Davies v Super 8 Services Pty Ltd T/As Video 8 Broadcast

[1996] IRCA 233

DECISION NO:  233/96

CATCHWORDS

INDUSTRIAL LAW - complaint of  UNLAWFUL TERMINATION - inappropriate conduct by employee in his dealings with senior staff - duty of employer to investigate allegations of violence against applicant - subsequent abusive actions of employee - whether SERIOUS MISCONDUCT - SUMMARY DISMISSAL

Industrial Relations Act 1988 s 170 EA, s 170DB s 170 DC

DAVIES  -V-  SUPER 8 SERVICES PTY LTD  T/As VIDEO 8 BROADCAST

NI  4863 OF 1995
Before:         TOMLINSON JR
Place:  SYDNEY
Date:             5 JUNE 1996

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 4863 of 1995

BETWEEN:
  Michael DAVIES
Applicant

RESPONDENT:  SUPER 8 SERVICES PTY   LTD  T/As VIDEO 8 BROADCAST                             Respondent

MINUTES OF ORDER

5 June 1996  TOMLINSON JR

THE COURT ORDERS THAT:

1.        The application of  Michael Davies be dismissed.

2.        The Respondent to pay costs to the applicant being the sum of   $950.00 within 28 days of today's date.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 4863 of 1995

BETWEEN:
  Michael DAVIES
Applicant

RESPONDENT:  
  SUPER 8 SERVICES PTY   LTD  T/As  VIDEO-8 BROADCAST
  Respondent

REASONS FOR DECISION

5 June 1996     TOMLINSON JR

By application dated 14 December 1995 the applicant Michael William Davies sought reinstatement and compensation for allegedly an unlawful termination of employment. In his evidence in chief the applicant stated he was some 36 years of age and had lived in America for 27 of those years as a consequence of which his opportunities of employment here in Australia were diminished through lack of local contacts.

The applicant began work with the respondent on 31 July 1995 and ceased on 11 December 1995.  It was confirmed that the applicant obtained that employment largely because of the association between the managing director of the respondent Mr Hurley and the applicant’s father.  The respondent was engaged in video  transfers, copying, packaging and shipping.  The applicant’s commencing salary was $500.00 per week and 90 probationary period was agreed upon.

The applicant commenced work in the dispatch and shipping area under Mr Smee and stated that in July 1995 was told by Mr Kevin Hurley that his work was satisfactory and that his salary was increased by some $50.00 per week. According to the applicant at that time Mr Hurley said words to the effect:

“I wanted to tell you we are very pleased with you -  you have become a
           permanent full time member of Video 8 and there is plenty of work here
           for you”.

Shortly after that the applicant had two weeks off on fully paid sick leave and it was conceded that that amount of sick leave had not accrued to the applicant.  In cross examination the applicant stated that he had been involved in a fight in the “Metropole” hotel as a result of which he sustained injury.

On 8 November the applicant stated he commenced work early as he realised he had to pay his rent by 4 pm that afternoon.  He found he could not leave work to go to the bank as the car of a senior staff member, Mr Warren Delbridge, blocked his vehicle.  He allegedly tried to discuss the matter with Mr Delbridge who indicated he was too busy to listen. Exhibit 1 was the memo dated 8 November 1995 to the manager Mr Warren Delbridge that stated inter alia:

“Unfair Treatment of Employees.

This letter is to serve as an official notice of my grievance surrounding the           events of 8 November 1995 and the relevant actions on you part towards          me during those events.  Your unprovoked, unwarranted and unfair refusal     to move your improperly parked vehicle from is position in the parking          garage, despite my repeated requests and knowing the urgency of my need           to use my properly parked vehicle is bad enough....The seriousness of this      transgression and the above mentioned refusal to acknowledge my     position requires that I submit his documentation for future reference as evidence of your actions and there (sic) results (signed Michael      Davies)...cc Kevin Hurley, Steve Hurley, State Dept of Industrial   Relations.”

In cross examination the applicant stated Mr Warren Delbridge refused to make any effort to move his car and rejected the suggestion that in addressing other employees in exhibit 1 was an over-reaction.  It was put to the applicant that at the time he approached Mr Delbridge with the request to move his car, Mr Delbridge would not have known the applicant had just finished an 11 hour day.  The response of the applicant was “That’s his job.”

With reference to the “State Department of Industrial Relations” the applicant denied that this was a threat and said he was “just protecting himself” and agreed that in dealing with the matter he had kicked over a rubbish tin.  Exhibit 2 was the response of Mr Delbridge to the applicant’s memo and agreed that he did not take the matter up with Mr Hurley Exhibit 2 was the response from Warren Delbridge dated 9 November 1995.  I found exhibit 2 to be a most reasoned and temperate response.

Exhibit 4 was a memo dated 22 November 1995 from Mr Delbridge to the applicant, with copies to Kevin Hurley, Steven Hurley, Ian Smee and Anne Pogson that stated inter alia:

“It has been brought to my attention that yesterday afternoon you finished           work at 15.10 hours.  As yet I have been offered no explanation for this, in fact neither Steven Hurly nor Ian Smee were aware that you had left the            building your rostered hours are 0800 hrs to 1600 hrs.  We can only            assume that you have misread this directive or chosen to ignore it...if any of the above is unclear, I am available to clarify any areas of      concern...thanking you in   anticipation of your fullest co-operation..”. 

It was the evidence of the applicant that he did not advise anyone that he was leaving early as it had become his practice to start early and correspondingly to leave early.  

Exhibit A was tendered on behalf of the respondent in cross examination and was a memorandum dated 27 November 1995 from the applicant to Mr Delbridge.  That exhibit stated inter alia:

“Warren,
           Once again it had become necessary for me to respond to an act of unwarranted harassment on your part.  In this instance it is the Abba            referenced memo (to exhibit 3) prepared by you on the above date.  My       first question is whether or not it is your normal practice to issue a given   memo to all concerned with the exception of the person to whom it is   directed.  As it was   necessary for me to make a copy of Ian’s copy in        order to have one of my own I must ask this.  AS for the contents of that            memo my response is as follows:

1.        The time at which I finish work each day is dependent on the time I             commence work that day as well as what comp time is accrued or   due from previous days.  As you obviously failed to concern   yourself with this fundamental point I must question your motive                 with regards to this matter.

2.        Was this, in fact, “brought to your attention” or did you go   hunting?  Your telephone conversation with Ian Smee on 24   November would tend to indicate the latter is more likely.

3.        My hours are determined by the needs and desires of those to whom   I am directly responsible.  Any concern on your part ignorant of              this fact is further indication of both a pattern of harassment   towards me and bad management practices on your part.

4.        The statement “do as you are asked, not as you choose” is further               indicative of your attitude in this matter.  This bold assumption,                  made without any contact with me displays your attitude towards   me and your desire to create issues where none exist.

5.        You are behind the curve as to my current duties as I have  been                  downstairs working with Ian since before this latest attack (memo)   from you.

6.        Ian decides for what his requirements are for me and directs me in             that regard.  So you can concern yourself with the many current   problems facing video 8 which are more in line with your position..

7.        For your edification, salaried employees do not complete time
  sheets.  If I did, and I was working under Steve, then why would Ian   check and sign said       sheet.....
  You have displayed poor judgment, a weak character and an   overall lack of managerial ability by your continuing harassment of   me.  This harassment will            stop immediately or I will forced to take             the matter to the next level....”

In cross examination the applicant stated n 29 November 1995 there was a meeting in Kevin Hurley’s office with himself and management to discuss the various memoranda and at that time Mr Hurley stated that the matters would all be put in the past and that it would be a case of on with business.  On Friday 8 December 1995 the applicant attended the respondent’s Christmas Party.  Alcohol was consumed by all and the applicant stated that during the evening he experienced unprovoked verbal aggression from Warren Delbridge.  When the applicant assisted ‘John’ to the toilet he stated he was assaulted by Warren Delbridge.  Shortly afterwards the applicant attempted to report the matter to the police and was told to come back another time.  The applicant subsequently made a statement to the police and the court heard no evidence of subsequent action, either criminal or civil, arising out of the alleged assault. 

The Court was told after 11 pm the night of the Christmas party the applicant’s wife had telephoned Kevin Hurley at home, and the applicant then reported the matter to Mr Hurley who indicated he would look into the matter and stated words to the effect “there are two sides to every story”.  The applicant told the Court he next attended for work on 11 December 1995 and he met Kevin Hurley in the car park and Mr Hurley said words to the effect that he should go home as there was no work for him that day. The applicant said he went inside to collect his personal things.  The applicant said he tried to approach other employees to discuss what had happened at the Christmas party and that Mr Hurley said to them words to the effect “If you go with him then you do not have a job” and that further Mr Hurley advised the applicant that “he had no rights.”  Ultimately the applicant said that Mr Hurley called the police and that he was escorted from the premises. 

In cross examination the applicant agreed that he had been abusive to Mr Hurley in front of other employees and that also he “probably” raised his voice to him.  The applicant agreed Mr Hurley repeatedly asked him to leave the premises and that that annoyed him.  The applicant stated he called Mr Hurley a “bastard” and in doing so he pushed past him.  The response of Mr Hurley it seems was to tell the applicant to calm down.  I find on the evidence of the applicant that his behaviour and actions were aggressive and undisciplined and that as such the applicant was guilty of serious misconduct on the day of 11 December 1995 - those actions alone providing a valid reason for instant dismissal. The applicant agreed that when the police arrived he was advised by the police that he was trespassing.

Exhibit 5 was a letter dated 12 December 1995 received by the applicant from the respondent that stated inter alia:      

“Following your totally unacceptable and insulting behaviour to myself in           the presence of several staff members on Monday morning I wish to     advise you     that your employment with this company has been   terminated forthwith. Should you feel that there are any matters requiring            further clarification I would be happy to discuss them with you at a            mutually convenient time.  As mentioned yesterday we would appreciate     the return of the office key you hold.  If it is more convenient to you we          suggest it be left at the Mosman Police station for collection.  We look            forward to resolving this within seven days.  (signed) AK Hurley      Managing Director.”

Exhibit D was a letter to Mr A K Hurley in response from the applicant dated 12/20/95  that stated inter alia:

“Kevin
           Due to your demonstrated lack of integrity and the moral vacuum in which
           you choose to exist, I am left with only one option in regards to the above
           referenced key.  It has been turned over to my attorney in the matter           currently before us.  He will contact you in due course as to the   particulars of collecting said key. Signed (sic) Michael Davies.”

It is finding of this court that exhibit D exemplifies the high-handed objectionable approach displayed by the applicant in his correspondence with the respondent and to say the applicant is “left with only option” is reflective of a perception demonstrated by the applicant throughout these proceedings that somehow he was a victim of collusion and poor conduct on the part of management.  Such was certainly not proven in the proceedings.

On behalf of the respondent the court heard from Mr Ian Smee, a manager with the respondent who on occasion supervised the work of the applicant, and also from Mr A K Hurley.  I found both witnesses to be credible and reliable and have to say the degree of tolerance shown by Mr Hurley to the antics of the applicant to be remarkable.  It is clear that on the last day of work, 11 December 1995, on the evidence of Mr Hurley, the applicant was abusive, threatening and that he pushed past the witness in an aggressive and potentially dangerous manner.  The evidence of Mr Hurley confirmed the earlier evidence of the applicant as to serious misconduct on the part of the applicant.  The Court also heard from Mr John Longworth, an employee of the respondent who confirmed the verbal abuse in words to the effect “out of my way shithead” directed towards Mr Hurley when he requested the applicant to leave the premises.

In cross examination the applicant denied he received exhibit E being a letter dated 10 July 1995 from the respondent offering him the job and gave an explanation that at the time he was more than likely overseas.  The applicant also denied ever having seen exhibit F being an internal memorandum dated 25 July 1995 addressed to Ms Anne Pogson with a copy to the applicant setting out the terms and conditions of the applicant’s employment.  In this regard I doubted the credibility of the applicant and place no weight on this evidence.

By way of conclusion it is noted the court heard some evidence that the applicant was told during the first week of December at a meeting with management that he was a casual employee.  The respondent conceded that the applicant was a permanent full-time employee and so I place no weight on that evidence.

On behalf of the applicant it was argued that the applicant on Monday 11 December 1995 was concerned to discuss the assault with fellow employees who he believed were witnesses.  It was further argued that Mr Davies and Mr Kevin  Hurley argued about whether or not he should pursue such inquiries at that time.  From the evidence it is clear that both parties were aware that Mr Hurley himself had stated, when the applicant’s wife had telephoned him late at night, that he would find out what had happened.  There was no reason for the applicant to think otherwise, particularly bearing in mind the moderate and even-handed approach Mr Hurley had adopted towards the applicant in earlier scenarios regarding memoranda from the applicant to senior members of staff. 

The applicant in this case was summarily dismissed for misconduct.  That misconduct was set out in letter form tendered as exhibit 5.  The evidence of the applicant himself to my mind confirmed that the actions complained of by Mr Kevin Hurley most certainly did occur and it is a finding of this Court that the applicant was correctly terminated summarily for serious misconduct that occurred at work on the day of 11 December 1995.

The applicant went to lengths to put into evidence that somehow he had been unfairly treated.  Exhibit 1 is an insulting and disrespectful document which of itself is deserving of reprimand and correction.  The respondent however, possibly out of deference to a friendship between Mr Hurley and the applicant’s father, showed forbearance and tolerance. It should be borne in mind the employment of the applicant was a grace and favour situation in the first place and one would have thought gratitude is best expressed through courtesy and consideration not through arrogance and kicking of garbage tins in corridors.  Throughout these proceedings I found the applicant to exhibit an aggressive attitude of hostility - an attitude the evidence showed he displayed often towards management. I found management to have been more than fair and just and I particularly commend Mr Kevin Hurley for his tolerance and stated attitudes.  The applicant may have been assaulted by a member of staff, and there is evidence to support the fact that he reported the matter to the police.  The Court heard no evidence of any police action or follow up contact.  Probably by the time the alleged assault occurred the applicant had lost the sympathy and support of his colleagues because of his aggressive attitude towards management.

It is well established that serious misconduct as indulged in by Mr Davies is a valid reason for summary termination within s 170 DE of the Act, and that there is no obligation on the respondent to comply with s 170 DC. It is an order of this Court that the application of Michael Davies be dismissed.

On the afternoon of Friday 26 April 1996 the respondent by way of Notice of Motion sought to vacate the hearing date on the basis that counsel was not available.  The Court refused the Motion and the question of costs was reserved. Having considered the matter I award costs of the day in respect of that matter only in favour of the applicant such costs in the amount of $950.00 within 28 days of the date of this decision. 

I certify that this and the eleven (11) previous pages are a true and correct copy of the Reasons for Decision of Judicial Registrar Tomlinson as recorded in the transcript and revised by the Judicial Registrar.

Associate:                 J A Liston
Date:  5 June 1996

Appearances
Applicant:               
Counsel:                   Mr R DeMerick

Solicitor:                   Messrs Carroll & Knudsen

Respondent:  
Counsel:                   Mr R Wright

Solicitor:                   Mark Fogarty