The video film shows that each of the shots in the four scenes filmed on the day involved multiple takes and that the plaintiff performed consistently and in an engaged manner through a very extended series of shots. This does not support the view that he failed to apply himself other than to the best of his ability.
(d)The plaintiff's language used to express initial dissatisfaction with the script may have been robust but I accept the unchallenged evidence from a number of witnesses that robust language was not uncommon in the industry.
(e)The plaintiff's role was that of the boss on the work site. It is inherently likely that during the course of the afternoon he did appear assertive both during and between the repeated takes in which he was required to play an assertive role.
(f)Walker was a young and relatively inexperienced director[23] and may have felt some adverse emotions, including feeling "belittled", but the defendant must do more than prove subjective emotions on his part. The defendant's case requires the establishment of objectively unsatisfactory offensive behaviour by the plaintiff.
(g)Not all those on set were called by the defendant including "Jim" the other principal actor involved in the core scenes of discussion between Joe and Jack. The defendant's failure to call relevant witnesses was again unexplained.
(h)Bunyan's evidence supports the plaintiff and was relatively circumstantial and detailed although I found him overassertive as to some matters.
(i)Noel's evidence does not materially corroborate Walker. Its substance as to the fact of an animated discussion is conceded by the plaintiff. The fact that he went off set at one point is also conceded.
(j)There was no contemporaneous record made of any incident in the log book, nor did Walker reprimand the plaintiff on set, nor did Walker complain to management after the event (until complaints were subsequently elicited by Dodds).

[22]Fletcher said if a change is significant or likely to alter the context of a scene or a plot, then such change should be done in consultation with the director and the writers prior to going into shooting and rehearsal.

[23]He finished his traineeship and was hired as a director in December 2002.

Insofar as the allegation that the plaintiff missed a "take" because he was off set reading a newspaper without permission is concerned, the evidence is unpersuasive. The video film of takes does not allow this event to be identified. There is evidence from Walker that the plaintiff read a newspaper on set and missed a cue. This is directly contradicted by Bunyan. I am not satisfied Walker's evidence should be accepted (noting that it is in any event at odds with the precise terms of the pleading).

The explanation put forward on behalf of the plaintiff that he may have missed a cue at one stage because he was behind a wall on a windy day is inherently plausible. In the absence of any circumstantial evidence that provides a satisfactory basis for preferring Walker's account, I am not persuaded that I should do so.

[12CC(iv)] further alleges that on 23 September 2003 the plaintiff became abusive towards another actor, Jay Bunyan, for keeping him waiting for their lift home. Mr Bunyan was in the wardrobe bus getting his makeup and costume off.

This allegation is based on the evidence of a wardrobe assistant one Robertson. She says that the plaintiff hurried Bunyan up because they were sharing a lift home. She says the plaintiff yelled at Bunyan to hurry up and get out of his costume in an "angry and aggressive" manner.

Both the plaintiff and Bunyan agree that the plaintiff urged Bunyan to get into the car in forceful terms, but both maintain this was done in a jocular not aggressive manner. Bunyan recalls the plaintiff urging him to "get his vain bum in the car." The plaintiff recalls calling out "Come on Jay, get a move on" and swearing but says he was laughing at the time. This evidence is entirely consistent with the evidence as to their relationship generally and does not in my view demonstrate behaviour which could reasonably be regarded as offensive in the circumstances.

I should add I do not regard Robertson's evidence in other respects to which I shall return as particularly reliable.

I do not accept the account of the plaintiff and Bunyan should be rejected. It is of course again possible that there was an element of misunderstanding in Robertson's reaction and that her evidence is based on an honest impression. Her evidence does not, however, persuade me of the objective fact of offensive or unprofessional behaviour.

24 September 2003

[12DD] of the defence makes allegations firstly, with respect to behaviour during the course of rehearsals on set in the morning of 24 September 2003 and secondly, with respect to behaviour during the course of on location shooting that afternoon.

The director in the morning was O'Shaughnessy. The defendant alleges the plaintiff:

(i)was uncommunicative and refused to make eye contact with Ms Andrewartha (his on screen wife) with whom he was acting in the scenes;
(ii)repeatedly failed his lines;
(iii)repeatedly read a newspaper instead of taking steps to learn his script;
(iv)responded in an aggressive and abusive tone when the director, Ms O'Shaughnessy, asked the plaintiff for his co-operation.

O'Shaughnessy gave evidence of a scene rehearsed on the morning of 24 September in which the plaintiff and his on screen wife Lyn had an extended conversation about a competition application. The scene was a pick-up scene i.e. picking up work which should have been completed the week before. As such it was initially rehearsed that morning and then shot. I interpose the script provided for Lyn to enthuse by way of relatively long speeches and for the plaintiff to demonstrate lack of enthusiasm by way of short statements.

O'Shaughnessy said that actors were not expected to know their lines at the start of the rehearsal process but only to have read the script and know the story line. By the stage of the camera rehearsal, however, she says actors would be expected to know their lines.

The initial rehearsal on 24 September was a line run, that is a rehearsal in which the characters went through their lines. The next rehearsal was a camera or technical rehearsal in which the characters' actions and the proposed placement of cameras and booms were co-ordinated. O'Shaughnessy gave evidence that the plaintiff had a newspaper on set during this rehearsal and was reading it. She says that when she cut to him to say a line "he would not know the line, reach over and grab his script, recite the line, put the script back and continue reading while Janet (playing Lyn) was reading from hers." This interrupted procedure prevented a proper rehearsal process. She says that at the end of the technical rehearsal she asked the plaintiff "if we could get the newspaper off the set." The plaintiff wanted to say something but she cut him off by saying "You need to show a bit of professionalism" or similar words. He responded with something like "You need to be very careful saying something like that." She then asked for another rehearsal. The paper was removed from the set and they did another technical rehearsal during which the plaintiff was still struggling with his lines. After a continuation of rehearsals they shot the scene. When the scene was completed the plaintiff came across and said something to O'Shaughnessy which she did not hear because she had headphones on. He then walked off. She followed him and asked what he had said. He said "Calling me unprofessional that's rich coming from you." She continued to follow him and they stopped at a point out of the view of other persons. She said "Name one time I've ever been unprofessional with you?" He said "Just now. Anyway you name one time I've ever been unprofessional." She said "Where do you want me to start?" and he walked off.

In cross-examination O'Shaughnessy agreed that none of the video film of a series of extended takes from that morning demonstrates any unacceptable behaviour by the plaintiff. She further agreed that it was she who raised the question of unprofessionalism and that the use of this term might be taken as an insult. She agreed that she spoke in a raised voice and that it was she who followed the plaintiff off set. She agreed that an independent observer might think she got the better of the exchange.

Andrewartha gave evidence that:

"Shane was reading the newspaper when the cameras were trying to do their bit. He would look down occasionally where he had a script I think and say his lines but it wasn't working and we had to go back and start again. Jovita (O'Shaughnessy) became exasperated, asked Shane to lose the newspaper and not to bring one on set again. She said it wasn't a professional thing to do and Shane responded 'You should be very careful about what you're doing'."[24]

[24]T597

Andrewartha says they then got on with the job and finally got the scene shot. (She does not say the plaintiff continued to miss his lines). After the scene was shot the plaintiff went over to the director's area and she heard shouting from the plaintiff about professionalism. She focussed on the baby on set. She further says that the morning had not gone well and she did not feel good as a result of stress from the events of the morning. I interpolate that the late book shows her late or absent on five occasions between May and October 2003 including 19 and 26 September.

In cross-examination she said the plaintiff was in a very dark mood that day. She said that it was not uncommon for actors to require further rehearsals for pick-up scenes. Nor was it uncommon for actors to read books or newspapers between takes and during breaks such as lighting tweaks if they were lengthy. She said there were problems with the actual filming of scenes earlier that day in that the plaintiff stopped at the same point in the script on five or six takes in a row. It was put to her that the video film of some 15 takes involving her does not show this happening. She maintained that it happened five times in a row.

Andrewartha said that after O'Shaughnessy spoke to the plaintiff "We just got on." She agreed that to a person of the plaintiff's experience an accusation of unprofessionalism was a significant insult. Andrewartha said that contrary to the evidence of Dodds she never threatened to quit if the plaintiff did not go. She agreed that her relationship with the plaintiff was for some time quite tense.

The plaintiff says that on the morning of 23 September he was not having more trouble than anyone else remembering his lines. He had a newspaper on set to read during breaks. He was sitting at a table with the newspaper and a script alongside each other in front of him. He was sitting looking at a newspaper during a lighting tweak when O'Shaughnessy came to him and said to put the newspaper aside and told him to show a bit of professionalism. He said "Don't go there now Jo." He was not loud or aggressive. He meant this was not the time to argue. He thought she was being unreasonable because there were other people on set with newspapers. They then went on to shoot the scene. Later, however, as he was leaving the set and because he was hurt that O'Shaughnessy had said what she had in the presence of others, he said to O'Shaughnessy "You're the last one who should be talking about professionalism." O'Shaughnessy then took off her headphones and asked him what he had said, but he continued walking out of the studio.

In cross-examination he confirmed that he had a newspaper and script on the table at which he and Andrewartha were seated for the purpose of the rehearsal. He disagreed that he looked at his newspaper when the camera cut away from him and said that the camera was not operating during the rehearsal. He denies that during the rehearsal he continued reading from his newspaper. He denies that he said to O'Shaughnessy "I would be very careful about saying that if I was you." He said "I wouldn't go there now if I was you Jo."

It was not put to him that he continued to fail his lines when the rehearsal recommenced.

When he walked over to O'Shaughnessy after the end of the scene he said "You're the last one who should be talking about professional." After he walked away, O'Shaughnessy asked "What did you say?" He then may have said "Calling me unprofessional that's rich." He left the studio and kept walking. He could hear O'Shaughnessy yelling. He does not recall what she then said.

The defendant's daily log book records:

"9.35 a.m. Jovita asked Shane Connor to remove a newspaper from set calling it unprofessional. Shane did not take this well."

This entry is consistent with both the account of O'Shaughnessy and the plaintiff.

The defendant's case falls to be assessed in the following critical circumstances:

(a)It was on the evidence generally acceptable for the plaintiff to have a newspaper on set.
(b)There is a conflict of evidence as to whether it was also generally acceptable for the plaintiff to both have a script with him and refer to that script during rehearsal. Evidence was given both by the plaintiff and other witnesses that he usually learnt his lines during the rehearsal process including the camera rehearsal.[25] The plaintiff said he learnt his lines by fitting them to his movements and dialogue. O'Shaughnessy and Woodburne assert that by the camera rehearsal stage the plaintiff should have known his lines. It seems to me that on a pick-up day (and bearing in mind that the plaintiff's lines in the scene in question were quite limited) the extent to which unfamiliarity with his lines at the camera rehearsal stage would be acceptable, would be a question of degree. I am not, however, persuaded that he was materially less well prepared on this morning than was his practice over the preceding five months of entirely acceptable performances.

[25]Harrington, another actor, said the plaintiff learnt his lines "by doing them as opposed to going off by himself and learning them." He further said that in his professional opinion this was acceptable because the plaintiff's work was good.
(c)The scene includes long uninterrupted shots of extended speeches by Lyn Scully which provides a credible context for the defendant's allegations.
(d)There is, however, no video film evidence of lack of application or preparation on the plaintiff's part over an extended sequence of takes that morning. O'Shaughnessy further expressly agreed that there was nothing in the plaintiff's behaviour during the actual takes which she found objectionable.
(e)Andrewartha's account asserts a repeated failing of takes which is not verified by the videos.
(f)There is unanimity that after O'Shaughnessy first spoke to the plaintiff the shoot went on. There is no evidence that conduct of the plaintiff materially delayed the shoot.
(g)The defendant's evidence was expressed by Andrewartha and O'Shaughnessy in part in terms suggesting the relevant rehearsal was being filmed, when it is clear that it was not. There was no take to cut although the camera moves were being worked out.
(h)There is no apparent reason why O'Shaughnessy would go through a period of extended dissatisfaction with the plaintiff during a camera rehearsal without intervening.
(i)Other witnesses present were Ray Lindsay, the first assistant director, and Danielle Zvirdanis, the director's assistant.[26] They were not called to give evidence by the defendant and no explanation was given as to why not.
(j)There is no doubt an argument occurred nor that that argument centred around the question of professionalism. The weight of the evidence is that it was O'Shaughnessy who instigated the argument and that it was she who made the initial accusation of unprofessionalism.
(k)O'Shaughnessy herself says that she cut the plaintiff off from responding to her initial direction before accusing him of unprofessionalism.
(l)There is a conflict between O'Shaughnessy and Andrewartha on the one hand and the plaintiff on the other as to whether the plaintiff's response was then to the effect "You need to be very careful saying something like that" or as the plaintiff says "I wouldn't go there now if I were you Jo." The difference is essentially one of emphasis.
(m)I accept the plaintiff's evidence that he initially sought to avoid confrontation on set, then spoke to O'Shaughnessy after the scene and then walked away seeking to avoid further confrontation. I accept O'Shaughnessy's evidence that after the scene the plaintiff said words to the effect "Calling me unprofessional that's rich" and that a further exchange occurred as to the relative professionalism of O'Shaughnessy and the plaintiff in which she had the last say.
(n)The evidence that the plaintiff failed lines after the initial confrontation with O'Shaughnessy is weak.
(o)I do not regard Andrewartha's evidence as being as credible as to matters of detail as that of either O'Shaughnessy or the plaintiff. She is wrong as to repeated failure of lines leading to repeated takes.
(p)The differences between the accounts of the plaintiff and O'Shaughnessy and Andrewartha as a whole are of emphasis and degree.

[26]Dodds says that Lindsay reported an argument over a newspaper to him on 24 September 2003 and that the relevant log book entry would have been made by Zvirdanis.

On the whole of the evidence it is probable the plaintiff did, during one of Lyn Scully's speeches in the course of the camera rehearsal, appear to refer to a newspaper next to his script. I cannot, however, be satisfied that he did in fact so refer unprofessionally or as is asserted repeatedly and in conjunction with missing lines.

The plaintiff was then reprimanded by O'Shaughnessy and it seems more probable than not that this did occur in a break such as a lighting tweak as the plaintiff says. It was O'Shaughnessy who made the initial allegation of unprofessionalism and did so after cutting the plaintiff off when he sought to respond to a direction about the newspaper. She asserted her position as director and again reasserted that position when the plaintiff took issue with her at the end of the scene.

I am not satisfied of the particularised allegation that the plaintiff responded in an aggressive and abusive tone when O'Shaughnessy asked him for his co-operation. The weight of the evidence supports the view rather that he took brief issue with her reprimand on the set and then followed this up when leaving the set. I cannot be satisfied that either what was said on set or subsequently by the plaintiff, was said in unjustifiable defiance rather than in legitimate defence. This is not because I reject outright the evidence of O'Shaughnessy and Andrewartha but rather because I am not persuaded that their evidence that the plaintiff responded in a particular way is sufficient to outweigh the plaintiff's evidence that what he first said was to the effect "I wouldn't go there now if I were you Jo." The weight of the evidence favours the view that the plaintiff made a short and controlled response. The shoot then continued and the plaintiff did not come back and confront O'Shaughnessy until he was leaving the set. When he did so I accept it was from a sense of genuine grievance. Moreover, the manner of the plaintiff's complaint did not unreasonably confront O'Shaughnessy's authority. In summary I am therefore not satisfied either that the plaintiff acted unprofessionally by reading the newspaper or of the terms with which he initially took issue with Ms O'Shaughnessy. It is again not unlikely that there was an element of misunderstanding between the parties and it is quite clear that the relevant parties were operating under pressure to complete the pick-up scenes quickly.

I also do not accept the weight of the evidence establishes the subsidiary allegations made in the pleading that the plaintiff was uncommunicative and refused to make eye contact with Ms Andrewartha with whom he was acting in the scenes or that he repeatedly failed his lines.

The essence of the incident on the morning of 24 September 2003 is described in the daily log book. The entry does not record unprofessional conduct in fact nor does it record behaviour amounting to a breach of the plaintiff's contract. What it records is that O'Shaughnessy asked the plaintiff to remove a newspaper from set calling this conduct unprofessional and the plaintiff did not take this well.

[12DD] of the defence further alleges the plaintiff :

(v)During shooting in the afternoon, showed no interest in proceedings and on one occasion was asleep on the lawn;

(vi) was often absent from the set without notice;
(vii)complained about how bored he had been with the previous day's shoot;
(viii)approached other actors, including Marisa Siketa, who were waiting in the car and chastised them aggressively for not participating in eye lines.

These allegations relate to the filming of an auction scene in "Ramsay Street" the fictional street in which Neighbours is based. The scene was directed by Walker with Noel as the first assistant director. It featured a guest actor as auctioneer, guest bidders and the purchasers of the house at auction.

Some 14 core cast members and a further group of extras made up the crowd at the auction. The plaintiff was one of the crowd members.

The plaintiff had no speaking part although at one point he is seen to greet another cast member played by Jacqueline Woodburne. Although it is not entirely clear, two cameras appear to have been used. There is extensive video film footage of the shoot.

It also appears filming commenced on location on the morning of 23 September 2003 when the plaintiff was still at the studio doing the pick-up scene.

Noel gave evidence that there was a crew of approximately 25 and a cast of approximately 25 on location. During the afternoon he observed the plaintiff sitting and lying on the nature strip diagonally opposite the house at which the auction was staged. He says that sometimes the plaintiff had his eyes closed. He cannot recall the plaintiff's role but believes he had a speaking part. The plaintiff was also required to be part of the auction crowd and to be part of the group providing an eye line for the auctioneer.

Noel says that the plaintiff was lying on the nature strip at times when he should have been providing an eye line. (An eye line is the providing of a focus for another actor who is being filmed while engaged in dialogue). Whenever the plaintiff was required for his shots, however, he was there.

In cross-examination Noel agreed that the plaintiff may have had no dialogue. The video films of the auction scene took some five hours to shoot. There were no chairs provided for most of the cast and crew. It was permissible for the plaintiff to sit on the nature strip. Noel did not speak to the plaintiff concerning his conduct on either 23 or 24 September. Noel is not saying the plaintiff refused to do eye lines. When he was required to do them he did.

Ms Woodburne, an actor, also gave evidence concerning the plaintiff's conduct at the auction scene. She said she had one or two lines of dialogue with the plaintiff that day, just a greeting basically. She was otherwise required to participate generally in the scene. She stood and provided an eye line for other actors but the plaintiff was not there during the greater part of the time in which these shots were taken.

In answer to cross-examination she agreed that normally the focus of eye lines for the auctioneer would be the actors doing the bidding. She also agreed the lack of chairs for cast and crew was at some stage a point of contention. Her memory is that she and the plaintiff greeted each other and that eye lines would be necessary to do this authentically. She said the scene was shot with one camera which was used in different set-ups. If the plaintiff was required for a shot he was there. But he was not there when required for eye lines.

Robertson says the plaintiff was late for scenes that day and she saw him lying on the nature strip at one point.

The plaintiff says that he remained on set through the afternoon. He had no dialogue but was there for a "reaction shot". He was present when shots were taken of him. He says further that:

"When they were shooting the auction a few of the main cast wandered away and sat in a car, or on a nature strip but when they were shooting back onto us we were all there."

Both the plaintiff and others sat on the nature strip during the course of the afternoon. On occasions he may have lain back on the grass, but he did not go to sleep.

He also says that at one point in the afternoon he urged a group of actors in a car to get out and provide an eye line for the auctioneer saying "Come on you lot let's get this guesty [guest actor] an eye line." It was said in a joking manner not aggressively.

In cross-examination it was put to the plaintiff, that he was required to remain in the group for group auction shots and that he absented himself from the group when shots were being taken of it. It was further put that Noel spoke to him about being in the shot. The plaintiff denied these matters. It was not put to him that he was late for scenes that day or that he absented himself from the group when he was required for eye lines.

Neither the director Walker nor the other main characters present (apart from Woodburne) were called to give evidence of his conduct during the shoot save that Walker gave evidence that the plaintiff complained of boredom on the shoot the day before.

I do not accept the defendant has demonstrated that as alleged the plaintiff showed no interest in proceedings and on one occasion was asleep on the lawn or that he was often absent from the set without notice. I accept that he may well have complained about how bored he had been with the previous day's shoot. But there is nothing in this which amounts to unprofessional conduct or a breach of his contract. Insofar as the other matters to which I have referred are concerned the defendant's case is unpersuasive:

(a) There is no evidence the plaintiff went to sleep;
(b) There is no evidence he was absent from the set when required;
(c)There is no evidence the plaintiff failed to present himself when required for extensive shots of crowd scenes rather the evidence is to the contrary;
(d)There is an obvious explanation for Robertson's allegation that the plaintiff was late for scenes that day, namely that he had to travel from the studio to the location. Neither Noel nor Woodburne say the plaintiff was absent when he was required for shots.
(e)The plaintiff's role involved no recorded dialogue and both Noel and Woodburne, the principal witnesses with respect to the matters under consideration, initially gave evidence on the basis the plaintiff had a speaking part. The video films demonstrate that this was not the case;
(f)There is no evidence the plaintiff disobeyed any direct instruction;
(g)It is apparent an inadequate number of chairs were provided and it cannot in these circumstances be regarded as surprising that the plaintiff sat or indeed lay on the nature strip when he was not required (noting that in so doing he remained on set);
(h)The only specific incident of which there is evidence of his actions off-scene is that he urged other actors to provide an eye line when required. This is not indicative of a man showing no interest in proceedings;
(i)The plaintiff acknowledges that both he and others of the main actors absented themselves from the crowd when they were not in the shot, but I do not accept that this establishes that he acted unprofessionally or in breach of his contract;
(j)The effect of the defendant's evidence was not put to the plaintiff in cross-examination. In particular he was cross-examined on the basis he absented himself when required for shots not eye lines;
(k)The evidence upon which the defendant relies is unsatisfactory and key allegations were not put to the plaintiff in cross-examination.[27] I find it inherently improbable that if the plaintiff had defaulted in his duties this would not have been observed by Walker, the director, on the afternoon;
(l)A number of main actors present at the auction were not called to give evidence.
(m)The extended video film evidence does not show any lack of application on the part of the plaintiff.

[27]Bulstrode v Trimble [1970] VR 840

The last matter alleged is that the plaintiff approached other actors including Marisa Siketa, who were waiting in a car and chastised them aggressively for not participating in eye lines. This allegation is put on the basis of the evidence of Robertson. She gave evidence of observations made from the wardrobe bus area. She initially said she could hear the plaintiff "yelling at Marisa about how unprofessional she was, that he needed her for a sight line". This took about five minutes. Marisa was in a car with two other female cast members.

In cross-examination Robertson said the weather was cold. She does not believe the plaintiff was asking for an eye line for the guest actor, but a sight line for himself.

The plaintiff says that he requested a group of actors in a car to give the guest actor auctioneer an eye line in the terms to which I have previously referred.

I accept the plaintiff's evidence. He had no dialogue and did not require a sight line himself. The closest he came to dialogue was to greet a fellow resident of the street in terms which were not recorded. His evidence is entirely credible given the circumstances in which the actors involved in the crowd were required to remain on the site in the cold for many hours without chairs during extended takes.

I find it extraordinary if this last allegation was being seriously pursued by the defendant, that none of the actors to whom the allegedly offensive remarks were directed, were called as witnesses.

[12EE] of the defence alleges during shooting (but not during actual filming) in the morning of 25 September 2003 the plaintiff chastised crew members in an abusive and defensive tone for a short delay in arranging for him to do a voice over. This allegation was not supported by evidence.

[12FF] of the defence alleges, inter alia, that the plaintiff was either late or failed his call on 11 July 2003, 23 September 2003 and 24 September 2003. The defendant's late book records that the plaintiff was one and a quarter hours late on 11 July 2003. The circumstances were not explored in evidence and the defendant's case was opened on the basis nothing of significance occurred between May and September. It is apparent the defendant did not regard the incident as a material breach of the final warning as no response to it was described in evidence. In any event I do not regard one incident of lateness in five months as self-evidently unprofessional. I note for example that repeated lateness by other actors such as Delta Goodrem and Janet Andrewartha recorded in the late book appears to have been accepted by the management. Insofar as the allegations relating to 23 and 24 September 2003 are concerned there is no evidence of lateness or failure to attend calls save that which I have already addressed.

The defendant goes on to allege that by reason of the matters to which I have referred including the conduct prior to May 2003, the sequence of warnings given during this period, and the alleged conduct in September 2003, the plaintiff breached cls.2 and 4(a) of Schedule B of the agreement by conduct constituting:

(i)a failure by the plaintiff to perform in good faith and to the best of his ability, all the services to be rendered by him for which he was engaged and as required by the defendant;
(ii)a failure by the plaintiff to comply with all of the reasonable directions and requests of the defendant;
(iii)a failure by the plaintiff to make himself available at such times and places as he may be directed by the defendant or the director of the Neighbours program, or their authorised representatives, to attend production conferences, rehearsals, recording and filming sessions in relation to the production of the program.

For the reasons I have elaborated I am not satisfied the plaintiff's conduct in September 2003 either regarded in itself or cumulatively with his prior conduct up until the end of April 2003 did amount to a failure to perform in good faith and to the best of his ability the services required of him. Nor am I satisfied that after May 2003 the plaintiff failed to comply with all of the reasonable directions and requests of the defendant or that he failed to make himself available as directed for the purposes of attending production of the program.

The evidence does not demonstrate conduct on the part of the plaintiff capable of amounting to a "last straw" even if it is accepted such conduct need not in itself evidence negligence or misconduct and may in itself be relatively insignificant.

Likewise the evidence does not demonstrate a refusal or failure to perform the plaintiff's role in accordance with the agreement even if cl.6 to Schedule C is given an expansive construction.

I have reached these conclusions having regard not only to the particular matters I have referred to in relation to each incident but also to the contextual considerations set out by me before my analysis of the evidence relating to the individual incidents alleged. I have further considered the weight of the evidence as a whole with respect to all the conduct alleged before reaching my conclusions as to individual incidents. The evidence simply does not as Dodds asserted demonstrate a "pattern" of unsatisfactory conduct over the last days of the plaintiff's employment.

The defendant had grounds to summarily dismiss the plaintiff for misconduct at the commencement of May 2003 but it elected not to do so. It was not entitled to summarily terminate the plaintiff's employment almost five months later unless the plaintiff again acted unprofessionally and breached the terms of the employment agreement (including his obligation to perform in good faith and to the best of his ability) in a manner which was not utterly trivial.

A number of allegations made in the defence were simply not pursued in evidence. Contrary to the defendant's contentions with respect to those allegations which were pursued I am not satisfied the plaintiff performed the services required of him other than in good faith and to the best of his ability on 16, 23 and 24 September 2003. I am also satisfied that he made himself available at such times and places as he was directed to on those days. I am not satisfied that he failed to comply with all the reasonable directions and requirements of the defendant on 23 and 24 September 2003, and I am further of the view that the non-compliances alleged would in large part in any event be properly characterisable as trivial in all the relevant circumstances even if they did occur.

Accordingly, the primary basis of the plaintiff's claim for wrongful dismissal succeeds and the counterclaim fails.

It is strictly unnecessary to consider the alternative basis on which the plaintiff put his case but I record that in my view the terms of the Enterprise Agreement preserve and do not derogate from the defendant's right to summarily terminate the employment agreement in the event of negligence or misconduct as stipulated.

The quantum of the plaintiff's claim has been agreed in the sum of $196,709.

I will hear counsel as to questions of interest and costs.

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[2005] VSC 466

30 November 2005