James Toppinen v Cooroy RSL & Citizens Memorial Bowls Club Inc
[2012] FWA 6140
•23 JULY 2012
[2012] FWA 6140 |
|
DECISION |
Fair Work Act 2009
s.394—Application for unfair dismissal remedy
James Toppinen
v
Cooroy RSL & Citizens Memorial Bowls Club Inc
(U2011/12520)
DEPUTY PRESIDENT SMITH | MELBOURNE, 23 JULY 2012 |
Termination was harsh; employment and club membership; 1 month compensation awarded.
INTRODUCTION
[1] Mr James Toppinen states that he was employed by the Cooroy RSL & Citizens Memorial Bowls Club Inc (the Club) on 19 February 2001 and was terminated harshly, unjustly and unreasonably on 21 September 2011 which took effect from 5 October 2011. It matters little at this stage, but I note in passing that the Club argues that he was employed from 3 February 2002.
[2] Mr Toppinen seeks compensation as he believes that reinstatement would be inappropriate.
[3] At the commencement of the matter before me on 14 February 2012, I conferred with the parties in accordance with ss.398 and 399 of the Fair Work Act 2009. As a result of that consultation it was agreed that I would firstly see if the matter could be resolved by way of a conference which explored options. Regrettably this did not produce an agreed outcome and it was decided that a hearing would be the most effective and efficient way to resolve the matter.
[4] Mr Toppinen was represented, by permission, by Mr K. Watson of Counsel and the club was represented by Mr E. Porter from Clubs Queensland.
[5] It is said that Mr Toppinen’s employment was terminated for “continuing to breach staff rules associated with the way he performed his job, his continual blaming of management when comments were made about the condition of the greens, his continual abusive behaviour to fellow staff and clients of the club and his continued refusal to follow directions and actions plans agreed upon”. 1
[6] It is appropriate that consideration is given to whether or not Mr Toppinen was a person protected from unfair dismissal pursuant to s.382 of the Act. It is submitted that the Registered and Licensed Clubs Modern Award 2010 applies and no issue is taken with this submission. I find that Mr Toppinen is a person protected from unfair dismissal.
BACKGROUND AND EVIDENCE
[7] Mr Toppinen was first engaged by the Cooroy Bowls Club as a casual green-keeping employee. On 1 January 2006 the Bowls Club amalgamated with the Cooroy RSL and it became the Cooroy RSL & Citizens Memorial Bowls Club Inc. Mr Toppinen maintained his employment with the merged entity. The matter is further complicated by the fact that Mr Toppinen is a member of the Club and socialised in the Club regularly.
[8] A number of witnesses were called to give evidence. For the applicant they were:
● The applicant.
● Mr N. Brown—who dealt with an allegation that the applicant disparaged the club.
● Mr S. Robinson—who dealt with conditions of the greens and his view that the applicant was not responsible for any deterioration.
● Ms C. Roberts—who was an employee of the club and dealt with her interaction with the management of the club and the conduct of members on the greens which she believed impacted on the greens.
● Ms A. Mickklesson—who gave evidence that it was not the applicant which referred to management as “those bitches” but another person. She also gave evidence as to the state of the greens.
● Mr J. Mickklesson—who gave corroborative evidence to that given by his wife.
● Mr A. Platt—who gave evidence stating that he had never heard the applicant make inappropriate remarks and that the state of the greens was not attributable to the applicant.
● Mr A. Whitton—who gave evidence about the applicants alleged inappropriate behaviour and that he had in fact referred to management as a “bunch of bitches”.
● Mr W. McGrath—who gave evidence about his role on the Board of Management; his view that the applicant was a good greens-keeper and his long association with the applicant.
[9] For the Club the following persons gave evidence.
● Ms S. Boulton—who acted as the Human Resources Manager. Ms Boulton gave evidence about the times she had spoken to the applicant about his poor attitude, language, behaviour and performance as a staff member as well as that of a club member. Ms Boulton detailed the complaints she had received and the nature of those complaints.
● Mr I. Schuback OAM—who was a former Australian Coach and ABC commentator, gave evidence in relation to his use of the club for training purposes and the conduct of the applicant.
● Ms S. Smith—who gave evidence about the conduct of the applicant both in his role as an employee and member of the Club.
● Ms K. Marriott—was the Secretary Manger of the Club. Ms Marriot gave evidence about the applicant’s conduct and behaviour. It was also the evidence of Ms Marriott that at a meeting of the Board on 19 September 2011 she responded to the concern of the Board by advising that she would terminate the employment of Mr Toppinen. Ms Marriott’s account of the decision of the Board and her response was not supported by the evidence of Mr McGrath who was also at the meeting.
● Mr B. Mahoney—who gave evidence about the behaviour of Mr Toppinen and his inappropriate language.
● Ms Y. Patterson—who gave evidence about the behaviour of Mr Toppinen and his inappropriate language.
[10] At the conclusion of all the evidence it was clear that a decision was taken by Ms Marriott to terminate the employment of Mr Toppinen and this was carried out without giving him the opportunity to respond to any the allegations against him. The evidence of both Ms Boulton and Ms Marriott are clear on this point.
[11] It was acknowledged by the club that this was indeed the case. 2
THE LEGISLATION
Section 387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.
[12] As stated earlier, the Club did not comply with s.387(c) and this is an important matter.
CONCLUSION
[13] It can be seen from the number of witnesses gathered by each side that this was not only an employment dispute but a community dispute within the Club. It has been divisive and very difficult for all concerned. A full recital of the evidence would only add to the divisions within the Club.
[14] I turn firstly to consider whether or not there was a valid reason for Mr Toppinen’s termination of employment. Much of the evidence called by Mr Toppinen was from persons who had never heard him behave in the manner complained of by the Club. The evidence by the persons called by the Club was firsthand experience of the attitude and language used. However this too varies between times when Mr Toppinen was on duty and times when he was at the Club as a member; although, many of his comments were related to concerns in his capacity as an employee of the Club.
[15] Mr Toppinen had been warned about his conduct although it was said that those warnings did not make it clear that his employment was in jeopardy if the behaviour complained of was not corrected. Again, the warning process was complicated by the relationships he had in the Club and the interaction between being an employee and club member. It is said by Mr Toppinen that if his conduct as a member was of concern, then the Club could have moved against him (as a member) under the rules.
[16] At one stage Mr Toppinen did not attend the Club because he did not want to jeopardise his employment as a consequence of these complaints.
[17] Whether or not there was a valid reason is finely balanced. A good deal of the evidence relates to his conduct in his capacity as a member, however there is also direct evidence that he made uncharitable remarks about his employer whilst on the property of his employer. In addition, his interaction with members of staff and the Secretary Manager together with the Human Resources Manager was less than optimal. Given the evidence of Mr McGrath about the Board meeting and the ambiguous nature of the authority to terminate Mr Toppinen, I find that there was no valid reason.
[18] Mr Toppinen was notified of the reason but not given an opportunity to respond. The Secretary Manager had made a decision to terminate the employment of Mr Toppinen before he attended the meeting. It is true that there were earlier warnings and on one warning the notation was made that a repeat would culminate in termination of employment. Whilst there is little doubt that this was said, it does not absolve the employer from the requirement found in s.387(c). There is no issue as to s.387(d) however in relation to s.387(e) I am satisfied that Mr Toppinen was previously warned about his behaviour.
[19] The club is not a large employer and it does have access to professional human resources advice.
[20] There are no other matters which I consider to be relevant.
[21] I confirm the finding I made on 15 February 2012 that the termination was harsh. 3 At that time I invited that the parties to address me on remedy. Mr Toppinen does not seek reinstatement and given the history of this matter I find that it is inappropriate to make such an order. The Club made a submission in late March. In that submission it drew attention to difficult financial circumstances of the club; the length of Mr Toppinen’s employment (2002 until 2012); the amount of remuneration that he may have earned given his attempts at running his own carpet cleaning business; his conduct and the payment of pro-rata long service leave which, but for the finding, he would not have been entitled to receive ($3,774.70).
[22] The Club submitted that he should not be given any other compensation.
[23] Mr Toppinen argued that he should receive the maximum of 6 months amounting to $9,900.
[24] Section 392 provides the basis upon which a calculation of compensation should take place.
[25] From the evidence, I accept that the Club’s financial situation is not good although there is no argument about incapacity to pay. This dispute with Mr Toppinen, which has impacted upon the community of the Club, may have also impacted its financial position. There was some evidence about resignations.
[26] I am satisfied that Mr Toppinen has sought to mitigate his loss by starting a carpet cleaning business but his earnings at the time were minimal and no prediction can be safely made as to the future.
[27] Finally, any other matter that FWA considers relevant. In this connection, the direct evidence of the witnesses called by the Club would lead to a conclusion that Mr Toppinen’s conduct was inappropriate with little likelihood of improvement. Because of the difficult employee/member relationship of Mr Toppinen with the Club he did not appear to take seriously the impact of his personal behaviour. Whilst it is true that the matter could have been dealt with under the rules of the Club in relation to member conduct, this was difficult as loyalties were divided. In this ‘political environment’ the managers of the Club were between a rock and a hard place.
[28] Given the processes of the Club and the history of Mr Toppinen’s conduct and warnings, I am of the view that his employment would not have lasted longer than a month. He did not appear to accept that any criticism was warranted.
[29] I will issue an order awarding one month’s salary based upon his roster at the time of dismissal. This order is attached to this decision.
DEPUTY PRESIDENT
Appearances:
K. Watson of Counsel for the applicant.
E. Porter from Clubs Queensland on behalf of the Cooroy RSL & Citizens Memorial Bowls Club Inc.Hearing details:
2012.
Brisbane:
February, 14 and 15.
Further written submissions:
E. Porter—23 March 2012.
1 Submissions of Respondent at paragraph 25
2 See transcript PN2218—230
3 Transcript PN2242
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