Glancy v S and C Christie Pty Ltd - [1996] IRCA 386

DECISION NO:   386/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged UNLAWFUL TERMINATION - DRUNKENNESS - VALID REASON FOR TERMINATION - whether applicant entitled to NOTICE OF TERMINATION.
Industrial Relations Act 1988 Ss 170DB, 170DC, 170DE, 170EA.
John Jeffrey GLANCY -v- S & C CHRISTIE PTY LTD (trading as GREAT EASTERN MOTOR LODGE)
WI 1191 of 1996
BEFORE:        R. D. FARRELL JR
PLACE:           PERTH
DATE:             31 JULY 1996
IN THE INDUSTRIAL RELATIONS     )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )  No. WI 1191 of 1996
BETWEEN:
John Jeffrey GLANCY
  -         Applicant
AND:
S & C CHRISTIE PTY LTD
  (trading as GREAT EASTERN            MOTOR LODGE)
  -         Respondent

MINUTE OF ORDERS
BEFORE:                R. D. FARRELL JR
PLACE:                   PERTH
DATE:  31 JULY 1996
THE COURT ORDERS THAT:
1.         The name of the respondent be changed to S & C Christie Pty Ltd trading as Great Eastern Motor Lodge.
2.         The application be dismissed.
NOTE:           Settlement and entry of Orders is dealt with by Order 36 of the   IndustrialRelationsCourtRules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WI 1191 of 1996
BETWEEN:
John Jeffrey GLANCY
Applicant
AND:
S & C CHRISTIE PTY LIMITED
(trading as GREAT EASTERN MOTOR LODGE)
Respondent
REASONS FOR DECISION
(Delivered ex tempore - revised from transcript)
31 July 1996  R. D. FARRELL JR

This is an application under Section 170EA of the Industrial Relations Act 1988 for a remedy arising from the allegedly unlawful summary termination of the employment of the applicant, Mr John Jeffrey Glancy (“Mr Glancy”), by the respondent, S & C Christie Pty Limited, trading as Great Eastern Motor Lodge (“the Company”).

The Company runs a motel in Rivervale, which is managed by Mr Norm Christie (“Mr Christie”). Mr Glancy was employed as a night porter with the motel from June 1994 until his summary dismissal on Monday 5 February 1996.

Whether There was a Valid Reason for Dismissal

For the purposes of Section 170DE, which requires that an employer not terminate an employee’s employment without valid reason, the Company contends that Mr Glancy’s summary dismissal was for a valid reason connected with Mr Glancy’s conduct. Mr Christie says he formed the view that Mr Glancy was drunk while on duty for the evening shift commencing Sunday, 4 February 1996. Mr Christie adds that Mr Glancy’s drunkenness made Mr Glancy unable to perform his duties satisfactorily.
Mr Glancy denied under oath that he had anything alcoholic to drink that night. I regret to say that I do not believe his evidence on that matter, and that I am well satisfied that Mr Glancy was drunk during his shift.
Mr Glancy sought to explain any aberrations in his behaviour by reference to medication which he had been prescribed for an illness, gastro-enteritis, which he was suffering at the time.
However, Mr Glancy says he was not aware of any change in his behaviour, in his speech or in his movements as a result of the medication. There was no expert or other evidence to lend any support to the proposition that the particular medication which was prescribed might have effects which might be mistaken for drunkenness. Mr Glancy did not choose to call evidence, for example, from his wife who he says he saw immediately after his shift on that day and who may have been able to lend some support for the propositions either that his behaviour was not affected or that it was due to medication rather than the influence of alcohol.
For the contrary proposition, however, I heard evidence from Mr Christie - the motel manager, from Theresa Cuff - the standby breakfast cook, and from Phyllis Marlow - the house maid. They all observed Mr Glancy at the conclusion of the shift and all formed the view that he had been drinking. Mr Christie, who had the best opportunity to observe him, formed the view that Mr Glancy had been drinking to a significant extent.
Mr Glancy put forward the proposition in the course of his cross-examination that Mr Christie and Mrs Marlow may have been influenced in their interpretation of his behaviour by the conclusion that had been reached by Mrs Cuff, who was the first to witness Mr Glancy’s behaviour and the first to reach a conclusion that he had been drinking. I have considered that possibility, but I do not accept that it is likely.
One reason for that is that Mrs Cuff was the only one of the three witnesses who did not notice the smell of alcohol on Mr Glancy’s breath. Given that he was, at one stage, leaning over her about “a foot” away from her, I initially found that surprising. However, Mrs Cuff volunteered that she had a very poor sense of smell, before she was questioned on that point. In contrast, the other two witnesses independently noticed the smell and specifically identified it as smelling something like whisky.
It was put to them that the smell may have been part of the medication, specifically a cough linctus. They were quite firm in their rejection of that possibility and the specificity of their description suggested that it was a distinctive smell which they associated with whisky rather than a more general, vaguely alcoholic, smell.
Another matter which lead me to accept that Mr Glancy was drunk on that shift was the fact that many things went wrong that night and that Mr Glancy was not performing his duties in an adequate way.
For some of those matters Mr Glancy had explanations. On other matters, he denied that the mishaps occurred, or failed to offer any explanations as to how they could have occurred.
A striking illustration is provided by the evidence given by the newspaper man, Mr Raymond Berichon, whose job it was to deliver the newspapers in the early hours of the morning. He gave evidence to the effect that there was a sign saying “We’re closed” stuck to the door of the reception on the first two occasions when he came to deliver the papers that morning. It was Mr Glancy’s job to maintain a 24 hour reception. He was the only staff member on duty. Mr Glancy denied ever seeing the sign, and offered no explanation of how that sign came to be there. The applicant was happy to suggest that it really came down to who I believed as to whether or not that sign was there.
It was agreed by the applicant and by Mr Berichon that they were on friendly terms. I am not aware of any reason why Mr Berichon should not give reliable evidence on this question. The manner in which he gave his evidence did not suggest to me that there was any reason why I should not believe it.
Accordingly, I find that there was a sign on the door saying, “We’re closed” and also that that sign was there for some time. The fact that Mr Glancy can offer no explanation for that indicates to me, either that he was unable to think of a reason or a justification for putting the sign up, or perhaps that he didn’t remember putting the sign up, which would be consistent with him being in a drunken state at the time.
The other problems, such as Mr Glancy’s inability to operate the till the next morning, might in isolation be susceptible to plausible explanation, but it seems that very little went right during that shift. The claimed failure of the switchboard computer to perform wake up telephone calls requested by an aircrew of Sempati Airline, who were regular guests at the motel, was another example of something which might have been explainable in isolation, but when viewed together with all the other mishaps that night strains the bounds of coincidence.
Again, with regard to Mr Glancy’s failure to put up the usual sign at the window indicating how many papers were required if he was not there when the newspaper man came, Mr Glancy raised the possibility that the sign had fallen down. It is possible, but unlikely.
Finally, Mr Glancy’s demeanour in the witness box influenced me in my conclusion as to whether or not to believe his evidence. He often appeared uncomfortable and nervous and I noticed he had a tendency to cough when answering questions where, on other grounds, his evidence might be thought to be doubtful. In my view he was also somewhat evasive at first when asked whether he had been drinking that night. By contrast, nothing in the manner in which the respondent’s witnesses gave their evidence led me to doubt the truth of their evidence.
Drunkenness can be misconduct justifying summary dismissal. I am satisfied that Mr Glancy’s drunkenness, it’s impact on his work performance and the consequences of his unsatisfactory work performance on that night constitutes a valid reason for dismissal.

Whether the Dismissal was Harsh, Unjust or Unreasonable

It was agreed that Mr Glancy had been warned by Mr Christie on an earlier occasion that drunkenness on the job would result in instant dismissal.
I have taken into account the reasonably significant consequences of the drunkenness on this occasion. The situation first thing in the morning was described by one witness as “chaotic”. I note that Mr Christie and the other staff received numerous vehement complaints from the guests that morning, and clearly the Company suffered some loss of goodwill. I also have regard to the fact that the regular custom from the motel’s contract with Sempati Airlines appears to have been placed in jeopardy and to the responsibility that the Company has to ensure there is somebody competent in charge for safety reasons.
I am therefore satisfied, having had regard to all the circumstances of the case, that the termination was not harsh, unjust or unreasonable.

Procedural Fairness

There is a requirement under section 170DC that allegations be put to employees where it is proposed they be dismissed on the basis of their conduct, so that they have a proper opportunity to defend themselves against those allegations.
On the Monday morning at the end of the shift in question, Mr Christie put to Mr Glancy the allegations that he was drunk. Mr Glancy denied it. To that extent he had an opportunity to defend himself. Given that, on my findings, he was drunk at the time, it would have been preferable that he be given a further opportunity to say anything he wanted to say in defence of the situation on a later occasion when he was sober before any final decision was made to terminate his employment.
However, in all the circumstances, given what Mr Christie had seen that morning and given that Mr Glancy denied it at the time, I am of the view, on balance, that he was given a reasonable opportunity to defend himself.
If I am wrong in that, then, in considering whether or not any remedy should flow from the Company’s failure to give Mr Glancy the opportunity to defend himself, I am required to take into account all the circumstances of the case and I am satisfied that, given the circumstances of this case, no remedy should flow from any failure to comply with the requirements of section 170DC.

Whether Mr Glancy was Entitled to Notice of Dismissal

Now, that leaves one final matter, which I perceived to be one of the key motivating factors in Mr Glancy’s decision to pursue this claim. Mr Christie says that before Mr Glancy left the motel on that Monday morning, he told Mr Glancy that his employment was terminated. Mr Glancy denies that and I am satisfied that he honestly believes no such advice was given. He was not in a coherent frame of mind as a result of being under the influence of alcohol.
I am therefore prepared to accept that Mr Glancy was not aware that he had been terminated at that time. He became aware that the decision had been taken to terminate him at 4.45pm that day, when Mr Christie rang him.
Mr Glancy contends, therefore, that he was not immediately terminated and that he should therefore be entitled to receive notice. That is a wrong analysis of the situation and, to the extent that Mr Glancy founded this view on anything he was told when he made inquiries into the matter, that is regrettable.
What we have here, on my view of the facts, is a situation where an employee was dismissed soon after the incident upon which the employer relied to justify the dismissal. He was not given any notice of dismissal in that he was not required or permitted to work out the notice and he was not paid any money in lieu of notice. The proper analysis of that situation is that it is a summary dismissal.
It may have been otherwise had the Company indicated to Mr Glancy that it was going to overlook the incident, or that it was not going to dismiss him as a result of the incident. Given that even on Mr Glancy’s understanding of the situation, the matter had not finally been settled when he left work that day, the fact that the Company’s response was to dismiss Mr Glancy that afternoon amounts to a summary dismissal.
Section 170DB prescribes a period of notice which, in Mr Glancy’s case, would be 3 weeks; given that he is over 45. However, an exception is set out in subsection 170DB(1) which says:
“An employer must not terminate an employee’s employment unless:
(a) the employee has been given either the period of notice required by subsection (2), or compensation in lieu of notice; or
(b) the employee is guilty of serious misconduct, that is misconduct of the kind such that it would be unreasonable to require the employer to continue the employment during the notice period.
I am satisfied that Mr Glancy’s conduct was misconduct and I am satisfied that at common law it was misconduct which would justify summary termination.
For the purposes of paragraph (b), I need to consider whether or not it was serious misconduct as there defined, that is such that it would be unreasonable to require the employer to continue the employment during the three week notice period.
This was not specifically addressed by the parties. However, Mr Christie explains his decision to immediately terminate the applicant’s employment by reference to Mr Christie’s inability to, as he put it, trust the applicant to perform his duties any longer. Perhaps I could paraphrase his contention as an inability to rely upon the applicant any more.
Given that I accept that the applicant was drunk on this occasion, is it reasonable for the Court to expect the employer to take the risk that that might happen again in the course of the next 3 week period? On balance, I find it would be unreasonable to require the Company to accept that risk.

Accordingly, I find that the Company was not required by Section 170DB to give notice or pay in lieu therefore to Mr Glancy.
I certify that this and the preceding (8) pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.
Associate:
Dated:
APPEARANCES
The applicant represented himself.
The respondent represented itself.
Date of Hearing: 31 July 1996
Date of Judgment: 31 July 1996