Harkirat Singh v Crown Melbourne Ltd
[2020] FWC 1927
•14 APRIL 2020
| [2020] FWC 1927 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Harkirat Singh
v
Crown Melbourne Ltd
(U2019/6507)
DEPUTY PRESIDENT YOUNG | MELBOURNE, 14 APRIL 2020 |
Application for an unfair dismissal remedy.
[1] On 13 June 2019, Mr Harkirat Singh made an application to the Fair Work Commission under section 394 of the Fair Work Act 2009 (Cth) (Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Crown Melbourne Ltd (Crown). Mr Singh seeks reinstatement and compensation.
Hearing and Witnesses
[2] Mr Singh’s application was the subject of a hearing before me on 24, 25 and 26 September 2019.
[3] Mr Singh gave evidence on his own behalf and also called Mr Yadav, a personal friend. Ms Williamson appeared for the Respondent.
[4] In accordance with directions issued by the Commission, Mr Singh filed his Outline of Argument, witness statement and supporting material on 13 August 2019. Mr Singh’s witness statement was directed to mostly historical matters and did not include any specific evidence in relation to the events of 2 November 2018. Those matters were dealt with in Mr Singh’s Outline of Argument at questions 4(c) and 4(d). It was agreed at the hearing that the material contained at questions 4(c) and (d) of Mr Singh’s Outline of Argument would be taken as Mr Singh’s evidence in chief in addition to the matters contained in his witness statement.
[5] Mr Singh also relies upon Crown’s CCTV footage of the evening of 2 November 2018 1 (CCTV Footage). With the exception of the footage from the interview room,2 the CCTV Footage does not have audio. Therefore, for the most part, the footage is visual footage only.
[6] The following witnesses gave evidence on behalf of Crown:
• Matthew Healey – Dealer – Table Games
• Blake O’Brien – Dealer – Table Games
• Chris Ash – Area Manager – Table Games
• Gin Wilkinson – Assistant Casino Manger – Table Games
• Meg Leahy – Casino Manger – Table Games
• Adam Ward – Assistant Casino Manger – Table Games
• Matthew Cameron – Dealer – Table Games
• Kevin Pham – Dealer and Union Delegate
• Courtney Butterworth – Human Resources Advisor
• Matthew Christie – General Manager – Table Games Operations
• Luke Overman – Casino Manger – Table Games
• Tony Zappia – Trainer – Gaming
• Jacinta Cubillo – Human Resources Manager – Table Games
Submissions
[7] Mr Singh filed submissions in the Commission on 13 August 2019. Crown filed submissions in the Commission on 9 September 2019.
[8] Final written submissions were filed by Mr Singh on 1 October 2019. Final written submissions were filed by Crown on 21 October 2019.
[9] In addition, on 21 September 2019, at the direction of the Commission the parties filed a Statement of Agreed Facts.
Initial matters
[10] Turning first to the initial matters which must be decided before the merits of the application are considered, it is not in dispute and I find that:
• the application was made within the period required in subsection 394(2);
• Crown is not a small business employer, having 15 or more employees at the relevant time and the Small Business Fair Dismissal Code therefore does not apply;
• Mr Singh was an employee who had completed a period of employment with Crown of at least the minimum employment period;
• at the time of dismissal, Mr Singh was a person protected from unfair dismissal; and
• the dismissal was not effected for reasons of redundancy, and so it was not a case of genuine redundancy.
[11] I have concluded that Mr Singh’s dismissal was not unfair. These are my reasons for that conclusion.
Background
[12] Mr Singh was employed by Crown in the position of part-time Table Games Dealer. Mr Singh’s employment was terminated summarily for serious misconduct on 12 June 2019. The serious misconduct alleged, as set out in the termination letter, was refusal to carry out a lawful and reasonable management direction consistent with his contract of employment during Mr Singh’s rostered shift on 2 November 2018. 3
Factual setting and findings
Music Video Post
[13] Mr Singh produces rap music videos under the name of Harry King. On 13 February 2018 Mr Singh posted on the CMT Facebook Group a link to the YouTube video of his then latest music release, which is entitled “Pornostar”. The CMT Facebook Group is primarily used for Crown employees to swap shifts and working arrangements. 4 Mr Singh’s video was the subject of a number of on-line posts, not all of which were complimentary of Mr Singh’s work.5 One particular comment to which Mr Singh took offence included an extract of certain lyrics from Pornostar, followed by the inclusion of a prawn and a star emoji. Mr Singh says that subsequently he was bullied by other employees in the workplace calling him “prawnstar”.6 On 17 February 2018 Mr Singh received a final written warning for posting the link to Pornostar on the CMT Facebook Group.7 Ms Wilkinson issued the final written warning.8 On 18 January 2018 Ms Wilkinson had issued Mr Singh with an earlier warning for poor professional behaviour in respect of an unrelated incident on 13 January 2018.9 Somewhat confusingly, this warning is also identified as a final written warning. Ms Wilkinson was also involved in a matter in 2016 where she sent Mr Singh home from his shift on sick leave after he had an interaction with the Area Manager and in which, after returning from a break, he refused to continue dealing due to being stressed.10
Crown
[14] Crown operates a casino. The casino is divided into seven areas and employees are rostered to a particular area. One of the seven areas is the Central area. Within each area there are “pits”. A pit is a grouping of gaming tables within a particular area. Employees rostered on shift are employed as Dealers, Area Managers, Assistant Casino Managers and Casino Managers. 11
Events of 2 November 2018
Alleged prawnstar statement
[15] On 2 November 2018 Mr Singh was rostered on a shift starting at 8 pm on a table in Pit 6, in the Central area. The senior manager rostered on that evening was Ms Leahy, Casino Manager. Mr Singh was dealing baccarat. Another Dealer, Mr O’Brien was dealing at the table next to Mr Singh and a second Dealer, Mr Healey, was dealing at the table next to Mr O’Brien. Mr Healey and Mr O’Brien engaged in conversation with Mr Singh. Mr Singh alleges that in the course of this conversation Mr Healey called him “prawnstar”. 12 Mr Healey denies calling Mr Singh prawnstar.13 In the circumstances of this matter it is not necessary that a finding be made as to whether Mr Healey made the alleged statements, as regardless of what might or might not have been said by Mr Healey, it is uncontested that Mr Singh was upset by Mr Healey’s conversation14 and at around 8.10 pm called for a manager to attend. It is also uncontested that Mr Ash, Area Manager, attended Mr Singh. Mr Healey and Mr O’Brien say that prior to Mr Ash arriving Mr Singh said to Mr O’Brien, “things were going to get very serious” and that Mr Singh left his gaming table and walked over to Mr Healey’s table and wrote Mr Healey’s ID number down on his hand.15 I accept that evidence. Further, Mr Singh agreed in cross examination that he left his live table, walked over to Mr Healey’s table and wrote down Mr Healey’s ID number on his hand.16 Mr Singh said he did this because “it was so [sic] stressful situation and I became so upset because he said prawnstar.”17 It is undisputed that at this stage Mr Singh had stopped performing his duties.18
[16] Mr Singh told Mr Ash that he was being provoked by Mr Healey. 19 There is then some contest as to what was said by Mr Singh and Mr Singh appears to seek to make a distinction between whether he told Mr Ash that he was too stressed and couldn’t deal or whether he told Mr Ash that he was too stressed to deal. In the Statement of Agreed Facts Mr Singh disputed that he said he was too stressed to deal,20 however his evidence is that he did say he couldn’t deal at that moment as he was very stressed21 and further, he agreed in cross examination that he said he was very stressed and would not be able to deal at that moment.22 Mr Ash’s evidence under cross examination was that Mr Singh said he was too stressed to deal.23 I consider nothing turns on whether Mr Singh said he was too stressed to deal or was stressed and couldn’t deal. Further, I also consider nothing turns on whether, at this point, Mr Singh said he couldn’t deal at that moment or simply, that he couldn’t deal. Whatever the precise language used may have been, the salient point is that Mr Singh informed Mr Ash that he could not then perform his duties due to being stressed.
[17] Mr Ash’s evidence is the he also briefly spoke to the two Dealers and asked them to say nothing more to Mr Singh. 24 Mr Ash’s evidence under cross examination was that he could see that Mr Singh was agitated and stressed25 and his primary focus at that time was Mr Singh’s welfare and trying to diffuse the situation.26 I accept that evidence.
Ms Wilkinson’s involvement
[18] It is uncontested that Mr Ash then called Ms Wilkinson, Assistant Casino Manager, who attended Mr Singh. Mr Ash’s evidence, which I accept, is that he escalated the matter to Ms Wilkinson because Mr Singh had said he was not able to perform his duties. 27 Mr Ash arranged for another Dealer to take over Mr Singh’s table and Mr Singh was relieved from his table to discuss the matter with Mr Ash and Ms Wilkinson.28 Mr Singh asserts that Mr Ash breached the Resolution of Workplace Issues, Grievance and Dispute Policy (Workplace Issues Policy) by escalating the matter to Ms Wilkinson, without first seeking to resolve Mr Singh’s grievance.29 Mr Singh relies upon paragraphs 1.4 - 1.6 of the Workplace Issues Policy which provide as follows:
“1.4 All employees are responsible for raising concerns promptly with their supervisor, or that person's supervisor if necessary.
1.5 All supervisors are responsible for promptly addressing any issues, grievances and disputes raised with them
1.6 Every effort is to be made to resolve these matters within the work areas concerned, prior to escalation of the issue, grievance or dispute. Unresolved matters should be promptly referred to the next highest level of management.” 30
[19] Mr Singh also asserts that Mr Ash breached the confidentiality provisions of the Appropriate Workplace Behaviour Policy (Behaviour Policy) by involving Ms Wilkinson. 31 Section 4 of that policy provides an employee complaint procedure. Section 4.4 provides as follows:
“Any complaint will be taken seriously, and dealt with in an impartial, confidential and prompt manner. Confidentiality will be maintained by restricting discussions about the issue to only those that have a genuine role in helping to resolve the complaint. The person making the complaint is also required not to talk about the complaint to co-workers as this will jeopardise the confidentiality of the process. Even if an investigation is not necessary appropriate action will be taken to address the issues.” 32
[20] I accept that Mr Singh raised a grievance with Mr Ash about the alleged conduct of Mr Healey. I also accept that consistent with the Workplace Issues Policy, Mr Ash is to make every effort to resolve the matter within the work area concerned. 33 However, I consider Mr Singh’s assertions as to this issue to be misconceived, and his reliance on any alleged non-compliance with the policies misplaced. Firstly, I consider that by arranging for Mr Singh to be relieved from his table Mr Ash was seeking to resolve Mr Singh’s grievance. Secondly, in the present circumstances, what Mr Ash was presented with was an employee who at the time of raising the grievance was, on his own evidence, “very stressed” and “so upset” such that he considered he was unable to perform his duties. Mr Ash’s first duty was to ensure Mr Singh’s welfare. I consider Mr Ash’s actions in the circumstances to be consistent with the duty of care Crown owed to Mr Singh and entirely appropriate. I do not consider any breach of the Workplace Issues Policy arose. Concerns around Mr Singh’s health and safety overtook any possible further action which might have been taken to resolve his grievance at that time.
[21] As to Mr Singh’s allegation that Mr Ash’s involvement of Ms Wilkinson was a breach of the Behaviour Policy, this is also misconceived. Firstly, what was escalated to Ms Wilkinson was that Mr Singh was unable to perform his duties due to stress, not the underlying grievance regarding Mr Healey’s alleged statement. As already set out above, that matter had been overtaken by concerns around Mr Singh’s health and safety. Secondly, even if that were not the case, no breach of confidentiality arises from the disclosure of a matter to appropriate and necessary management personnel. Such persons clearly have a genuine role in helping to resolve a complaint.
Conversation with Ms Wilkinson and Mr Ash
[22] It is agreed that there was then a conversation between Mr Singh, Ms Wilkinson and Mr Ash away from the gaming table. 34 The content of this conversation is in part disputed. Mr Singh’s evidence is that he told Ms Wilkinson that he was “very stressed at the moment” and that he “won’t be able to deal at the moment.”35 He disputes that he said he wanted to go home or that he was too stressed to deal.36 He says that Ms Wilkinson gave him the option “to call sick” and go home. Mr Singh’s evidence is that he said he was not sick and asked why he was being sent home. He says he was told he was sick because he said he was stressed. He says that he again said that he was not sick, he was very upset and stressed due to being called a “prawnstar”.37 In his Outline of Argument, Mr Singh says that Ms Wilkinson “tried her best to prove that I am sick” and that “she did the same thing in 2017”.38 Under cross examination the following exchange occurred between Mr Singh and Ms Williamson:
“But you just said that you said you were too stressed to deal, however your evidence is at the moment, 'I can't deal at the moment', whatever you say you said, so what do they say to that then? So Virginia Wilkinson, she told me to go home. She said, 'You are stressed, it means you are sick so you can go home'. So that's what she told me. Then I ask her, 'I am not sick, why should I go home?', and then it was a heated argument at that time and then she said, 'Okay, let's go for a meeting'.” 39
[23] Accordingly, while much of this conversation is contested, Mr Singh’s own evidence is that Ms Wilkinson told him to go home as he was stressed and therefore sick and that he did not comply with that direction. I therefore find that Ms Wilkinson directed Mr Singh to go home on sick leave and that he did not comply with that direction.
[24] In his Outline of Argument, Mr Singh says that Ms Wilkinson then wanted to take him for a meeting upstairs. Mr Singh says he initially agreed to attend a meeting but then said to Mr Ash that he couldn’t have a meeting alone and needed a Union Delegate. He says that Mr Ash told him he needed to listen to his manager. His evidence is that he then asked Ms Wilkinson for a Union Delegate to attend the meeting with him and she asked him who he would like to attend. He named Christopher Ball. Ms Wilkinson then told him that Mr Ball wasn’t working and that only “Matthew” was available. He says Ms Wilkinson told him that Matthew was a Union Delegate and that the meeting had to happen today. Mr Singh then says he said “okay, I will go with you and meet Matthew first, if I feel comfortable with him, only then will I proceed to the meeting.” He says he agreed to the meeting under “intimidation from the managers.” Ms Wilkinson then directed Mr Singh to take a break, which he did. 40
[25] Mr Ash’s evidence is that Mr Singh said that he was stressed, could not deal for the rest of his shift and wanted to go home. 41 Mr Ash says that Ms Wilkinson then told Mr Singh that if he wasn’t able to perform his duties and wanted to go home, it was sick leave and he would need to provide a medical certificate.42 Mr Ash says that Mr Singh said he wasn’t sick, he was stressed. He says that Mr Singh couldn’t comprehend why he would be sent home on sick leave and be required to attend a doctor.43 Under cross examination the following exchange occurred between Mr Ash and Mr Singh:
“… The issue could have been resolved straight away if you had have gone home sick. Virginia and I gave you the option to go home sick and you wanted to dispute whether it was illness or whether it was stress and we said, 'Harry, if you can't perform your job, it needs to be sick leave and therefore you need to go home sick.' Now, if you had agreed at that stage to go home sick, okay, we wouldn't be here today.
But I was not sick, Chris. Why should I go home sick? Okay, well, that's the conversation, that's exactly the conversation we had with you there. You said you were too stressed to work and we understood that. We took that as gospel.
I didn't say that, Chris? Okay, well, that's what I heard.
Sure? Okay? And that's what my statement says, that you were too stressed to work. You said you were stressed because of what the dealers said to you. We gave you the option of going home but it would be recorded as personal leave or sick leave, and that's where the problem occurred. Okay?
Is that a protocol to send people home with sick leave and giving them homework to go to a doctor and get a medical certificate and come back? Absolutely. That's a standard operational procedure for everyone in the building. You had been only at your table for five minutes, so to go home for personal reasons, okay.” 44
[26] Mr Ash says that Mr Singh was then again asked if he was able to deal for the rest of the night and Mr Singh said “no”. Ms Wilkinson then reiterated that if Mr Singh was unable to perform his duties and was going home due to stress, that was sick leave. 45 Mr Ash says that Mr Singh was by this stage becoming agitated that a formal meeting was occurring on the gaming floor and was becoming uncooperative.46 It was explained to Mr Singh that the discussion was not a formal meeting but a welfare discussion.47 Mr Singh insisted that the discussion was a formal discussion and that he did not want to have a formal discussion.48 Mr Ash says that Mr Singh was then offered a support person to sit in on any subsequent discussions.49
[27] Ms Wilkinson’s evidence is that Mr Singh told her that he was too stressed to deal. 50 She says he was visibly upset.51 In her witness statement she says she then said, “okay, I understand. Why don’t you go have a break for 20 minutes to give yourself some time and we can discuss it when you get back” (First Break). Mr Singh said he would not go on a break and that he wanted to go home.52 Under cross examination Ms Wilkinson said that her “first instinct was to send [Mr Singh] on a break to give [him] an opportunity to de-stress…”53 Mr Singh said he did not want to do that. He said he wanted to go home several times and that he did not want to continue dealing.54 Ms Wilkinson says she sought clarification from Mr Singh as to whether he was fit to perform his duties. Mr Singh responded, “Oh, I am very fit to perform my duties but I’m too stressed to deal”.55 Ms Wilkinson then again sought clarification as to whether Mr Singh was saying he was too stressed to deal and wanted to go home. Mr Singh said “yes”. Ms Wilkinson then informed him that he would be sent home on sick leave and would need to attend Direct Health Solutions (DHS) and provide a medical certificate. Mr Singh refused to go home on sick leave.56 Ms Wilkinson’s evidence is that she then reiterated to Mr Singh that if he was unfit to perform his duties due to being stressed he would be sent home on sick leave and would need to provide a medical certificate.57 She says that Mr Singh repeatedly interrupted her, told her that she was not allowed to talk to him and that “we will be talking to HR”.58 She says Mr Singh then said several times that he would not talk to Ms Wilkinson on the gaming floor as everyone could see them.59 In response, Ms Wilkinson says she asked Mr Singh if he would prefer to have the discussion in the office. She denies that she requested a meeting with Mr Singh and says it was at Mr Singh’s request to make him more comfortable.60
[28] Ms Wilkinson says that as they proceeded to the Mezzanine escalators to go up to the office, Mr Singh stopped and said “I want someone with me.” 61She denies he asked for a Union Delegate.62 She reassured Mr Singh that the discussion was not formal but she would get him a support person if he wanted one and asked him whom he would like. He asked for Christopher Ball.63 Ms Wilkinson says she checked and found that Mr Ball was not rostered on that night. She suggested some other persons to Mr Singh but he refused them and said that the meeting would need to be postponed. Ms Wilkinson says she again reiterated that there was no formal meeting so there was nothing to postpone. She says she repeated that Mr Singh was either fit to perform his duties or he was not, in which case he would be sent home sick.64 She says Mr Singh then asked her if this was usual policy and was assured it was. Under cross examination, the following exchange occurred between Ms Wilkinson and Mr Singh:
“Yes?---You did not want to do that. You said several times you'd like to go home. You did not want to continue dealing. You did not want to have an engaging conversation with me. You interrupted me several times. So at one stage I was, like, 'Okay, what would you like to do, Harry? You're either fit to perform your duties, you're saying that you're unfit to perform your duties, in which case I will send you home unfit,' and in which case I am able to ask for a medical certificate. That is something we do on a discretionary basis when we send people home.
So if someone is upset and you – you say you are either fit to perform your duties or you are not and you will be sent home sick, according to you this is not harsh? Please answering 'Yes,' or 'No'?---I don't believe it's harsh, no. 65
…
No worries. Thank you. Gin, where is it mentioned in any policy to send dealers home sick if the dealers are stressed at workplace and not dealing with their original complaint that caused them stressed and anxiety?---Well, nowhere in that – that amount of specificity – sort of specificity but if a dealer is saying that they're unfit for their – they're sick, they're injured, they want to go home as – as you did to me several times then the appropriate response is to send them home sick. It's actually in the Enterprise Agreement that we send – we send you guys home sick and we have the discretion to ask for medical clearance on return to work.” 66
[29] Ms Wilkinson says Mr Singh then said condescendingly “okay, I’ll make this really easy and simple for you. I’ll make this really simple, I will deal. I am now okay to deal.” Ms Wilkinson says she then asked Mr Singh to confirm that he was now saying he was fit to deal. He confirmed he was. Ms Wilkinson says that in light of his conflicting statements, Ms Wilkinson directed Mr Singh to take a break (Second Break) saying “I’m going to have to insist on you taking that break now”, which he did. 67 It is not disputed that at this point Ms Wilkinson directed Mr Singh to take a break,68 and that he did so.
[30] I have already found that Ms Wilkinson directed Mr Singh to go home on sick leave and that he did not comply with that direction. As to other contested matters, where there is conflict between the evidence of Ms Wilkinson and Mr Singh as to the content of the conversation, I prefer the evidence of Ms Wilkinson for the following reasons. Firstly, Ms Wilkinson gave forthright, credible and consistent evidence. I consider her a witness of truth. She had a clear, detailed and considerably more comprehensive recollection of events than that of Mr Singh. Secondly, her evidence is generally supported by that of Mr Ash. Thirdly, on his own evidence Mr Singh was very upset and stressed at the time. In those circumstances, I consider Mr Singh’s recollection of events to likely be less reliable than that of Ms Wilkinson. Fourthly, Mr Singh’s evidence and materials disclose that prior to 2 November 2018 he had a strained relationship with Ms Wilkinson and a lack of trust in 69 and disdain for his managers generally.70 For example, in his materials he makes reference to managers “showing him their position” when they take or initiate action against him that he disagrees with,71 of suspecting the mangers of supporting “the bad activities of staff”72 and asserts that “they” tried to prove he was sick “so that they could get me out”.73 He considers Ms Wilkinson to have victimised him by issuing him with the final warnings74 and he considered the escalation of this matter to her by Mr Ash unnecessary.75 His comments that Ms Wilkinson “tried her best to prove he was sick” and that “she did the same thing in 2017”, not only display Mr Singh’s failure to understand the consequence of informing Ms Wilkinson that he was stressed and unable to perform his duties (a matter to which I return later) but also clearly indicates that he considers Ms Wilkinson’s actions to be objectionable or somehow improper. Under cross examination Mr Singh asked Ms Wilkinson if she tried to “entrap” him while he was explaining to her what had occurred that evening.76 Based on the above, I consider Mr Singh’s view of his managers generally, and in relation to this conversation, Ms Wilkinson specifically, to have likely coloured his recollection of events such that it ought not be preferred. Further, I consider the statements Ms Wilkinson alleges were made to her by Mr Singh and his alleged conduct towards her to be consistent with Mr Singh’s lack of regard for Ms Wilkinson.
[31] Accordingly, in light of the above, I make the following specific findings of fact:
• Mr Singh told Ms Wilkinson that he was stressed and could not deal, although I find that in the circumstances nothing turns on the precise language used by Mr Singh;
• Ms Wilkinson directed Mr Singh to go home on sick leave (Wilkinson Direction);
• Mr Singh did not comply with the Wilkinson Direction and he did not do so because he did not consider that he was sick;
• Mr Singh repeatedly interrupted Ms Wilkinson and told her she was not allowed to talk to him;
• Mr Singh did not want to continue the discussion on the gaming floor and in response Ms Wilkinson asked if Mr Singh would like to continue their discussion in the offices on the Mezzanine floor;
• Mr Singh asked for someone to attend the discussion off the gaming floor with him; and
• the discussion with Ms Wilkinson was not disciplinary in nature but was a welfare discussion.
[32] In relation to the other factual matters in dispute arising from Ms Wilkinson’s interaction with Mr Singh, I accept Ms Wilkinson’s evidence as to those matters.
Mezzanine office with Ms Leahy
[33] It is agreed that upon return from the Second Break, Mr Singh returned to the gaming floor and was met by Ms Leahy, who asked him to go to the Mezzanine offices with her. 77 Under cross examination Mr Singh agreed that upon return from this break he was still not calm enough to resume his duties.78 It is agreed that Mr Singh attended the Mezzanine offices area and on arrival sat on the chairs outside the Mezzanine office doors in the lift well area.79 The CCTV Footage of the evening demonstrates that while this area is a back of house area and not accessible by the public, it is subject to a significant amount of foot traffic and is a thoroughfare for employees.80
[34] Ms Leahy says that Mr Singh requested a support person and accordingly, she arranged for Mr Cameron, Union Contact Officer and Health and Safety Representative to be relieved from his table and attend to support Mr Singh. 81 Mr Singh says Ms Leahy promised him a Union Delegate would be in attendance as she escorted him to the Mezzanine floor.82
[35] It is uncontested that Mr Cameron attended the Mezzanine office area at around 9.00 pm. 83 It is also uncontested that upon determining that Mr Cameron was not a Union Delegate Mr Singh rejected Mr Cameron’s assistance.84 In his Outline of Argument Mr Singh says that “At this point, I realised that my mangers have started lying about the positions of the people to set me up for termination as I was already on the first and final warning given to me by Virginia Wilkinson only in Feb 2018.”85
[36] Under cross examination Mr Singh said that Ms Leahy “played tricks on me, mind games on me, so I felt that there will be disciplinary action on me because I have already done a breach on the table”, 86 referring to him leaving his live table to write down Mr Healey’s ID number. Mr Singh says that these tricks and mind games are visible on the CCTV Footage.87
[37] Ms Leahy says she informed Mr Cameron that the conversation with Mr Singh was a welfare conversation. 88 Mr Cameron’s evidence is that Ms Leahy informed him that the discussion was an occupational health and safety matter and that Mr Singh’s welfare was the most important issue.89 It is uncontested that Mr Ward joined Ms Leahy at the Mezzanine office area while Mr Cameron was speaking with Mr Singh. Mr Ward’s evidence is that Ms Leahy told him he was required to assist her to conduct a welfare check on Mr Singh.90
[38] It is uncontested that following Mr Singh’s rejection of Mr Cameron’s assistance, Mr Cameron attempted to re-engage with Mr Singh. Mr Singh considered that by doing so Mr Cameron was trying to provoke him and voiced this view. 91
[39] It is uncontested that following Mr Cameron’s unsuccessful intervention Ms Leahy and Mr Ward returned to Mr Singh in the Mezzanine lift well area. Further, it is uncontested that Mr Cameron remained in the Mezzanine lift well area with Mr Singh, Mr Ward and Ms Leahy but did not participate in any subsequent conversation.
[40] It is uncontested that there was then a conversation between Mr Singh, Ms Leahy and Mr Ward.
[41] It is also uncontested that during this conversation Ms Leahy asked Mr Singh to move inside the back of house Mezzanine glass doors out of the lift well area away from the open thoroughfare area and Mr Singh refused to do so. 92 Mr Singh also agrees that he was offered, but refused, the option of moving into the Mezzanine offices.93 Mr Singh’s evidence is that he felt that Ms Leahy, Mr Ward and Mr Cameron were “ganging up” on him and that they were trying to “push” him to participate in a meeting.94 Under cross examination he said that Mr Cameron’s presence created “an environment of interrogation” and that the mangers were playing “mind games with him to get him inside the glass doors”.95 Mr Singh says that the CCTV Footage demonstrates this.96 He denies that Ms Leahy and Mr Ward told him the discussion was a welfare discussion.97 He says Ms Leahy ordered him to leave the premises and instructed him that he was to go home on full pay.98 Mr Singh says she also told him that she did not consider he was well and that she was concerned for his welfare.99 Finally, he says Ms Leahy told him that Mr Ward would escort him outside. Mr Singh says that he then said that he was happy to leave if they provided him with something in writing as to why he was not well and was required to leave the premises. He says Ms Leahy said she could not give him confirmation in writing, but he was required to leave. Mr Singh then says that “they then again started trying their best to prove I was sick so they could get me out but they failed.”100 Under cross examination Mr Singh agreed that Ms Leahy told him she was sending him home and he would need to provide a medical certificate.101 It is uncontested that Mr Singh disputed that he was sick and that he refused to leave the premises. He denies that he again said he was too stressed to perform his duties.102 He says that Ms Leahy and Mr Ward then left him unattended for 30 minutes. 103
[42] Ms Leahy’s evidence is that on returning to the lift well area Mr Singh demanded a Union Delegate. 104 This is consistent with the evidence of Mr Ward105 and Mr Cameron.106 She says that she attempted to explain to Mr Singh that the conversation was a welfare conversation.107 Under cross examination she maintained that it was stated multiple times to Mr Singh that the conversation was a welfare discussion.108 She denies that she was “pushing” Mr Singh for a meeting.109 She says she explained to Mr Singh that if he was too stressed to continue work he would be required to attend DHS and obtain a medical certificate.110 It is uncontested that Mr Singh disputed that he was sick.111 Ms Leahy says that Mr Singh refused to continue his duties.112 Ms Leahy says that she then directed Mr Singh to conclude his shift on full pay and advised him that Mr Ward would escort him to wardrobe.113 Mr Singh refused to leave.114 Ms Leahy denies that Mr Singh demanded anything in writing at this stage. She then left Mr Singh until a Union Delegate had been obtained.115
[43] Mr Cameron’s evidence is that he heard Mr Singh say he wanted a union representative but otherwise could not hear the remainder of Ms Leahy’s conversation with Mr Singh. 116 Mr Cameron also gave evidence, which was not contested, that he went to the Union desk to source a Union Delegate for Mr Singh.117 Mr Ward says that Mr Singh was told a number of times that the conversation was a welfare discussion and not a disciplinary meeting.118 Under cross examination he confirmed that the purpose of the discussion was a welfare conversation.119 He says Mr Singh said there was nothing wrong with him.120 Mr Ward gave no other evidence about the content of this conversation. Mr Ward says that the meeting was then put on hold until a Union Delegate could be found.121
[44] Mr Singh’s own evidence is that during this conversation Ms Leahy “ordered” him to conclude his shift on full pay and leave the premises. There appears to be no contest that he did not do so. I therefore find that Ms Leahy directed Mr Singh to conclude his shift on full pay and leave the premises and that this direction was not complied with. Where there is otherwise a dispute between the evidence of Mr Singh and Ms Leahy in relation to this conversation, I prefer the evidence of Ms Leahy for the following reasons. Firstly, I found aspects of Mr Singh’s evidence to be implausible. For example, his assertions that Ms Leahy was playing mind games to get him inside the glass doors in the Mezzanine area and sought to trick him. Further, I have carefully reviewed the CCTV Footage and find no support for such assertions in that footage. Secondly, in contradiction to Mr Singh’s evidence, I found Ms Leahy’s evidence to be credible. I consider that she gave considered, honest and forthright evidence. Thirdly, aspects of Mr Singh’s evidence are inconsistent. For example, he says that Ms Leahy and Mr Ward did not inform him that the conversation was a welfare conversation but also says that Ms Leahy informed him she was concerned for his welfare. Fourthly, where relevant, Mr Ward and Mr Cameron’s evidence corroborates Ms Leahy’s evidence. Fifthly, I refer to my comments regarding Mr Singh’s view of his managers generally set out at paragraph 30 above and consider they apply equally here. Finally, Mr Singh’s own evidence is that he knew that he had engaged in a “breach” in leaving his table when it was live. 122 His evidence is that he suspected disciplinary action on 2 November 2018123 and that he was being set up for termination. He says he knew he had been issued with a first and final warning.124 Under cross examination he said that he considered the discussion was a formal meeting because the Casino Manager was involved.125 Accordingly, I consider that Mr Singh approached his interactions with Ms Leahy assuming that he would be the subject of disciplinary action and that this was the motivation for her actions. I consider this has distorted his perception of the events that occurred on 2 November 2018 and that his evidence is not to be preferred.
[45] Accordingly, in light of the above, I make the following specific findings of fact:
• Ms Leahy informed Mr Singh that the conversation was a welfare conversation;
• Ms Leahy told Mr Singh that if he was too stressed to continue work, he would be required to attend DHS and obtain a medical certificate;
• Mr Singh disputed that he was sick;
• Ms Leahy directed Mr Singh to conclude his shift on full pay and to leave the premises (First Leahy Direction); and
• Mr Singh did not comply with the First Leahy Direction.
[46] In relation to the other factual matters in dispute arising from this conversation, I accept Ms Leahy’s evidence as to those matters.
Mr Pham’s attendance
[47] It is uncontested that Ms Leahy and Mr Ward arranged for a Union Delegate, Mr Pham, to be relieved from his table and attend to assist Mr Singh. Mr Pham’s evidence is that he met with Ms Leahy and Mr Ward and they informed him that Mr Singh had some issues at the table and had been tapped off. He says Mr Ward and Ms Leahy told him that Mr Singh was having a hard time talking to them and they were concerned about his welfare and wanted to send him home with pay. 126 Mr Pham went to the Mezzanine lift well area to meet with Mr Singh.127 The CCTV Footage indicates that this occurred at approximately 9.35 pm.128 Mr Singh says that he “was not satisfied with [Mr Pham’s] professionalism”129 as Mr Pham did not have a notebook to take notes in.130 Mr Pham says that he told Mr Singh he would take notes if needed.131 Whatever may have been the reason, it is uncontested that Mr Singh rejected Mr Pham’s assistance.132
[48] Mr Pham advised Ms Leahy and Ms Ward that Mr Singh had rejected his assistance, at which time they all returned to the Mezzanine lift well area where Mr Singh had remained. Mr Pham says that Mr Ward requested he remain to witness the conversation with Mr Singh. 133
[49] Mr Singh’s evidence is that there was then a further conversation with Ms Leahy, the contents of which are disputed. Mr Pham was standing in the corner of the Mezzanine lift well area to the side. 134 Mr Singh says that Ms Leahy sat beside him. He says she raised her voice at him and told him he had to listen to her as she was the Casino Manager. He says she said he had behaved inappropriately with the managers as he had issues with them that evening. Mr Singh then says he asked who had said he had issues with the managers, Ms Leahy replied “you”. Mr Singh then says he said the following:
“You can’t just tell a lie and rub it on my face. Are you trying to show me your power as a Casino Manager? I am sitting here alone and you are rubbing a lie on my face and later on you will write false things about my conduct today in the people soft and I even didn’t get a chance to have a support person with me? If you want me to leave, please give me the reason in writing and I will leave.” 135
[50] In the Statement of Agreed Facts Mr Singh agrees that Ms Leahy instructed him to conclude his shift on full pay and that he refused to leave. 136 Under cross examination he confirmed that Ms Leahy told him that she was sending him home with pay137 and said that he asked for this in writing.138 He says Ms Leahy then went inside to the Mezzanine offices with Mr Ward and typed a document. Mr Singh then says when she returned with the document to give to him, it was not on Crown letterhead.139 It is uncontested that the document had a Benestar (employee counselling service) card attached to it140 and that Mr Singh refused to accept the document as it was not “official” due to the absence of letterhead.141 There was some contest as to whether the document included Ms Leahy’s signature. However, in his own materials Mr Singh says that the document “had no company seal but just her writing and signature on it.”142Under cross examination he said that the signature was electronic not manual and was therefore not acceptable to him.143 He says he verbally objected to the document as it was not official and also to the fact that a meeting had been held in a public place and without a support person. He says he then said that he was going back to the main gaming floor as Ms Leahy and Mr Ward had performed “unauthorised acts”.144 Under cross examination he said that “they made me very upset so then I went to the gaming floor.”145
[51] Ms Leahy’s evidence is that she identified to Mr Singh that he had said he was too stressed to continue his duties, but he was also refusing to leave. She says that she told Mr Singh that it was important that he listen to reasonable instructions and that as managers they had a duty of care to employees. She says Mr Singh told her that they “had no idea what they had done” and had made this “really big”. He accused Ms Leahy and Mr Ward of “smearing lies in his face.” 146 She says that she told Mr Singh that managers were able to have informal discussions with employees around their welfare and behaviours and that if he had a grievance there were appropriate channels and processes to follow. She says Mr Singh “shushed” her and Mr Ward a number of times. She says to conclude the conversation she told Mr Singh that she was sending him home with pay. Mr Singh requested this in writing. Ms Leahy’s evidence is that she agreed to this to emphasise that the action was not disciplinary. It was now approximately 10.00 pm.147
[52] Ms Leahy prepared the letter. She denies reading out the letter but says she talked through the contents with Mr Singh and in the presence of Mr Ward and Mr Pham. 148 It is uncontested that Mr Singh refused to accept the letter. Ms Leahy says she then told Mr Singh that Mr Pham and Mr Ward would escort him to wardrobe as his shift was concluded.149 She says Mr Singh then said if she wanted to remove him it would need to be done by security. Mr Singh then stormed out of the Mezzanine lift well area and returned without permission to Pit 7 on the gaming floor.150
[53] Mr Ward’s evidence is that he, Ms Leahy and Mr Pham went back out to the Mezzanine lift well area. Ms Leahy told Mr Singh that they had concerns for his welfare and that they were sending him home sick with pay. Mr Singh refused to accept this and required this in writing. Mr Ward, Ms Leahy and Mr Pham then left to prepare the letter. 151 When they returned Ms Leahy read out the letter and Mr Singh continually interrupted her.152 It is uncontested that Mr Singh refused to accept the letter. Mr Ward says that there was further discussion with Mr Singh about the letter and he was then told that he was being sent home and needed to leave the premises. Mr Ward says that Mr Singh said security would need to remove him and he left the area.153 Mr Ward says that Ms Leahy did not raise her voice at Mr Singh. Ms Leahy did say to Mr Singh that he had to listen to her, or words to that effect, as Mr Singh was continuously talking over Ms Leahy.154
[54] Mr Pham’s evidence is that he, Mr Ward and Ms Leahy went back out to Mr Singh and Ms Leahy told Mr Singh that she was sending him home with pay due to concerns for his welfare. 155 Mr Singh was very defensive and said he was not sick. He says Ms Leahy repeated that she had concerns for his welfare and was sending him home with pay. He says this went back and forth for some time and then Mr Singh asked for this to be put in writing. All three left to prepare the letter for Mr Singh.156 After preparing the letter, they returned to Mr Singh and Ms Leahy explained what was in the letter.157 Mr Singh refused to accept the letter as it was not on letterhead.158 He says Mr Singh became very angry and said “You haven’t given me a reason why you are sending me home, if you want to get security to remove me then so be it.”159
[55] He says Ms Leahy did not raise her voice and remained calm. He says that Mr Singh accused Ms Leahy of raising her voice, of being victimised at work and objected to these conversations having been conducted in a public place. 160 Mr Singh then pointed at Mr Pham and said “you should say something in this situation.”161 Mr Singh then stormed off onto the gaming floor.162
[56] As to this conversation, it is conceded by Mr Singh that Ms Leahy again told him that he was being sent home on full pay. It is also agreed that he requested this in writing and then rejected the letter prepared by Ms Leahy. Accordingly, I find that Mr Singh was again instructed to go home on pay and did not do so. I find that he requested this instruction be confirmed in writing and that Ms Leahy prepared a document for this purpose. I find that the document was rejected by Mr Singh. It is agreed and I find that Mr Singh told Ms Leahy and Mr Ward that they had performed unauthorised acts.
[57] Where there is otherwise a dispute between the evidence of Mr Singh and Ms Leahy, I prefer the evidence of Ms Leahy for the following reasons. Firstly, Ms Leahy’s evidence was credible, clear and consistent. It is considerably more comprehensive and detailed than that of Mr Singh. For example, Mr Singh does not include in his evidence in relation to this conversation the further instruction given to him by Ms Leahy to go home on full pay but agreed in both cross examination and the Statement of Agreed Facts that his had occurred. Accordingly, I consider that Mr Singh’s recollection of this conversation is not complete, and Ms Leahy’s is to be preferred. Secondly, Mr Singh, on his own evidence, was “very upset”. In those circumstances, I consider Mr Singh’s recollection of events to likely be less reliable than that of Ms Leahy. Thirdly, Ms Leahy’s evidence as to this conversation is, generally, supported by the evidence of Mr Ward and Mr Pham, although Mr Ward’s evidence is general in nature and I accord it less weight. However, I give particular weight to Mr Pham’s corroborative evidence. Mr Pham gave credible, forthright evidence. He is not a member of Crown’s management team. He is a peer of Mr Singh and a Union Delegate. He had not met Mr Singh prior to the evening of 2 November 2018. 163 I can discern no reason why Mr Pham would not give truthful evidence.
[58] Accordingly, in light of the above, I make the following specific findings of fact:
• Ms Leahy again instructed Mr Singh to conclude his shift on full pay and leave the premises (Second Leahy Direction);
• Mr Singh did not comply with the Second Leahy Direction and requested this be confirmed in writing;
• Ms Leahy prepared a document for this purpose, which was rejected by Mr Singh because it was not on letterhead;
• Ms Leahy then told Mr Singh that his shift was concluded, and that Mr Ward and Mr Pham would escort him to wardrobe;
• Mr Singh informed Ms Leahy that security would need to remove him;
• Mr Singh left the Mezzanine floor and returned to the gaming floor.
[59] In relation to the other factual matters in dispute arising from this conversation, I accept Ms Leahy’s evidence as to those matters.
Return to the gaming floor
[60] It is uncontested that Mr Singh then went to Pit 7 on the public gaming floor. 164 The CCTV Footage indicates that Mr Singh arrived at Pit 7 at approximately 10.30 pm.165 The CCTV Footage shows Mr Singh standing in front of a closed gaming table in Pit 7. The table is roped off from the public.166 He says he was waiting for a document on letterhead. He says that after about 20 minutes, Ms Leahy and Mr Ward entered Pit 7 and asked him to leave. He says he asked for a Union Delegate, which was refused and Ms Leahy again “confirmed me sick and asked me to leave the premises.” He says he asked about the document and was told that Ms Leahy couldn’t give that to him anymore. She told him that she was the Casino Manager and Mr Singh had to listen to her. In response he alleges that he said, “Are you trying to show me your position again?” Ms Leahy then said, “Ok just wait then.” Mr Singh says that Ms Leahy then called security and around eight to ten security officers surrounded him. He says that Ms Leahy then called First Aid without his permission.167 It is agreed that Mr Singh was assessed by the First Aid Officers.168 He says that he was then suddenly approached by a Security Officer and there was then a verbal exchange between him and this officer. He says the Officer was rude, aggressive and had dominant body language.169 He says two Security Officers then stood next to him and he told the Officer whose tag read “Sanjiv” that he would go home and leave once he had the document on letterhead but that he wouldn’t be going anywhere with security as he didn’t now feel safe. He says Sanjiv assured him that if he went with him, he would get the document. He then went with the Security Officers to an interview room.170 The CCTV Footage indicates that Mr Singh left Pit 7 at approximately 11.13 pm.171
[61] Mr Singh says Ms Leahy came to the interview room about ten minutes later and provided him with a suspension letter. He says he accepted that document, complied with the directions of the Security Officers and was ultimately escorted from the building. The CCTV Footage indicates that Mr Singh left the building at approximately 11.30 pm.
[62] Under cross examination Mr Singh agreed that when Ms Leahy arrived at Pit 7 she asked him why he was refusing her reasonable request to go home. 172 Mr Singh also agreed under cross examination that at Pit 7 Ms Leahy told him that she had concerns for his welfare.173 He agreed that Ms Leahy told him that because she was concerned for his welfare she was going to get First Aid to assess him,174 however, he was not sure if she also said that First Aid would make the determination as to whether or not he was fit to work.175 He agreed that Ms Leahy told him that First Aid said he was fit to continue his duties.176 He denied that he said he wanted to get back to work,177 that Ms Leahy directed him to take a break and that he was then to resume his duties.178 He denied Ms Leahy asked him if was well enough to continue his duties179 or that she again directed he take a break and resume his duties upon his return.180 He denied he refused to resume his duties.181 He agreed that Ms Leahy told him that he was failing to follow reasonable management directions.182 Under cross examination he said he understood this comment referred to his refusal to go home.183 He agreed under cross examination that Ms Leahy told him she was suspending his employment with pay, effective immediately,184 for failure to follow reasonable management directions.185 He also agreed under cross examination that Ms Leahy then told him to leave the premises.186 He says that he requested a document in writing from Ms Leahy at this point saying “why cannot you provide me the document in writing?”187 and that Ms Leahy didn’t want to provide that and she then called security.188 He says that he was seeking the original offered document on letterhead, not a document confirming his suspension.189
[63] Ms Leahy’s evidence is that once Mr Singh had been located on the gaming floor, she went to Pit 7. It is uncontested that Ms Leahy asked Mr Singh why he was refusing her reasonable request to go home. 190 Ms Leahy says he said that she “didn’t have the authority” and was “abusing her power” as a manager. It is uncontested that Ms Leahy told him that she had concerns for his welfare and because of those concerns she was going to get First Aid to assess him.191 Ms Leahy says that Mr Singh then raised for the first time that he “just wanted to get back to work”. She says that in response she compromised and said that First Aid could make that determination.192 Mr Singh says he isn’t sure as to whether Ms Leahy said this or not but does not deny it. It is uncontested that Mr Singh was assessed by First Aid Officers. Ms Leahy says that the view of the First Aid Officers was that Mr Singh was disgruntled but was physically fit to resume his duties.193
[64] Ms Leahy then says that she informed Mr Singh that the First Aid Officers considered him fit to work and asked him if he felt the same. She says Mr Singh said he just wanted to get back to work. She says she then requested that Mr Singh take a break and when he returned, he would be placed on a table. Mr Singh replied “no”. Ms Leahy queried whether Mr Singh felt well enough to continue, to which he again replied he just wanted to get back to work. Ms Leahy repeated that Mr Singh was to take a break and upon his return he would be placed on a table. 194 She says Mr Singh again replied “no”. In response, Ms Leahy says she informed Mr Singh that he was failing to comply with a reasonable direction from management. Mr Singh does not contest that Ms Leahy made this statement. Ms Leahy says that Mr Singh replied saying, “you’re just a little girl in a suit” and she didn’t have the authority.195
[65] Ms Leahy says she then said that she had reasonably requested that Mr Singh continue his duties and asked him again if he would take a break and return to a table. Mr Singh refused. Ms Leahy says she then informed Mr Singh that she was suspending his employment, with pay, effective immediately for failure to follow a reasonable direction from a manager. She told Mr Singh he was required to leave the premises. He refused. 196
[66] Ms Leahy says she then engaged with security. She told Mr Singh again he was to leave. Mr Singh requested this in writing. Mr Singh refused to leave the public gaming area while Ms Leahy prepared the document. 197 She says that Security Officers then tried to talk to Mr Singh while she returned to the Mezzanine floor to source a suspension letter. Mr Ward stayed on the gaming floor with Mr Singh.198 She was advised that Mr Singh was in an interview room. She attended the interview room and provided Mr Singh with the letter of suspension. Ms Leahy explained what was included in the letter. The suspension letter provides that “[t]he issues surrounding your suspension relate to allegations of breaches of the Appropriate Workplace Behaviour Policy and failure to follow reasonable management direction.”199
[67] Mr Singh was then escorted to wardrobe and eventually out of the building. 200 It was by this time approximately 11.30 pm.201
[68] Mr Ward’s evidence is that he and Ms Leahy approached Mr Singh in Pit 7 at around 10.40 pm. Mr Ward says that Mr Singh kept saying “What is the reason you believe I’m unfit” and refused to leave. He says First Aid was contacted to assess Mr Singh’s mental state. 202 He says that he and Ms Leahy were told by the First Aid Officers that Mr Singh seemed fine, but it was difficult to assess his mental state as they didn’t have specialist expertise. Ms Leahy asked if Mr Singh had capacity to stay at work and the First Aid Officers said that physically he could continue. He and Ms Leahy then went back to Mr Singh and advised him of this.203
[69] He says that Ms Leahy asked Mr Singh if he felt he could be at work. Mr Singh said “no”. Mr Singh was asked to confirm that he had just said he could not be at work. Mr Ward says Mr Singh then said that his words were being twisted and asked again why he was considered unfit. Ms Leahy then asked Mr Singh again if he could be at work. Mr Singh replied that he was fine to be at work, it was Ms Leahy and Mr Ward who said he was unfit. Mr Ward says that Ms Leahy then directed Mr Singh to resume his dealing duties. Mr Singh refused to do so. 204 He says that Ms Leahy then told Mr Singh that he had been told to resume his duties and his refusal to do so was a refusal to comply with a reasonable directive from management. Ms Leahy then told Mr Singh he was suspended.205 Ms Leahy then told Mr Singh that if he did not leave the gaming floor, security would have to remove him. Mr Singh refused to leave. They then left Pit 7 and Ms Leahy went to speak with security. Mr Ward could not hear that conversation.206
[70] Mr Ward says he spoke to some of the Security Officers separately and informed them that Mr Singh had been suspended and was refusing to leave. Mr Ward saw Security Officers speaking to Mr Singh and about 15 minutes later Mr Singh left the gaming floor with security. Mr Singh waited in a security room for a couple of minutes and then Ms Leahy arrived with Mr Singh’s suspension letter. Ms Leahy explained the suspension letter to Mr Singh who then went with Mr Ward and two Security Offices to wardrobe and then left the premises at approximately 11.30 pm. 207
[71] Mr Pham’s evidence is that once they found Mr Singh in Pit 7, Ms Leahy started talking to Mr Singh. He says he could not hear fully what was said. 208 He says he was, however, present when Ms Leahy spoke to the First Aid Officers following them assessing Mr Singh and heard that conversation. He says that the First Aid Officers advised Ms Leahy that they believed Mr Singh was physically able to go back to work but were unsure as to his mental state. However, their overall assessment was that Mr Singh was fine. He says that Ms Leahy then said that if that was their view she would put him back on a table.209 He says Ms Leahy then approached Mr Singh but he could not hear the conversation.210 He says that after Ms Leahy’s conversation with Mr Singh, Mr Ward came over to him and told him that Mr Singh had been asked to go back to a table and perform his duties and that he had refused to do so. As a consequence, Mr Singh had been suspended.211
[72] Mr Pham says he then left to go to the Mezzanine to write a statement. 212
[73] As to what occurred following Mr Singh going to Pit 7, I accept the evidence of Ms Leahy over that of Mr Singh for the following reasons. Firstly, Mr Singh’s evidence as to what occurred at Pit 7 is incomplete and appears to be somewhat selective. Under cross examination Mr Singh agreed that Ms Leahy asked him why he was refusing her request to go home, told him she was concerned for his welfare, told him that because she was concerned for his welfare she was going to get First Aid to assess him, told him that First Aid had said he was fit to resume his duties, told him that he was failing to follow reasonable management directions and told him she was suspending him with full pay. None of these matters are included in Mr Singh’s evidence in chief. Secondly, Mr Singh’s account of the unfolding and sequencing of events in Pit 7 is not consistent with the CCTV Footage. Mr Singh says that after an initial discussion Ms Leahy called security and around eight to ten Security Officers surrounded him. He says that Ms Leahy then called First Aid. The CCTV Footage demonstrates that Mr Singh entered Pit 7 at approximately 10.30 pm and stood in front of a closed, roped off gaming table. Ms Leahy went to the table to speak with Mr Singh at approximately 10.40 pm. That conversation lasted until approximately 10.48 pm, after which two First Aid Officers can be seen engaging with Mr Singh in front of the gaming table. At that time, the CCTV Footage demonstrates that only one Security Officer is present, and he is outside the roped off table area in which Mr Singh is standing. After the First Aid Officers leave Mr Singh, the CCTV Footage demonstrates that at approximately 10.54 pm there is a further conversation between Mr Singh and Ms Leahy in front of the gaming table. That conversation lasts until approximately 10.57 pm, during which time four more Security Officers join the Security Officer already present in the area outside the gaming table. Ms Leahy leaves Mr Singh to speak to the Security Officers and then returns to Mr Singh. She leaves the area at approximately 11.02 pm. At this time there appear to be seven Security Officers in attendance in the Pit 7 area. Mr Singh is escorted from Pit 7 at approximately 11.15 pm at which time there may, possibly, be eight Security Officers in attendance. The CCTV Footage therefore does not demonstrate that events unfolded in the sequence asserted by Mr Singh. Further, whilst it may be that there are eight Security Officers present at the time Mr Singh is ultimately escorted from Pit 7, it is not the case that eight to ten Security Officers attended to Mr Singh in the manner asserted nor does the CCTV Footage, in my view, demonstrate that Mr Singh was surrounded by Security Officers at any time. Further, the CCTV Footage appears consistent with Ms Leahy’s evidence as to the sequence of events and the number of conversations that were had with Mr Singh, First Aid and security. Thirdly, Ms Singh agrees that Ms Leahy told him that the First Aid Officers had assessed him as fit to continue with his duties. In that circumstance, and in light of Mr Singh’s continued refusal to go home, I consider Ms Leahy’s evidence that she then directed Mr Singh to take a break and subsequently resume his duties to be entirely credible. Further, it is consistent with Mr Pham’s evidence as to what Ms Leahy told him she intended to do and is corroborated by Mr Ward.
[74] Accordingly, in light of the above, I make the following specific findings of fact:
• Mr Singh was assessed by First Aid Officers due to Ms Leahy’s concerns for his welfare;
• First Aid Officers assessed Mr Singh as fit to perform his duties;
• Ms Leahy advised Mr Singh of the First Aid Officers’ assessment of his fitness;
• Ms Leahy asked Mr Singh to take a break and then resume his duties upon his return;
• Mr Singh refused;
• Ms Leahy told Mr Singh he was to take a break and then resume his duties (Final Leahy Direction);
• Mr Singh again refused;
• Ms Leahy suspended Mr Singh’s employment on pay effective immediately for refusal to comply with a reasonable direction from management;
• Ms Leahy told Mr Singh to leave the premises;
• Mr Singh refused to leave the premises;
• Mr Singh ultimately left the gaming floor with security.
[75] In relation to the other factual matters in dispute arising from events after Mr Singh went to Pit 7, I accept Ms Leahy’s evidence as to those matters.
Termination of employment
[76] It is uncontested that on 3 November 2019 Mr Singh sent an email to Ms Butterworth setting out what he says occurred on 2 November 2018 (Singh Complaint). 213 That email is two pages in length and concluded as follows:
“This was a [sic] acute breach of Employee Code of Conduct by the management how they handled my issue. They showed Inappropriate Behaviour and forgot all the company's protocols. Dealers are calling me Prawnstar without any fear and the management is taking action against me instead of handling my complaint. I have only become a joker in the company so far. Again the same thing happened, i raised an issue and I was the one who got suspended for 10 days for Inappropriate workplace behaviour.
I want to have this investigated immediately. Please arrange Christopher Ball as a support person.”
[77] On 9 November 2018 Ms Butterworth wrote to Mr Singh requiring he attend a formal meeting with her and Mr Egan, Casino Manager, on Wednesday 14 November 2018. The purpose of the meeting was stated as being “to discuss [Mr Singh’s] poor professional behaviours on Friday 2 November 2018, in addition to your failure to follow reasonable management directives.” 214 In addition, the letter advised Mr Singh that he would be given an opportunity to respond to the above at the meeting, he could bring a support person and that the meeting may result in disciplinary action and/or the termination of his employment.215
[78] It is uncontested that Mr Singh was then absent from work and unfit to attend the meeting until medical clearance was provided from Mr Singh’s psychologist on 24 May 2019. 216 On 12 June 2019217 Mr Singh attended a meeting with Ms Butterworth and Mr Christie. It is uncontested that Mr Singh was provided with the opportunity to have a support person present but did not do so.218 It is also uncontested that this meeting went for approximately one hour.219
[79] Ms Butterworth’s evidence is that prior to the meeting Crown undertook a full investigation into the allegations and the Singh Complaint. This included facilitating interviews, obtaining statements and reviewing surveillance footage. 220 She says that in the meeting Mr Singh provided a full account of his recollection of the events of 2 November 2018 and that she put the following allegations to Mr Singh for response:
• Mr Singh’s refusal to take a break as directed by Ms Wilkinson;
• Mr Singh’s refusal to go home on sick leave, notify DHS and obtain a medical certificate;
• Mr Singh’s refusal to accompany management and his support person to a more private area so that a welfare check could be undertaken without it being in earshot of other employees;
• Mr Singh’s refusal to conclude his shift on full pay;
• Mr Singh’s refusal to participate in a welfare conversation after a Union Delegate had been provided and his alleged refusal to then recommence his duties or go home;
• Mr Singh’s request for written confirmation of the direction to conclude is shift on full pay and then refusing to go home after Ms Leahy provided him with written confirmation of that instruction; and
• Mr Singh’s refusal to take a break and resume his duties following assessment by First Aid that he was fit to resume his duties. 221
[80] Ms Butterworth then says that the meeting was adjourned, during which time she and Mr Christie considered Mr Singh’s responses. 222 She says it was determined that Mr Singh had failed to follow reasonable management directions, his conduct had not met Crown’s standards and was inconsistent with his contract of employment.223 Mr Singh was advised that his employment was terminated, effective immediately, for refusing to carry out lawful and reasonable management directions on 2 November 2018 and he was provided with a hard copy of his termination letter.224
[81] Mr Christie’s evidence is that prior to the meeting with Mr Singh on 12 June 2019 he reviewed the CCTV Footage of the evening and spoke with the relevant managers involved in the matter. 225 Under cross examination, however, and in response to a question from the Bench, Mr Christie said that he had only interviewed Ms Leahy.226 Mr Christie’s evidence is that at the meeting Mr Singh provided a full account of his recollection of the events of 2 November 2018 and that each of the allegations set out above were put to Mr Singh for his response.227 He says he listened to Mr Singh’s responses and considered them.228 He says he considered all the evidence and determined that Mr Singh had failed to follow reasonable management directions consistent with his contract of employment on 2 November 2018.229 He determined to terminate Mr Singh’s employment for serious misconduct on this basis.230 In response to a question from the Bench, Mr Christie said that the reasonable directions with which Mr Singh had failed to comply were:
• to take a break as directed;
• to go home on paid leave;
• to participate in a welfare check;
• on two occasions, to perform his duties after being assessment by First Aid as being fit to do so. 231
[82] Mr Christie also says that Mr Singh went onto the gaming floor when advised or requested not to do so by management. 232
[83] Under cross examination Mr Singh agreed that at the meeting Ms Butterworth put a number of allegations to him 233 and that he provided a response to those allegations.234 In addition, Mr Singh agreed in the Statement of Agreed Facts that at the meeting allegations were put to him and that he was given an opportunity to respond.235
[84] I accept the evidence of Ms Butterworth and Mr Christie as to the content and conduct of the meeting on 12 June 2019. I also accept Mr Christie’s evidence as to the reasons for Mr Singh’s dismissal.
Was the dismissal harsh, unjust or unreasonable?
[85] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(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); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(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; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(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; and
(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.
[86] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 236
[87] I set out my consideration of each below.
Was there a valid reason for Mr Singh’s dismissal? – Section 387(a)
[88] The principles that are relevant to the consideration of whether there was a valid reason for the dismissal related to the employee’s conduct or performance are well established. A valid reason is one that is “sound, defensible or well founded” 237 and should not be “capricious, fanciful, spiteful or prejudiced.”238 The Commission does not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.239 The question the Commission must address is whether there is a valid reason, in the sense both that it was a good reason and a substantiated reason.
[89] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.240 The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. 241
[90] The termination letter provided to Mr Singh on 12 June 2019 stated as follows:
“Crown has considered your response in relation to you refusing to carry out lawful and reasonable management direction consistent with your employment contract during your rostered shift on 2 November 2018. Crown considers this to be serious and wilful misconduct.” 242
[91] The specific management direction with which Mr Singh did not comply is not articulated. It is also not articulated in the suspension letter issued to Mr Singh on 2 November 2018. 243 Whilst in the termination letter the word “direction” is singular, I note the absence of the indefinite article “a” in the sentence before the word “lawful”. Accordingly, the syntax of the termination letter is difficult, and I consider it to be unclear from the termination letter as to whether Mr Singh is said to have refused to carry out a singular direction or more than one direction.
[92] In their final written submissions Crown submits that the direction with which Mr Singh did not comply was the Final Leahy Direction 244 (First Submission). Crown submits that this direction was given after nearly three hours of discussion during which Mr Singh refused:
• to take a break when first requested to do so by Ms Wilkinson;
• to go home on sick leave;
• to go home on full pay;
• to engage with management to enable them to conduct a welfare discussion; and
• to take a break and resume his duties. 245
[93] Crown appears to rely on these matters as matters which go to the reasonableness of the Final Leahy Direction. 246
[94] However, Crown also submits in their final written submissions that Mr Christie determined to terminate Mr Singh’s employment for refusing to follow reasonable management directions. Crown submits that Mr Christie determined that Mr Singh refused to take a break, refused to go home on paid leave, refused to participate in a welfare check and went on the gaming floor when advised not to and after the first aid welfare check, more than once, refused to perform the role of a Table Games Dealer on the gaming floor (Second Submission). 247
[95] Accordingly, it is unclear from Crown’s final written submissions, precisely what it contends was the reason or reasons for Mr Singh’s dismissal. The First Submission is not consistent with the evidence given by Mr Christie, which I have accepted, as to the reasons for Mr Singh’s dismissal. 248 Mr Christie was the decision maker. I consider he is the best source of evidence as to the reasons relied upon for the decision to dismiss Mr Singh. The First Submission must therefore be rejected. I find that the reasons for Mr Singh’s dismissal that were relied upon by Crown are those articulated by Mr Christie and advanced in the Second Submission. I consider each of these reasons below.
[96] Mr Singh submits that there was no valid reason for his dismissal because he was, in fact, terminated for exercising his workplace right to make a complaint and was then victimised by the managers involved in the handling of his complaint. 249
Refusal to obey a lawful and reasonable direction
[97] A refusal to obey a lawful and reasonable direction can constitute a valid reason for termination. 250
The First Break
[98] In order for Mr Singh to have refused to comply with a lawful and reasonable direction, there must first be a direction. In relation to the First Break, Ms Wilkinson’s evidence is that she said, “Why don’t you go have a break for 20 minutes to give yourself some time.” In my opinion, this is a suggestion or an offer for Mr Singh to take a break. It does not, in my view, amount to a direction that he do so. The conversation in relation to the First Break occurred at a very early stage in the events of 2 November 2018. It was Ms Wilkinson’s initial response to Mr Singh advising her that he was stressed and couldn’t deal. Ms Wilkinson gave evidence that it was her “first instinct” to give Mr Singh an opportunity to de-stress by going on a break. 251 The language used by Ms Wilkinson in relation to the First Break is to be contrasted with the language used by Ms Wilkinson in relation to the Second Break, in which she “insists” on Mr Singh taking a break. In my view, there is nothing in the language used by Ms Wilkinson in relation to the First Break, nor the context in which this conversation occurred, which gives it the requisite degree of compulsion so as to amount to a direction. Accordingly, as no direction was given to Mr Singh to take the First Break, his failure to do so cannot amount to a failure to comply with a lawful and reasonable direction. As such, it cannot provide a valid reason for his dismissal.
Refusal to go home on paid leave
[99] Neither Mr Christie nor the Second Submission identifies which direction to go home on paid leave was relied upon as a reason for Mr Singh’s termination. I have found that Mr Singh did not comply with the Wilkinson Direction, the First Leahy Direction or the Second Leahy Direction. I consider each of these matters below.
The Wilkinson Direction
[100] I have found that Ms Wilkinson directed Mr Singh to go home on sick leave and that he refused to do so. The Wilkinson Direction was made after Mr Singh had informed Ms Wilkinson that he was stressed and unable to deal. It is entirely uncontentious that an employer owes a duty of care to ensure, so far as is reasonably practicable, the health and safety of an employee at work. Such a duty arises pursuant to applicable work, health and safety legislation. A similar duty also arises under the common law. In circumstances where an employee has informed an employer that he or she is stressed and unable to perform their duties, then a direction that the employee go home on sick leave is not only consistent with the discharge of that duty of care but supported by it. It is a lawful direction. I also consider it to be a reasonable direction. The distinction sought to be made by Mr Singh between stress and sickness is without foundation. Sickness is not limited to physical illness. Mental health issues are indisputably matters which may render an employee ill. Stress is a mental health issue. In my view, it is clear that if an employee informs an employer they are stressed and unable to perform their duties, they are ill. In such circumstances, a direction that the employee go home on sick leave is also an entirely reasonable direction. Accordingly, by not going home on sick leave as directed by Ms Wilkinson, I consider Mr Singh failed to comply with a lawful and reasonable direction.
The First Leahy Direction
[101] I have also found that Ms Leahy directed Mr Singh to conclude his shift on full pay and he refused to do so. Other than in certain circumstances which are not presently relevant, it is well established that generally an employer is not required to provide an employee with work. However, in such circumstances an employer is still under a duty to pay the employee. 252 An employer may therefore, in the ordinary course, direct an employee not to perform duties, subject to continuing to pay the employee. Accordingly, I find the direction that Mr Singh conclude his shift on full pay to be a lawful direction. For the following reasons I also consider it reasonable. Firstly, the direction was for the remainder of the current shift only. It was therefore of short duration and would not have impacted Mr Singh’s skills maintenance or dealing proficiency. Secondly, prior to this direction being made Mr Singh had failed to comply with the Wilkinson Direction, rejected the assistance of Mr Cameron, refused to move from the open thoroughfare area of the Mezzanine and out of the hearing of other employees and refused to move into the Mezzanine offices. Ms Leahy had also told Mr Singh that if he was too stressed to continue his duties he was to go home and provide a medical certificate. Mr Singh had continued to assert he was not sick but refused to resume his duties. In these circumstances, I consider a direction that Mr Singh concluded his shift on full pay to be not only lawful but also reasonable. Accordingly, by not concluding his shift on full pay as directed by Ms Leahy, I consider Mr Singh again failed to comply with a lawful and reasonable direction.
The Second Leahy Direction
[102] I have found that Ms Leahy directed Mr Singh to conclude his shift on full pay for a second time and he refused to do so. For the reasons set out above, I find that such direction is a lawful direction. I also consider it to be a reasonable direction. Firstly, as set out above, the direction was for the remainder of the current shift only. It was therefore of short duration and would not have impacted Mr Singh’s skills maintenance or dealing proficiency. Secondly, prior to this direction being given Mr Singh had failed to comply with the Wilkinson Direction, rejected the assistance of Mr Cameron, refused to move from the open thoroughfare area of the Mezzanine and out of the hearing of other employees and refused to move into the Mezzanine offices. Ms Leahy had also told Mr Singh that if he was too stressed to continue his duties he was to go home and provide a medical certificate. Mr Singh had continued to assert he was not sick but refused to resume his duties. He had refused to comply with the First Leahy Direction and had rejected the assistance of Mr Pham. At this stage discussions with Mr Singh had ensued for almost 2 hours. In these circumstances, I consider a direction that Mr Singh conclude his shift on full pay to be not only lawful but also reasonable. Accordingly, by not concluding his shift on full pay as directed by Ms Leahy for a second time, I consider Mr Singh failed to comply with a further lawful and reasonable direction.
Refusal to participate in a welfare check
[103] Crown advanced no submission in support of its contention that Mr Singh was given a direction to participate in a welfare check and refused to do so. I accept that Mr Singh did not cooperate with Crown on the evening of 2 November 2018 and did not engage constructively with Ms Leahy, in particular. I also accept that attempts were made by Ms Leahy and others to have a welfare discussion with Mr Singh and that he was told that was the purpose of those discussions. I also accept that Mr Singh refused the assistance of Mr Cameron and Mr Pham and refused to move out of the Mezzanine lift well area. While I consider Mr Singh’s behaviour was unreasonable, I am not satisfied on the evidence before me that Mr Singh was at any time directed to participate in a welfare check. Accordingly, as no direction was given to Mr Singh to participate in a welfare check, his failure to do so cannot amount to a failure to comply with a lawful and reasonable direction. As such, it cannot provide a valid reason for his dismissal.
Return to the gaming floor
[104] Crown also advanced no submissions in support of its contention that Mr Singh went on to the gaming floor when advised or requested not to do so by management. There is no dispute that Mr Singh returned to the gaming floor. Ms Leahy’s evidence is that Mr Singh stormed out of the Mezzanine lift well area and returned to the gaming floor without permission. 253 Mr Ward’s evidence is simply that Mr Singh left the room and went out the glass doors and that he followed Mr Singh as he went down to the gaming floor.254 In my view there is simply no evidence that Mr Singh was advised or requested not to go onto the gaming floor, even if such an advice or request could constitute a lawful and reasonable direction. As such, it cannot provide a valid reason for his dismissal.
Final Leahy Direction
[105] I have found that during the course of Ms Leahy’s interaction with Mr Singh in Pit 7 Ms Leahy asked Mr Singh to take a break and then resume his duties at a table and that he refused to do so. I have also found that she then repeated that Mr Singh was to take a break and then resume his duties at a table and that he refused to do so for a second time.
[106] Ms Leahy does not say that she instructed or directed Mr Singh to take a break and then resume his duties. Her evidence is that on the first occasion she asked Mr Singh to take a break and told him that when he returned, he would be placed on a table (First Statement). On the second occasion she says she repeated that Mr Singh was to take a break and upon his return he would be placed on a table (Second Statement). In isolation, I consider there may be some doubt as to whether these statements, most particularly the First Statement, constitute a direction. The First Statement requests that Mr Singh take a break. A request, ordinarily, it not a direction. However, in the present circumstances Ms Leahy’s request that Mr Singh take a break is followed by a statement as to what will, positively, then occur; that is, upon return from the break Mr Singh will be placed on a gaming table. In those circumstances, I consider that the First Statement, properly considered, was a direction by Ms Leahy. The Second Statement is expressed as an active statement as to what Mr Singh is to do and is also followed by a statement as to what will, positively, then occur. I consider the Second Statement to constitute a direction. Further, the statements must be considered in context and with particular reference to Mr Singh’s conduct and behaviour over the preceding almost three hours. I consider the Final Leahy Direction to be sufficiently compulsive as to constitute a direction with which, subject to it being lawful and reasonable, Mr Singh was required to comply.
[107] To be lawful the direction must be consistent with Mr Singh’s contract of employment. 255 Mr Singh was employed as a Table Games Dealer. There can be no doubt that a direction for Mr Singh to go back to a gaming table is consistent with his contract of employment and therefore a lawful direction. I also consider the Final Leahy Direction to be reasonable. Discussions with Mr Singh had ensued for a period of almost three hours, primarily directed at him either returning to his dealing duties or going home. He had refused to go home on sick leave asserting that he was not sick, at least twice refused to go home on full pay and refused to leave the premises. He had most recently been assessed by First Aid Officers as being able to resume his duties. Given his consistent refusal to go home and leave the premises, his assertions that he was not sick and finally the assessment by First Aid Officers that he was able to resume his duties, I consider a direction at that point in time that he resume his dealing duties following a break to be reasonable. Accordingly, by not taking a break and resuming his dealing duties as directed, I consider Mr Singh twice failed to comply with a further lawful and reasonable direction.
[108] I reject Mr Singh’s submission that the reason for his dismissal was that he exercised his workplace rights to make a complaint. Mr Singh’s exercise of his workplace rights was overtaken by his subsequent behaviour, over a period in excess of three hours, during which he failed to comply with multiple lawful and reasonable directions. In my view, the evidence does not support a conclusion that the reason for Mr Singh’s dismissal was other than his conduct on the evening of 2 November 2018.
[109] I consider the failure by Mr Singh to comply with the Wilkinson Direction, the First Leahy Direction, the Second Leahy Direction and the Final Leahy Direction to constitute a valid reason for his dismissal.
Was Mr Singh notified of the valid reason? - Section 387(b)
[110] Section 387(b) requires the Commission to take into account whether an employee has been notified of the reasons for dismissal. Notification of a valid reason for termination must be given before the decision is made to terminate the employee’s employment, 256 and in explicit257 and plain and clear terms.258 In Crozier v Palazzo Corporation Pty Ltd(t/as Noble Park Storage and Transport)259a Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 observed:
“As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” 260
[111] In his final written submissions, Mr Singh submits that he was not notified in writing of the reasons for his dismissal before the termination date nor on the termination date itself. He submits that at the meeting on 12 June 2019 Ms Butterworth and Mr Christie only asked questions and almost nothing was said about the allegations. 261
[112] Crown submits that the reason for dismissal was provided verbally at the meeting of 12 June 2019 and followed up in writing by the letter dated 12 June 2019.
[113] The matter which section 387(b) requires be taken into account is whether Mr Singh “was notified of that reason”. The use of the word “that” in section 387(b) requires consideration of whether Mr Singh was notified of the reasons for dismissal which I have been found to be a valid reason for the purposes of section 387(a). 262
[114] The reasons for dismissal which I have found to be a valid reason are the failure by Mr Singh to comply with the Wilkinson Direction, the First Leahy Direction, the Second Leahy Direction and the Final Leahy Direction. In his Statement of Agreed Facts Mr Singh agreed that at the meeting on 12 June 2019 Crown put “the allegations” to him. 263 The precise allegations this agreed fact is in respect of are not articulated in the Statement of Agreed Facts. Ms Butterworth and Mr Christie’s evidence, which I have accepted, is that seven allegations were put to Mr Singh at the meeting of 12 June 2019, including the failure to comply with the Wilkinson Direction and the Final Leahy Direction. Their evidence, which I accept, is that Mr Singh’s refusal to go home on full pay was also put to him. It is unclear as to whether this relates to the First Leahy Direction, the Second Leahy Direction or both directions. However, in circumstances where Mr Singh does not dispute that these directions were made and that on both occasions he refused to comply with them, I am satisfied that no unfairness arises from any lack of clarity which may have existed.
[115] I have considered whether the failure of Crown to show Mr Singh the CCTV Footage and put to him the specific content of the witness statements it had obtained affects the question of whether Mr Singh was properly notified of the allegations. For the reasons set out above, I am satisfied that it does not and that he was notified of the reasons for his dismissal.
[116] Under cross examination Mr Singh’s evidence was that the meeting on 12 June 2019 went for an hour, 264 50 minutes of which comprised matters being put to him and him responding265 and that Ms Butterworth put a number of allegations to him in the meeting.266 As already set out, Mr Singh also agreed in his Statement of Agreed Facts that the allegations were put to him in the meeting.267 In light of this, Mr Singh’s submission that almost nothing was said about the allegations made against him in the meeting of 12 June 2019 is rejected. As to Mr Singh’s submission that he was not notified of the reasons for his dismissal in writing, this is uncontested. It is plain there is no requirement in section 387(b) that an employee be notified of the reason for dismissal in writing.
Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct? - Section 387(c)
[117] Section 387(c) requires the Commission must take into account whether an employee was provided an opportunity to respond to any reason for their dismissal relating to their conduct or performance. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 268
[118] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 269 Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.270
[119] In Wadey v YMCA Canberra 271 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer:
“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend.”
[120] In his final written submissions Mr Singh concedes that he was given an opportunity to respond at the meeting on 12 June 2019 and notes that the emails he received in relation to the meeting informed him that the meeting may result in disciplinary action and/or termination of employment. 272 He also submits that his termination was preplanned and that after adjourning the meeting for ten minutes Ms Butterworth and Mr Christie came back with the quick decision to terminate his employment.273
[121] Crown submits that Mr Singh was provided with an opportunity to respond at the meeting of 12 June 2109 and further submits that Mr Singh concedes this in the Statement of Agreed Facts. 274 It submits that in accordance with procedural fairness Mr Singh was informed that a possible outcome might be termination of employment.275
[122] I am satisfied that Mr Singh was given an opportunity to respond to the Wilkinson Direction, the Final Leahy Direction and also to an allegation that he refused to go home on full pay as directed and that opportunity was reasonable. Firstly, Mr Singh set out his version of the events of 2 November 2018 in the Singh Complaint. Secondly, the evidence of Ms Butterworth and Mr Christie, which I have accepted, is that at the commencement of the meeting Mr Singh provided a full account of his recollection of events of the evening of 2 November 2018, prior to responding to the specific seven allegations that were put to him. As to whether Mr Singh was given an adequate opportunity to respond to both the First Leahy Direction and the Second Leahy Direction when he responded to the allegation that he refused to go home on full pay as directed, in circumstances where Mr Singh does not dispute that these directions were made and that he refused to comply with them I am satisfied that even if an adequate opportunity to respond was not provided no unfairness arises from this. Accordingly, I am satisfied that Mr Singh was given an opportunity to respond to the valid reasons for his dismissal and to put forward anything in his defence.
[123] Again, I have considered whether the failure of Crown to show Mr Singh the CCTV Footage and put to him the specific content of the witness statements it had obtained affects the question of whether Mr Singh was afforded an opportunity to respond. For the reasons set out above, I am satisfied that it does not and that Mr Singh was afforded an opportunity to respond and that it was reasonable.
[124] As to Mr Singh’s submissions that his termination was preplanned based on the email correspondence referred to above, this is misconceived. That correspondence was putting Mr Singh on notice of the seriousness of the matter and the possible consequences. It is clearly appropriate and accords procedural fairness. In my view, it does not indicate pre-judgment.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal? - Section 387(d)
[125] Section 387(d) requires the Commission to take into account whether there was an unreasonable refusal by the employer to allow an employee to have a support person present to assist in discussions relating to dismissal. It is uncontested that there was no refusal to allow Mr Singh to have a support person present at the meeting of 12 June 2019. 276
[126] Mr Singh submits that there was a refusal to allow him to have an appropriate support person present at the discussions on 2 November 2018. 277 It is clear from the plain language of section 387(d) of the Act that this consideration is directed to an employer’s refusal to allow a support person to be present at discussions relating to the dismissal.278 It is not concerned with discussions that are not related to dismissal. The discussions on 2 November 2018 were not discussions related to dismissal. They were of an entirely different character. Accordingly, whether or not an appropriate support person was present at these discussions is not presently relevant.
Was Mr Singh warned about unsatisfactory performance before the dismissal - Section 387(e)
[127] If a dismissal relates to unsatisfactory performance, section 387(e) requires the Commission to consider whether the employee has been warned about the unsatisfactory performance prior to dismissal. Neither party contend that the dismissal was related to unsatisfactory performance.
[128] Accordingly, this factor is not relevant to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? - Section 387(f)
[129] Section 387(f) requires the Commission to take into account the degree to which the size of the employer would likely impact on the procedures followed in effecting the dismissal. Crown is a large employer, employing over 7000 employees at its Melbourne site 279 and is an organisation with considerable resources. The size of the employer’s enterprise would have no impact on the procedures followed in effecting dismissal.
To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal? - Section 387(g)
[130] Section 387(g) requires the Commission to take into account the degree to which the absence of dedicated human resources management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. Mr Singh submits that there was an absence of dedicated human resources expertise at all times as human resources had a history of taking the side of management and not investigating Mr Singh’s version of events. This submission is misconceived. Section 387(g) is directed at the impact the absence of human resources expertise would likely have on the procedures followed to effect Mr Singh’s dismissal. There was no absence of dedicated human resources expertise. It is apparent that a human resources manager, Ms Butterworth, was involved throughout the process leading up to Mr Singh’s dismissal and in the dismissal. Accordingly, section 387(g) has no application.
What other matters are relevant? - Section 387(h)
[131] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.
[132] Mr Singh submits that there are a number of previous matters which are relevant to the question of fairness of his dismissal. 280 In summary, Mr Singh submits that over a number of years he has been victimised by management and human resources. Mr Singh’s witness statement is almost exclusively dedicated to these historical employment matters, which span the period June 2015 – October 2018.281 In particular, but not exclusively, Mr Singh relies upon a matter at the Crown College graduation party in 2017, for which of which he was issued a verbal warning, the final written warning issued by Ms Wilkinson for posting the Pornostar video link which he says was a “baseless allegation”,282 and the online “bullying” and social media posts which he says occurred in relation to the “Pornostar” video.283
[133] Mr Singh also submits that due to the hostile work environment he has developed irritable bowel syndrome and cannot enjoy normal food. He also says that due to having no income for almost a year and one half, he was not able to settle on his apartment and suffered financial loss as a consequence. 284
[134] Crown submit that none of the historical employment matters are relevant to the question of whether Mr Singh’s termination of employment was harsh, unjust or unreasonable. It submits further that the matters raised by Mr Singh were investigated and outcomes determined. 285
[135] I do not find any of the historical employment matters relied upon by Mr Singh are relevant to whether his dismissal was harsh, unjust or unreasonable. In my opinion, the events of 2 November 2018 stand on their own and the previous matters are unrelated to Mr Singh’s dismissal. I therefore consider they are not required to be taken into account. Accordingly, I give no weight to the evidence of Mr Yadav, Mr Zappia, Mr Overman or Ms Cubillo as to these matters.
[136] I have considered whether the ten-minute adjournment between receiving Mr Singh’s response to the allegations put to him and the decision to terminate being communicated affects the fairness of Mr Singh’s dismissal. In particular, I have considered whether the period of the adjournment indicates that Mr Singh’s dismissal was pre-determined, and that Crown was simply “going through the motions.” Mr Christie’s evidence is that he listened to Mr Singh’s responses and considered them in the adjournment. 286 He says he considered all the evidence and came to the conclusion that on the balance of probabilities, Mr Singh had failed to follow reasonable management directions on 2 November 2018.287 Under cross examination Mr Christie’s evidence was that he considered all of the available evidence, including Mr Singh’s responses, before any decision to dismiss Mr Singh was made. Further, Mr Christie’s evidence is that having listened to Mr Singh’s responses he did not have confidence that Mr Singh would not repeat his behaviours. He says that Mr Singh did not take ownership of his conduct and did not seem to understand that he is required to follow reasonable direction from his managers. I have accepted that evidence. I am satisfied that no unfairness arises from the period of the adjournment. I am also satisfied that Mr Singh’s dismissal was not predetermined.
[137] Another consideration I have taken into account is that I have found that two of the allegations put to Mr Singh were not made out. The Act requires me to consider whether there was a valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. The fact that some of the reasons for dismissal are not made out does not necessarily affect the fairness or otherwise of a dismissal. In my assessment, this consideration does not have a bearing on Mr Singh’s dismissal given my finding that there were four lawful and reasonable directions given to Mr Singh on the evening of 2 November 2018 with which he did not comply.
[138] Mr Singh was summarily dismissed. The proportionality of the dismissal to the conduct that is the subject of a valid reason is a matter to be considered in connection with section 387(h). Summary dismissal embraces termination of employment arising from a breach of an essential term of the employment contract, a serious breach of a non-essential term, or conduct manifesting an intention not to be bound by the contract in the future. 288 The obligation on an employee to comply with the lawful and reasonable directions of an employer is a fundamental term of the contract of employment. Over a period of more than three hours Mr Singh failed to comply with four lawful and reasonable directions of his employer, including a direction which was given twice that he perform the duties for which he was employed. In my view, Mr Singh’s refusal to comply with these directions repudiated his contract of employment with Crown and justified the summary termination of his employment.
[139] I have considered Mr Singh’s submissions as to the effect he says his employment with Crown has had on his health and his ability to settle on his apartment. These matters did not appear to relate to Mr Singh’s dismissal and accordingly do not render his dismissal for those reasons harsh, unjust or unreasonable.
[140] Finally, I have taken into consideration that Mr Singh has not at any stage, including during the hearing, demonstrated any understanding that it is a fundamental obligation of an employee to comply with the lawful and reasonable directions of his employer. He has steadfastly held to the view that he has been victimised for making a complaint. I consider his behaviour on 2 November 2018 to be not only repudiatory but also baffling and unreasonable.
Conclusion
[141] I have made findings in relation to each matter specified in section 387 as relevant.
[142] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 289
[143] Having considered each of the matters specified in section 387 of the Act, taking into account all of the evidence and based on my factual findings, I am satisfied that the dismissal of Mr Singh was not harsh, unjust or unreasonable.
[144] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Singh was unfairly dismissed within the meaning of section 385 of the Act. The application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
H Singh on his own behalf
J Williamson for the Respondent.
Hearing details:
2019.
Melbourne:
24, 25 and 26 September.
Printed by authority of the Commonwealth Government Printer
<PR718236>
1 Exhibit A9
2 At 23:15:19 to 23:19:38
3 Exhibit R12, CB-7; Exhibit R20, Attachment 3
4 Exhibit R2 at [11]
5 Exhibit A3 at pg. 86-93
6 Exhibit A2 at q. 4(d)
7 Exhibit R19, JC-9
8 Exhibit R7, GW-2
9 Exhibit R7, GW-1
10 Exhibit R7 at [23-30]; Transcript PN2023-2031
11 Respondent’s Final Written Submissions, Appendix A at [1-2]
12 Exhibit A2 at q. 4(d)
13 Exhibit R2 at [11]
14 Statement of Agreed Facts at [10]
15 Exhibit R2 at [6]; Exhibit R3 at [7-8]
16 Transcript PN557
17 Transcript PN557
18 Statement of Agreed Facts at [10]
19 Exhibit A2 at q. 4(c)
20 Statement of Agreed Facts at [12]
21 Exhibit A2 at q. 4(d)
22 Transcript PN630
23 Transcript PN1294; PN1303
24 Exhibit R4 at [5]
25 Transcript PN1391
26 Exhibit R4 at [5]
27 Transcript PN1329
28 Statement of Agreed Facts at [11]
29 Transcript PN511-514; PN1319 - 1329
30 Exhibit A6
31 Transcript PN1373 - 1388
32 Exhibit R12, CB-3
33 Exhibit A6 at 1.5-1.6
34 Statement of Agreed Facts at [11]
35 Exhibit A2 at q. 4(c) at [2]
36 Statement of Agreed Facts at [12-13]; Transcript PN633
37 Exhibit A2 at q. 4(c) at [2]
38 Ibid
39 Transcript PN637
40 Exhibit A2, 4(c) at [3]
41 Exhibit R4 at [7]; Transcript PN1299; PN1434
42 Transcript PN1436
43 Exhibit R4 at [7]; Transcript PN1437
44 Transcript PN1336-1340
45 Transcript PN1437
46 Exhibit R4 at [8]
47 Ibid
48 Transcript PN1438
49 Exhibit R4 at [8]
50 Exhibit R7 at [5]
51 Transcript PN1903
52 Exhibit R7 at [5]
53 Transcript PN1849
54 Transcript PN1850
55 Exhibit R7 at [5]
56 Ibid at [6]
57 Ibid at [7]; Transcript PN1850
58 Exhibit R7 at [8]
59 Ibid at [9]
60 Ibid at [11]; Transcript PN1846-1847
61 Exhibit R7 at [12]
62 Ibid at [19]
63 Ibid at [12-13]
64 Ibid at [14]
65 Transcript PN1850-1851
66 Transcript PN1908
67 Exhibit R7 at [15]
68 Statement of Agreed Facts at [14]
69 See for example Exhibit A2, q. 4(d)A, q. 4(d)B
70 See for example Exhibit A2, q. 4(d)A
71 Ibid, q. 4(d)E
72 Ibid, q. 4(d)A
73 Ibid, q. 4(d)B
74 Exhibit A3, Transcript PN703
75 Transcript PN703
76 Transcript PN1890
77 Statement of Agreed Facts at [15]
78 Transcript PN787-788
79 Statement of Agreed Facts at [20]
80 Exhibit A9
81 Exhibit R8 at [9]; Exhibit R11 at [5]
82 Exhibit A2, q. 4(c) at [4]
83 Exhibit R11 at [5]
84 Statement of Agreed Facts at [21]
85 Exhibit A2, q. 4(c) at [4]
86 Transcript PN759
87 Transcript PN759
88 Exhibit R8 at [9]
89 Exhibit R11 at [7]
90 Exhibit R9 at [4]
91 Exhibit A2, q. 4(c) at [5]; Exhibit R11 at [7]; Exhibit R9 at [6]
92 Statement of Agreed Facts at [24]
93 Transcript PN758; PN821
94 Exhibit A2, q. 4(c) at [6]
95 Transcript PN737
96 Transcript PN737
97 Statement of Agreed Facts at [22]
98 Exhibit A2, q. 4(c) at [6]; Transcript PN841
99 Exhibit A2, q. 4(c) at [6]
100 Ibid, q. 4(c) at [6]
101 Transcript PN837
102 Statement of Agreed Facts at [23]
103 Exhibit A2, q. 4(c) at [6]
104 Exhibit R8 at [12]
105 Exhibit R9 at [6]
106 Exhibit R11 at [9]
107 Exhibit R8 at [12], Transcript PN2607
108 Transcript PN2693
109 Transcript PN2607
110 Exhibit R8 at [12]
111 Agreed Statement of Facts at [28]
112 Exhibit R8 at [12]
113 Ibid
114 Ibid
115 Transcript PN2734
116 Exhibit R11 at [9]
117 Transcript PN2928; PN2966; PN2971-2972
118 Exhibit R9 at [7]
119 Transcript PN2805
120 Exhibit R9 at [6]
121 Ibid at [7]
122 Transcript PN759
123 Exhibit A2, q. 4(d)C
124 Ibid, q. 4(c) at [4]
125 Transcript PN668
126 Exhibit R10 at [5]
127 Exhibit R9 at [7], Exhibit R10 at [6], Exhibit R8 at [14]
128 Exhibit A9
129 Exhibit A2 at q. 4(c) at [6], Transcript PN829
130 Transcript PN727, PN830
131 Exhibit R10 at [6]
132 Statement of Agreed Facts at [26]
133 Exhibit R10 at [6]
134 Transcript PN845
135 Exhibit A2 at q. 4(c) at [7], see also Transcript PN862 -867
136 Statement of Agreed Facts at [30], [31]
137 Transcript PN885; Statement of Agreed Facts at [30]
138 Transcript PN885-887
139 Transcript PN895-900
140 Statement of Agreed Facts at [36]
141 Ibid at [37]
142 Exhibit A2, q. 4(c) at [7]; Transcript PN2650-2677
143 Transcript PN891-893
144 Exhibit A2 at q. 4(c) at [7]; Transcript PN907
145 Transcript PN907
146 Exhibit R8 at [15]
147 Ibid at [15-16]
148 Transcript PN2681
149 Exhibit R8 at [17]
150 Exhibit R8 at [18]
151 Exhibit R9 at [8]
152 Ibid at [9]
153 Ibid at [10]
154 Ibid at [11]
155 Exhibit R10 at [8]
156 Ibid at [9]
157 Ibid at [10]
158 Ibid at [12]
159 Ibid at [13]
160 Ibid at [15]
161 Ibid
162 Ibid at [18]
163 Ibid at [24]
164 Statement of Agreed Facts at [39]
165 Exhibit A9
166 Ibid
167 Exhibit A2, q. 4(c) at [8]
168 Statement of Agreed Facts at [41]
169 Exhibit A2 at q. 4(c) at [8]
170 Ibid at [9]
171 Exhibit A9
172 Transcript PN912
173 Transcript PN922-925
174 Transcript PN935
175 Transcript PN939
176 Transcript PN951
177 Statement of Agreed Facts [40]; Transcript PN955
178 Statement of Agreed Facts [43]; Transcript PN957-962
179 Transcript PN963
180 Transcript PN965
181 Transcript PN966
182 Transcript PN967
183 Transcript PN969-970
184 Transcript PN978
185 Transcript PN979
186 Transcript PN985
187 Transcript PN982
188 Transcript PN982
189 Transcript PN987
190 Transcript PN912
191 Exhibit R8 at [20]
192 Ibid at [20]; Transcript PN2703
193 Exhibit R8 at [22]
194 Transcript PN2753
195 Exhibit R8 at [23]
196 Ibid at [24]
197 Ibid at [25]
198 Ibid at [26]
199 Exhibit R8, ML-2
200 Exhibit R8 at [27]
201 Exhibit A9
202 Exhibit R9 at [12]
203 Ibid at [13]
204 Ibid at [14]
205 Ibid at [15]
206 Ibid at [17]
207 Ibid at [19]
208 Exhibit R10 at [19]
209 Ibid at [20]
210 Ibid at [21]
211 Ibid at [22]
212 Ibid at [23]
213 Exhibit R14
214 Exhibit R15
215 Ibid
216 Statement of Agreed Facts at [51]; Exhibit R12, CB-4
217 Statement of Agreed Facts at [52]
218 Statement of Agreed Facts at [53]
219 Transcript PN1011
220 Exhibit R12 at [11]
221 Ibid at [25]; Transcript PN3099-3100
222 Exhibit R12 at [26]
223 Ibid at [27]
224 Ibid at [28]
225 Exhibit R16 at [7]
226 Transcript PN3191; PN3200
227 Exhibit R16 at [10]
228 Ibid at [11]
229 Ibid at [12]
230 Ibid at [11]
231 Transcript PN3206
232 Transcript PN3206
233 Transcript PN1026
234 Transcript PN1028
235 Statement of Agreed Facts at [54], [55]
236 Sayer v Melsteel Pty Ltd[2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69]
237 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373
238 Ibid.
239 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685
240 Edwards v Justice Giudice [1999] FCA 1836, [7]
241 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]
242 Exhibit R12, CB-7; Exhibit R20, Attachment 3
243 Exhibit R8, ML-2
244 Respondent’s Final Written Submissions at [9]
245 Ibid at [14]
246 Ibid at [14]
247 Ibid at [11]
248 Transcript PN3206
249 Transcript PN135
250 Grant v BHP Coal Pty Ltd[2014] FWCFB 3027
251 Transcript PN1822; PN1849
252 Mann v ACT Health Commission (1981) 54 FLR 23
253 Exhibit R8 at [18]
254 Exhibit R9 at [10]
255 Grant v BHP Coal Pty Ltd[2014] FWCFB 3027 at [130]
256 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
257 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)
258 Ibid
259 (2000) 98 IR 137
260 Crozier v Palazzo Corporation Pty Ltd (t/as Noble Park Storage and Transport) (2000) 98 IR 137, 151
261 Applicant’s Final Written submissions at [2]
262 Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55]
263 Statement of Agreed Facts at [54]
264 Transcript PN1011; PN1022
265 Transcript PN1023
266 Transcript PN1026-1027
267 Statement of Agreed Facts at [54]
268 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75]
269 RMIT v Asher (2010) 194 IR 1, 14-15
270 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7
271 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty Ltd[2010] FWA 8544
272 Applicant’s Final Written Submissions at [2-3]; Exhibit R15; Agreed Statement of Facts at [55]
273 Applicant’s Final Written Submissions at [2-3]
274 Respondent’s Final Written Submissions at [19]; Agreed Statement of Facts at [55]
275 Respondent’s Final Written Submissions at [20]
276 Statement of Agreed Facts at [53]; Applicant’s Final Written Submissions at [4]
277 Applicant’s Final Written Submissions at [4]
278 See also Fair Work Bill 2008 – Explanatory Memorandum at [1542]
279 Respondent’s Final Written Submissions at [25]
280 Applicant’s Final Written Submissions at [8]
281 Exhibit A3
282 Transcript PN382
283 Applicant’s Final Written Submissions at [8]
284 Ibid at [8]
285 Respondent’s Final Written Submissions at [29]
286 Exhibit R16 at [11]
287 Ibid at [12]
288 Ryman v Thrash Pty Ltd[2015] FWCFB 5264 at [27]
289 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6–7]
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