Madeleine Langer v Brisbane Deutscher Turn-Verein Inc

Case •

[2025] FWC 558

•

24 FEBRUARY 2025
[2025] FWC 558

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Madeleine Langer
v

Brisbane Deutscher Turn-Verein Inc

(U2024/6823)

COMMISSIONER HUNT

BRISBANE, 24 FEBRUARY 2025

Application for an unfair dismissal remedy

  1. On 13 June 2024, Ms Madeleine Langer made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed from her employment with Brisbane Deutscher Turn-Verein Inc, the Brisbane German Club (the Respondent/the Club) and that the dismissal was harsh, unjust or unreasonable.

  1. On 24 June 2024, the Respondent filed a Form F3 Employer Response to the application. It did not raise a jurisdictional objection.

  1. Directions were issued for the filing of evidence and submissions, and the matter was listed for hearing on 7 November 2024. Ms Langer represented herself. The Respondent was represented by Mr Trent Boyle, Club Manager.  Due to the nature of the matter, I considered it appropriate to conduct the matter as a determinative conference.

  1. Ms Langer and Mr Boyle filed witness statements and gave evidence at the determinative conference. Mr Jonathan Morris, Mr Scott Baker, Mr Kurt Langer and Ms Leanne Langer filed witness statements in support of Ms Langer; these witnesses were not required for cross-examination.

  1. I have made a confidentiality order [PR784686] in respect of the names of some colleagues with whom Ms Langer worked.  I have done so to protect their identities as Ms Langer made inappropriate statements in respect of these former colleagues.  

Relevant legislation

  1. Section 394 of the Act provides:

“394      Application for unfair dismissal remedy

(1)       A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2)       The application must be made:

(a)       within 21 days after the dismissal took effect; or

(b)       within such further period as the FWC allows under subsection (3).

(3)       The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)       the reason for the delay; and

(b)       whether the person first became aware of the dismissal after it had taken effect; and

(c)       any action taken by the person to dispute the dismissal; and

(d)       prejudice to the employer (including prejudice caused by the delay); and

(e)       the merits of the application; and

(f)       fairness as between the person and other persons in a similar position.”

  1. Further, ss.385 and 387 provide as follows:

“385      What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a)       the person has been dismissed; and

(b)       the dismissal was harsh, unjust or unreasonable; and

(c)       the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d)       the dismissal was not a case of genuine redundancy.

Note:   For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“387      Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a)       whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b)       whether the person was notified of that reason; and

(c)       whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d)       any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e)       if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f)       the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g)       the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h)       any other matters that the FWC considers relevant.”

EVIDENCE AND SUBMISSIONS OF THE APPLICANT

Evidence of Madeleine Langer

First statement

  1. Ms Langer commenced employment at a contracted restaurant within the Club on 7 August 2018 as a waitress. In February 2023, the restaurant did not renew its contract with the Respondent, and the Respondent began operating an in-house restaurant in August 2023. On 1 August 2023, Ms Langer commenced employment with the Respondent as a Club Hostess & Restaurant Supervisor. She reported to Mr Hugo Diegues, Service Manager.

  1. On 7 May 2024, Ms Langer received a letter from the Respondent’s Club Manager, Mr Trent Boyle, requesting her to attend a meeting to discuss allegations of misconduct. The letter stated as follows:

“RE: REQUEST TO ATTEND SHOW CAUSE MEETING TO DISCUSS MISCONDUCT

Dear Madeleine,

You are requested to attend a formal meeting to be held at 3:00pm on Thursday 9 May 2024 at the Brisbane German Club (the Club).

Alternatively, if this doesn’t suit we can postpone the meeting to Tuesday 14 May 2024 at 10:30am or 3:00pm.

Until the agreed meeting time you are suspended on full pay and are directed not to attend the Club in the capacity of an employee nor discuss this matter with any employee of the Club.

It is acknowledged that as you are a member of the Club you may attend in that capacity, but the same directive to not discuss this matter with any employee of the Club stands.

In attendance at this meeting will be Trent Boyle and Simone Galle.

You are entitled to have a support person present during the meeting. The role of a support person is generally to provide moral and emotional support. The support person cannot speak or advocate on your behalf.

The purpose of the meeting is to discuss an allegation of workplace bullying.

Following a preliminary inquiry, a finding has been made that you engaged in the following act of misconduct:

·on 21 April stated words to the effect of “When AB rapes CD, she has been pretty much asking for it”

·AB being [position]

·CD being [position]

·The Club has a duty of care to its employees to maintain a safe and cohesive workplace free of bullying, harassment, and slanderous behaviour.

·Your alleged behaviour is not conducive to a safe workplace.

During the meeting, you will be provided with an opportunity to show cause as to why your employment should not be terminated.

The issues to be discussed during this meeting are serious in nature and, subject to your response, may result in disciplinary action being taken against you including dismissal.

If you have any questions or concerns, please let me know.

Yours sincerely,

Trent Boyle
Club Manager”

  1. Ms Langer stated that due to the seriousness of the allegations, she requested additional time to respond with her nominated meeting time. On 8 May 2024, she sent the following email to Mr Boyle:

“Good afternoon, Trent,

In consideration of the time frame you have provided, I believe it to be an unreasonable request to respond without a clear 24 hours’ notice given the circumstances you have outlined. I would ask that you extend the deadline for a reply to 5pm Thursday 9th May.

Kind Regards,
Madeleine Langer”

  1. A short time later, Mr Boyle responded as follows:

“Hi Madeleine,

Tomorrow 5:00pm is fine.

Thank you,
Trent.”

  1. Ms Langer then sent the following email at 4:43pm on 9 May 2024:

“Good afternoon Trent,

Thank you for the extra time to respond as this is a serious matter, that is quite frankly libelous in nature.

I note under Fairwork standards, you must inform me of the allegations in a way that I can understand and respond to. In order for me to understand this allegation, which I wholeheartedly reject as true, I require the following information:

1.   Time and date the allegation was made against me.

2.   My accuser.

3.   When the allegation allegedly occurred and the place of this alleged conversation; and

4.   Were there any witnesses to this allegation and, if so, whom.

5.   A meeting agenda that is inclusive of all discussion points.

This information is required to allow me natural justice and procedural fairness in this investigation. Per my rights under the Fairwork framework, I am to be given time to prepare and not be rushed to respond. I note the last incident, you responded that I would be given all information at the meeting and will have time to respond after the meeting. I am hereby requesting the above information prior to the meeting to allow procedural fairness, allow me time to respond and allow you to responsibly consider my response to this matter.

In accordance with my rights, I will have a support person with me.

Regards.
Madeleine Langer”

  1. On 10 May 2024, Mr Boyle sent the following email to Ms Langer:

“Hi Madeleine,

Thank you for your response.

The Club is now conducting a full investigation into the claims and I will be in touch in due course, until then you will remain suspended on full pay as per the terms of my correspondence on 07 May 2024.

Thank you,
Trent.”

  1. Ms Langer attended the Club in a personal capacity on 12 May 2024, celebrating a Mother’s Day lunch. She sat with her family at lunchtime and throughout the afternoon. She decided to remain at the Club throughout the evening to watch a replay of the Eurovision Song Contest, sitting with friends.  Ms Langer stated that she only left her table occasionally to visit the bar, order food or use the bathroom.

  1. At approximately 8:30pm – 9:30pm, Ms Langer spoke with Ms Pia Agethen, one of the Club’s Duty Managers. After briefly chatting, Ms Langer stated she had the following conversation with Ms Agethen:

Ms Agethen:    I thought you were working tonight?

Ms Langer:     I was, but I am suspended.

Ms Agethen:    Why are you suspended?

Ms Langer:     You’ll need to ask Trent.

Ms Agethen:    I will.

  1. At 10:20pm, Ms Langer visited the bar when she was cut off by the Duty Manager for the evening, as he had seen her stumbling. She asked the Duty Manager whether she could get another drink if she drank some water and waited. He told her that as she had been cut off, she would not be allowed to get another drink. Ms Langer stood to the side of the bar, drank water, and became upset and started to cry. She stated that she was upset because she had earlier felt left out of a conversation at a nearby table involving her roommate and some of his friends; they were discussing gaming and comics which did not interest her.

  1. Noticing that she was upset, the Duty Manager walked past her and said, “I know you are having a hard week, but I am not going to give you another drink because you are upset”. Ms Langer told him that was not the reason why she was crying. Two other members of the bar staff approached her and asked if she was okay. Ms Langer told them that she needed a minute to herself and that she was unable to discuss the situation.

  1. Ms Langer went outside and was followed by her colleague, Ms Scarlett Osborne. Ms Langer and Ms Osborne discussed why she was upset. Throughout the evening, Ms Langer stated that she told many people that she could not discuss any details in relation to her suspension. She stated that she did not discuss her suspension at any time, and only said words to the effect of, “I was suspended”, “I cannot talk about it”, and “You’ll have to talk to Trent about it”.

  1. Ms Langer stated that she barely spoke to any employees, and she was not in close proximity to Mr Boyle, other than brief occasions where he would walk past her table in the course of his work or to visit the bathroom.

  1. On 20 May 2024, Ms Langer sent the following email to Mr Boyle, seeking an update on the investigation:

“Dear Trent,

Thank you for your response, though I am concerned and a little distressed that such a strong accusation was levelled without a proper investigation prior.

Could you kindly provide a timeframe for this investigation to occur? As it is just an alleged accusation of something I did not say, it should be straight forward for you to investigate the who, what, when and where.

I note procedural fairness is required under the Fairwork framework, which requires no lengthy delays to the investigation to occur. I note the alleged incident occurred on, according to the complainant, the 21st of the April. I note this means almost a month has gone by since the alleged incident.

Could you please provide me with the following policies (should the Club have these):

1.   Employee Grievance Policy;

2.   Employee Disciplinary Policy;

3.   Any human resource related policy that would pertain to bullying and harassment.

I again request the following information to ensure I understand the complaint and may be able to think back to what may have occurred:

Time and place the alleged incident occurred;
Identity of my accuser;
When the complaint was lodged against me;
If there are any witnesses, and if so, who they may be.
A meeting agenda that is inclusive of all discussion points.

I am keen to have this matter cleared as this is ultimately defaming my character the longer it is able to be alleged.

I look forward to your urgent response.

Regards,
Madeleine Langer.”

  1. Mr Boyle sent the following email in reply on 21 May 2024:

“Hi Madeleine,

After an initial inquiry you were suspended and asked to attend a meeting to put forward your version of events. You did not agree to attend said meeting and instead deflected with demands of your own.

Given your initial response included a denial of the alleged events I then proceeded to conduct a full investigation.

This has taken longer than expected due to more issues being uncovered.

I hope to have this investigation finalised within the next few days and will then call a meeting with you to present the outcome.

Until that point, I remind you that all terms of the initial letter on 07 May 2024 remain in-force.

Thank you,
Trent.”

  1. Ms Langer denied that she refused to attend a meeting. She stated that she asked for more evidence in relation to the allegations as she did not understand how the allegations had been made, as they were untrue. She stated that she was suspended before she was able to offer her version of events. She further stated that the last time Mr Boyle asked her to attend a meeting in respect of a different incident, he issued her a written warning without any of the issues being raised beforehand, and she was made to wait 25 days before being able to respond.

  1. On 22 May 2024, Mr Boyle sent the following email to Ms Langer:

“Dear Madeleine,

We have now finalised our investigation into your workplace conduct as raised to you in my letter dated 07 May 2024, and request your presence at a meeting in the Club Library at 2:00 pm Thurs 23 May, or 11:00 am Fri 24 May 2024, to present the outcome to you.

Please confirm your preferred attendance.

In attendance at this meeting will be myself and Simone Galle.

You are entitled to have a support person present during the meeting. The role of a support person is generally top provide moral and emotional support. The support person cannot speak or advocate on your behalf.

Thank you,

Trent.”

  1. Ms Langer responded on 23 May 2024 as follows:

“Dear Trent,

Thank you for your response.

I respectively refute your claims and confirm I have not refused to attend a meeting, and only have been keen to have this matter cleared.

I confirm that I merely requested information to help me understand the accusation and ensure procedural fairness, to which you responded with opening an investigation.

I confirm I have only requested the following in my prior emails:

1.   Procedural fairness and natural justice to be allowed to occur in accordance with Fair Work framework;

2.   Particulars pertaining to evidence of the alleged misconduct as stated in the email sent by you on 7 May 2024;

3.   The agenda of the proposed meeting so I may prepare myself and allow point 1 to occur; and

4.   All policies and procedures which pertain to this alleged misconduct.

Again, this information was requested by myself prior to the meeting so I am able to respond and have my side heard during the meeting. I was hoping this meeting would be conducted fairly, without myself being blindsided and unfairly attacked like my previous experience on 15 March 2024. I note I also had requested further information (evidential information) on Monday 11 March 2024, but was also denied this, which then led to my negative experience in that meeting.

I note the above were requests and at no time did I make any demands, contrary to your claim in your previous email. I have remained respectful in all communication.

A meeting on Friday 24 May 2024 at 11:00 am is acceptable for myself and support person. However, I still respectfully request the information as stated above and in my previous emails sent on Thursday 9 May 2024 and Monday 20 May 2024.

I patiently await your response.

Regards,

Madeleine.”

  1. Mr Boyle responded a short time later:

“Hi Madeleine,

Thank you for your response.

Nowhere did I say that you “refused to attend” a meeting as you suggest, my exact response to you was “You did not agree to attend said meeting”. You also seem to be labouring the point with your italicised text to differentiate between request and demand, however your exact words were “I require the following information”, which is more than a mere request. It would be beneficial for all concerned if you could keep everything factual and without embellishment.

You continue to cite “procedural fairness” as if it hasn’t been applied, when in fact the Club has gone above and beyond what I would consider to be procedurally fair in:

1.   presenting the allegation to you;

2.   suspending you on full pay to prevent any uncomfortableness in the workplace;

3.   inviting you to a meeting to present your version of events.

You requested (and were granted) an extension to respond to my request, then 17 minutes before the extended deadline did not agree to attend said meeting anyway, but given your response did include a denial I then moved on to the full investigation.

It needs to be noted that you triggered this process of full investigation by not participating in the process of “procedural fairness” set out initially.

The allegation presented to you is beyond the scope of any internal policy or procedure so your requirement for copies of such policies is irrelevant and a deflection from the underlying issue.

The agenda for the initial meeting was for you to show cause in relation to the specific allegation raised in the letter of 07 May 2024, that is it, there was/is no hidden agenda or chance of being “blindsided or unfairly attacked” as you are disrespectfully suggesting.

Specifics around the “identity of my accuser” were not divulged due to concerns around privacy and intimidating or retaliatory behaviour.

See you at 11:00 am tomorrow.

Regards,

Trent.”

  1. At the meeting on 24 May 2024, Ms Langer’s employment was terminated. She was provided with the following termination letter:

“Dear Madeleine,

RE: OUTCOME OF INVESTIGATION INTO WORKPLACE MISCONDUCT

DIRECTIVE TO NOT ENGAGE WITH EMPLOYEES DURING STAND-DOWN

In my letter of 07 May 2024 I gave the reasonable and fair directive to you:

Until the agreed meeting time you are suspended on full pay and are directed not to attend the Club in the capacity of an employee nor discuss this matter with any employee of the Club.

It is acknowledged that as you are a member of the Club you may attend in that capacity, but the same directive to not discuss this matter with any employee of the Club stands.

After you failed to commit to attending the show-cause meeting, I confirmed in my email to you on 10 May 2024 that all terms of the letter remained in force:

The Club is now conducting a full investigation into the claims and I will be in touch in due course, until then you will remain suspended on full pay as per the terms of my correspondence on 07 May 2024.

On the evening of 12 May 2024, after you decided to stay on for the Eurovision evening at the Club after attending Mother’s Day lunch, you intentionally, knowingly, and repeatedly breached this direction.

I myself witnessed many instances of you engaging with employees of the Club, overheard several conversations, sighted many more, and confirmed via CCTV that for over several hours you went out of your way to not only engage with employees of the Club generally but directly with the other two parties mentioned in the allegation, as well as interrogating your assumed accuser.

Your behaviour here was disrespectful, defiant, and seemingly intended to intimidate and/or influence parties in the investigation.

This is considered serious misconduct.

SEXUAL HARASSMENT

An allegation of sexual harassment, or slut shaming/using discussion around sex as a means to belittle, humiliate and intimidate a colleague, was made against you as mentioned in my previous letter dated 07 May 2024.

That being:

·on 21 April stated words to the effect of “When AB rapes CD, she has been pretty much asking for it”

·AB being [position]

·CD being [position]

You denied this allegation in your email to me on 09 May 2024 stating “…which I wholeheartedly reject as true…”

The club then attempted to conduct a thorough investigation without fear, favour or influence, which unfortunately was not able to be executed properly due to your above-mentioned interference.

Notwithstanding, it has been determined that this allegation is likely to be true.

This is serious misconduct.

CONTINUAL INSUBORDINATION

Although you previously received a written warning in this regard you seemed to have doubled down and escalated the insubordination and undermining.

A few examples of this are items such as:

-     Changing rosters at the last moment using a manager’s login that then meant we would not have been ready for service

-     Attempting to change the new restaurant menu after being told not to and that the changes you suggested would not be made

-     Generally whinging & gossiping, stating stupid things such as that I “get paid hundreds of thousands per year and maybe I need to learn to fucking manage”

Given your previous written warning in this regard, and your continued deliberate failure to act professionally, this too is serious misconduct.

USING YOUR STANDING IN THE CLUB TO INTIMIDATE

The team generally are fearful of you and your influence within the Club given your mother, Leanne Langer, is a member of the Club’s board, and you have seemed willing to flex this influence and use it to wild coercion over your colleagues.

It appears this same attempt at intimidation is apparent by your choice of ‘support person’ at disciplinary meetings.

Attempts at coercion and undue influence amount to serious misconduct, whether they are successful or not.

TERMINATION OF EMPLOYMENT

Given the multiple instances of serious misconduct, you have left the Club with no option but to terminate your employment with immediate effect.

Given the termination is due to serious misconduct there is no notice period applicable. Your last day of employment will be today.

As your annual leave accrual is in the negative due to you being permitted to take annual leave in excess of your entitlement, this will be offset against the 7.6 hours of time in lieu that would have otherwise been due to you.

You are expected to return all keys, uniforms, and other property to the Club at your earliest opportunity and immediately remove all Club information and logins from your devices.

I expect your first response will be to demand names, dates, times, and proof of your misconduct. Due to the nature of the allegations, and your continued intimidating behaviour, these details will not be forthcoming as I have assured all those that I have interviewed in this investigation that identifying information would not be passed to you as they fear retribution.

Should you require a separation certificate or statement of service please don’t hesitate to let me know.

Yours sincerely,

Trent Boyle
Club Manager”

  1. In response to the issues raised in the termination letter, Ms Langer stated that she did not discuss the circumstances of her suspension with other staff. When her absence was discussed, she stated that she responded by saying that she had been suspended but was unable to discuss any details and that any inquiries should be directed to Mr Boyle. She therefore rejected the finding that her behaviour was disrespectful, defiant and intended to influence or compromise the investigation.

  1. Ms Langer stated that she could not address the sexual harassment allegations with certainty as she had not been provided with details of the allegations. Nevertheless, Ms Langer denied that she said the words alleged or words to that effect. Ms Langer stated that on 21 April 2024, she attended a separate venue with Ms Osborne and another former colleague after work. At this venue, Ms Langer said she expressed concerns around AB’s behaviour towards CD, another employee of the Club. Ms Langer’s evidence was that she said words to the effect of:

“I know we have tried to talk to CD about her relationship with AB and if she does not want to listen then we can’t force her but if he ever hurts her or even rapes her, we need to be there for her”.

  1. Ms Langer stated her concern was based on AB’s conduct around CD in December 2023, and she reported an incident to Mr Boyle in December 2023. She denied that she used a discussion around sex to belittle, humiliate or intimidate a colleague.

  1. In evidence given during the determinative conference, Ms Langer stated that she spoke about AB in this manner as she considered she was in the company of friends.  Ms Langer acknowledged consuming a considerable amount of alcohol that evening, but considered she was safe to drive home.  

  1. Responding to the allegations of insubordination, Ms Langer stated that she did not change rosters at the last moments before service, and instead only edited rosters that had not been published yet. She stated that she did this as she still had access to them, so she could offer her input on the rosters, based on her experience of which staff members worked well together and their strengths and weaknesses.

  1. In relation to her use of a manager’s login, Ms Langer stated that she used Mr Diegues’s login when she was required to use the computer. She stated that she had the permission of Mr Digues to use his account when he was in the room and when he stepped out of the room. If she ever wanted to change or provide input into the rosters, Ms Langer stated she would do so by using Mr Diegues’s login.

  1. Ms Langer stated that she recalls only ever asking to change the daily printed specials menu, since the cake cabinet continually changes, and she had noticed that the specials menu did not always reflect the changes. Sometimes she could not find anyone to change the specials menu, so she would try to do it herself so that the kitchen could be prepared for service.

  1. Ms Langer recalled an occasion on 4 May 2024 where Mr Diegues was not in the office, and she could not find Mr Boyle. She instead located Ms Zoe Vlok, Office Assistant, to request a change and print out of the menu.  Ms Vlok said she was busy, but told Ms Langer that she could log onto her computer and print the menu herself.

  1. Ms Langer agreed that she and Ms Vlok had explored the possibility of creating a single draft dinner menu with some changes to present to Mr Boyle. Having worked in the restaurant for five years, Ms Langer stated that had listened to customers’ feedback and had an understanding of their preferences but was never able to implement any change because she was suspended and then terminated.

  1. Ms Langer stated that she did not believe employees were not allowed to gossip, vent or discuss personal issues with each other, and stated that this was common practice amongst staff. She also said that she does not recall Mr Diegues raising any issues in relation to her performance or insubordination.

  1. In response to the suggestion that she used her mother as a ‘flex’ or to ‘wield coercion’, Ms Langer stated that prior to Mr Boyle’s commencement, the President of the club had asked her to share information in respect of the previous General Manager, as the Club had received complaints about his work ethic and professionalism.

  1. On 3 January 2024, Ms Langer received the following email from Mr Boyle responding to a request for a meeting to discuss an incident between AB and CD:

“…It’s very unfortunate that this has only been mentioned to me now as the chance of accessing CCTV footage after a few weeks is slim and conducting an investigation is now so much harder.

Additionally, please do not involve board members in these operations matters as that is what I am here for. Unless I am deficient in my duties and you have a grievance to raise about my conduct or lack thereof this should not be escalated to the president or a director. I will keep them informed of everything relevant as required.”

  1. Ms Langer stated that she understood from this response that everything she had done in relation to the incident was appropriate, so did not understand how she could be seen to be using her mother, as a director of the Club, to intimidate other employees. Ms Langer’s mother attended one meeting with her on 15 March 2024 as a support person.

Second statement

  1. In reply evidence, Ms Langer denied confronting her accuser, because she did not know who her accuser was. She stated that when Ms Osborne spoke to her on the evening of 12 May 2024, they discussed how she had felt left out from Mr Baker and his friends, her grandmother being sick, and her view that she was not wanted at and was being pushed out of the Club. She denied saying to Ms Osborne, “why did you report this?”. Ms Langer said she recalled saying words to the effect of, “why is this happening?”, “I feel I’m being pushed out”, and “Does someone want my job?”

  1. Ms Langer stated that she had not previously been made aware of accusations of fat shaming, ridiculing mental health injures, and making jokes in relation to sexual identity. The first she heard of the bullying and ‘slut shaming’ allegations was in her termination letter. She denied all of these allegations.

  1. Ms Langer stated that she has had conversations with Ms Osborne, CD and another employee about mental health and their experiences. She considered these conversations to be educational and denied that any comments made were malicious.

  1. Ms Langer denied that she asked her parents to ask Club employees to pressure the Club for further information in relation to the investigation. She stated that she was unaware that the Club had any media policies or procedures and stated that emails she forwarded to herself were in relation to subjects she was personally involved in, or anything she thought she could use to defend herself against the allegations raised by Mr Boyle.

Evidence given during the determinative conference

  1. In evidence given during the determinative conference, Ms Langer stated that she signed an employment agreement with another employer on 23 May 2024, one day prior to being dismissed by the Respondent.  She commenced working with the new employer on 27 May 2024 earning approximately $1,000 per week, commensurate with her remuneration with the Respondent.  

Evidence of Jonathan Morris

  1. Mr Jonathan Morris attended the Club on 12 May 2024. He was present from approximately 11:30am to 10:00pm and was not drinking alcohol as he was driving.  He did not recall seeing Mr Boyle, nor consider that he could have overheard any of Ms Langer’s conversations that evening.

Evidence of Scott Baker

  1. Mr Baker is Ms Langer’s roommate. He attended the Eurovision party at the Club on the evening of 12 May 2024. Ms Langer was part of a separate group that evening, but she eventually spent time with Mr Baker and his party.

  1. He did not witness Ms Langer mention her suspension or discuss the matter in any level of detail with any staff member. Due to the noise level at the Club, Mr Baker could not overhear the conversations occurring at Ms Langer’s table.

  1. One of his friends invited Ms Langer to stay at their table, but she declined. Mr Baker was informed that she was crying at the bar. Ms Osborne offered support to Ms Langer, and Mr Baker came to check on her twice. Ms Langer did not speak of her suspension and only mentioned the fact that she had been cut off from the bar and offered water. He was informed that Ms Osborne had also been cut off.

  1. Ms Langer and Ms Osborne went to the front foyer. Mr Baker intermittently sat with Ms Langer to check on her welfare.

Evidence of Kurt Langer

  1. Mr Kurt Langer is Ms Langer’s father. He became aware of his daughter's suspension on the day she was informed. He considered that she was suspended for an unusual period of time but was unaware what the Club’s management were doing during the suspension.

  1. Mr Langer has previously been on the committee of the Club and stated he has always been on good terms with all regular staff of the Club, and that this would continue into the future.

  1. During Ms Langer’s suspension, when asked by staff members as to his daughter’s welfare, he responded by saying, that she was suspended, he did not know why, and they could ask Trent. Mr Langer took care not to mention his daughter during conversations with staff. He also denied that he pressured staff for information relating the investigation.

Evidence of Leanne Langer

  1. Mrs Leanne Langer is Ms Langer’s mother. She is a Director of the Club. She became aware of her daughter’s suspension on the same day her daughter was informed. She continued to receive updates on her suspension from her daughter, who repeatedly asked her not to get involved.

  1. Mrs Langer does not recall pressuring any Club staff member for information regarding the suspension. She was asked by numerous staff members about the situation to which she responded that she was not at liberty to divulge any information.

  1. During a directors’ meeting on 20 June 2024, Mrs Langer was asked to leave the meeting due to a conflict of interest, as the Board was to discuss the unfair dismissal proceedings involving her daughter. She was not informed of these discussions, nor were they recorded in the meeting minutes.

Ms Langer’s submissions

  1. Ms Langer submitted that her dismissal was harsh, unjust and unreasonable, as she was not guilty of the allegations put to her in the termination letter, and she was not provided a sufficient opportunity to respond to these allegations. She submitted that the sexual harassment allegation was unfounded, and her reasonable requests for further details in relation to the allegation were not responded to.

  1. The requests for further details and relevant Club policies were, in Ms Langer’s submission, taken by Mr Boyle to amount to a refusal to attend a show cause meeting. Ms Langer submitted that this conclusion is not supported by the evidence. She submitted that she requested further information about the allegations and noted that she should be given time to prepare and not be rushed to respond. Ms Langer submitted that Mr Boyle conducted his investigation without obtaining her side of the story.

  1. Further, Ms Langer stated that she was not provided any opportunity to respond to the findings in relation to her conduct on 12 May 2024, continual insubordination, and use of her standing in the Club to coerce or intimidate.

  1. In reply submissions, Ms Langer submitted that Mr Boyle’s evidence refers to statements made and issues raised by other parties, but does not refer to any misconduct or allegations that he has seen or heard.

  1. Ms Langer submitted that the Commission ought to find that she was unfairly dismissed and award her compensation as assessed by the Commission.

EVIDENCE AND SUBMISSIONS OF THE RESPONDENT

Evidence of Trent Boyle

  1. Mr Boyle is the Club Manager of the Brisbane German Club.

  1. On 1 May 2024, a witness informed him that on the evening of 21 April 2024 Ms Langer, in relation to AB and CD, stated words to the effect of, “When AB rapes CD, she has been pretty much asking for it”. The witness provided a verbal and written statement to Mr Boyle. In the following days, Mr Boyle stated that AB and CD spoke with him after learning what Ms Langer had said and requested that an investigation take place.

  1. On 7 May 2024, Mr Boyle informed Ms Langer that she was suspended so that an investigation may take place.

  1. Mr Boyle stated that it had been reported to him that on 12 May 2024, Ms Langer confronted whom she assumed to be her accuser and said words to the effect of, “Why did you report this, are you trying to get rid of me, do you want my job or something?”. He stated that he subsequently learned that Ms Langer had engaged in bullying behaviour beyond the sexual harassment allegation, which included slut shaming, fat shaming, ridicule of mental health injuries, and jokes about sexual identity. He also stated that other staff had reported that Ms Langer’s parents were pressuring them for information about the investigation. Mr Boyle stated that he has assured staff that information will not be shared with anyone without their consent and only if they provided a statement or evidence to the Commission. Mr Boyle stated that the relevant staff members did not want to provide statements to the Commission out of fear of retribution.

  1. Post-termination, Mr Boyle learned that Ms Langer had forwarded emails to her private email address which contained price lists and event planning. He stated that these emails were deleted from sent items, but remained in deleted items, which is indicative of an attempt by Ms Langer to obscure her actions. Mr Boyle sent an email to Ms Langer on 24 May 2024 requesting that she delete these emails from her personal email account and confirm that she had done so. Ms Langer did not initially respond to this request, but on 1 June 2024 confirmed that she had “deleted any email that does not pertain to myself or my conduct within the Brisbane German Club”.

  1. In the lead up to the hearing on 7 November 2024, later converted to a determinative conference, I directed Mr Boyle to produce to the Commission the written statement from Ms Langer’s accuser. On 5 November 2024, Mr Boyle produced a statement from Ms Osborne which he received via email on 15 May 2024. The statement reads as follows:

“On the 21st of April at around 7:30pm, Madeleine Langer, a supervisor for the restaurant in The Brisbane German Club, had expressed vulgar and concerning language towards a member of staff both below her and above her station. I was sitting next to her and Georgina Dummet, a former employee, was sitting across from her. Langer was intoxicated during the time it was said but still had not had enough to drink to make her completely incapacitated. The topic of discussion had landed on that ‘no one in the kitchen or the bar listens’ to her and that she was getting fed up with it. Mainly when she was given advice (that was unsolicited) and when the person wouldn’t take it on-bard, she was become upset. That led into the topic of the work relationship between AB and CD. Langer had expressed continuous concern over the paring of the two, despite being told multiple times that there was nothing happening and it was strictly a functioning work relationship. It was then that she said ‘I don’t want to slut shame anyone, but when AB rapes CD, she has it coming.’ Both myself and Georgina had immediately called her out and expressed concern over what had just been said. I had decided to tell both AB and CD what had been said about them. Also a few times last year, perhaps around September Langer had made multiple comments about CD’s eating habit and had attempted to stifle her work because of it, instead of talking it with her. She has also made comments of my mental health, stating that ‘my depression was not real’ and ‘I had come from a family that built bridges and got over and so should you’.”

  1. In evidence given during the determinative conference, Mr Boyle conceded that he could have met with Ms Langer between 12 May 2024 and when he dismissed her on 24 May 2024.

Respondent’s submissions

  1. The Respondent submitted that Ms Langer was not unfairly dismissed for the reasons outlined in the correspondence provided to her by Mr Boyle. The Respondent submitted that Ms Langer engaged in serious misconduct warranting her immediate dismissal.

  1. The Respondent noted that Ms Langer secured new employment on 23 May 2024, prior to being dismissed on 24 May 2024. She commenced with her new employer on Monday, 27 May 2024.

VIEWING OF CCTV FOOTAGE

  1. A copy of the CCTV footage of 12 May 2024 was provided to the Commission for viewing.  Having watched the footage, I observed Ms Langer spend a considerable amount of time at the bar drinking water in the late evening of 12 May 2024, after she had been refused service while intoxicated.  I observed several young people approach Ms Langer at the bar and spend time talking with her.

CONSIDERATION

  1. A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:[1]

“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 act, 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.”

  1. I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.[2]

s.387(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)

  1. When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:

“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 on upon the operational requirements of the employer’s business. Further, in consideration 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, common-sense way to ensure that the employer and employee are treated fairly’.”

  1. However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[3]

  1. Ms Langer was dismissed for four reasons per the termination letter issued to her on 24 May 2024:

·Directive to not engage with employees during stand-down

·Sexual harassment

·Continual insubordination

·Using your standing in the Club to intimidate

  1. In respect of Ms Langer’s decision to remain at the Club on 12 May 2024 for all of the afternoon and evening as a patron, she did run the risk of consuming too much alcohol and discussing her suspension and the reasons behind it. 

  2. It was reported that Ms Langer said to Ms Osborne, in an intoxicated state, “Why did you report this, are you trying to get rid of me, do you want my job or something?”

  1. Ms Osborne did not include this allegation in her letter to Mr Boyle of 15 May 2024.  Perhaps she was only reflecting upon the conversation on 21 April 2024.  It appears that this was reported to Mr Boyle by Ms Osborne, but there is no direct evidence before the Commission of it having been said.  The evidence carries the weight of hearsay.

  1. Ms Langer’s first witness statement, dated 5 September 2024, suggested she had limited her discussions with Ms Osborne and others on 12 May 2024 to, “I was suspended”, “I cannot talk about it”, and “You’ll have to talk to Trent about it”.  Only after Mr Boyle filed his witness statement on 27 September 2024 did Ms Langer, when she filed her reply witness statement on 25 October 2024, state that her recollection was now that she had rhetorically asked Ms Osborne, “Why is this happening?”, “I feel I’m being pushed out”, and “Does someone want my job?”

  1. Noting that Ms Langer was intoxicated enough to have been cut off from being served alcohol after spending many hours at the Club, and the two accounts are not outrageously different, I am more inclined to accept that the hearsay account from Ms Osborne to Mr Boyle is more likely to have been said than the October 2024 account Ms Langer has given.

  1. I appreciate that the account of what was said at [77] is an accusation; the account at [79] is a rhetorical set of questions.

  1. Even if Ms Langer rhetorically asked in Ms Osborne’s presence, “Why is this happening” and “Does someone want my job?” it is not too far a stretch for Ms Langer to have linked the accusation regarding ‘rape’ with what she had said to Ms Osborne on 21 April 2024.  Ms Langer does not strike me as somebody who is unintelligent. By asking questions about why this is happening and whether someone wants her job in Ms Osborne’s presence, when the ‘rape’ discussion occurred only a few weeks earlier in Ms Osborne’s presence and was mentioned in the letter to her dated 7 May 2024, it would seem to me that, even in an intoxicated state, she was being intimidating towards Ms Osborne on 12 May 2024.

  1. Even on Ms Langer’s own account of the discussion on 21 April 2024, suggesting that she and others would need to be there for CD if AB raped her, where both AB and CD are work colleagues, it was a disgraceful thing to have said. Ms Langer tried to explain the statement made by her as simply discussing work colleagues in the company of friends; Ms Osborne was a work colleague and when she reported the conversation to both AB and CD, they were, understandably, incredibly offended and requested an investigation occur.

  1. Ms Osborne’s account of the conversation on 21 April 2024, reported on 1 May 2024, is that not only did Ms Langer suggest AB could rape CD, but that if it occurred, CD had it coming to her.  Ms Osborne reported that Ms Langer was intoxicated when she made this comment.  On Ms Langer’s account to the Commission as to how many drinks she consumed in the estimated time period, I consider it likely that she would be mildly to moderately intoxicated, despite her assurance that she considered herself safe enough to drive home.

  1. I am satisfied that Ms Langer’s offensive statement on 21 April 2024, whichever statement was said by her, was a valid reason for the dismissal.  It was reprehensible to make that statement about AB, and if she did make the statement about CD, even more so.

  1. I am satisfied that Ms Langer’s discussion with Ms Osborne on 12 May 2024 was intimidating and was a valid reason for the dismissal, in breach of directions issued by the Respondent not to discuss the issue with any employee of the Club.

  1. I do not accept the Respondent’s reasons for the dismissal in respect of continual insubordination or Ms Langer using her standing in the Club to intimidate.   Where I accept that Ms Langer was intimidating towards Ms Osborne on 12 May 2024, I do not find that it was because of her standing in the Club or relation to her family’s status within the Club.

s.387(b) – Whether the person was notified of that reason

  1. Ms Langer was notified of the reasons for the dismissal in the termination letter dated 24 May 2024.

s.387(c) – Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

  1. The letter to Ms Langer dated 7 May 2024 set out that there was an allegation of workplace bullying but then stated that there had been a preliminary inquiry, and a finding made that she had engaged in the relevant misconduct.  She was informed that at the meeting she was invited to, she would be provided with an opportunity to show cause as to why her employment should not be terminated.

  1. The fact that the Respondent stated that there had been a finding made was, of course, procedurally unfair.  It was appropriate that there had been a preliminary inquiry up until that date, but for Mr Boyle to state that a finding had been made that she had engaged in the relevant misconduct was inappropriate.

  1. At no time between 12 May 2024 and 24 May 2024, the day Ms Langer was dismissed, did the Respondent put to Ms Langer that it considered she had behaved inappropriately on 12 May 2024 and in breach of the direction not to discuss the issues with other employees.  Ms Langer only learned of this reason for the dismissal in the termination letter issued to her on 24 May 2024.

  1. Ms Langer was given an opportunity to respond to the allegations around the ‘rape’ conversation, which she denied in writing on 9 May 2024, stating that she wholeheartedly rejected as true.

s.387(d) – Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to the dismissal

  1. Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

  1. There is no positive obligation on an employer to offer an employee the opportunity to have a support person. The Explanatory Memorandum, Fair Work Bill 2008 (Cth) at [1542] states the following:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”

  1. There was no unreasonable refusal by the Respondent to allow Ms Langer to have a support person present to assist at any discussions relating to the dismissal.

s.387(e) – If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal.

  1. The dismissal was not related to unsatisfactory performance; it was for misconduct.

s.387(f) – Whether the respondent’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated human resource management specialist impacted on the procedures followed

  1. The Respondent is not a small business, however I consider that there was an absence of a dedicated human resource management specialist which impacted on the procedures followed.

s.387(h) – Other matters

  1. Ms Langer executed an employment agreement one day prior to being dismissed by the Respondent. She commenced employment with the new employer three days after being dismissed.   

Conclusion

  1. I have determined that there were two valid reasons for the dismissal.   

  1. I have determined that Ms Langer was notified of the reasons for the dismissal.

  2. I consider that Ms Langer was not afforded procedural fairness in respect of all of the allegations put to her.  The Respondent prematurely made findings in respect of the ‘rape’ conversation allegation.  She was not afforded any procedural fairness in respect of the Respondent’s concerns regarding her conduct on 12 May 2024.  The Respondent simply dismissed her because it considered she had engaged in misconduct.

  3. Having regard to this, however, Ms Langer’s final version to the Commission in late October 2024 of the conversation of 21 April 2024 is that she did make a statement that if AB rapes CD, she and others will need to be there for CD.  If such an admission was made in any investigation into the matter prior to being dismissed, it would have carried very significant weight in determining whether to dismiss Ms Langer or not.

  4. There was no unreasonable refusal by the Respondent to allow Ms Langer a support person.

  1. The dismissal was not in respect of poor performance; it was for misconduct.

  2. The Respondent’s enterprise is not small. I have determined that the absence of a dedicated human resource management specialist impacted on the procedures adopted by Mr Boyle.  

  1. Weighing up the seriousness of the two valid reasons for the dismissal against the failure to afford procedural fairness to Ms Langer, I find that the dismissal was not harsh, unjust or unreasonable. The suggestion by Ms Langer that AB might rape CD should never have been made.  The decision to dismiss Ms Langer for making this statement is not disproportionate to the misconduct engaged in by her.

  2. I would have made a finding that the dismissal was not unfair irrespective of Ms Langer’s decision to accept employment with a new employer prior to the dismissal.


  1. The application is dismissed. An order [PR784688] will be issued with this decision.

COMMISSIONER

Appearances:

M Langer, the Applicant.
T Boyle for the Respondent.

Hearing details:

2024.
Brisbane.
7 November.


[1] (1995) 185 CLR 410, [465].

[2] Sayer v Melsteel [2011] FWAFB 7498, [20].

[3] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

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Jones v Dunkel [1959] HCA 8
Jones v Dunkel [1959] HCA 8