Luke Ciaron Brennan v Matilda Bay Brewing Co Trading as the Brass Monkey Pub and Brasserie

[1995] IRCA 635

C A T C H W O R D S

INDUSTRIAL LAW -  TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - whether there was a VALID REASON for termination - HARSH, UNJUST OR UNREASONABLE

INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170EDA, 170DC, 170DE

LUKE CIARON BRENNAN  -v-  MATILDA BAY BREWING CO TRADING AS THE BRASS MONKEY PUB AND BRASSERIE - WI95/1758

BEFORE:                 R D FARRELL JR

PLACE:  PERTH

DATE:  27 NOVEMBER 1995  

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/1758

BETWEEN:  LUKE CIARON BRENNAN
  -          Applicant

AND:  MATILDA BAY BREWING   CO. TRADING AS THE   BRASS MONKEY PUB AND   BRASSERIE
  -          Respondent

MINUTE OF ORDERS

BEFORE:                 R D FARRELL JR

PLACE:  PERTH

DATE:  27 NOVEMBER 1995

THE COURT ORDERS THAT:

1. The application be dismissed.

NOTE:           Settlement and entry of Orders is dealt with by Order 36 of the   Industrial Relations Court Rule

IN THE INDUSTRIAL RELATIONS    )
COURT OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )          No. WI 95/1758

BETWEEN:  LUKE CIARON BRENNAN
  -          Applicant

AND:  MATILDA BAY BREWING CO   LTD TRADING AS THE BRASS   MONKEY PUB AND BRASSERIE
  -          Respondent

BEFORE:                 R.D. FARRELL JR

PLACE:  PERTH

DATE:  27 NOVEMBER 1995

REASONS FOR JUDGMENT

This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, Luke Ciaron Brennan (“Mr Brennan”), by the respondent, Matilda Bay Brewing Co Ltd trading as the Brass Monkey Pub and Brasserie (“the Brass Monkey”). Reinstatement is not sought.

The application was heard with another application for compensation under Section 170EA of the Act, arising from the termination of the employment of Nicholas Norman Venus (“Mr Venus”) by the Brass Monkey arising out of largely the same circumstances as this application. These reasons should be read with the reasons for judgment in that matter.

Ms Frayne, who appeared for Mr Brennan, contends that there was no valid reason for Mr Brennan’s dismissal, contrary to Section 170DE (1) of the Act, and that in any event his dismissal was harsh, unjust or unreasonable, contrary to Section 170DE (2) of the Act.

Mr Sher, who appeared for the Brass Monkey, contends that the Brass Monkey terminated Mr Brennan’s employment for a valid reason connected with his conduct, and that, having regard to Mr Brennan’s conduct, the termination was not harsh, unjust or unreasonable.

Ms Frayne further contends that Mr Brennan was not given the opportunity to defend himself against the allegations made relating to his conduct, contrary to Section 170DC of the Act. Mr Sher contends he was given that opportunity.

Mr Brennan’s Employment History

Mr Brennan began working as a waiter in the Brasserie section of the Brass Monkey in June 1994, becoming Brasserie Supervisor in October 1994 and a duty manager in January 1995. The managerial structure of the Brass Monkey is discussed in my reasons for judgment in relation to Mr Venus’ application.

At the end of May 1995, a new Manager was placed in control of the Brass Monkey - Mr Christopher Batten (“Mr Batten”). There was some evidence that Mr Brennan and Mr Batten already knew each other and had a good relationship.

I have discussed in my reasons for decision in relation to Mr Venus’ application the circumstances in which a case of Peel Estate Shiraz was ordered, delivered and partly consumed. I have also canvassed the interaction between Mr Hawkins, another duty manager, and Mr Brennan and Mr Venus, and the manner in which the matter eventually came to the attention of Mr Batten.

Mr Brennan’s Interview and Dismissal

On the evening of Friday 9 June 1995, having come in to the Brass Monkey of his own volition when not rostered, Mr Brennan was asked to come to Mr Batten’s office. When he entered the office, Mr Batten pointed at the remaining bottles of Peel Estate Shiraz and asked him to explain. Mr Batten went on to tell him he was in breach of company policy by taking stock for his personal consumption and ordering it using the company name. He asked Mr Brennan what he had to say.

Mr Brennan says he then recounted to Mr Batten how the bottles had been acquired and distributed. He says he told Mr Batten he was unaware of having not complied with any policy or procedure.

Mr Batten says Mr Brennan admitted that the wine had been purchased for the personal use of he and Mr Venus, and that he had removed several bottles without paying for them.

Mr Brennan says that when Mr Batten accused him of acting covertly to commit a crime, he tried to assure Mr Batten that there had been no attempt to conceal their activities. Mr Batten denies that he made this allegation.

Mr Batten then told Mr Brennan that he was suspended and had until Monday 12 June 1995 to give him a “better excuse”.

Mr Brennan responded that he had nothing to add. Mr Batten says Mr Brennan admitted he had done the wrong thing, and “pleaded for leniency”. Mr Brennan says he apologised if he had done something wrong. Mr Brennan asked to be told that night what was going to happen to him, rather than wait the whole weekend.

Mr Batten agreed to speak with Mr Brennan later that evening.

Mr Batten contacted Mr Trimbole, the Manager of Matilda Bay Brewing Company Limited, and discussed the matter. Mr Trimbole told him he would have to act consistently with respect to all employees involved.

Mr Batten went to Mr Brennan’s home in Maylands some hours later, and told Mr Brennan he was dismissed. Mr Batten advised Mr Brennan he accepted that there had been no attempt to deceive or defraud the Brass Monkey.

Was There A Valid Reason For Dismissal Connected With Mr Brennan’s Conduct?

Mr Brennan claimed not to be aware of a general “no-credit” policy.

Based on a consideration of all the evidence, and accepting as I do the evidence of Mr Hawkins and Mr Hopley, I find that the Brass Monkey had a policy in place to the effect that no credit was to be extended to staff or to customers. I find that this policy applied to Mr Brennan, and I find that Mr Brennan was aware of this policy. Unlike Mr Venus, Mr Brennan was not in a relatively autonomous section of the Brass Monkey, and it is even less plausible that he could have performed at a managerial level while remaining ignorant of such a policy. He admitted in evidence to being aware in general terms of the “chef incident” and its epilogue, detailed in my reasons for judgment relating to the application of Mr Venus. I also accept the evidence of Mr Hawkins concerning  their discussions in the week before the dismissal.

I am satisfied that the reason for Mr Brennan’s dismissal was his breach of the Brass Monkey’s “no credit” policy, and that this was a valid reason for dismissal relating to his conduct.

Was the Termination Harsh, Unjust or Unreasonable, Having Regard to Mr Brennan’s Conduct?

Mr Brennan is better placed than Mr Venus to argue that it may have been harsh, in all the circumstances, for the Brass Monkey to have dismissed him, notwithstanding his breach of the policy. It was apparent from the evidence of Mr Batten that the decision gave him more difficulty as well, though obviously their personal relationship would have contributed to this.

The credit was extended to Mr Brennan by Mr Venus - Mr Brennan did not extend it to himself. It was somewhat understandable for Mr Brennan to let Mr Venus take the lead in deciding how they would go about ordering and paying for the wine.

However, Mr Brennan was a member of staff at managerial level, who was on some occasions responsible for the entire hotel if the manager was absent. As I observed in my reasons for judgment in Mr Venus’s case, while I accept that not every business would take such a strict view of stock control and credit control, it is clear that the Brass Monkey did take that view, and that Mr Brennan knew they took that view. He could not divest himself of responsibility for the decision to accept credit, contrary to the Brass Monkey’s policy, particularly given his managerial status.

Section 170EDA (1) (b) places the onus on Mr Brennan to prove that, having regard to his conduct, his termination was nevertheless harsh, unjust or unreasonable and therefore contrary to Section 170DE (2). After a consideration of all the circumstances, and not without difficulty, I have found on balance that I am not satisfied that the Brass Monkey’s decision to dismiss was harsh, unjust or unreasonable.

Was Mr Brennan Given the Opportunity to Defend Himself?

I am satisfied that the breach of the credit policy was raised at the Friday interview and that Mr Brennan was given an opportunity to explain the breach of the credit policy. He chose not to take advantage of the weekend to consider his response. He has never denied that he removed the wine before it was paid for.

I am satisfied therefore that the Brass Monkey complied with the requirements of Section 170DC.

Conclusion
For the above reasons I will order that the application be dismissed.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of Judicial Registrar R D Farrell.

Associate

Date:

Counsel for the applicant:                  Ms E Frayne
Solicitors for the applicant:                E H Frayne

Counsel for the respondent:               Mr J L Sher
Solicitors for the respondent:             Corrs Chambers Westgarth

Hearing date:        11 & 12 October 1995
Judgment date:     27 November 1995