Graham Hanlon and the Australian Liquor, Hospitality and Miscellaneous Workers Union and Wrest Point Hotel Casino

[1994] IRCA 104

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - dismissal on grounds of misconduct - inquiry into alleged misconduct - union representation at inquiry - termination not harsh, unjust or unreasonable.

Industrial Relations Act 1988, S170DB, S170DC,S170DE,S170EA

GRAHAM HANLON AND THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION AND WREST POINT HOTEL CASINO

No. TI 176/94

Before:              Ryan JR

Place:                 Hobart

Date                  4 November 1995

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
TASMANIA DISTRICT REGISTRY  Matter No TI 176/94

B E T W E E N:  GRAHAM HANLON AND THE AUSTRALIAN LIQUOR, HOSPITALITY AND MISCELLANEOUS WORKERS UNION

AND:    
  WREST POINT HOTEL CASINO

COURT:              RYAN JR

PLACE:               HOBART

DATE:                  4 NOVEMBER 1994

JUDGEMENT EX TEMPORE

THE APPLICATION

Graham Hanlon and Australian Liquor, Hospitality and Miscellaneous Workers Union have lodged an application under section 170EA of the Industrial Relations Act 1988 for remedy for purported unlawful termination of employment. The second applicant has lodged an affidavit indicating that the first applicant began work with the respondent, at least on this last occasion, on 18 March 1986, and that the date of termination of the employee's employment by the respondent was on 11 July 1994, which would suggest that on this last occasion the applicant had been working for the respondent for some eight years and four months.

The second applicant, the union, correctly identifies the reason given for dismissal as misconduct.

Mr Kerry O'Brien and Ms Helen Hudson, joint state secretaries of the second applicant, appeared for both applicants, and Mr Jeffrey Bronstein, solicitor, of Finlay Watchorn, solicitors, appeared for the respondent.

Mr O'Brien submits that the termination of employment contravened section 170DE in that it was harsh, unjust and unreasonable and on behalf of the applicants seeks orders under section 170EE

(1)that there has been a contravention of division 3 Part VIA of the Industrial Relations Act 1988

(2)reinstatement

(3)compensation.

I propose to go first to the findings.  Much of my reasons for judgment should be apparent from the findings and from my concluding comments.  The findings are as follows:

FINDINGS

(1)the respondent terminated the employment of the applicant on 11 July 1994

(2)the termination followed an inquiry initiated on 9 July 1994 by the General Manager of the respondent company, Dennis James Rudge;  it was initiated by him on the advice of Messrs Escourt and Durkin

(3)the major part of the inquiry took place on 11 July 1994, the general manager having received reports from subordinate managers on 9 July and 11 July, and having briefly acquainted the first applicant, with an allegation of a threat of violence allegedly made by the applicant and having allowed the applicant to have union representation, and that is the evidence of the first applicant himself

(4)the inquiry was into allegations that the applicant had threatened the assistant security manager, Mr Kerry Best, with violence and with exposure by way of photographs and documents which the applicant has admitted he had under his control and which photographs and documents the applicant claims are still hidden in the respondent's premises at the Wrest Point Casino

(5)Mr Rudge, on behalf of the respondent, terminated the employment of the applicant on the grounds of misconduct, that misconduct being identified in writing as including:

(a)breach of trust by the employee

(b)possession of information and company property inappropriately gathered

(c)failure by the applicant to supply superiors with information relevant to security of company property

(d)threats to at least two security personnel on two occasions, one being the assistant security manager, Kerry Best

(6)the applicant admitted on oath that on 9 July 1994 he had indicated to Mr Best that “he would get him” if he continued “to ride the door staff” at the Travellers Inn Hotel and that he would report Mr Best to the owner of the hotel, Mr Farrell, for what he, the applicant, regarded as improper conduct by Mr Best and that he would expose Mr Best by means of photographs and documents which the applicant alleged he had obtained from Mr Best

(7)the admitted threats to Mr Best could be reasonably construed as threats of violence and were so construed by Mr Best and by the management team who conducted the inquiry initiated on 9 July and completed on 11 July, and I reach that conclusion while noting that the applicant denies that his statements on 9 July to Mr Best constituted threats of physical violence

(8)even if the threats at about 12.25 am on 9 July did not, as the applicant claims and Best denies, include any reference to Wrest Point Casino photographs and documents, and the alleged use of them by the applicant against Best, it is clear from the uncontested evidence of both the applicant and Best that there was some threat of some sort of exposure of Best by way of tapes which the applicant claimed to possess

(9)the threats, either as admitted by the applicant in (7) above or as identified both by the applicant and Best in (8) above, constituted serious misconduct and were reasonably taken as such by the general manager of the respondent company and two other managers and the respondent's industrial relations consultant and adviser, Mr Damien Durkin

(10)the applicant claims to have access to material which, if it exists, is clearly the property of the respondent.  The applicant further claims that it is hidden in the respondent's premises.  The applicant was on 11 July, and possibly on earlier occasions, requested by management to provide material of this kind.  The applicant has not produced this material, although he claims that under certain circumstances, including the presence of an independent witness, he would be prepared to reveal to the respondent's management staff where the material is allegedly hidden.  The applicant's claims in this respect are referred to, although obliquely, in the statement read to him when he was terminated (exhibit A1)

(11)my findings above lead me inexorably to a further finding that the applicant has been guilty of serious misconduct which was broadly if inadequately encompassed in the statement read to the applicant on 11 July at the time of his termination

(12)I find that the termination on 11 July, after the inquiry initiated on 9 July and conducted on 11 July, was valid and in no way harsh, unjust or unreasonable.

Therefore, the application under section 170EA will be dismissed.

CONCLUDING COMMENTS

I want to make some concluding comments.  In reaching these findings I have taken account of the documents filed, the exhibits tendered, and all evidence given in this trial.  I have noted the previous directions and counselling to the applicant as set out in the evidence and the respondent's practice of involving the union whenever requested.

In my view, although the applicant's evidence was at times rambling and discursive, he was basically a truthful if confused witness.

However, he was also an employee who does not appear to understand or accept the nature and limitations of his duties as a security officer as set out in exhibit R2.  I have no doubt that his practice of instituting investigations at his own initiative, be they investigations of management, staff or clients, was outside the scope of his duties and was in itself an unacceptable practice.

ORDER

The order of the court is that the application under section 170EA is dismissed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              

Date  :              9 November 1994

Appearances:

For the Applicant  :              Mr. Kerry O’Brien and Ms. Helen Hudson

Australian Liquor, Hospitality and Miscellaneous Workers Union

Counsel for the Respondent             :              Jeffrey Bronstein

Solicitors for the Respondent           :              Finlay Watchorn

Date of Hearing  :              3 and 4 November 1994

Judgment  :              4 November 1994