Drew Wallin v Laundy Hotels Pty Ltd
[2023] FWC 1516
•23 JUNE 2023
| [2023] FWC 1516 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Drew Wallin
v
Laundy Hotels Pty Ltd
(U2023/2002)
| DEPUTY PRESIDENT CROSS | SYDNEY, 23 JUNE 2023 |
Application for an unfair dismissal remedy – misconduct – valid reason – application dismissed
On 9 March 2023, Mr Drew Wallin (the Applicant) lodged an application in the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) (the Application).
The Applicant commenced full-time employment as the General Manager of an establishment called the Log Cabin Hotel (the Premises), operated by Laundy Hotels Pty Ltd (the Respondent) on 8 August 2022. The Applicant was dismissed by the Respondent on 3 March 2023, for misconduct involving consumption of alcohol on the premises whilst on duty, and continuing to work thereafter, on the 15th February 2023.
In the hearing of the matter the Applicant represented himself, though from commencement of the Application until 31 May 2023, he was represented by Mr Franzen of electAssociates. The Respondent was represented, with permission, by Mr Read of Counsel, instructed by HTA Legal.
On 25 May 2023, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:
(a) On 15 May 2023, the Applicant filed an Applicant’s Outline of Submissions and a Witness Statement of the Applicant;
(b) On 31 May 2023, the Respondent filed an Outline of Submissions, together with Witness Statements from:
(i) Ms Danielle Richardson, a part owner and senior manager of the Respondent;
(ii) Mr Shane Richardson, also a part owner and senior manager of the Respondent, and the husband of Ms Richardson;
(iii) Mr Justin Tynan, the Chief Operating Officer of the Respondent; and
(iv) Ms Selina Birchall, the Human Resources Manager of the Respondent.
(c) The Applicant filed an Applicant’s Outline of Submissions, and a Witness Statement in Reply on 8 June 2023.
The Hearing of the Application occurred on 23 June 2023 (the Hearing). All witnesses were subject to cross-examination.
Background Facts
Outlined below are the facts as I have found them to exist. The determination of some of those facts has involved determining facts where varying recollections existed between witnesses for the Respondent on one hand, and the Applicant on the other. My reasons for preferring certain evidence is outlined under the heading “Preferred Evidence and Witness Credibility” below.
Prior to his employment as General Manager of the Premises, the Applicant had worked for the Respondent at other venues in senior positions, including as General Manager at the Manly Wharf Hotel.[1]
On 8 July 2022, the Applicant was sent a draft employment contract. On 12 July 2022, the Applicant requested amendments to that contact. The contract was varied as requested by the Applicant (apart from the Clause as to place of work), and included the attachment of a Job Description also requested by the Applicant. The Applicant signed the contract on 21 July 2022 (the Contract), and he commenced employment in the position of General Manager and Licensee.
Regarding the Applicant’s duties, the Contract provided:
4.2 In the performance of the Duties You must at times (sic.):
(a) perform all Duties to the best of your ability;
(b) maintain a professional standard of conduct and dress appropriate to the Position;
(c) devote the whole of the Employee’s time, attention and skill during the Company’s normal business hours and at other times reasonably necessary in order to properly perform the Employee’s Duties;
(d) use your best endeavours to promote and protect the Company’s interest’s and reputation;
(e) comply with all applicable laws in Australia and any other jurisdictions in which the Company operates, including the Corporations Act;
(f) provide prompt and full information to the Company regarding the Employee’s conduct of the Business;
(g) comply with reasonable directions that the Company gives to the Employee, including attending meetings of the Company or any other meetings as directed by the Company; and
(h) advise the Company immediately if the Employee is convicted of a criminal offence, is adjudicated bankrupt, or enters into a deed or arrangement with the Employee’s creditors;
(i) protect the Company’s Confidential Information and Intellectual Property;
(j) follow all reasonable and lawful directions given to You by the Company;
(k) not act in conflict with the Company’s interests;
(l) be honest and diligent and perform your Duties to the best of your knowledge, skill and judgment, and exercise all due care; and
(m) devote the whole of your time, attention and skill during your Hours of Work to properly perform your Duties.
(Emphasis added)
The Job Description requested by the Applicant to be included in the Contract, included the following:
Position Purpose
The General Manager is responsible for the driving the overall success of the hotel to ensure continued profitability, cost control, operational efficiency, enhanced brand profile and compliance. This role promotes a positive culture, builds leadership capability, and supports a working environment conducive to success.
As the General Manager and Licensee, the Applicant was responsible for the operations of the Premises, including overseeing the restaurant called “Sinclairs”, which is located within the Premises. His salary was $150,000.00 plus superannuation.
The Applicant commenced employment on 8 August 2022. It was a fact, and the Applicant was aware, that the previous General Manager was dismissed for, among other things, drinking on the job. The Applicant understood from that point that drinking on the job was a disciplinary matter that could possibly lead to dismissal.[2]
In some of the Respondent’s hotels, including the Premises, a total ban on employees drinking in the venue had been implemented. The ban extended to drinking either after a shift or attending the venue in a social (non-working) capacity. All of the Respondent’s employees are required to pay for their alcohol. The Respondent does not permit staff to provide free drinks to friends or colleagues and there is no discounting of staff drinks. Staff are not permitted to run bar tabs.
Three days after the commencement of employment, the Employment Policies and Procedures Manual of the Respondent (the PP Manual) was emailed to the Applicant. It became apparent in the Hearing that while the PP Manual was sent by email to the Applicant, he had not opened that email and had not read the attachment. I nonetheless accept the evidence of Ms Birchall that there is training regarding the PP Manual in employee induction and the Applicant received an induction on his first day.[3] Clause 13 of the PP Manual provides:
13. Alcohol & Drugs
13.1 You shall not present for work under the influences of alcohol or illegal drugs. Whilst on Company duty you shall not consume alcohol or use illegal drugs. This is inclusive of break times.
13.2 Consumption of alcohol on Company premises is not permitted, unless authorised by Authorised Laundy representatives for a specific social activity or company endorsed function.
13.3 Possession of, or trafficking of illegal drugs on Company premises is not permitted at any time.
[Emphasis added]
On 10 August 2022, Ms Birchall and Mr Tynan became aware of an incident, confirmed by CCTV footage, involving two managers drinking while on shift and the Applicant drinking while off shift. They were eating pizza, and drinking beers and wine which had not been paid for. Shortly thereafter, a meeting occurred between Mr Tynan and the Applicant where words to the following effect were exchanged:
Mr Tynan said: Drew, there’s been a complaint about the managers (including you) drinking, not paying for the drinks and eating pizza.
The Applicant said: Oh really, I just wanted to get the team a few drinks and some food for all the hard work they have put in.
Mr Tynan said: I know mate but this isn’t like other companies you have worked at. Laundy Hotels expects all of us to pay for our drinks, me included. All drinks and food have to be paid for including me. There are no manager tabs or discounts everything is paid for.
The Applicant said: Ok no probs. That’s unbelievable.
Mr Tynan said: I know mate but that’s the policy, even Arthur pays.
By late September 2022, the relevant officers of the Respondent were considering various concerns regarding the Applicant’s performance, including the Applicant being non-responsive to emails, failing to comply with instructions to call staff meetings, failing to learn how to open and close the venue, and failing to learn the daily “cash up” procedures.
A meeting to address the above concerns was held on 4 October 2022, between Ms Richardson, Mr Richardson, Mr Tynan and the Applicant. I accept that in that meeting it was made clear to the Applicant that there was a no drinking policy in place across the Premises including for staff who were not on duty, and it was the Applicant’s responsibility as General Manager to implement that policy.
The above drinking ban was referred to in a meeting of owners and stakeholders of the Premises on 15 November 2022, that was attended by Ms Richardson, Mr Richardson, Mr Tynan and the Applicant.
Around 12 December 2022, the Respondent became aware of an incident that occurred at the restaurant Sinclairs involving staff including the Head Chef drinking whilst on shift, not paying for food and drinks and slouching on furniture in the presence of customers. During the investigation the Head Chef admitted to his conduct and tendered his resignation.
On 21 December 2022, Ms Birchall and Mr Tynan met with the Applicant. During the meeting I accept that a conversation took place to the following effect:
Mr Tynan said:[The Head Chef] has resigned. We are disappointed Drew that we are here and that you didn’t realise that this was happening in Sinclairs. We have raised the drinking issues Drew many times but we are still in this position again.
The Applicant said: There hasn’t been any issues after we had discussed drinking before and the culture is improving. How am I to know about the chef’s drinking?
Mr Tynan said: You’re the GM and you should have known. Why do I know and you don’t is the issue here. You need to start managing the entire venue. There is a lack of communication and respect for our policies. There is a drinking ban for the entire venue. No drinking after shift or at any time in this venue and you need to communicate it. We will meet with the team at Sinclairs after speaking with you to reiterate that we won’t tolerate this from the team and the behaviour is not acceptable.
After the above meeting there was a further meeting, attended by Ms Birchall, Mr Tynan and the Applicant, with the staff of Sinclairs. At that meeting Ms Birchall stated:
What has happened here cannot happen ever again. Under no circumstances are you allowed to drink at all in this venue, whilst working or after your shift. We will be issuing first and final warnings to all staff who have been seen drinking and everyone here today must understand that this cannot happen again.
On 3 January 2023, the Applicant received a written warning as follows:
Dear Drew,
Formal Warning
This letter is in reference to the meeting held on December 21st 2022, to address the ongoing conduct of the staff at The Log Cabin/Sinclairs. As you are aware the Laundy Hotel Group takes matters involving the conduct of our employees and management very seriously.
The following behaviours have been investigated regarding the conduct of the staff at The Log Cabin/Sinclair’s under your management:
· Consuming alcohol and intoxication on premises and whilst in service to customers 10th December
· Physical and verbal abuse of management towards staff working in Sinclairs
· Consumption of left-over guest food
· A culture of disrespect towards fellow staff and Laundy assets
· Management taking alcohol for consumption without authority or intention to pay
The investigation has deemed your above inactions to the on-going behaviour of The Log Cabin/Sinclairs staff and management to be unacceptable and demonstrate the neglect in your responsibilities as the General Manager of the venue. It is an expectation that all Laundy Hotel employees conduct themselves in a respectful and courteous manner when dealing with work colleagues, management, and members of the public. Aggression, stealing or disrespect to fellow staff or Laundy assets of any kind is not acceptable.
Our Expectations
To reiterate our expectations, you are expected to:
· Conduct yourself in a manner expected of a General Manager of the Venue at all times and maintain awareness of staff and management behavior at all times.
· Take the initiative for fostering and maintaining a positive work culture amongst work colleagues and management and that instills trust.
· Take all reasonable steps to investigate incidents.
· At no time allow consumption of alcohol or intoxication while staff are on premises and or in service to customers.
· Create a supportive environment that allow for staff to report physical or verbal abuse in a timely, transparent, and safe manner free from discrimination.
· Always reinforce respect amongst work colleagues and towards Laundy assets.
· Take reasonable direction for Laundy Management
In conclusion, we deem your actions in this instance to be inappropriate and should there be any further incidents, it could result in the termination of your employment.
Yours sincerely,
[Emphasis added]
Between 18 and 23 February 2023, Ms Richardson, Mr Richardson and Ms Birchall became aware of an alleged incident involving the Applicant. The complaint stated the Applicant was drinking on shift and was intoxicated. Ms Richardson then obtained and reviewed CCTV footage. Emails outlining the complaint were apparently received on 18 and 23 February 2023.[4]
The CCTV footage showed the Applicant drinking beer in the Premises for approximately an hour with a customer while he was on shift. After consuming the beer, the Applicant resumed his duties.
On 1 March 2023, the Applicant was sent a letter in the following terms:
RE: Notice of Meeting - Friday 3rd March 2023
I formally write to you to give notice that you are required to attend a meeting at The Log Cabin commencing at 9:30am with myself, and Shane Richardson.
The purpose of the meeting is to provide you with the opportunity to respond to the following serious allegation. Summary
• Consumption of alcohol on premises whilst on duty and continuing to work on the 15th February 2023.Should you wish to bring a support person to this meeting.
• DO provide emotional support and reassurance for the person
• DO observe the proceedings, assist with clarifying the process and take notes
• DO quietly prompt or give advice to the employee, including requesting a break if needed
• DO respect and maintain confidentiality at all times
• DO NOT answer on behalf of the person
• DO NOT advocate for the personProcess of the meeting
We will put allegations to you, and you will be given the opportunity to respond.
We will consider your responses to the allegations.
At the conclusion of this meeting, and dependant on your responses, disciplinary action may be taken, which could include the termination of your employment.Yours sincerely
On 3 March 2023, the disciplinary meeting occurred (the Termination Meeting). During the meeting Mr Richardson showed the Applicant extracts of the CCTV footage on his mobile phone. I accept that during that meeting words to the following effect were said:
Mr Richardson: We have received a complaint from a staff member who told us that you were drinking whilst on shift on the 15th February. We have investigated this and seen the footage and found that you were drinking whilst working.
Applicant: No, I didn’t. Gosh no didn’t.
Mr Richardson: Well, yes you were.
Applicant: Charles was on shift; I don’t recall it.
Mr Richardson: It’s there mate [meaning on the CCTV footage]. We had the discussion; you know the no drinking policy.
Ms Birchall: The staff member told us that you were intoxicated Drew. You were in front of the staff drinking. We have let our previous GM go for the exact same thing. We cannot do it again. Your staff have seen you Drew.
Applicant: I don’t recall it. I blacked out. After your instructions not to do this I have worked hard to ensure I don’t.
Mr Richardson: You did, and the staff member had three drinks to your one drink.
Applicant: I screwed up. Can I be given one last chance?
Mr Richardson: Unfortunately, we will have to part ways. We will need your keys and your laptop.
Applicant: OK, can you please apologise to Arthur for me? I will also reach out to Justin.
Mr Richardson: Yes I will.
Mr Richardson considered that the Applicant’s conduct was sufficiently serious to justify the termination of his employment, given his position of seniority, breach of an important rule regarding staff drinking at the Premises, and that his conduct was visible to staff and customers. The Applicant was terminated for misconduct (the Termination).
On 4 March 2023, the Applicant had a text message exchange with Mr Rob Wearn, another owner of the Premises, as follows:
Applicant: I would like to apologise to Jane and yourself for letting you down ! There was no intent, disrespect, nor malice, it was just stupidity. It is a beautiful Pub, in a great community. Thankyou for the opportunity of letting me be part of it !
Sincerely, Drew WallinMr Wearn: Hi Drew. Sorry to receive your email and not to have been around. I have enjoyed your company and will definitely continue to keep in touch. I received a call from Blake this morning, informing me after Shane had called him. I naturally are disappointed to see you go as really believed that you were on the right track.
Talk soon when back home, regards Rob.
On 8 March 2023, the Applicant sent an email to his representative, Mr Franzen, that recorded his version of the meeting of 3 March 2023. That recollection was as follows:
Meeting- Friday 3rd March 2023, 9.30am
Present – Shane Richardson, Selina Birchall, Drew Wallin
Greetings
Shane- sadly mate due to the events on Wednesday 15th Feb, where eit was reported you were drinking on site, then returned to work we have to let you go.
Drew- mate I actually don’t even remember the incident, Ive been going over those days in my head and cant remember why I would’ve consumed any beverage while on shift. I haven’t done so since when we first spoke of your expectations of me. Plus also I don’t understand why I would, because since my little heart episode, due to the medication I shouldn’t drink.
Shane- we have a recording. Shane shows me chatting to a youg guy, who I identify as Isaac, a previous good employee, who had recently began managing a new bar, I approach the bar, order a beer and CC and dry, there’s an exchange of words, laughter with the Barman. Isaac and I then walk off.
Drew- I honestly don’t even recollect this event, mate. I’ve been working starts 8am till I’ve done what’s needed, go home sleep, then come back and do closes. The events of Monday 13th, having to defend myself and the Pub to police for wrongful accusations of a Glassing, Superbowl, then Valentines Day, then doing all Admin.
Shane- well mate, Isaac buys you a Beer back and himself another drink
Drew- but how long are we there for?
Shane- it becomes a session, like 4hrs, I don’t know, after the first 2, I didn’t have time to go through all the footage. But it was reported you appeared intoxicated.
Drew- I doubt that, I’m sorry for being stupid, its just one of those innocent dumb mistakes. Id be dead if I had a session. Can’t you just give me a slap on the wrist, we write a new directive to the staff.
Shane- no, you drank and returned to work, we’ve spoken about this.
Drew- fuck, its not about me, we’ve just gotten this place to where we wanted it, the staff are happy, safe, the bad stuffs gone, new Management team coming together, the Pub doesn’t need this
Shane- sorry
Selina- can you please return your key, laptop and anything else
Drew- I’m so sorry, can you please apologise to Arthur. There was no intent. No disrespect, nor malice, it was just a dumb moment.
I apologise again, shake hands an leaveFollowing
Selina phones 10.42am- asks about Laptop, I had returned immediately. Then asks if I would like them to say to the staff that I resigned!
Drew- no I was sacked, use that to explain to the kids
After the Applicant’s dismissal Mr Richardson became aware following a review of the CCTV footage and Mr Wallin’s time sheets that the Applicant had apparently:
(a) Manually adjusted his time sheet by incorrectly recording the length of his break in the Respondent’s time keeping system for a period earlier on 15 February 2023 (the Time Sheet Issue); and
(b) Performed cash duties of counting cash in the cash room of the Premises at approximately 12.30pm on 16 February 2023, whilst drinking a beer (the Cash Room Drinking Issue).
Preferred Evidence and Witness Credibility
In finding the above facts, I have preferred, where facts were contested, the evidence of the Respondent’s witnesses to that of the Applicant. I note that the Respondent’s evidence was not challenged in reply, either in writing, although I note that may have been because the Applicant’s former representative ceased to act on the day the Respondent’s evidence was received, or orally. I further note that in the Hearing it was made clear that no reliance would be placed on the failure to take issue with evidence due to the Applicant being self-represented at that time.[5]
The preference for the evidence of the Respondent’s witnesses was based on:
(a) The existence of contemporaneous and consistent notes taken by the Respondent’s witnesses including by:
(i) Ms Richardson regarding the 4 October 2022 meeting;
(ii) Mr Tynan regarding the 21 December meeting; and
(iii) Ms Birchall regarding the termination meeting on 3 March 2023.
(b) The consistency of the Respondent’s witness evidence with the correspondence in the matter; and
(c) The demeanour and lack of candour of the Applicant. He presented as someone who would say whatever he thought might excuse his abundantly clear conduct, regardless of its truth. As examples:
(i)While the Applicant stated he had been told “Don’t drink until further notice”, he stated he drank on 15 February 2023 because he assumed that direction had lapsed as he had “turned the place around”;[6]
(ii)The Applicant’s evidence regarding the 4 October 2022 meeting was unbelievable, and allowing of subjective departure from what had been clear instruction, and was:[7]
About my - about drinking. And it wasn’t a blanket ban, it was just basically directed at me.
And:
What was said? What was said? ‘Maybe you shouldn’t drink until further notice’.
(iii)The Applicant explained his standing in the cash room counting money while drinking a schooner of beer as follows:
MR WALLIN: Because, and that’s the crazy innocence of it, if they had footage before, they would have seen the bar staff and I talking about beer, at the end of the shift, we were still talking about it, right? So they poured that beer and instead of me basically going, ‘I’m going to pour it down the drain’, I walked into - I walked into the safe office and actually one of the things is, I’m smelling the beer again, because I’ve just spent seven years in the wineries, and I’m smelling the beer again, and I just go about my way. I’m locked in my office by myself, staff have gone home by then and it’s just what it was.
THE DEPUTY PRESIDENT: You drank it.
MR WALLIN: I drank it, yes, correct.
THE DEPUTY PRESIDENT: And it might be put against you that it wasn’t drunk on the basis of quality control, it was drunk on the basis - - -
MR WALLIN: Well, it was actually drunk on - because we were discussing it and instead of throwing it away I’ve taken it with me.
I do not accept that any employee in the Hotel industry would, to ensure that a beer was “off”, continue to consume and finish that beer.
(iv)The Applicant even sought to deny or reinterpret the clear admissions contained in his texts to Mr Wearn on 4 March 2023, and the email to Mr Franzen of 8 March 2023.[8]
Applicant’s Submission
To the best of the Applicant’s recollection, sometime between 8:30 and 9:00pm on the night of the 15 February 2023 an ex-employee, Isaac, who was known to the Applicant, entered the Premises. Having already worked approximately 7.5 hours that day, the Applicant decided to take his statutory “lunch break” at that time. During this “lunch break”, which lasted no more than 0.5 - 1.0 hour, the Applicant recollected only having two beers and was definitely not intoxicated as alleged. After a break of approximately 1 hour, the Applicant returned to his duties.
The Applicant submitted that the Premises had no formal system in place as to when a lunch break could be taken. Rather, the break was taken at a time most suitable given the business demands at that time.
The Applicant noted the incident in question allegedly took place some 14 days before the notice of 1 March 2023 was issued. That notice did not provide the Applicant any written detail in relation to the allegations, being that he was drinking whilst on duty and that he was intoxicated.
The Applicant submitted that between the date of the incident and the date of the Termination Meeting, the Applicant was not asked to participate in an investigation into the matter or receive any written or verbal advice outlining the allegations. He was not offered any supporting evidence, and he was not provided with the time and opportunity to provide a considered written or verbal response to the allegations prior to the termination meeting. When the Applicant joined the meeting on 3 March 2023, he had no knowledge or recollection of the incident in question as it had taken place some 16 days prior to the Termination Meeting. When the Termination Meeting started, the very first words issued by Mr Richardson were to the effect of:
“Sadly mate due to the events on Wednesday 15th Feb, where it was reported you were drinking on site, then returned to work we have to let you go.”
The Applicant submitted he was therefore dismissed before the allegations were put to him. For the remainder of the Termination Meeting the Applicant claimed he was in a state of shock.
The Applicant claimed he was then shown footage of a video on a handheld iPhone across a table when he did not have his glasses. He only saw a very short portion of the video. The Applicant stated the video showed him chatting with Isaac and ordering two drinks. At the time of ordering the drinks, it was the Applicant’s understanding that the barman placed the order on his tab which was the standard practice in operation at the time.
The Applicant noted that at the time of the dismal, he was not issued with a termination letter and when it was finally received on Tuesday 7 March 2023 it was undated with no valid reason provided for the dismissal other than for reasons of “misconduct”.
At the time of the Termination, the Respondent had not provided the Applicant with any formal policies or procedures manual, despite the Applicant having requested a copy. The Applicant submitted the only notification that he had in relation to the Respondent’s “Alcohol Policy” was in the warning letter dated 3 January 2023, which contained an ambiguous statement of:
“At no time allow consumption of alcohol or intoxication while staff are on premises and or in service to customers.”
The Applicant submitted his interpretation and understanding of the Respondent’s policy in relation to consumption of alcohol was that:
a) intoxication was not permitted at any time;
b) drinking whilst on duty was not permitted; and
c) Social drinking whilst on a statutory break or, whilst not on duty, was permissible.
Regarding matters arising after his termination, the Applicant submitted he denied that:
(a) He did not pay for the alcohol;
(b) Unilaterally varied his start time in the time recording system or otherwise falsified time keeping records manually during his employment; or
(c) On 15 February 2023, he returned to work at 7.53pm instead of approximately 5:30pm, and so was absent from work for 7.5 hours.
The Applicant submitted there was no valid reason for the termination, and there was a 16 day delay between the alleged incident and the termination. There was no evidence that the Respondent conducted a full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances.[9]
The Applicant submitted that he was not notified in relation to the allegations that gave rise to his termination for serious misconduct prior to the termination meeting of the 3 March 2023, and was therefore denied procedural fairness in respect to how the dismissal was conducted.[10]
The Applicant submitted that he was not given the opportunity to respond to any allegation made by the Respondent in relation to his conduct. As the Respondent failed to provide the Applicant procedural fairness, the only conclusion is that the dismissal was unfair.
As to the allegations made after termination, the Applicant asked that the Commission rule all such allegations inadmissible because, if the Respondent had undertaken a full and extensive investigation into all of the relevant matters prior to the dismissal for serious misconduct, these matters would have come to light at that time.
The Applicant’s Submissions in Reply largely repeated the above submissions.
Respondent’s Submissions
The Respondent noted in introduction that this matter involved the Applicant, who was the most senior employee and Licensee of Premises, contravening repeated directions issued to him to enforce a “no drinking rule” at the venue by failing to comply with the rule himself and drinking on shift on 15 February 2023 in front of staff and patrons. That conduct was said to be established by CCTV footage.
Regarding valid reason(s), the Respondent submitted there is irrefutable CCTV evidence that establishes the misconduct occurred.
The Respondent submitted that drinking on the job in the face of management directive otherwise, constituted a valid reason for dismissal. The reason for the dismissal was neither capricious, fanciful, spiteful, or prejudiced. Contrary to the Applicant’s submissions:
(a) The applicant was clearly informed and aware of the rules relating to staff drinking on premises. Prior to 15 February 2023 he was informed multiple times by management of the rule and his need to enforce it;
(b) There was no ambiguity concerning the rule; and
(c) The suggestion that the Applicant understood (or misunderstood) that social drinking was permitted during a statutory break or whilst not on duty is a fanciful post-facto construction that was not raised in mitigation during the meeting on 3 March 2023. Moreover, the Applicant was not on break when drinking at the bar on 15 February 2023 (having amended his timesheet the following day).
The Respondent submitted that given the Applicant was the most senior employee and Licensee responsible for setting an example and implementing the non-drinking rule, it could not be said that the penalty of summary dismissal was disproportionate to his conduct.
Regarding notification of the reason for the dismissal, the Respondent submitted that the reason for the dismissal was adequately notified at the meeting on 3 March 2023. The Applicant was well aware of the reason for the dismissal and was provided with advance notice in the letter of 1 March 2023.
The Respondent further submitted that the Applicant was provided with procedural fairness and an opportunity to respond to the allegations. The CCTV footage was shown to the Applicant during the meeting on 3 March 2023 and the conduct was admitted. There was no necessity for the Respondent to undertake a full and extensive investigation into the relevant matters, and the criterion of procedural fairness is to be applied in a common-sense way and should not be burdened with formality. The Applicant was not deprived of an opportunity to put forward any mitigating circumstances as to why his employment ought not be terminated for serious misconduct.
The Respondent submitted that, to the extent that there were any defects in the procedure applied, which was not admitted, that is not a significant or fatal consideration, but only a factor to be taken into account under s.387 in determining whether the termination of employment was harsh, unjust or unreasonable. Any defects in procedural fairness did not result in the dismissal being harsh, unjust or unreasonable having regard to the overall matrix of the matter which included: the Applicant being the most senior employee at the Premises and being responsible for implementing and enforcing the non-drinking rule in the Premises; the Applicant being instructed about that rule on multiple prior occasions; the conduct being recorded on CCTV and being in full view of staff and patrons; and the Applicant having admitted the conduct. In the circumstances, the application of any improved procedures would have been futile and would not have altered the decision to dismiss. The Applicant’s conduct was so obvious that dismissal was inevitable.
The Respondent noted the Applicant was offered the opportunity to bring a support person to the meeting on 3 March 2023 but elected not to do so.
The Respondent further noted that it relied upon the after acquired knowledge of the Applicant dishonestly manipulating his timesheet (claiming his break was only 4 hours when it was in excess of 7.5 hours) and drinking whilst on duty reconciling cash in the office. This conduct, together with the serious concerns relating to the Applicant’s general performance in the role mean the dismissal could not be perceived as being harsh, unjust or unreasonable.
CONSIDERATION
Preliminary Findings
There are no jurisdictional objections to the Applicant’s application being determined by the Commission. Specifically, I am satisfied that:
(a) the Applicant was dismissed at the initiative of the employer (ss 385(a) 386(1)(a));
(b) his unfair dismissal application was lodged within the 21 day statutory time limitation found at s 394(2) of the Act;
(c) the Applicant is a person protected from unfair dismissal in that:
(i) he had completed the minimum employment period set out in ss 382 and 383 of the Act; and
(ii) his salary was below the high income threshold;
(d) his dismissal was not a case of genuine redundancy (s.385(d)); and
(e) his dismissal was not a case involving the Small Business Fair Dismissal Code (s.385(c)).
The only outstanding issue is whether the Applicant’s dismissal was ‘harsh, unjust or unreasonable,’ and therefore an unfair dismissal. To this end, I must direct attention to s.387 of the Act, dealing with the matters to be taken into account by the Commission in determining whether the dismissal was unfair. It is trite to observe that each of the matters must be considered and a finding made on each of them, including whether they are relevant or not.
Was the Dismissal Harsh, Unjust or Unreasonable?
Section 387 of the Act identifies the matters that the Commission must take into account in deciding whether a dismissal was “harsh, unjust or unreasonable:”
(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
(b) Whether the person was notified of that reason;
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
(e) If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
(g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) Any other matters that the FWC considers relevant.
Section 387(a) - whether there was a valid reason for the applicant’s dismissal
In Rode v Burwood Mitsubishi,[11] a Full Bench of the then Australian Industrial Relations Commission discussed the meaning of valid reason in the context of the relevant provisions of the Workplace Relations Act 1996, and referring to Selvachandran v Peteron Plastics Pty Ltd[12](Selvachandran). The Full Bench found:
[18] While Selvachandran was decided under the former statutory scheme the above observations remain relevant in the context of s.170CG(3)(a). A valid reason is one which is sound, defensible or well founded. A reason for termination which is capricious, fanciful, spiteful or prejudiced is not a valid reason for the purpose of s.170CG(3)(a).
[19] We agree with the appellant’s submission that in order to constitute a valid reason within the meaning of s.170CG(3)(a) the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts. It is not sufficient for an employer to simply show that he or she acted in the belief that the termination was for a valid reason.
The Respondent contended that there was a valid reason for dismissal related to drinking on the job despite a clear management directive otherwise. I find that the conduct allegedly engaged in by the Applicant, including the Cash Room Drinking Issue, actually occurred is established beyond any doubt by the CCTV footage from the Premises. That footage showed the Applicant drinking for one hour[13] at a central table in the public bar of the Premises with Isaac, and thereafter drinking a schooner of beer whilst counting takings.
In addition, I find that the Respondent has established the conduct giving rise to the Time Sheet Issue, though due to the gravity of the conduct involved in the breach of the drinking policy and the Cash Room Drinking Issue, I am able to find misconduct and valid reasons for dismissal without any weight being apportioned to the Time Sheet Issue.
While a substantial and wilful breach of a policy will often, if not usually, constitute a valid reason for dismissal,[14] there is an additional consideration that the Applicant was the General Manager and Licensee responsible for ensuring compliance with the policy.
It is uncontroversial that an employer can expect more from employees in senior positions. In Hocking v Public Service Association of South Australia Inc.,[15] Stanley J of the Industrial Court was considering a matter involving an applicant who was employed either in the capacity of Administrative Co-ordinator (Industrial) or Industrial Officer of the Union, and was dismissed from her employment with the respondent association following alleged misconduct by her in removing and playing to unauthorised persons a tape of a confidential meeting of the council of respondent association. Stanley J. held:
The applicant was a senior officer in the employ of the respondent. The executive and council of that association were entitled to expect that they would receive loyalty, trustworthiness and honesty from the applicant. On the findings I have made they did not receive them.
Similarly, I consider the Respondent was entitled to expect loyalty, trustworthiness and honesty from the Applicant, even without recourse to the Contract, which also broadly outlined such considerations. Such expectations were not forthcoming.
I reject the Applicant’s submissions that he was labouring under some confusion regarding the policy on drinking, particularly after the lengths to which the Respondent went to make clear that policy. In particular:
(a) The PP Manual, which while the Applicant didn’t open that manual when it was emailed to him, was a document he was responsible for enforcing as General Manager, provided “Whilst on Company duty you shall not consume alcohol or use illicit drugs. This is inclusive of break times”;
(b) On 4 October 2022, it was made clear to the Applicant in a meeting that there was a no drinking policy in place across the Premises including for staff who were not on duty, and it was his responsibility to implement that policy;
(c) On 15 November 2022, the drinking ban was referred to in a meeting of owners and stakeholders of the Respondent; and
(d) After the incident in Sinclairs in December 2022,and a number of meetings about that incident the Applicant received a written warning that included a direction “At no time allow consumption of alcohol or intoxication while staff are on premises and or in service to customers”.
I reject the Applicant’s contention that the communication regarding alcohol was confusing and ambiguous. While minor variations in instructions regarding drinking may be teased out, the basic fact is that the Applicant’s drinking with Isaac, and the Cash Room Drinking Issue, would contravene each and every incarnation of the policy.
The Applicant’s assertion that he was on a “statutory break” when drinking with Isaac is fanciful. It certainly was not apparent as an exculpatory explanation on 4 and 8 March 2023, when the Applicant made various admissions in the emails to Mr Wearn and Mr Franzen respectively. The Applicant conceded that patrons of the hotel would not know whether he was on a break or not when drinking with Isaac for one hour in the public bar.[16] The Applicant could also not explain how a half hour “statutory break” could explain one hour of drinking.
The Applicant’s conduct was wilful, deliberate and inconsistent with the continuation of his employment. That conduct constituted serious misconduct as defined in clause 1.07 of the Fair Work Regulation 2009.
Section 387(b) – Notification of the reason for the dismissal
The Applicant was notified of the reason for the dismissal at the meeting on 3 March 2023, wherein the Applicant’s non-compliance with the drinking policy was traversed in detail. Additionally, in the letter of 1 March 2023 that invited the Applicant to that meeting, the Applicant was advised the meeting was to discuss “Consumption of alcohol on premises whilst on duty and continuing to work on the 15th February 2023”.
Section 387(c) – Opportunity to respond to any reason
The Applicant was provided with an opportunity to respond to the allegations. The CCTV footage was shown to the Applicant during the meeting on 3 March 2023, albeit on a mobile phone, and the conduct was thereafter admitted. It is difficult to perceive what more the Respondent could do having received an admission to the conduct so clearly shown in the CCTV footage when the Applicant said “I screwed up. Can I be given one last chance?”
Section 387(d) – Unreasonable refusal by the employer of a support person
Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.
There is no positive obligation on an employer to offer an employee the opportunity to have a support person. Nonetheless, the Applicant was offered the ability, in the letter of 1 March 2023, to bring a support person to the meeting on 3 March 2023.
Section 387(e) – Unsatisfactory performance
The dismissal was not for unsatisfactory performance, and this is not a relevant consideration.
Sections 387(f) and 387(g) – The size of the employer’s enterprise/human resources
The Respondent is a large employer, with access to dedicated human resource managers. There is no basis for apportioning any weight to these matters.
Section 387(h) – Other relevant matters
The Applicant submitted that the delay of 16 days between the conduct and the dismissal rendered the dismissal unfair. I reject that submission.
Ms Birchall outlined the timeline of the complaint and investigation to this matter. On 18 February 2023, she received an email from an employee seeking information about how to make a formal complaint/grievance in relation to his employment. She then sent the employee an email confirming the process for making a complaint. On 23 February 2023, the employee sent an email to the Respondent’s human resources email complaining about Mr Wallin’s alleged conduct at the Hotel on 15 February 2023. Thereafter, Ms Birchall obtained the CCTV which was then reviewed by her, Ms Richardson and Mr Richardson.
I do not consider the period of time between the conduct and the dismissal inordinately long or unfair, particularly when the correct date of the actual complaint of 23 February 2023, is considered.
Conclusion
I have made findings in relation to all matters specified in s 387 of the Act as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.
I have found the Respondent had valid reasons for the dismissal of the Applicant, and there were no failures in procedural fairness afforded to the Applicant. I therefore do not find that the dismissal of the Applicant was harsh, unjust or unreasonable.
The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Wallin, D (the Applicant)
Mr Read, N (Counsel for the Respondent)
Mr Baldwin, R (Solicitor for the Respondent)
Hearing details:
23 June 2023 at 10:00AM In-Person
[1] Transcript PN 191.
[2] Transcript PN 153 to 157.
[3] Transcript PN 901 to 908.
[4] Transcript PN 880 to 889.
[5] Transcript PN 719.
[6] Transcript PN 999 to 1012.
[7] Transcript 997 to 999.
[8] Transcript PN 562 to 582.
[9] Rode v Burwood Mitsubishi, Print R4471.
[10] Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224.
[11] Print R4471, at [18] and [19].
[12] (1995) 62 IR 371
[13] Transcript PN 372.
[14] Browne v Coles Group Supply Chain Pty Ltd[2014] FWC 3670, at [62]; citing B, C and D v Australian Postal Corporation T/A Australia Post[2013] FWCFB 6191 at [36];[(2013) 238 IR 1.
[15] (1978) 45 S.A.I.R. 637
[16] Transcript PN 445.
Printed by authority of the Commonwealth Government Printer
<PR763546>
0