Lynette Steele v Coffs Ex-Services Memorial and Sporting Club Ltd

[2011] FWA 2012

[2011] FWA 2012

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Lynette Steele
v
Coffs Ex-Services Memorial and Sporting Club Ltd
(U2010/11958)

DEPUTY PRESIDENT SAMS SYDNEY, 20 APRIL 2011

Application for relief from unfair dismissal - inappropriate conduct of employee - history of such conduct - valid reason for dismissal - no procedural defects - dismissal not harsh, unreasonable or unjust - application dismissed.

[1] On 17 August, 2010, Ms Lynette Steele (‘the applicant’) was dismissed from her employment as a Food, Beverage and Gaming Attendant at the Coffs Ex-Services Memorial and Sporting Club Ltd (‘the Club’) in Coffs Harbour, New South Wales. The applicant had been employed as a casual employee at the Club since November 1987 and as a full time employee since March 2007. The reason for the applicant’s dismissal was an allegation of inappropriate conduct in the workplace on 6 August 2010. This reason was identified in a suspension letter from the respondent’s Human Resources Manager to the applicant on 9 August 2010. The letter was expressed as follows:

You are advised that you are hereby suspended (with pay) from 9 August 2010 whilst the Club considers what action to take in relation to an alleged incident that occurred on 6 August 2010. Such action may include dismissal.

You are further advised that you will be provided with the opportunity to answer and respond to these allegations.

Reason: Serious Misconduct - Engaging in alleged repeated instances of inappropriate conduct towards a fellow staff member within the earshot of customers in the Legends Bar area, despite having previously been advised of the need to maintain a high level of customer service standard as detailed in the Staff Handbook.

Failure to immediately notify Club Management of an injury sustained at work in accordance with OH & S Legislation and Club Procedures as detailed in the Staff Handbook.

Failure to immediately notify Club Management of a serious incident, namely an alleged assault.

You are requested to attend a meeting with a witness of your choice, who may be a Union Representative or another person, to be held on Friday, 13 August 2010 at 09:30am at C. ex Coffs, 1 Vernon Street, Coffs Harbour (pursuant to Part 9 Clause 64.4 of the C. ex Group Union Collective Agreement).

Yours faithfully.

Lorraine Christopher

Human Resources Manager

[2] It is to be observed that the second and third allegations in the above letter were not pressed, either at the disciplinary interview (actually held on 17 August 2010 due to the applicant’s unavailability) or during these proceedings. At this juncture, it is relevant to note that the applicant had received a written warning on 29 April 2009 for “Damaging the good name of the Club in public through offensive use of language defaming the quality of the product.” She had also received a final written warning on 12 March 2010 for “Using inappropriate language in the Legends Bar.” In addition, the respondent’s files record at least 18 other written warnings from November 1996 - March 2010 for various transgressions, including poor punctuality, breaches of occupational health and safety requirements and inappropriate behaviour.

[3] On 27 August, 2010, the applicant’s Union, the Liquor, Hospitality and Miscellaneous Union - Liquor and Hospitality Division (‘the Union’), filed an application on the applicant’s behalf, for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (‘the Act’). The application was unable to be resolved at conciliation on 17 September 2010 and was subsequently allocated to me for an arbitration hearing in Coffs Harbour. At the hearing, Mr C Acev represented the Union and the applicant, and Mr G Arnold, from Clubs NSW, represented the respondent.

[4] At this point, I note that the applicant was a person protected from unfair dismissal (s 382 of the Act) and that she was dismissed for the purposes of s 386 of the Act. The task of the Tribunal is to determine whether the applicant was unfairly dismissed in that her dismissal is claimed to have been ‘harsh, unjust or unreasonable’ (s 385 of the Act). It should be emphasised, from the outset, that notwithstanding the terms of the suspension letter, the respondent did not dismiss the applicant for serious misconduct. In these circumstances, the onus of proof as to establishing the misconduct does not shift to the respondent: see Pastrycooks Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-84.

THE EVIDENCE

[5] The following persons provided written and oral evidence in the proceedings:

For the applicant

Ms Lynette Steele - Food, Beverage and Gaming Attendant

Mr Peter Burles - Union Organiser

Ms Janet Southcott - Food, Beverage and Gaming Attendant and Union Workplace delegate

For the Club

Ms Monica Garvin - Food, Beverage and Gaming Attendant

Mr David Ellis - Food, Beverage and Gaming Attendant

Ms Tegan Keft - Food, Beverage and Gaming Attendant

Mr Jeff Cox - Operations Manager

Ms Lorraine Christopher - Human Resources Manager

The Applicant’s version of events of the incident on 6 August 2010

[6] The applicant claimed that she arrived for work at 3:30pm on 6 August 2010 in a cheerful mood and inquired why the bowls trolley (a portable bar from which drinks are purchased by bowlers during the day) had not been brought in from outside in the bowls area. The applicant was not “too happy” that she was required to bring the bowls trolley back into the Club, as it was a real effort for her (due to her small stature) to bring it in over an uneven floor. She also had to ring up the drinks sold on the earlier shift. When she expressed her annoyance to another staff member, Mr David Taylor, he and another employee, Mr David Ellis, made repeated comments in front of other staff and patrons about her being on “drugs or something.” The applicant said she found these comments extremely offensive and walked off. The applicant then discovered that the till in her work area could not be used and she asked Mr Taylor about the problem. He said he didn’t know what had happened. She then reported the problem to the Duty Manager.

[7] The applicant said that she then picked up some glasses from around the bowling greens and went to wash them in the washing area. Mr Taylor had then followed her in and made a comment about ‘taking it’, (the earlier conversation) upstairs. He then grabbed her forearms. He pushed her, at least twice, against the door of the cool room. Her back hit the steel surround of the lock of the door. The applicant claimed another employee, Ms Monica Garvin, saw what had happened.

[8] The applicant continued to work her full shift, but the pain in her back got progressively worse. She reported the assault to the Duty Manager, Karen Hacking, who asked if she was ‘okay’. The applicant said she was reluctant to report the incident because she had been unfairly accused of other incidents and felt the Club would not believe her. Two days later the applicant claimed she was harassed by another employee, Bill Windsor, who was a friend of Mr Taylor. He had accused her of lying about the assault. She became very upset and started crying. After completing her shift that day, she made a statement to the Police over the assault by Mr Taylor on 6 August 2010.

[9] In cross-examination, the applicant accepted that she was upset over the bowls trolley and had spoken loudly, but not aggressively, to Mr Taylor. She agreed that she had not asked for assistance to bring the trolley in. While the trolley is on wheels, it requires a person to drag it. She claimed to have raised the matter with the Occupational Health & Safety Committee over 12 months ago. The applicant denied loudly abusing Mr Taylor, despite three witnesses who said she had. She had not sworn or slammed things and had not been aggressive. She denied that Mr Taylor had merely pulled her aside to calm her down.

[10] The applicant deposed that Mr Taylor and Mr Ellis had said, “You’ve been baking ‘cookies’, you’ve come to work and you’re off your head!” They had said it a few times over about five minutes. She believed they had just started to hassle her for no reason. She was upset that they were inferring she was a drug addict in front of other staff and patrons. The applicant denied that she had been very open in the workplace about “baking cookies” (meaning baking cookies containing marijuana.) The applicant claimed that “she had never mentioned taking drugs to anyone at work.” This was why she was very offended by Mr Taylor’s and Mr Ellis’ comments. In addition, she denied that she and Mr Taylor had been good friends.

[11] In re-examination, the applicant insisted that in the conversation with Mr Taylor, she had never introduced the topic of drugs. She had never said anything about “baking cookies” to other employees, and had not shown photos of herself taking drugs on an overseas holiday. She claimed it was Mr Taylor who was very aggressive and loud. She said that Mr Taylor was a foot taller than her and had only been half an arm’s length away from her when he assaulted her.

The Respondent’s evidence as to the incident

Mr David Ellis

[12] Mr Ellishas been employed by the Club for 10 years. He deposed that on the 6 August, 2010, when the applicant arrived for her shift, she appeared distracted and was not her usual happy self. He had heard her talking loudly in the Legends Bar area to Mr Taylor. She was very loud, abusive and argumentative. Her tone and volume were distracting to other staff and he believed she would have been heard by customers in the area. Mr Ellis said he discussed her attitude with another employee, Ms Keft, and they both agreed the applicant was behaving inappropriately.

[13] In oral evidence, Mr Ellis deposed that when he spoke to the applicant on 6 August, he did not mention ‘drugs,’ but asked “have you been baking?” He made this comment as a result of her behaviour. He had had similar conversations with the applicant, many times over the last 10 years. She had appeared to have a little chuckle, when he had asked her on this occasion. She was certainly not upset or horrified. Mr Ellisclaimed that the applicant had often talked openly about “baking cookies.”

[14] In cross-examination, Mr Ellissaid he was about 10 - 15 metres away when he heard the applicant’s argument with Mr Taylor. The applicant has a distinctive voice and he could hear her saying something about the till and the bowling area. She was throwing accusations around and Mr Taylor was trying to calm her down. All he could hear was the applicant’s loud voice and abusive language. Mr Ellisdeposed that he did not say “what drugs are you on today Lyn?” Mr Ellis was not aware of any further exchanges between the applicant and Mr Taylor, because he had work to do in the TAB area. He did not report it to management, because everyone went back to work. Mr Ellissaid that the next day, the applicant had told him she had been assaulted and he had no idea that an assault had taken place. Mr Ellissaid that he heard nothing at all coming from the cool room because he had been in the TAB area.

[15] Mr Ellisdeposed that he did not think he could work with the applicant again after all that had happened. Mr Ellisagreed that in her summary of his interview, Ms Christopher had not mentioned him saying that the applicant had been loud, abusive and argumentative. The summary had only mentioned an argument with Mr Taylor. Mr Ellis also agreed that he was unaware of any customers complaining about the applicant’s behaviour on that day.

[16] In 10 years of working with the applicant, Mr Ellis claimed that he had heard her yell out to customers and raise her voice on other occasions, when it was not necessary. He believed the applicant had ‘overstepped the boundary’ on many occasions. However, he had not reported her, nor had he reported her about the drug conversations. These comments were made in a joking and friendly manner.

Ms Tegan Keft

[17] Ms Kefthas been employed by the Club since 26 June 2010. On 6 August 2010, she was counting the till in the TAB area with Mr Ellis,when the applicant arrived for work. The applicant appeared to be “really cranky, slamming doors and banging things.” Ms Keft had felt uncomfortable. She heard her continuing to speak in a loud manner and heard her say “well it’s bloody filthy.” Ms Keftbelieved it wasn’t so much the words which were said, but the angry and abusive tone of the applicant’s voice. It left her feeling uneasy and uncomfortable. She and Mr Ellishad talked about the applicant’s continued loud and abusive behaviour, as other staff and customers could obviously hear and see her actions.

[18] Ms Keft said that when she had moved the bowls trolley herself, she had had no difficulty doing so. However, she acknowledged that she was taller and larger than the applicant. She said there is only one small hump at the doorway which is easily manoeuvred. Ms Keft accepted that whoever takes the trolley out, usually brings it back in. There is no till on the trolley, but drinks are written on a clipboard and rung up later. She did not believe it was annoying if someone else had to do it. Everyone lends a hand if things are busy.

[19] In further evidence, Ms Keftsaid that on 6 August, the applicant was not physically slamming doors, but she was slamming other things. She was obviously upset about something and taking it out on her job. Ms Keft heard her say “who’s looking after the bowls area?” and she assumed she was talking to Mr Taylor. She said “it’s bloody filthy” and she was going to call a supervisor. Ms Keft did not hear Mr Taylor make any drug references and had not heard Mr Ellisspeaking to the applicant. When she and Mr Elliswere asking each other what was wrong with the applicant, she heard the applicant say “stop pushing me.” At this point the applicant was in the ‘back of house’ area which was just around the corner in another room. Ms Keftdeposed that she could not work with the applicant again, as she would feel uncomfortable. In re-examination, Ms Keftsaid that when she said the applicant was slamming doors, she had meant the till drawers.

Ms Monica Garvin

[20] Ms Garvin has been employed by the Club for three and a half years. She was present when the applicant arrived for work on the 6 August. Ms Garvinsaid that the applicant was preoccupied with her recent purchase of a computer, and after she had come back to the bar area she was angry and had said the till was missing from the Bowls Bar. She questioned Mr Taylor and accused him of not replacing the missing till or fixing the problem. She used loud, abrupt and confrontational language which was heard by other staff and customers. Ms Garvinsaid the applicant behaved like this for about half an hour. Ms Garvinhad discussed her behaviour with other staff.

[21] In oral evidence, Ms Garvindeposed that she had observed Mr Taylor touching the applicant, when he was trying to calm her down, because she was very emotional and quite angry. Ms Garvinsaid it was common knowledge, at the Club, for the applicant to talk about ‘baking cookies’ with other staff members, although she had not personally had such a conversation with her. However, she had overheard such conversations between the applicant and other staff members.

[22] In cross-examination, Ms Garvin said that Mr Taylor had been very close to the applicant during their conversation; he had his arms on her shoulders and had her against the cool room door. Ms Garvin accepted that he was in an intimidating position. She did not know if Mr Taylor had followed the applicant into the cool room area, as she was serving customers at the time. Nevertheless, she believed the incident was ‘out of the ordinary’. She had felt uncomfortable with what had occurred, but did not want to get involved. Ms Garvin deposed that she did not know what preceded the incident, although there had been an argument in the bar before that. However, Ms Garvinsaid she did not hear anything said by Mr Taylor about drug use. Ms Garvinclaimed that she would feel uncomfortable if the applicant was reinstated back to the Club.

Other incidents

[23] The applicant conceded that she had received previous warnings in respect to inappropriate language in the Club. However, she believed this occasion was different, because she had been assaulted. She agreed that she had received a warning in April 2009 and a final warning on 12 March 2010. However, she again insisted this incident was different. The applicant did not report the accusation of Mr Taylor as to her being on drugs to the Duty Manager. She conceded that she had received customer service training and that the workplace handbook describes the behaviour expected of employees in the workplace.

Post dismissal circumstances

[24] The applicant said that since her dismissal, she had applied for about 50 positions, but had only received a few shifts to supervise exams for the Department of Education. She sought reinstatement to her former position at the Club, because she liked her job and the customers.

Investigation and disciplinary meeting

[25] The disciplinary meeting, which was actually the dismissal meeting, on the 17 August 2010 was attended by the applicant, the workplace delegate, Ms Janet Southcott, the Union Organiser, Mr Peter Burles, Mr Jeff Cox, Operations Manager and Ms L Christopher, Human Resources Manager.

[26] Ms Southcott deposed that Mr Cox had said that the subject of the meeting was only the applicant’s behaviour on 6 August, 2010 and not the workers’ compensation matter or the alleged assault. When the applicant asked what Mr Cox was doing about the assault matter, he replied that it was a police matter and would not be discussed at the meeting. The applicant became very agitated and claimed he was not being fair to her. Ms Southcott said that when Mr Burles had asked if the applicant had been counselled over earlier matters, he merely said that she had been spoken to. Mr Cox had confirmed that no complaints had been received from customers concerning the incident on 6 August 2010.

[27] In cross-examination, Ms Southcottacknowledged that she had not witnessed the incident on 6 August. Ms Southcott agreed that the disciplinary meeting had been adjourned to consider the applicant’s response, that the applicant had been given an opportunity to respond a number of times to the allegations and she had two support persons present. Ms Southcott further deposed that, at no stage, did she or Mr Burles ask Mr Cox to give the applicant another opportunity to keep her job.

[28] In his statement, Mr Burlessaid that he had asked Mr Cox to explain the allegation and he had replied that the applicant had shouted, used profanities (“bloody”) and slammed things shut. When Mr Burlesasked about customer complaints, Mr Cox explained that there were two types of customers - patrons and staff. Mr Burlespressed the issue of the assault against the applicant by Mr Taylor. Mr Burlessaid that he believed some of the past incidents in the applicant’s record were unjustified or fabricated. Mr Burles had repeatedly asked what counselling the applicant had received and Mr Cox’s only response was that she had been counselled and reminded of the terms of the Staff Manual. Mr Burlesagreed that during the meeting, Mr Cox provided him with copies of the witness statements and records of interview, the respondent’s investigation report and the applicant’s final written warning.

[29] In cross-examination, Mr Burlesdeposed that he was not suggesting the applicant’s last two warnings were fabricated or unjustified. Mr Burles was not aware that customer service training is provided to all employees of the Club. Mr Burlesagreed that the disciplinary meeting had been adjourned to allow the Club to consider the applicant’s and his responses. While Mr Burles agreed the applicant had responded to the first allegation, she was not allowed to discuss the second and third allegations. Mr Burles reluctantly acknowledged that there was no evidence that there had been a predetermined outcome of the meeting. He also agreed that he had not made a plea for the applicant to be given a second chance. Mr Burlessaid the applicant had made no admissions of repeated instances of inappropriate conduct. He added that he had a ‘feeling’ the applicant might be dismissed when the meeting was adjourned.

[30] The applicant accepted that she had spoken to Mr Burlesbefore the disciplinary meeting and he had represented her. When Mr Burlesasked for details from Mr Cox about complaints from customers, Mr Cox eventually agreed that there weren’t any. Mr Burles had also said that the reports from other staff did not support an allegation of misconduct and, if anyone was offended, it was her, because of the comments made by Mr Taylor and Mr Ellis. Mr Burles had also believed that her past record was not the subject of the meeting.

[31] In oral evidence, the applicant said that the disciplinary meeting did not discuss her claims of assault by Mr Taylor. She said that although Mr Burles did most of the talking in the meeting, she did contribute, and she conceded she had an opportunity to respond to the allegation. She could not recall if Mr Cox had said the assault issue was in the hands of the police. The applicant did not believe Mr Cox had taken her responses into account and, after adjourning the meeting for 10 minutes, she was dismissed. In addition, the applicant also claimed her doctor believed the decision to dismiss her was predetermined.

[32] In re-examination, the applicant said that she believed the assault against her should have been discussed because it was associated with what happened that day. She was the ‘victim.’ She did not consider “bloody” to be a swear word. The applicant said she was not a drug addict and, in fact, she was a fitness fanatic.

Mr Jeff Cox

[33] As Operations Manager, Mr Jeff Cox is responsible for the management of all staff. Mr Cox attached to his statement the applicant’s record in respect to warnings and disciplinary action. He referred to the applicant’s first formal counselling on 29 April 2009 and a written warning to her for using inappropriate language and conduct in the Club, while on duty. Mr Cox also conducted a second formal counselling of the applicant on 12 March 2010, when the applicant was issued a final written warning for using inappropriate language in the Legends Bar.

[34] In respect to the disciplinary meeting, Mr Coxsaid that the meeting followed upon a report from Ms Christopher of her investigation into the incident on 6 August. The report formed a part of his consideration of the issues. However, he had no preconceived or premeditated views as to what action would be taken against the applicant. At the meeting, the applicant and her representatives were provided with all of the details of the complaints and allegations and she was given an opportunity to respond, and did so.

[35] It was Mr Cox’sview that the applicant’s responses were unconvincing and insufficient to satisfy him that the evidence of all the other employees who witnessed the incident, was incorrect or inaccurate. It seemed that all of the previous warnings to the applicant were not having any impact on her behaviour or conduct. He believed that the “next natural step was termination of employment.” Mr Cox said that he had made it very clear at the meeting that both the assault and workers’ compensation issues were not to be discussed at the meeting. Mr Cox said that there was no discussion of previous management and despite the applicant’s long history of counsellings, only the last two counsellings, in which he had been involved, had been considered. While not an expert in workplace law, Mr Cox had believed that the applicant’s behaviour was misconduct. However, he now accepts that the best term to describe it was “inappropriate conduct.” In any event, the applicant was not summarily dismissed and she was provided with pay in lieu of notice.

[36] In oral evidence, Mr Coxsaid that as a former employee of the Club, Mr Taylor had been approached to give evidence in this matter, but had refused. He had believed he might incriminate himself in the criminal charge he was facing over the alleged assault.

[37] Having been on the Club’s Occupational Health & Safety Committee for over two years, Mr Cox could not recollect the issue of the ‘bowls trolley’ ever being raised. Mr Coxsaid that when the trolley is moved from inside to outside, it remains on only one level and passes through one set of doors. When going out, it is laden with drinks but the volume is very minimal; with sales averaging $150.00, over three days. He insisted that no one had ever raised any difficulties with him over moving the trolley. It was not a difficult task as it was a standard, lightweight catering trolley on wheels.

[38] Mr Cox claimed that the two matters not discussed in the disciplinary meeting were related to a matter being handled by the police and the second matter was not relevant to the incident of 6 August 2010. Mr Coxsaid that Mr Burles had never asked for the applicant to be given a second chance or a further opportunity to improve. Mr Burles had never suggested what sort of training the applicant should undertake. In making his decision, Mr Cox said that he was aware the applicant had had 22 warnings in 20 years of service. Mr Cox said that he had never denied Ms Southcott’s attendance at the meeting, but did think it was a “bit of overkill” to have two support persons.

[39] In cross-examination, Mr Coxsaid the Club had records of all of the applicant’s warnings and counsellings. However, he had only attached to his statement the two he had been involved with. He said that the reference in the counsellings to review dates was not to formal reviews, but just meant talking informally to staff about how they were going. Mr Coxbelieved it was unnecessary for the applicant to accept or deny the allegation in the earlier counselling, because he had heard directly what the applicant had said in the bar. While he accepted that only the word “bloody” was used, it was very offensive because she used it in connection with saying the Club’s product (the beer) was “bloody terrible.” The beer had, in fact, been tested and shown to have nothing wrong with it. Mr Coxsaid that if any customer had been rude to the applicant, there was a process to deal with it. He added that probably 3 - 6 members a month are suspended for some form of inappropriate behaviour in the Club. However, there is a requirement on the staff to react responsibly.

[40] Mr Coxagreed that the letter sent to the applicant on 9 August 2010 accused her of serious misconduct. He referred to his earlier evidence which had corrected the appropriate characterisation of her behaviour. Mr Coxconfirmed that he had not conducted the investigation of the incident and had not spoken directly to any of the employees who had made statements. Mr Coxsaid the references about drug use came after the applicant’s poor behaviour and had not instigated the behaviour. This had been confirmed by other employees. Moreover, he was aware that the applicant herself would often mention drugs to other staff.

[41] Mr Cox said that he had not investigated Mr Taylor or Mr Ellis because he understood they had only said “have you been ‘baking’ again?” Mr Coxdid not agree that the issue of the assault was relevant to the incident of the applicant’s behaviour and it was, in any case, being investigated separately. Mr Coxsaid that the issue of the missing screen on the till should have been dealt with by the Duty Manager. It was not Mr Taylor’s responsibility.

[42] Mr Coxsaid that Ms Christopher took notes in the disciplinary meeting of 17 August, 2010. He agreed that the notes recording the applicant giving her chronology of events on the 6 August were a different chronology identified by other employees. He said he had asked her questions about what the other witnesses had said, as all of them had claimed her poor behaviour had taken place before the conversation with Mr Taylor and Mr Ellis. Mr Ellis had insisted that it was usually the applicant who ‘drove’ the conversation at work about drugs. The other witness had, in fact, said that the applicant had arrived to work in a ‘cranky’ mood. Mr Coxsaid the investigation arose from a risk management report indicating a conflict between two staff members. He could not recall who made the initial report, but the initial complaint had been received through the Duty Manager. Mr Coxagreed that the applicant was not interviewed during Ms Christopher’s investigation. Mr Coxdeposed that some employees at the Club had said they would refuse to come to work if the applicant was reinstated. Nevertheless, he agreed the Club had 200 employees over three distinct sites. In any event, it was his understanding that Mr Taylor’s and Mr Ellis’s comments occurred after the applicant’s loud and aggressive behaviour.

Ms Lorraine Christopher

[43] Ms Christophersaid that her investigation commenced after she had received an email from Duty Manager, Karen Hacking, informing her that there had been performance issues, involving the applicant and Mr Taylor, which had been witnessed by at least one other staff member. Ms Christophersubsequently asked three staff members to prepare a written account of what they had witnessed and she later interviewed each one of them. Notes were taken and reviewed and the staff members signed the notes as being a true account of what had taken place.

[44] Ms Christopher provided a report for management dated 12 August 2010, in which she concluded as follows:

Observations/Conclusions

What is consistent and corroborated by all the witnesses is the following:

• Lynette Steele arrived in the Legends Bar area - angry and agitated. She spoke loudly in full view of anyone in the area.
• The issues seemed to be around the processes for the Bowling Club Bar - drinks not rung up, the trolley set-up and the monitor not being on the till.
• Lynette came back to the Legends Bar area at least 3 times, probably 4 times, each time continuing with her issues in a loud manner.
• Her behaviour was described as over the top, loud and irrational.
• There was some comment made to Lynette because of her behaviour i.e. “What was she on - had she been baking again”. Apparently Lynette herself has joked with staff for many years about baking cookies with additives.

Summary

There have been many rumours spreading around the club about Lynette’s rages on that day. We have also heard that the [sic] Lynette’s behaviour has been the subject of discussion by patrons outside of the Club environment.

This situation is not conducive to a healthy work environment. It is impacting negatively on the staff and also the public.

[45] Ms Christopher attended the disciplinary meeting on 17 August 2010. She said she had no premeditated view as to what action, if any, should be taken, as it was imperative to hear from the applicant and her Union representatives. Ms Christopher said that all of the facts and other material were put to the applicant and she was asked to comment. She and Mr Burles had done so. After adjourning the meeting, Ms Christopherhad agreed with Mr Cox that the applicant’s responses were insufficient to convince her that the accounts of the events of 6 August, 2010 were inaccurate or incorrect. She had agreed that the applicant’s conduct had been a continuation of similar conduct and that previous warnings were not being heeded and the applicant was unlikely to change her ways. Ms Christophersaid that the Club had considered her length of service, as well as her history of past warnings.

[46] In oral evidence, Ms Christophersaid that when asked at the interview whether she had been loud and abusive, the applicant had only said “I may have been.” Ms Christopher explained that she had not interviewed the applicant because by the time she interviewed Mr Taylor, Ms Garvin, Ms Keft and Mr Ellis, the applicant was away from work on workers’ compensation. As a meeting had been arranged for the 17 August 2010, she did not think it appropriate to contact her before this time. Ms Christopher said that as the initial report to her only concerned the altercation between Mr Taylor and the applicant, it was only this matter she had investigated. In her report, she had mentioned that Mr Ellis had made a comment about ‘baking cookies.’ He had not been disciplined as it was common knowledge that this issue had been raised by the applicant with him and other staff members many times in a jovial manner.

[47] In further evidence, Ms Christophersaid that the notes of the meeting of 17 August were prepared by her within 24 hours. Ms Christopherconfirmed that after the meeting adjourned and resumed, Mr Coxprovided the applicant with the summary of the witness statements. Although, she believed that all the relevant information had been provided to the applicant and Mr Burles, before the meeting, shedid not know what information had been provided. She accepted that all information should be provided to a person before they are given an opportunity to respond.

[48] In cross-examination, Ms Christopheraccepted that the applicant had said that she was upset by Mr Ellis’ comments, but she did not say she was offended. However, she had never raised a previous complaint about Mr Ellis’ comments. Ms Christopherdeposed that if problems arise on a shift, employees are expected to raise the issues with the Duty Manager. If a person chooses to become agitated, angry and abusive, that becomes the issue, not the cause of the conduct. Ms Christopher said there is never any excuse for employees behaving loudly and abusively. Everybody works as a team and helps each other out.

[49] Ms Christopher conceded that the ideal situation was that the person responsible for the ‘bowls trolley’ would ring up the drinks. However, the drinks would have already been recorded on a running sheet. Ms Christophersaid she had not established whether the drinks list had been rung up before the applicant started her shift, or whether there had been a problem with the till screen. However, she believed there was a difference between approaching Mr Taylor and abusing him.

[50] Ms Christopher noted that the complaint about being accused of drug use came three days after the incident. Ms Christopheraccepted that sometimes, someone might ‘snap,’ but it should not continue for half to three-quarters of an hour. In re-examination, Ms Christophersaid that neither the applicant nor Mr Burles had ever complained about not having all the relevant information during the disciplinary meeting. Ms Christopher said that when she had interviewed Mr Taylor, he had said he was shocked and surprised that the applicant had behaved so aggressively towards him because they had been friends and he did not know why she was so upset.

SUBMISSIONS

[51] Both parties provided the Tribunal with a helpful outline of their submissions. These were further developed in oral submissions.

For the applicant

[52] Mr C Acev, the Union’s Industrial Officer, submitted as follows:

1. The applicant denies any act or statement on 6 August 2010, that would be categorised as inappropriate conduct.

2. On 6 August 2010, the Applicant was confronted with:

• the bowls trolley left outside;
• no till screen on her bar till;
• Repeated comments by other staff in front of other staff and earshot of patrons, as to “what was she on” and other inferences of drug use;
• The physical assault upon her by another employee.

3. The Applicant may have been annoyed and her tone may have been higher than normal speaking level due to issues with the trolley and the till screen, but the offensive and improper conduct of her fellow staff, were highly unusual and exceptional circumstances. At no stage did the applicant encourage the drug use comments to her by staff or invite the assault upon her.

4. At the meeting on 17 August 2010, the respondent pressed only one point, that being the first “reason” listed on the letter of 9 August 2010. The 2nd and 3rd reasons were removed from the meetings context by Mr Cox.

5. That the investigation conducted by the Club (including the interviewing of staff) did not confirm any “inappropriate conduct” engaged in by the applicant.

6. The assault on the Applicant buy [sic] another staff member was not raised or addressed by the respondent on the meeting of 17 August 2010, as being “a separate matter an [sic] unrelated to the inappropriate conduct.” The assault was an integral element of 6 August 2010.

7. That the conduct of other staff on 6 August 2010 was not critically reviewed as to the contribution of such conduct to what transpired on 6 August 2010.

8. That the termination of the Applicant was summary in nature, and the notice issued to the Applicant by the club dated 9 August 2010, clearly states that the respondent is contemplating the dismissal of the applicant. The document further confirms that the applicant will be given the opportunity to respond to all allegation of serious misconduct.

9. It is submitted that the respondent relied upon a finding that serious misconduct had occurred in dismissing the applicant, as evinced in the employment separation certificate.

10. That the recanting by the respondent of the platform of serious misconduct, post termination, is an attempt to escape the burden of proof, that the reason for dismissal (serious misconduct) places upon the respondent.

11. That there is no justification for the termination of the Applicant, that the dismissal was harsh unjust unreasonable and the Tribunal should:

• Make an Order under Section 391 (1) Fair Work Act 2009 to reinstate the Applicant;
• Make an Order under Section 391 (2) Fair Work Act 2009 for continuity of employment;
• Make an Order under Section 391 (3) Fair Work Act 2009 to restore lost pay.

[53] In oral submissions, Mr Acev said that the applicant arrived for work on the 6 August 2010 in a happy mood, but became annoyed when she was faced with two incomplete tasks which were not her responsibility. The applicant had properly raised the matters with Mr Taylor, who was responsible for the area. It was Mr Taylor’s response which was derogatory and offensive. Mr Acev argued that the Club had failed to recognise the mitigating circumstances which existed and its investigative process was selective, at best. Mr Acev said that the chronology of events is relevant. None of the witnesses had heard what Mr Taylor had initially said. The only direct evidence is that of the applicant. Mr Acev put that the incident had ‘snowballed’ to a further confrontation in the cool room. He rationalised the applicant’s behaviour as the normal reaction of a human being. Mr Acev noted that the applicant’s suspension notice alleged that she had been engaged in repeated instances of inappropriate conduct.

[54] In respect, to the applicant’s history of warnings, Mr Acev said it was incumbent on the Club to do more than simply issue warnings and rely on the Staff Handbook. The applicant should have received proper counselling and re-training. Mr Acev submitted that the disciplinary meeting was flawed in that material relevant to the decision to dismiss the applicant, was not provided to her until after Mr Cox and Ms Christopher deliberated on their decision. Mr Acev accepted that Mr Burles and the applicant did not complain about the alleged new material. Mr Acev put that notwithstanding the applicant had received an earlier final written warning, it was still open to the Club not to dismiss her, and decide on some other lesser penalty. Mr Acev strongly criticised the Club for not disciplining Mr Ellis, let alone investigate his actions of offensive comments towards the applicant.

[55] Mr Acev cited a number of authorities in support of his case. In particular he referred to Jupiter General Insurance Co Ltd v Ardeshir Bomanji Shroff (1937) 3 All ER 67, for the proposition that a single outbreak of bad temper accompanied by regrettable language, merely demonstrated a natural human reaction to the circumstances of 6 August 2010. Mr Acev submitted that it was open for the Tribunal to reinstate the applicant given Mr Taylor no longer works at the Club and it is a large employer covering three work locations. The applicant was a competent employee who had performed her job, without complaint, over 23 years.

For the respondent

[56] Mr G Arnold, Workplace Relations Advocate from Clubs New South Wales, submitted as follows:

1. The Applicant, Lynette Steele was employed by the Coffs Ex-Services Memorial and Sporting Club Ltd (the Club) as a casual employee since November 1987 and as a full-time employee since March 2007.

2. On 17 August 2010, the Applicant’s employment was terminated for inappropriate conduct in the workplace which occurred on 6 August 2010.

3. The Applicant’s conduct on that day was such that it had the impact of upsetting staff and such conduct was able to be heard by guests and patrons of the Club - customers of the Club.

4. The conduct of Ms. Steele on that day was witnessed by several staff members.

5. The conduct was such that one employee had to take Ms. Steele aside to attempt to calm her down.

6. This conduct was reported to the HR Manager by the Duty Manager on duty that day.

7. Management then acted upon this report.

8. On 9 August 2010, Ms. Steele was provided with correspondence which required her to attend a meeting on 13 August 2010 to respond to the allegations of her conduct and behaviour on 6 August 2010.

9. The HR Manager, Ms. Christopher then conducted an investigation as to exactly what happened on that day.

10. That investigation was conducted full and properly and a number of witnesses to Ms. Steele’s conduct and behaviour were interviewed.

11. Ms. Christopher then produced a written report and completed the report with a summary and observations and conclusions.

12. The correspondence outlined the allegations and also advised that Ms. Steele could have a witness accompany her to that meeting.

13. This meeting did not take place until 17 August 2010, due to the unavailability of the Applicant to attend the originally scheduled meeting.

14. The Applicant had a long history of warnings over the years of her employment with the Club.

15. The last warning issued to her was in March 2010 for using inappropriate language in the Club. Another warning was also issued to the Applicant less than 12 months earlier for making disparaging remarks about the Club in a public area and in a public manner.

16. It is submitted that the Applicant had a long history of warnings, and further the recent warnings were consistent with the type of conduct which resulted in her dismissal.

17. At the meeting of 17 August 2010, Ms. Steele attended in the company of the local Union Organiser, Mr. Burles and the workplace delegate, Janet Southcott. Mr. Cox (Operations Manager) and Ms. Christopher attended on behalf of the Club.

18. All of the allegations were put to the Applicant and the Applicant and her representatives were given several opportunities to respond to all of the allegations.

19. It is the evidence of the Respondent that there was no pre-meditation as to what the outcome of the meeting would be.

20. After hearing from the Applicant and her representatives, the meeting was adjourned for the Respondent to consider the responses and decide what the outcome should be.

21. It is the evidence of Ms. Christopher and Mr. Cox that the responses were not sufficient and were unconvincing. Mr. Cox states that the responses from Ms. Steele were insufficient to suggest that the statements of the other witnesses were inaccurate or incorrect.

22. Given the nature of the conduct and behaviour of Ms. Steele on 6 August 2010; the previous warnings that had been issued in respect to Ms. Steele [sic] conduct and behaviour within the Club whilst on duty; Ms Steele’s length of service with the Club; and that it appeared clear that the warnings issued to Ms. Steele in recent times were not being heeded by Ms. Steele, it was decided to terminate Ms. Steele’s employment at the Club.

23. We respectfully submit that, in all of the circumstances, the Club was left with little option than to terminate the Applicant’s employment. In the circumstances, the only other option available was to issue a further warning; however given that the last warning issued 5 months earlier was consistent with the type of conduct that had occurred on this occasion and that that warning was a “Final Written Warning”, the option of a further warning would have sent the wrong message and left the Club open for criticism of inconsistency and condoning the continuing conduct.

24. In respect to the provisions of the Fair Work Act 2009 (Cth) and in particular s 387, we make the following submissions:

(a) The Respondent had a valid reason for the dismissal. That valid reason was for inappropriate conduct in the workplace which was having an impact on other employees and was likely to be impacting on the Club’s business because the inappropriate conduct was within view and within “earshot” of customers.

(b) The Applicant was notified of the reasons by way of letter dated 9 August 2010 and reiterated in the meeting of 17 August 2010.

(c) The Applicant, and indeed her representatives were given the opportunity to respond on a number of occasions in the meeting of 17 August 2010.

(d) The Applicant was provided with an opportunity to have a support person present on 17 August 2010, and the Applicant took advantage of that opportunity and had 2 support persons present during that meeting.

(e) The Applicant was provided with warnings. The most recent warnings in the previous 16 months were consistent with inappropriate conduct in the work place.

(f) The size of the employer’s enterprise has no impact on the procedures to be followed. It is our submission that the proper procedure was followed by the employer on this occasion.

(g) The employer had a dedicated human resources manager, and it is our submission that that person acted correctly and properly in undertaking all procedures associated with this dismissal.

25. It is the strong submission of the Respondent that this application should be dismissed. It will be established that the Applicant acted in a manner that was disruptive to other employees, inappropriate for the workplace and was likely to have a detrimental impact on the business. The Applicant’s conduct on 6 August 2010 was not appropriate for the workplace and certainly for the hospitality industry.

26. In bringing about the final result of termination of the Applicant’s employment, the Respondent followed all proper procedures, including a full and proper investigation, placing all allegations to the Applicant and her representatives, and providing the Applicant and her representatives the opportunity to respond to all of the allegations.

27. In all of the circumstances the termination of employment of the Applicant by Respondent was harsh, unjust and unreasonable. Accordingly, we submit that the application should be dismissed.

[57] In oral submissions, Mr Arnold referred to his written outline of submissions concerning the chronology of events. He highlighted the applicant’s long history of warnings and the more recent first and final warnings. The applicant was represented by the Union at the disciplinary meeting and had ample opportunity to respond to the allegation. Mr Burles had not asked for the applicant to be given a second chance, or for an adjournment to consider the witness statements. He said the evidence disclosed that the Club had not predetermined the outcome. As to the alleged comments about drug use, Mr Arnold noted that the applicant did not complain about Mr Ellis’ comments until many days later. It was clear that such banter was common in the workplace. Even so, the Union would have the Tribunal believe that the comments were not provoked by anything said, or done by the applicant. He said that what started the applicant’s tirade of abuse was her unhappiness at having to do the work she believed was the responsibility of Mr Taylor.

[58] Mr Arnold put that after the Club had conducted a full investigation, it was reasonably open to dismiss the applicant, given her previous conduct. While her long service was considered, it did not outweigh her record or her most recent warnings. Mr Arnold said the issue here is not about language on a building site, but what is appropriate and acceptable in the hospitality industry. Mr Arnold put that another warning was not an option and would send the ‘wrong message’ to other employees. He added that all of the matters in s 387 of the Act had been satisfied. He relied on the following authorities: Barton v Baker Johnson Lawyers [2003] QIRComm 349; 173 QGIG 867 (27 June 2003) and Bruce Culpepper v International Ship Management - PR960313 [2005] AIRC 632 (18 July 2005). Finally, Mr Arnold said that this was not a case of misconduct. This concession had been properly made at the conciliation before FWA.

[59] In reply, Mr Acev said that the mere payment of notice does not absolve the employer from a proper characterisation of what it viewed the applicant’s conduct was about. Secondly, Mr Acev said that even if there had been banter at the Club about drug use, it does not mean that at some point, and in a particular context, an employee might not be offended by the accusation and react as the applicant did.

CONSIDERATION

Given the conflicting corroborative evidence of her fellow employees who witnessed the events of 6 August 2010, the applicant, in my assessment, has a difficult evidentiary hurdle to overcome. I arrive at this conclusion for the following reasons.

1. There was no evidence or imputation from Mr Acev that the eye witnesses, Mr Ellis, Ms Keftand Ms Garvinhad colluded to construct their versions of events in order to ensure consistency.

2. Nor do I apprehend there was any motivation for any of the witnesses to falsely construct events to deliberately damage the applicant. This is particularly so in respect to Mr Ellis, who had known and had been friendly with the applicant over a period of ten years.

3. The witness statements made to Ms Christopherwere given close to the event when their recollections would be fresh. Their later statements in these proceedings are substantially and relevantly consistent with what they had told Ms Christopherand what she had recorded in her own notes.

4. The applicant had no corroborative evidence of her version of events. Moreover, I found critical evidence of the applicant to be inconsistent, exaggerated and, at times, implausible. It should come as no surprise, therefore, that where her evidence differs from that of the Club’s witnesses; it is the latter which I prefer.

5. Surprisingly, the applicant’s case was largely silent on the appalling litany of warnings and counselling’s over many years. Her Union official dismissed this record as being instances of unproven conduct or unproven poor behaviour. It is not as simplistic as that. Nor can a disciplinary record of these dimensions be ignored as an invention of Management or insignificant aberrations on the applicant’s behalf. By any measure, it was a truly breathtaking record.

[60] Mr Acev valiantly sought to dismiss the two counselling’s and warnings on 29 April 2009 and 12 March 2010. However, his efforts in this respect were very narrow; limited mainly, as I apprehend it, to asserting that the warnings were invalid because the applicant did not accept the underlying basis for them and had not signed them. With respect, that is not the test. Given the applicant’s disposition to explain away every valid allegation made against her, I hardly would have expected her to do otherwise. Mr Acev did not, and could not challenge, the fundamental factual basis for these warnings. Moreover, they plainly demonstrated an entirely consistent pattern of poor conduct over many years.

[61] It follows that, in deciding to dismiss the applicant, the Club was perfectly entitled to take into account, not only the first and second formal warnings in 2009 and 2010, but the applicant’s appalling record over a number of years. In this respect, I refer to Aperio Group (Australia) Pty Ltd t/a Aperio Finewrap v Sulemanovski [2011] FWAFB 1436 (4 March 2011), where the Full Bench said at para 30 -32:

“On his evidence, the decision to terminate the employment of Mr Sulemanovski was taken by Mr Allsop on the basis of the 19 August 2010 incident in which Mr Sulemanovski took some photographs on his mobile telephone inside the factory without seeking permission. This was a breach of policy against the background of a series of previous performance and conduct issues involving late attendance or non-attendance without advising the nominated Aperio officers, leaving his work station without the permission of or notification to managers, not wearing his uniform, not wearing personal protective equipment and performance and quality deficiencies.

There were three performance/conduct issues in relation to Mr Sulemanovski resulting in counselling and one written warning in 2007, involving late attendance in all cases and quality and attitudinal issues. There is little evidence about these incidents and we place no weight on those issues.

There were 10 further issues resulting in counselling and written warnings, including three final written warnings between the middle of January 2009 until May 2010, prior to the final incident on 19 August 2010.

We find that there was a valid reason for the termination of Mr Sulemanovski’s employment: the breach of company policies which were known to him, in the context of a series of earlier deliberate and persistent breaches of company policies and procedures which were also known to him. The continued pattern of disregard by Mr Sulemanovski of company policies and procedures, despite numerous counselling and warnings over nearly two years is such that Aperio was entitled to lose trust and confidence in Mr Sulemanovski as an employee and his preparedness to adhere to company policies and procedures.”

[62] That the Club was perfectly entitled to have regard to the applicant’s employment history when deciding to dismiss her, is fortified by two further authorities on that subject matter. In Re Clarke and Metropolitan Meat Industry Board [1967] AR (NSW) 16, Cook J said at page 27:

“In my view, when an employer is considering whether or not he will exercise his undoubted rights in relation to the selection and retention of employees, subject to observance of any award requirements, he is entitled to have regard to the previous conduct of an employee. For example, an employee might be late for duty on one occasion and his employer may overlook this. The employee may, likewise, be late on a number of subsequent occasions and the employer may decide not to take any action. If, however, the employee’s punctuality does not improve I would think it clear that an employer would be entitled on the latest instance of unpunctuality to review the record of that employee and if he decided that his record was unsatisfactory and that he no longer wished to retain him in his employment he would have a right to dismiss him by giving the requisite notice of dismissal. In such a case, I think that the employer’s action could not ordinarily be said to be such a harsh and unjust exercise of his legal right as to justify an order of reinstatement.”

In John Lysaght (Australia) Limited and Federated Ironworkers’ Association of Australia, New South Wales Division & Ors (unreported Sheppard J, Matter 259 of 1972, 14 September 1972) Sheppard J said:

“The union’s argument in relation to this matter is not easy to understand. It suggests that although the record is not a satisfactory one, it should be overlooked because the company, except for a warning and a suspension here or there, allowed it to run on and in effect condoned or waived it. It further says that the record has to be looked at in the light of the fact that there is admittedly a good deal of absenteeism generally in the plant. If one were to take this argument to its full extent, it would involve the union in saying that Mr York should have been dismissed long ago. It is no doubt possible for the company to waive particular acts of misconduct that would otherwise justify dismissal without notice. These particular acts could not subsequently be used for this purpose once a decision was made not to rely on them. The act of misconduct however does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man’s service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be a relevant factor to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about dismissal. This will be all the more so where, as here, the dismissal is upon notice.”

Two ‘red herrings’

[63] In my assessment, the issue of the ‘bowls trolley’ was a ‘red herring’ raised by the applicant to somehow justify her unjustifiable behaviour shortly thereafter. In my view, her evidence of the difficulty in moving the trolley was little more than ‘gilding the lily.’ There was no evidence that the applicant, or anyone else, had ever raised any difficulty with moving the trolley. I do not accept that she had raised the matter with the Occupational Health & Safety Committee. It seems to me that Mr Cox’s explanation of the trolley being a standard lightweight catering trolley on wheels, which was moved over a single level, with a small bump at the door frame, demonstrated that moving the trolley, was not particularly difficult. This conclusion was corroborated by Ms Keft. In my opinion, the applicant was simply annoyed and frustrated that someone else should have moved the trolley inside before she commenced her shift. Her reaction was uncalled for and unjustified.

[64] While an isolated outburst might be understandable in certain circumstances, it must be emphasised that employees should not as a general rule, get angry and aggressive about problems in the workplace; let alone confront other employees about their own problems. Here, the applicant had a simple and long standing practice to adopt - contact the Duty Manager. It was not for her to berate and abuse a fellow employee.

[65] I also consider the applicant’s reliance on the alleged assault as another ‘red herring’ designed to either, explain away her abusive conduct, or to criticise the Club for not taking it into account as a reason for her behaviour. However, I hasten to add, that employees should never touch another employee and most certainly not, if it is true, pin another employee against a wall, whether male or female. In my view, the evidence makes it abundantly clear that the assault was irrelevant to her earlier conduct and, in any event, been taken out of the respondent’s hands by the applicant’s report to the Police - curiously not made until two days later. Her poor behaviour was before the alleged assault and therefore could not logically be a result of the alleged assault.

Other Matters

[66] There was some dispute over the chronology of events on 6 August - whether the reference to drug use and ‘baking again’ was the cause of the applicant’s angst and upset or occurred after she displayed her inappropriate behaviour. While I make no observation of whether this type of language was commonplace at work, it seems entirely logical that the comments of Mr Taylorand Mr Elliswere a direct result of the applicant’s own conduct. It seems highly unlikely they would have uttered these words if the atmosphere at the time was convivial and friendly. Their comments can only be seen in the context of a reaction to something else; that can only have been the applicant’s aggressive behaviour. I accept that Mr Ellis made the comment “have you been baking again” after he heard the argument with Mr Taylor. Further, I accept that the applicant and Mr Ellis had discussed the subject over many years of working together. I believe that her latest complaint, about being offended by the question, was used to side track the allegations which had been made against her, noting in particular, that she did not raise their conduct as being offensive until the disciplinary meeting on 17 August - some 11 days after the incident.

[67] In addition, in the applicant’s statement to the Police on the 8 August 2010, she said nothing about being offended by the question. She said:

“During this, David Taylor said to me, “Are you on drugs or something?” I walked out of the bar and just ignored him.”

[68] In any event, as I said earlier, employees should avoid becoming agitated or angry about perceived problems, let alone confront other employees about their own problems. Rather, the uncontested evidence was that the process was to contact a Duty Manager to resolve outstanding issues.

[69] The Union Organiser was critical of the Club for not providing training for the applicant in light of her previous behaviour. Notwithstanding the applicant had 20 years experience in the hospitality industry and should have known better, one does not need training to know that, as an employee, you do not behave as the applicant did in the workplace, not once, not twice, but numerous times.

[70] Mr Acev sought to impugn the Club’s witnesses by micro-analysing each word in their statements summarised by Ms Christopher,compared to their statements provided for these proceedings. Playing semantic games with the words witnesses use in their unsophisticated recollections of events, does not advance the applicant’s case very far. The crux of the matter is whether the applicant’s ongoing conduct was a sound and valid basis for her dismissal.

Procedural fairness

[71] Mr Acev further submitted that the 17 August 2010 disciplinary meeting was flawed and presumably, the applicant was denied procedural fairness, in that she and Mr Burles were not provided with the witness statements until after the Club’s decision to dismiss her, had been made. A number of observations need to be made about this submission.

[72] Firstly, while it is preferable, so as to avoid any doubt or criticism, to provide an employee with all of the information upon which the employer relies to justify its decision to dismiss, it will not always be necessary to do so. For example, the employee might say that he / she knows the precise nature of the allegations and responds accordingly, or the employee might admit to the allegations.

[73] Secondly, to satisfy the requirements of subsection (b) of s387 of the Act, the test is not that the employee is provided with every document or piece of information upon which the employer relied to dismiss the employee. I note the words of the section are not expressed in these absolute terms. It is my view that the correct test is whether the employee is provided with sufficient information to:

(a) understand the nature and specifics of the allegation/s of which they are accused; and

(b) the information is sufficient for the employee to prepare and articulate a response to the allegation/s.

[74] Thirdly, notwithstanding the above, even if there is a fault/s in the process leading up to, and including the dismissal, it will not, in every case, result in a finding of procedural unfairness. In my opinion, any fault in the process must be of such significance such as to:

(a) have denied the employee natural justice; and/or,

(b) have altered, or likely to have altered, the outcome for the employee; and/or,

(c) outweigh the seriousness of the misconduct proven against the employee.

In this respect, I rely on the Full Bench decision of the AIRC in Farquharson v Qantas Airways Limited [2006] AIRC 488 at par [41] and the decision of the High Court in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410.

[75] Fourthly, the disciplinary meeting was attended by the Union Organiser, Mr Burles and delegate, Ms Southcott. No one complained that they did not know the details of the allegations against the applicant, nor did they complain or seek an adjournment of the disciplinary meeting when Mr Coxprovided them with the additional information. I apprehend this complaint is now of more recent origin. Give these facts, I am fortified to my conclusion that the applicant knew precisely what was alleged against her and had an ample opportunity to respond, which she did.

[76] Fifthly, on any proper reading of the witness statements and Ms Christopher’s report, (which had been provided to the applicant), there is nothing new, inconsistent or unclear about the specifics of the allegations against the applicant.

[77] For these reasons, I reject Mr Acev’s submission that the applicant was denied procedural fairness. Indeed, on one less charitable view, given her record, she is fortunate to have lasted as long as she did.

[78] Mr Acev posited that the Club should have considered a lesser penalty than dismissal. I cannot agree. Given the applicant’s first and second final written warnings, it is difficult to imagine what such a lesser penalty might be. If it was to be another warning, then, in my view, that was not an option for the Club. The issuance of warnings must mean something if they are to have any practical effect on an individual’s behaviour or serve as a warning to others. Giving the applicant another warning, would not, in my opinion, have altered the applicant’s behaviour, but more importantly, would have undermined the Club’s disciplinary process, leaving it open to justifiable criticism that its warnings were meaningless, the applicant’s conduct was condoned and that other employees could engage in similar behaviour with an expectation of the same outcome. It was unrealistic and unexceptional to expect the Club to take any other option, but dismissal.

[79] I comment on one further submission made by Mr Acev. He relied on a 1937 Privy Council decision, Jupiter General Insurance Co Ltd v Ardeshir Bomanji Shroff (1937) 3 All ER 67, where it was held that, “the immediate dismissal of an employee is a strong measure and it can be only in exceptional circumstances that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence.” This decision might be relevant if it was ‘on all fours’ with the facts and circumstances of this case. In that case, Their Lordships went on to say at p. 74:

...on the other, their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. Sir John Beaumont C.J., was stating a proposition of mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded.

Without stating the obvious gender distinction, the above observation can be easily distinguished from the facts and circumstances before me, given the incident on 6 August 2010 was not “a single outbreak of bad temper,” but a common thread in the applicant’s employment history.

The legislation and relevant principles

[80] The specific statutory framework which underpins FWA’s consideration of unfair dismissal applications is to be found at s 387 of the Act. The section is expressed as follows:

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.

[81] The frequently quoted authority as to the meaning of ‘harsh, unjust and unreasonable’ is that of the High Court in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, where McHugh and Gummow JJ said:

“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted”.

[82] The generally accepted meaning of the adjective ‘valid’ in s 387(a) of the Act derives from what North J said in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly”.

[83] The overarching consideration for FWA in unfair dismissal applications such as this, is to apply the principle of a ‘fair go all round’. This notion is embodied in s 381(2) of the Act:

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

[84] In taking into account the provisions of s 387 of the Act, I make the following findings in respect to this application:

1. The Club has established, beyond doubt, that it had a valid reason to dismiss the applicant (s 387(a)). The reason was her ongoing inappropriate conduct and behaviour towards other members of staff, contrary to the Club’s expectations and policy on staff behaviour.

2. There is no dispute that the applicant was notified of the reason for her dismissal in the letter of 9 August 2010, in which she was directed to attend a disciplinary interview (s 387(b)).

3. The applicant and the Union representative, Mr Burles, were given an opportunity to respond to the applicant’s conduct and expressly did so (s 387(c)).

4. The applicant was represented, not only be her Union official, but by the Union delegate, Ms Southcott (s 387(d)).

5. The applicant had been warned on numerous occasions about her conduct and unsatisfactory performance (s 387(e)). More recently, she had received a first written warning on 24 September 2009 and a second final written warning on 12 March 2010.

6. s 387 (f) and (g) are not relevant to this matter, save for one matter raised by Mr Acev concerning the initial characterisation of the applicant’s dismissal as being for misconduct. I accept Mr Coxhad mischaracterised the applicant’s dismissal and, on further professional advice from the Clubs NSW, accepted his error. In any event, this matter is of no significance and constituted no flaw in the process or in the Club’s decision to dismiss the applicant.

7. Other matters I consider relevant to this case (s 387(h)) have been extensively canvassed earlier in these reasons.

8. The applicant’s dismissal on 17 August 2010, was neither substantively, or procedurally, ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act.

[85] The application must be dismissed, and an Order to that effect accompanies this decision.

DEPUTY PRESIDENT

Appearances:

Mr Chris Acev - For the applicant

Mr Greg Arnold - For the respondent

Hearing details:

23 November 2010 - Coffs Harbour Local Court

24 November 2010 - Coffs Harbour Local Court

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