James Pritchard v Timberglen Pty Ltd T/A Mindarie Marina
[2011] FWA 6144
•12 SEPTEMBER 2011
[2011] FWA 6144 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
James Pritchard
v
Timberglen Pty Ltd T/A Mindarie Marina
(U2010/15365)
DEPUTY PRESIDENT MCCARTHY | PERTH, 12 SEPTEMBER 2011 |
Application for unfair dismissal remedy.
Background
[1] Mr James Pritchard (the Applicant) was employed by Timberglen Pty Ltd t/a Mindarie Marina (the Respondent). Mindarie Marina is a resort complex. Within the complex is a microbrewery and hotel operated by the Respondent trading under the name of the Indian Ocean Brewing Company. The Applicant was employed as the General Manager of the Indian Ocean Brewing Company. The Applicant’s employment was terminated on 13 December 2010.
[2] The Respondent initially asserted that the application is frivolous, vexatious and had no reasonable prospect of success and lodged motions regarding those assertions. The Respondent also sought an Order for Security of Costs. I issued an interim decision refusing an Order for the Security of Costs and outlined the procedure to be followed in dealing with the matter. That procedure included the lodging of material and a pre-hearing conference, which I held on 3 August 2011. I did not expressly make a decision regarding the application to dismiss the application as it was not something further agitated by the Respondent at the conference or otherwise. In case there is any doubt about the status of the motion to dismiss that motion is refused.
[3] As there appeared to be matters of fact that were in dispute a hearing was held on 15 and 16 August 2011. Neither party was represented at the hearing.
[4] The termination of the Applicant’s employment was clearly related to his conduct as a person in authority in his dealings and contact with female staff.
[5] The thrust of the submissions on the Applicant’s behalf was that the termination was unfair because the Respondent had not accorded the Applicant procedural fairness. Essentially, he asserts that he was denied any opportunity to respond to allegations about his conduct. This he says was in part due to the Respondent refusing to disclose the identity of the person or persons making the allegations and in part due to not being provided with the specific nature of the complaints and allegations made against him. Because of this he says that he was not given an opportunity to respond to the allegations. The Applicant also asserts that the Respondent did not comply with their anti-harassment policy and procedure.
[6] The Respondent asserted that the Applicant was involved in conduct that they considered was sexual harassment of a number of female employees. They claimed that the Applicant had been warned about his conduct and behaviour, but it continued. They also argued that they had no option but to terminate his employment because to not do so, they would be at risk of being vicariously liable for the Applicant’s conduct.
Consideration
[7] There were a range of allegations made by various staff about the Applicant’s conduct and behaviour. All of the staff making the allegations were female and all were staff that, directly or through other managers indirectly, reported to him. There is no doubt the Applicant held authority over and responsibility for those staff that made the allegations.
[8] The Respondent called five witnesses. Each of those witnesses was female. The Applicant endeavoured to establish that the complaints and allegations were a combination of solicitation by the Respondent to gain information in order to justify its decision and some form of conspiracy by staff that were disgruntled with his management and were retaliating with false allegations. I do not accept these contentions by the Applicant.
[9] Whilst some of the complaints made by some of the witnesses were minor, there were two issues that were common and which I consider serious complaints. The first is that the Applicant consistently and persistently made physical contact with females. The second common complaint is that the Applicant was involved in inappropriate behaviour at a staff function before Christmas. This complaint relates to an incident which involved the Applicant and a young female staff member participating in what was referred to as “body shots”. Body shots apparently involve a person licking salt off someone’s body part and then sucking a lime from the other person’s mouth.
[10] With respect to the first range of complaints the conduct included hugging, kissing on the cheek and touching females around the hips or waist behind the bar, usually as he moved past them. The Applicant asserted that some of the conduct might have occurred but that it was either unavoidable because of the confines within which staff worked behind the bar or that it was in the context of a manager supporting and encouraging staff.
[11] I do not consider that the physical contact that the Applicant made with female staff was vulgar or on any single occasion serious.
[12] I find that the physical contact behind the bar occurred and occurred frequently. I also find that it was avoidable and inappropriate. Due to the regularity of the conduct I consider it to be serious.
[13] I also find that other physical contact such as hugging occurred and was fairly regular. I find that the physical contact was unwelcomed. It was therefore inappropriate.
[14] It is insufficient in my view for the Applicant to assert that in the context of the nature of his role, the environment of the type of workplace and the confines of the work areas that the behaviour was acceptable. He was in a position of significant authority and control. He therefore had a responsibility to ensure that all staff were confident that they would not be subjected to any avoidable or unwelcome physical contact.
[15] The incident involving body shots was instigated by the Applicant and involved a female staff member whom he had authority over. Whilst the incident did occur outside of working hours and at a Christmas function, the time and place of the incident does not detract from the responsibilities that the Applicant had at that time. The incident may have been a moderate example of other forms of the practice but it was nevertheless indiscrete and irresponsible.
[16] I find that the incident of the body shots did occur, it was at the Applicant’s instigation and that it was inappropriate conduct.
[17] These two issues, namely the body shots incident and the regular physical contact with female staff, separately and taken together were valid reasons for termination of the Applicant’s employment.
[18] The Applicant asserted that the allegations made against him were not provided to him in any understandable detail and consequently he was denied natural justice as a result of being unable to make any response to the allegations.
[19] I find that the Respondent did notify the Applicant of the conduct that led to his termination of employment. I accept that the Applicant was not provided with details regarding the allegations.
[20] The Respondent seemed to assert that the details were not provided because they wanted to protect those making allegations and presumably also did not wish to protract any investigation and inquiry, as this might disrupt harmony at the workplace. I do not accept this as a justifiable reason to not provide the Applicant with sufficient particularity that he is able to respond and explain any conduct or behaviour that was the subject of complaint or examination. I therefore find that the Applicant was not given an opportunity to respond to the reasons for his dismissal.
[21] There is no evidence of any unreasonable refusal by the Respondent to have a support person present during discussions relating to the dismissal.
[22] There was no complaint by the Respondent about the general performance of the Applicant although it could be asserted that his conduct in the performance of his duties and responsibilities as manager was a matter relating to his performance. In that regard the Applicant had previously been warned about his physical contact with female staff and I so find.
[23] I do not consider the size of the Respondent enterprise had any impact on the procedures followed or the absence of dedicated human resource expertise.
[24] Other matters that I have considered include the nature of the industry and the work environment of the employer. However, in my view those issues provide no real mitigation regarding or excusing the Applicant’s conduct.
[25] I have also taken into consideration the assertion by the Applicant that the Respondent did not comply with their obligations under their own policies and procedures. I do not consider in the overall context of the matter that even if the Respondent did not follow their own procedures it is a significant factor in my overall consideration of the issues involved here.
[26] I have also had regard to the effect the termination has had and may continue to have on the Applicant and his circumstances and particularly the possibility of a tarnishing of the Applicant’s reputation. In particular, I consider the conduct and behaviour to be matters of poor managerial judgement and practices engaged in by the Applicant rather than anything more sinister.
Decision
[27] I am not satisfied that the termination of the Applicant’s employment was harsh, unjust or unreasonable. I am therefore not satisfied that he was unfairly dismissed. The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Pritchard on his own behalf.
Mr B Jones on behalf of the Respondent.
Hearing details:
2011.
Perth:
August, 11 & 16.
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