[2020] FWC 1991

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Straschko
v
Casino Canberra Limited
(U2019/2139)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 17 APRIL 2020

Application for Relief of Unfair Dismissal – dismissal not harsh, unjust and unreasonable – application dismissed.

[1] Mr Matthew Straschko (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 27 February 2019 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Casino Canberra Limited (the Casino – the Respondent) on 7 February 2019 was unfair.

[2] The application was heard on 26 and 27 June 2019. At the hearing, Mr Jacob Gowor, the Applicant’s partner, appeared for the Applicant while Mr John Wilson appeared with permission for the Respondent. Early on in the proceedings, while Mr Straschko was giving evidence, the Respondent made an oral application that the Commission dismiss Mr Straschko’s application. The Commission refused that application at the hearing on the basis that Mr Straschko was yet to fully advance his case.

[3] At the hearing, Mr Straschko gave evidence on his own behalf. Mr Gowor also gave evidence for the Applicant.

[4] For the Respondent, evidence was given by:

• Mr Shane Maundrell, the Casino’s Compliance Manager and In-house Legal Counsel;

• Mr Ross Beyer, the Casino’s Gaming Operations Manager;

• Mr Dean Carr, a Gaming Shift Manager with the Casino;

• Mr Nathan Kingsley, a Security Shift Manager with the Casino;

• Mr Bradley Garnaut, a Gaming Shift Manager with the Casino; and

• Ms Rhiannon Bach, a former Vice President/General Manager with the Casino (Ms Bach held those roles at the time the Applicant was dismissed).

[5] For the reasons set out below, I find that Mr Straschko’s dismissal was not harsh, unjust or unreasonable. His application is therefore dismissed.

Background

[6] At the time of his dismissal Mr Straschko was employed by the Casino as a Dealer/Inspector in accordance with the Casino Canberra Enterprise Agreement 2016-2019 1. Mr Straschko commenced work with the Casino in September 2009.

[7] On 21 December 2018 Mr Straschko while attending the Casino with Mr Gowor and Mr Gowor’s sister was observed using gaming chips to purchase food and drinks. As a result, Mr Straschko was asked to leave the premises by Mr Kingsley. As he was leaving the premises it is contended that Mr Straschko swore at Mr Kingsley and made obscene gestures which were captured by the Casino’s closed-circuit television (CCTV) cameras.

[8] On 22 December 2018 Mr Beyer contacted Mr Straschko and advised him that he was suspended with pay pending an investigation of the events of the previous evening.

[9] On 24 December 2018 the Casino’s Director of People, Ms Trish Philpott, sent an email to Mr Straschko notifying him of his stand-down and requesting that he attend an investigation interview with Ms Jessica Mellor, the Casino’s then Chief Executive Officer (CEO), on 27 December 2018. Attached to that email was a letter from Ms Mellor headed “Investigation and direction to stand-down”. 2 The letter set out the allegations to be investigated as follows:

“Allegations

On the evening of Friday, 21 December 2018, you were observed (while off-duty):

• to be in attendance on the main gaming floor of the Casino (which is permissible); and

• using Casino gambling chips (three (3) * $5.00 gaming chips) to make purchases from the Food and Beverage department of the Casino.

After this was observed, you were approached by Mr Nathan Kingsley, Security Shift Manager, and Nathan asked you to leave the Casino. It is alleged that the following incident then transpired:

• You said that the Casino was asking for trouble if the Casino was going to make any issue about you being at the Casino.

• You stated that you wanted to return to the gaming floor to finish the drink you had ordered.

• You were advised that this would not be allowed and you were informed that you would be provided with a refund if you wished.

• You then informed Mr Kingsley that he had to get your money straight away, and you proceeded to swear and make obscene gestures towards CCTV cameras; and

• After you had left the Casino and were in the vicinity of the Staff Entry – entrance door and staff smoking area, you continued making obscene gestures towards the CCTV cameras.

It is also understood that you said words to the following effect to Mr Bradley Garnaut (Acting Gaming Shift Manager):

“They just kicked me out, I came in with Jacob and his sister, we ordered some food, and I paid for it with some of Jacob’s chips.”” 3 (Formatting as per original)

[10] Mr Straschko met with Ms Mellor on 28 December 2018, with Mr Gowor attending as Mr Straschko’s support person. The meeting concluded on the basis that Mr Straschko would provide a statement in respect of the allegations set out in Ms Mellor’s letter by close of business on 31 December 2018 with the parties to meet again on 2 January 2019 to discuss Mr Straschko’s statement. Mr Straschko provided his statement on 31 December 2018.

[11] Ms Mellor emailed Mr Straschko on 2 January 2019 cancelling their meeting for that day and advising him that she had decided to pass on the investigation to Mr Maundrell in circumstances where her tenure as CEO of Casino Canberra ended on 31 December 2018. 4

[12] After returning from leave on 11 January 2019, Mr Maundrell provided an investigation report to Ms Bach on 18 January 2019 in which he concluded among other things that:

• Mr Straschko’s use of gaming chips to purchase food and beverages constituted off duty conduct that reflected adversely on the Respondent;

• as an experienced dealer, Mr Straschko ought to have been aware of the inappropriateness of his behaviour; and

• Mr Straschko had failed to treat Mr Kingsley and Surveillance staff with dignity, courtesy and respect, had acted in an offensive manner to Casino staff and engaged in improper behaviour to fellow staff members. 5

[13] The investigation report also identified an additional matter of concern which needed to be put to Mr Straschko. The additional concern related to whether Mr Straschko had given assistance or advice to Mr Gowor regarding his gambling while in the Casino on 21 December 2018. 6

[14] Mr Maundrell wrote to Mr Straschko on 21 January 2019. Among other things the letter set out Mr Maundrell’s findings in relation to the allegations and his conclusions in relation to Mr Straschko’s handling of gaming chips and conduct towards Casino staff. The letter also included the following:

“Opportunity to further respond to Allegations

18. This letter sets out my preliminary findings in relation to the Allegations, and I hereby extend to you and opportunity to:

➣ consider my preliminary findings;

➣ make any further submissions; and/or

➣ provide any further evidence you wish me to consider,

before I finalise my investigation and recommendations in relation to the Allegations.

19. I request that any further written submissions or evidence in relation to the Allegations be provided to me on or before 10am on Thursday, 24 January 2019 …

Further matter of concern (not subject of original Allegations) – Further Allegations

21. I note that:

• in your Response … you have stated:

My partner indicated that they would like to gamble. My partner got up and requested a roulette brochure from an on-duty staff member. My partner then started marking the brochure with a pen. I enquired as to why they were marking it, and received a response of “ever since they removed the race track, I need to scribble down the splits when playing tier”.

To be clear, I did not encourage or discourage my partner from gambling. I did not provide any assistance or advice. My partner is what we would consider a ‘sophisticated’ player and does not need any help with gambling.

My partner then got up and placed some bets on a roulette table. I do not know how much my partner bought in for, what numbers they played, or how they managed to return to the table with several black chips in such a short period of time.

• the Letter made no factual allegations with respect to you instructing (or assisting) a family member or friend with respect to their gambling activity at the Casino; and

• in addition to reviewing the CCTV footage with a view to determining whether the (original) Allegations are substantiated (or otherwise), I have reviewed CCTV footage with a view to considering whether any (additional) matters are required to be put to you in relation to whether you may have been providing any instruction or assistance to a family member or friend (contrary to the requirements of the Casino’s Employee Handbook).

22. Having reviewed the CCTV footage, I consider it appropriate that the following additional matters be put to you:

On the evening of Friday, 21 December 2018, the following has been observed (from the Casino’s CCTV footage):

(a) at 7:28pm:

• you can be seen to be sitting with Jacob Gowor (JG) at the Table;

• JG is holding a Roulette Card and you and JG are both pointing to AR01 and AR03; and

• you can be seen to be pointing at the “wheel” on the Roulette Card (while JG holds the card);

(b) at 7:29pm, you can be seen to take the Roulette Card from JG and to be writing on the Roulette Card. JG then takes the Roulette Card from you. JG then writes on the Roulette Card, while you can be seen to be closely watching what JG is doing;

(c) at 7:30pm, JG sits up and is still holding the Roulette Card. You are leaning in and pointing at the Roulette Card;

(d) at 7:31 -7:35pm:

• You and JG continue to converse over the Roulette Card, passing it back-and-forth as each of you write on the Roulette Card;

• JG then leaves the Table and heads to Pit #4; and

• JG returns to the Table with a Roulette Card and once seated can be seen to be writing on the Roulette Card

(e) at 7:36pm, you can be seen:

• to be pointing and looking in the direction of the Roulette tables; and

• looking at the Roulette Card held by JG and having a discussion with JG; and

(f) at 7:37pm, JG leaves the Table holding a Roulette Card and heads over to a Roulette table

(Further Allegations).

23. Depending on what facts (if any) are able to be substantiated in connection with the Further Allegations, it may be concluded by me that:

➣ the CCTV contradicts your assertion that you did not provide (gambling) assistance or advice to JG; and

➣ you have acted in breach of the following requirement of the Casino’s Employee Handbook:

You must not instruct a friend, family member or any other person in relation to how to gamble while in the Casino

Way forward

24. To facilitate my investigation into the Further Allegations, you are requested to attend an interview with me at 3pm on Thursday, 24 January 2019 …

25. At the interview:

➣ you will be able to explain your version of events regarding the Further Allegations; and

➣ if you wish, you may also further address the (original) Allegations.

26. You are able to bring a support person to the interview if you wish.

27. …

Conclusion of investigation

32. At the conclusion of the investigation, I will provide Ms Rhiannon Bach, Vice President and General Manager, with a written investigation report which will contain my findings in relation to:

➣ the Allegations; and

➣ the Further Allegations.

33. Depending on the outcomes of the investigation:

➣ no further action may be required; or

➣ disciplinary action may be required (up to and including termination of your employment).” 7 (Formatting as per original)

[15] Mr Straschko and Mr Maundrell subsequently exchanged a number of emails. Mr Straschko provided his detailed response on 31 January 2019 in which he contended that over the previous two and a half years he had been the subject of discrimination, bullying and harassment every time that he had applied for either recreational or long service leave. His response did not otherwise substantively address the further allegations.

[16] Mr Maundrell interviewed Mr Straschko on 1 February 2019, with Mr Gowor again in attendance as Mr Straschko’s support person. In the course of that interview, Mr Maundrell showed Mr Straschko the CCTV footage related to the ‘Further Allegations’ set out in his letter of 21 January 2019.

[17] On 5 February 2019 Mr Maundrell concluded his investigation and provided his investigation report to Ms Bach. In short, Mr Maundrell confirmed his findings in respect of the original allegations (see paragraph [12] above) and concluded that Mr Straschko had breached the requirement in the Casino’s Employee Handbook not to instruct anyone in how to gamble while in the Casino. Mr Maundrell also concluded that there was no substance to Mr Straschko’s contention that the investigation had been initiated in order to bully, harass or discriminate against him.

[18] On 6 February 2019 Mr Straschko sent Mr Maundrell an email in which he inter alia disputed that he had provided Mr Gowor with advice on how to gamble on the evening of 21 December 2018. Mr Maundrell forwarded that email to Ms Bach shortly after he received it.

[19] On 7 February 2019 Ms Bach, together with Mr Beyer, met with Mr Straschko. Mr Gowor also attended the meeting as Mr Straschko’s support person. At the meeting, Mr Straschko’s employment was terminated with immediate effect (Mr Straschko was paid four weeks’ pay in lieu of notice). The termination letter included the following:

“Existing Performance Improvement Plan

In reaching a decision, I have considered your existing Performance Improvement Plan dated 19 September 2018 (PIP),which:

• explained certain findings in relation to your conduct; and

• provided a warning to you that:

◦ you must continue to meet professional standards that are requirements of all Casino Canberra team members in all areas of your employment; and

◦ any failure to comply will result in further disciplinary action, or termination of your employment.

Investigation Report

On 5 February 2019, Mr Maundrell provided me with his Investigation Report into the Allegations and Further Allegations.

I enclose a copy of the report for your reference.

Having reviewed the Report, I note that:

(a) you have been provided with detailed information in relation to:

➣ the factual matters constituting the "Allegations" and "Further Allegations";

➣ a range of relevant policy and legislative material that was (potentially) relevant to the Allegations and Further Allegations;

(b) in the course of the investigation, you have been afforded the opportunity to respond to all of the matters mentioned in paragraph (a) above; and

(c) you have been afforded the opportunity to have a support person present at your interviews with Ms Mellor and Mr Maundrell.

My conclusions

I have concluded that on the evening of 21 December 2018:

➣ you have used gaming chips to purchase food and beverages, and that:

◦ this constituted off duty conduct that reflects adversely on the Casino; and

◦ as an experienced dealer, you ought to have been aware of the inappropriateness of acting in this manner;

➣ in relation to your interaction with Mr Kingsley, and your making of gestures towards the CCTV cameras, I have concluded that:

◦ the Allegations (as set out in the Letter and Further Letter) have been substantiated;

◦ having regard to these findings, your behaviour was not consistent with the requirements ofthe Casino Canberra's Employee Handbook, in that you have:

◦ failed to treat Casino staff (i.e. Mr Kingsley and Surveillance staff) with dignity, courtesy and respect;

◦ acted in an offensive manner towards Casino staff; and

◦ engaged in improper behaviour towards fellow staff members;

➣ (having regard to the findings in paragraph 20 of the Investigation Report), you have breached the following requirement of the Casino's Employee Handbook:

You must not instruct a friend, family member or any other person in relation to how to gamble while in the Casino; and

➣ there is no substance to your assertion that the investigation was initiated in order to bully, harass, or discriminate against you.

In reaching these conclusions, I do note that I have read and considered your letter dated 6 February 2019 to Mr Maundrell – which was sent after the Investigation Report was completed.

Having regard to the above (and noting the terms of your PIP and the warning that was provided to you), I have:

➣ determined that your conduct is still unsatisfactory; and

➣ decided to terminate your employment with Casino Canberra.

Your employment will end immediately.” 8

[20] As previously mentioned, Mr Straschko lodged his unfair dismissal application on 27 February 2019.

The Applicant’s case

[21] Mr Straschko’s submissions focussed on each of the considerations in s.387 of the Act and are set out in greater detail later in this decision. Among other things, Mr Straschko submitted that none of the reasons relied upon by the Respondent for his dismissal constituted a valid reason for his dismissal, either individually or in aggregate. As to remedy, Mr Straschko posited that reinstatement was clearly appropriate in this case. In the alternative, Mr Straschko contended that he should be award six months’ remuneration without any deductions.

[22] At the hearing, Mr Straschko submitted that his dismissal was harsh and that he had not been afforded natural justice through the process as he had never been presented with all the evidence. Mr Straschko highlighted that the CCTV footage of him and Mr Gowor sitting in the Onyx Lounge on 21 December 2018 had not been put to him in the course of the investigation, adding that it would have been good to have seen that footage before making his unfair dismissal application. Mr Straschko conceded that reinstatement was not an option given the broken relationship between him and the Casino. Mr Straschko also advised the Commission that he had secured alternative employment and would start in that new job in a few weeks and that the course he was undertaking at the Canberra Institute of Technology was a full-time course.

[23] Mr Straschko provided two witness statements 9. In his first witness statement, Mr Straschko traversed several of the instances where he had been disciplined or counselled and the chronology of events following the incident of 21 December 2018, providing a fairly detailed overview of aspects of his interview with Mr Maundrell on 1 February 2019. Among other things, Mr Straschko deposed in his first witness statement that:

• at his interview with Mr Maundrell on 1 February 2019 Mr Gowor asked Mr Maundrell whether he [Mr Straschko] would have an opportunity to respond to his final investigation report, with Mr Maundrell responding that the interview was his opportunity to respond but that he would consider anything he wished to put forward then or in writing;

• he was currently studying towards a Certificate IV in information technology at the Canberra Institute of Technology;

• he had never been told either verbally or in writing that the use of gaming chips to purchase food or drinks at the Casino whilst off duty was prohibited;

• he did not instruct Mr Gowor on how to gamble;

• he believed the reason he had been dismissed was because the Casino had too many full-time staff that were contributing to its losses, adding that in dismissing him the Casino avoided the need to make him redundant;

• in the alternative, he had been dismissed because he had applied for long service leave prior to 21 December 2018; and

• in a further alternative, he had been dismissed because he had requested to move to part-time employment.

[24] In his second witness statement Mr Straschko responded in detail to each of the witness statements filed by the Respondent. Noteworthy aspects of his second statement included that:

• he had not seen the document headed “1. Introduction to Work in a Casino” 10 until his interview with Mr Maundrell on 1 February 2019;

• Mr Kingsley had said to him on 21 December 2018 that he was being monitored, adding that he responded “Really? What the f..k?”; and

• he had not received a copy of the draft 2018 Casino Canberra Employee Handbook nor had he been invited to provide feedback on the document, adding that he had not received the approved version of the document or know of its existence.

[25] Under cross examination Mr Straschko was shown and questioned about the following CCTV footage files – 21.12 @ 18.57 – Sitting in Main Aisle (cam 86).pef, 21.12 @ 18.57 – Sitting in Main Aisle (cam 157).pef, 21.12 @19.26 – At the bar.pef, 21.12 @ 19.41 – Mat giving Jacob chips by AR02.pef and 21.12 @ 18.49 – Sitting in Onyx Lounge.pef. 11 In his responses to questions regarding the CCTV footage Mr Straschko inter alia attested that:

• the footage showed him handling gaming chips and paying for food and drinks with gaming chips;

• he was aware as at 21 December 2018 that Casino staff should not be handling gaming chips other than in the course of their duties;

• in relation to the CCTV footage file 21.12 @ 18.49 – Sitting in Onyx Lounge.pef:

- he did not remember his conversation with Mr Gowor,

he did not remember explaining to Mr Gowor how to play roulette when they were both writing on and pointing at a Roulette Card,

- at one point when he took the pen from Mr Gowor’s hand and started writing on the Roulette Card he may have been drawing places on the roulette table on the Card, and

- at one stage when talking with Mr Gowor it looked like he was pointing/explaining something which seemed to be in relation to the game of roulette;

• in relation to the CCTV footage file 21.12 @ 18.57 – Sitting in Main Aisle (cam 86).pef:

- he did not recall his conversation with Mr Gowor, though they were possibly talking about matters to do with the roulette table,

- he did not know why he had a conversation about a Roulette Card with Mr Gowor,

- the footage of him talking to Mr Gowor about the Roulette Card “doesn’t look great”, adding that he would not say that he was teaching or instructing Mr Gowor about how to play roulette and reiterating that he did not recall their conversation, and

- when Mr Gowor returned to their table after playing roulette and he [Mr Straschko] was pointing at a roulette table they were both possibly talking about the game of roulette;

• he did not blow smoke/vapour directly at Mr Kingsley;

• he was possibly giving Mr Kingsley and the CCTV camera “the finger” as he left the Casino and gave the finger to the CCTV camera outside the premises on 21 December 2018, adding that in doing so he was showing his dislike for the situation; and

• he was absolutely certain he did not swear at Mr Kingsley, though when taken to his second witness statement where he deposed that he said the words “What the f..k” he said that the remark was directed at the entire situation as opposed to Mr Kingsley.

[26] When questioned generally about the CCTV footage which he had been taken to at the hearing, Mr Straschko agreed that it looked like he and Mr Gowor were having a chat about roulette. Mr Straschko further agreed that the chat possibly involved him giving advice to Mr Gowor and may have included him suggesting to Mr Gowor how he approach playing the game of roulette. Mr Straschko also agreed that when put like that his chat with Mr Gowor amounted to him instructing Mr Gowor on how to play the game of roulette, adding that at the time he did not think he was giving Mr Gowor advice but just having a general conversation. Mr Straschko also attested that he knew not to advise anyone or give instruction on how to play roulette but also stated that he did not know that doing so was serious misconduct or a sackable offence.

[27] Mr Straschko was also taken to a number of the disciplinary/counselling matters referred to by Mr Carr and Mr Beyers in their respective witness statements. At the conclusion of his cross examination regarding these issues Mr Straschko agreed that prior to 21 December 2018 he had been warned about swearing in front of other employees, about how he interacted with other employees and his gestures to other employees.

[28] Beyond that, Mr Straschko was also questioned about aspects of his evidence and Mr Maundrell’s witness statement, among others. Key aspects of his responses included that:

• the 2015 Casino Canberra Employee Handbook appended to Mr Maundrell’s witness statement 12 was a document which he may have signed, adding that while he did not think he had seen the document he had seen a document like it before;

• there was a computer in the staff room for use by employees, adding that he knew that the Casino’s Employee Handbook and procedures were available online; and

• he no longer maintained that aspect of his first witness statement regarding his interview with Mr Maundrell on 1 February 2019 in which he deposed that he may have doodled something on the Roulette Card 13.

[29] Mr Gowor in his witness statement 14 set out his version of the events of 21 December 2018, deposing among other things that:

• at one stage Mr Straschko took the Roulette Card he was holding and wrote on it “She’s not happy” referring to his sister;

• after playing roulette for a short while he returned to the table where Mr Straschko and his sister were sitting and placed a few hundred dollars of gaming chips on the table, suggesting that they order whatever they like;

• after eating they had a conversation about travel and holidays, with he and Mr Straschko discussing a casino they visited in Vanuatu;

• after returning from having a cigarette he went to a roulette table, adding that there was an aggressive patron being rude to the croupier which prompted Mr Straschko to say something to the patron; and

• at around 8:00pm Mr Straschko was escorted out by Security and that when he went outside to find out what had happened Mr Straschko said to him that he [Mr Straschko] was being monitored.

[30] Mr Gowor also deposed that he had gambled reasonably regularly at the Casino for many years, that he did not receive or seek gambling advice from Mr Straschko on 21 December 2018 and that he had not been asked by the Casino to either provide a statement or be interviewed regarding the events of 21 December 2018.

[31] Key aspects of Mr Gowor’s oral evidence included that:

• he provided some assistance to Mr Straschko in preparing his witness statement, adding that he did not tell Mr Straschko what to include in his statement;

• he disagreed with Mr Maundrell’s statement which described Mr Straschko as “flustered” at one stage of his interview on 1 February 2019, adding that he asked Mr Straschko if he wanted a break because he felt that Mr Straschko was being bullied;

• he was a regular roulette player and very familiar with roulette;

• with regard to the CCTV footage of he and Mr Straschko in the Onyx Lounge, he did not believe Mr Straschko was writing on the Roulette Card nor was he providing him with advice on how to play roulette or discussing how to gamble at the Casino;

• he found offensive the suggestion that his witness statement was a recent invention to assist in these proceedings;

• Mr Straschko knew better than to provide him with advice on gambling as that would be a completely futile exercise; and

• it was his sworn testimony that his conversation with Mr Straschko on 21 December 2018 was an innocent one.

The Respondent’s case

[32] The Respondent submitted that Mr Straschko’s dismissal was not harsh, unjust or unreasonable. The Respondent’s submissions also focussed on each of the considerations in s.387 of the Act, contending among other things that there was plainly a valid reason for the dismissal. The Respondent’s submissions in that regard are set out later in this decision.

[33] At the hearing the Respondent submitted inter alia that Mr Straschko’s application should be dismissed because on any reasonable view of the evidence he was guilty of serious misconduct, adding that it could not be controversial that a casino employee instructing, advising or suggesting to someone how to go about their approach to gambling was incompatible and conflicted with their duty to their employer. The Respondent posited that both Mr Straschko and Mr Gowor gave fanciful evidence when one considered the CCTV footage of the incidents of 21 December 2018. The Respondent further contended that anybody but “blind Freddy’ could see that the CCTV footage showed Mr Straschko advising, instructing and making proposals to Mr Gowor as to how he should gamble at the roulette table, adding that as Mr Gowor was a regular roulette player it could not be that Mr Straschko was explaining the rules of roulette to him. The Respondent’s submissions also went to the considerations in s.387 of the Act.

[34] As to remedy, the Respondent contended that reinstatement was not appropriate as Mr Straschko’s previous misdemeanours meant that the relationship could not be restored, adding that no compensation should be awarded to Mr Straschko should his dismissal be found to be unfair. The Respondent also proposed that given the paucity of material before the Commission regarding the issue of remedy that should it find Mr Straschko’s dismissal to have been unfair that it should invite further submissions on the issue.

[35] Mr Maundrell in his witness statement 15 provided a detailed chronology of events commencing with the text message he received from Mr Beyer on 22 December 2018 in which Mr Beyer foreshadowed his intention to suspend Mr Straschko pending an investigation and ending on 6 February 2019 when he forwarded Ms Bach the email he had received from Mr Straschko that day. The chronology, while more detailed, is consistent with the background set out at paragraphs [7]-[18] above. With particular regard to his interview with Mr Straschko on 1 February 2019, Mr Maundrell deposed inter alia that:

• he provided Mr Straschko with a copy of a document which was an introduction handout for dealer trainees and took him to the passage at paragraph 2(f) of the document which dealt with the handling of gaming chips (see paragraph [41] below), adding that his instructions were that Gaming staff were instructed that they should not handle gaming chips within the Casino other than in the course of their duties;

• Mr Straschko responded that he did not recall the document;

• he showed Mr Straschko CCTV footage covering the period 7:27pm-7:37pm on 21 December 2018, adding that when he asked Mr Straschko if having seen the footage he wished to clarify his previous written comments regarding the “Further Allegations” put to him on 21 January 2019 that Mr Straschko appeared to be quite flustered and did not respond to the question;

• Mr Gowor then asked Mr Straschko whether he wanted to take a break, with Mr Straschko saying that he did and that he granted the request;

• when Mr Straschko returned he provided a number of responses to the question, including that Mr Gowor wanted clarification as to where the “sections” were (on the Roulette Card) and that he (Mr Straschko) gave him a broad outline of the wheel, that they discussed other casinos they had been to with different layouts and also discussed various roulette styles;

• he also showed Mr Straschko the CCTV footage of when he was asked to leave the Casino by Mr Kingsley and the ensuing events, adding that when asked if he wished to say anything about that part of the footage which appeared to show him blowing smoke in Mr Kingsley’s face that Mr Straschko responded to the effect that it was water vapour and that he was not intending to be disrespectful; and

• the interview concluded on the basis that he would consider anything Mr Straschko wanted to send him over the weekend (i.e. 2-3 February 2019).

[36] Mr Maundrell also deposed that, according to records maintained by the Casino, in the five years leading up to the incident of 21 December 2018 Mr Straschko had been subject to a number of performance counselling or disciplinary actions. Mr Maundrell catalogued 13 such instances in his witness statement, including six instances where Mr Straschko had been issued with a written warning 16 and two instances where he had been placed on a performance improvement plan. Mr Maundrell also referred to the Casino Canberra Employee Handbook in his witness statement.

[37] Key aspects of Mr Maundrell’s oral evidence included that:

• the rule regarding the handling of gaming chips was not contained in either the 2015 or 2018 versions of the Casino Canberra Employee Handbook, adding that the Employee Handbook did not cover every rule applying to staff given the diverse range of workers employed by the Casino;

• staff were advised of consultations regarding the draft 2018 Casino Canberra Employee Handbook by way of email and through the daily shift briefings for Gaming staff, adding that he did not believe Mr Straschko had a Casino Canberra email account;

• copies of the draft 2018 Casino Canberra Employee Handbook were also available in the staff room in both hard and soft copy, the latter via a computer for staff use which was located in the staff room;

• he was not aware if Mr Straschko had been given a hard copy of the 2018 Casino Canberra Employee Handbook;

• he did not interview either Mr Gowor or Ms Gowor as part of his investigation;

• he was confident that his conclusions were supported by the CCTV footage of the incident;

• the document headed “1. Introduction to Work in a Casino” provided to Mr Straschko during his interview on 1 February 2019 and attached to his final investigation report was the only written document provided to him setting out the rule regarding the handling of gaming chips by Casino employees (see paragraph [41] below);

• not all Casino employees underwent the same induction, adding that it was his understanding that the document headed “1. Introduction to Work in a Casino” was not given to all Casino employees as it was clearly addressed to Gaming staff;

• he was not aware of any Casino staff handling gaming chips while off duty prior to Mr Straschko on 21 December 2018;

• he was not aware of any specific training provided to Casino staff regarding off duty conduct;

• he did not have the Roulette Card used by Mr Straschko and Mr Gowor on 21 December 2018;

• he did not know what specific instructions Mr Straschko gave to Mr Gowor on 21 December 2018, adding that he formed the view that on the balance of probabilities Mr Straschko had provided Mr Gowor some instruction or guidance on gambling at the Casino;

• as part of his investigation he reviewed Mr Straschko’s personnel file;

• he did not take the various disciplinary matters concerning Mr Straschko cited in his witness statement into account in his investigation, though for the purposes of the decision maker he did note in the final investigation report that Mr Straschko was on a performance improvement plan;

• he assisted Mr Kingsley in putting together his witness statement, adding that he did not tell him what to include in his statement and that he showed him those aspects of the CCTV footage involving him;

• he also assisted Messrs Carr and Beyer with their respective witness statements; and

• when he interviewed Mr Straschko on 1 February 2019 he did not show him the CCTV footage from the Onyx lounge 17, adding that he did not rely on that footage in his report or conclusions and that the focus of his investigation was the CCTV footage from the main aisle18.

[38] Mr Beyer has worked continuously at the Casino since March 1999 for all but a period of about 14 months from December 2013 to February 2015. In his witness statement 19 Mr Beyer deposed that in all Gaming team induction training each team member received a document which provided that Gaming staff while on Casino premises must not handle gaming chips unless in the normal course of play. Mr Beyer further deposed that in his experience at the Casino, Gaming staff were regularly reminded that they must only touch gaming chips in the course of the duties and that the incident of 21 December 2018 involving Mr Straschko was the first time he was aware of any Gaming team member using gaming chips to purchase food and beverages. Mr Beyer also stated that he had:

• issued a written warning to Mr Straschko on 10 August 2018 for failing to show “clean hands” 20 in breach of the Casino’s General Gaming Procedures and for making an obscene gesture to the on-duty Gaming Shift Manager who advised him that the breach had been detected; and

• placed Mr Straschko on a six-month performance improvement plan which was agreed on 19 September 2018, adding that as part of the plan he met with Mr Straschko on four occasions to discuss his performance.

[39] As to the incident of 21 December 2018, Mr Beyer deposed that he was contacted by Mr Carr who advised him that Mr Kingsley had informed him that Mr Straschko had made two food and beverage purchases using gaming chips and that this had been confirmed by the Casino’s Surveillance team. Mr Beyer also stated that he told Mr Carr to ask Mr Straschko to leave the Casino. Other key aspects of Mr Beyer’s witness statement included that he contacted Mr Straschko on 22 December 2018 to advise him that he had been suspended with pay pending an investigation into the events of the previous night and that on 27 December 2018 he and Mr Straschko had a number of telephone conversations which culminated in him emailing Mr Straschko a copy of the Casino’s Employee Handbook which he subsequently understood to be an earlier version of the document.

[40] In his oral evidence Mr Beyer reaffirmed key aspects of his witness statement. Beyond that, he attested that the termination meeting on 7 February 2019, which he attended with Ms Bach for the Casino, was a short meeting, with Ms Bach entering the meeting and advising Mr Straschko that she had reviewed the investigation report and decided to terminate his employment.

[41] Attached to Mr Beyer’s witness statement was the document headed “1. Introduction to Work in a Casino” which he deposed was provided to all Gaming staff as part of their induction training. The document included the following:

“2. GENERAL RULES AND REGULATIONS

Behaviour

Behaviour whilst on casino premises must be of the highest standard. Staff found committing any of the following offences may lead to disciplinary action being taken:

a) …

f) chips may only be touched in the normal course of play and “playing” with chips is strictly forbidden.” 21

[42] Mr Carr deposed in his witness statement 22 that on the night of 21 December 2018 Mr Kingsley approached him and told him that he had seen Mr Straschko paying for food with gaming chips, adding that he then contacted a Surveillance Officer, Mr Keung Sui, and asked him to have a look at the relevant surveillance footage and tell him what it showed. Mr Carr further deposed that after doing so Mr Sui told him that the footage showed Mr Straschko on one occasion paying for food and drinks with gaming chips. Mr Carr then discussed the matter with Mr Beyer and together they decided that Mr Straschko should be asked to leave the Casino, adding that he asked Mr Kingsley to ask Mr Straschko to leave and to inform him that the incident would be investigated. Mr Carr also deposed that when he returned Mr Kingsley told him that Mr Straschko when leaving the premises put his middle finger up on the side of his head towards the surveillance cameras and was swearing.

[43] Other key aspects of Mr Carr’s witness statement included that:

• all the Casino’s Gaming staff knew that touching gaming chips while off duty was not allowed, adding that this was something that was drummed into Gaming staff from the moment they undertook their dealer training;

• as a long-term employee Mr Straschko must have known that he was not allowed to touch gaming chips while off duty; and

• a review of his email records indicated that he had received internal correspondence referencing 13 counselling or disciplinary issues concerning Mr Straschko dating back to December 2013.

[44] In his oral evidence Mr Carr attested that he had been working at the Casino since 1997 and prior to that had worked for three years at the Crown Casino in Melbourne, adding that he had been involved in training dealers (both card game and roulette wheel operators) at the Casino. Mr Carr further attested that he told inductees that under no circumstances were licensed staff to interact with either games or gaming chips when off duty. Mr Carr also stated that he was confident he had said that to every inductee he had looked after, adding that while he was not sure if Mr Straschko had been inducted by him he believed that Mr Straschko was aware that he was not allowed to touch gaming chips out of work hours. Beyond that, Mr Carr acknowledged that Mr Maundrell provided him with assistance in preparing his witness statement.

[45] Mr Kingsley deposed in his witness statement 23 that on 21 December 2018 he was walking across the gaming floor when he saw Mr Straschko in the main aisle with gaming chips in his hand, adding that he advised Mr Carr of this and that Mr Carr later told him to get Mr Straschko to leave the Casino. Mr Kingsley further deposed that he approached Mr Straschko and asked him to put his drink down and come outside to speak in private. Other key aspects of Mr Kingsley’s witness statement were that:

• when outside Mr Straschko began using a vaping device and with his first exhale blew vapour straight into his face;

• during their conversation outside Mr Straschko demanded that he “go and get my f…..g money for the drink returned then”; and

• as Mr Straschko walked away from their conversation, he was rubbing the back of his head with his middle finger which he took as Mr Straschko “giving the finger”.

[46] Key aspects of Mr Kingsley’s oral evidence included that:

• it had always been the practice that Casino staff should not be handling gaming chips outside their normal duties;

• Mr Maundrell has assisted him in preparing his statement but had not asked him to include specific matters in his statement, e.g. the words in his statement which he attributed to Mr Straschko when they spoke outside the Casino;

• he recalled Mr Straschko blowing vapour into his face at one point when they spoke outside the Casino though he could not recall whether he remembered that before or after he viewed the relevant CCTV footage, acknowledging that his email of 21 December 2018 regarding the incident did not refer to this aspect;

• Mr Straschko was being deliberately rude to him when they spoke outside the Casino, though he described the conversation as friendly not adversarial; and

• he had a professional relationship with Mr Straschko, adding that they got along at work.

[47] Mr Garnaut deposed in his witness statement 24 that on the night of 21 December 2018 he was returning to the Casino after a break when Mr Straschko approached him, adding that during the ensuing conversation Mr Straschko had said words to the effect “[t]hey just kicked me out, I just came in with Jacob and his sister, we ordered some food, and I paid for it with some of Jacob’s chips”. Mr Garnaut further deposed that at the time he considered that all licensed Casino staff were not permitted to handle gaming chips when not on duty, adding that he had been trained that way when he commenced at the Casino in April 2011 and at casinos in Adelaide and Brisbane where he had worked prior to joining the Casino. Attached to Mr Garnaut’s witness statement25, was an unsigned statement which he prepared on 21 December 2018 regarding his discussion with Mr Straschko.

[48] In his oral evidence, Mr Garnaut attested inter alia that Mr Maundrell had assisted him in preparing his statement but did not tell him what to include in his statement. Further, Mr Garnaut also attested that he did not know why he had not signed the statement attached to his witness statement until 11 June 2019.

[49] In her witness statement 26 Ms Bach deposed among other things that:

• on 18 January 2019 Mr Maundrell provided her with his initial investigation report which identified a further issue of concern, adding that she instructed Mr Maundrell to put that further issue to Mr Straschko and address the additional issue as part of his investigation;

• Mr Maundrell provided her with his final investigation report on 5 February 2019;

• she carefully considered the final investigation report that same day, decided to terminate Mr Straschko’s employment and instructed Ms Philpott to prepare a termination letter and arrange a meeting with Mr Straschko to provide the letter to him;

• on 6 February 2019 Mr Maundrell provided her with correspondence he had received from Mr Straschko that day, adding that she reviewed the correspondence but concluded it did not affect the decision she had made the previous day;

• she and Mr Beyer met with Mr Straschko and Mr Gowor on 7 February 2019, adding that at that meeting Mr Straschko was handed his termination letter and attachments; and

• on 29 March 2019 she tendered her resignation to the Casino, with the resignation taking effect on 12 June 2019.

[50] In her oral evidence Ms Bach stated that her meeting with Mr Straschko on 7 February 2019 was not a long meeting, adding that it was not a discussion. Ms Bach also deposed that at the meeting she provided Mr Straschko with a folder containing the termination letter, the final investigation report and his final pay notice and had said to him that the investigation had been completed and that she had decided to terminate his employment. Beyond that, Ms Bach attested inter alia that:

• between 5 and 7 February 2019 Mr Straschko was not invited to show cause why he should not be dismissed or to propose an alternative sanction;

• Mr Straschko had been placed on a performance improvement plan and had a history of disciplinary and performance issues at the Casino which had been going on for a long time;

• in deciding to terminate Mr Straschko’s employment she had regard to his length of service and other relevant factors such as the difficulty in finding work in a casino in Canberra;

• her reasons for deciding to terminate Mr Straschko’s employment were the incident of 21 December 2018, Mr Straschko’s conduct on the evening of the incident which she described as a major breach of professional standards and Mr Straschko’s disciplinary record;

• it was evident that on the night of 21 December 2019 Mr Straschko was instructing a friend in how to play roulette, including which numbers they should be betting on or where they should be putting their gaming chips when betting on roulette; and

• it was pretty clear from the CCTV footage of the evening that Mr Straschko was using a scorecard to indicate where he wanted bets to be placed.

The Statutory framework

[51] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case there is no contest that Mr Straschko is a person who was protected from unfair dismissal pursuant to s.382 of the Act. In the context of this matter, the relevant provisions of the Act are ss.385 and 387 which provide as follows:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

[52] There is no dispute that Mr Straschko was dismissed, so s.385(a) of the Act is satisfied. Mr Straschko contended that his termination was harsh, unjust or unreasonable, so s.385(b) is relevant. The Respondent is not a small business employer therefore s.385(c) is not relevant. The termination was not a case of redundancy so s.385(d) does not apply. Therefore, in determining whether Mr Straschko was unfairly dismissed, I must consider whether his dismissal was harsh, unjust or unreasonable as per s.385(b) having regard to the considerations set out in s.387 of the Act.

Was the dismissal harsh, unjust or unreasonable?

Valid reason – s.387(a)
[53] The Respondent must have a valid reason for Mr Straschko’s dismissal. The reason should be “sound, defensible and well founded” 27 and should not be “capricious, fanciful, spiteful or prejudiced.”28

[54] Mr Straschko contended that the termination letter was not entirely clear as to the reasons for his dismissal and that a further issue was whether the alleged misconduct had a relevant connection to his employment given that he was off duty. In respect of his use of gaming chips to purchase food and drinks, Mr Straschko submitted inter alia that:

• he had never been told that he should not engage in such conduct;

• the Casino’s Employee Handbook did not deal with the issue;

• he had not seen the document headed “1. Introduction to Work in a Casino” prior to it being shown to him as part of the investigation, adding that the relevant paragraph (see paragraph [41] above) only related to an employee’s conduct whilst at a gaming table; and

• even if he did use Mr Gowor’s gaming chips to purchase food and drinks, this was at best a minor infraction of the abovementioned document and did not constitute a valid reason for his dismissal.

[55] As to his conduct regarding Mr Kingsley, Mr Straschko submitted he did not blow smoke at Mr Kingsley but rather he exhaled water vapour at coincidentally the same time he was turning towards Mr Kingsley. Mr Straschko further submitted that there was no basis to conclude that he failed to treat Casino staff with dignity, courtesy and respect, acted in an offensive manner towards staff or engaged in improper behaviour towards staff.

[56] Finally, in respect of the allegation that he instructed Mr Gowor in relation to how to gamble, Mr Straschko contended that it was clear from both his and Mr Gowor’s accounts of this incident that he only had a general discussion with Mr Gowor regarding roulette and did not write any instructions on the Roulette Card. Mr Straschko also noted that Mr Gowor was an experienced gambler who did not need any instructions on how to play roulette. As such, Mr Straschko added, his conduct did not constitute a breach of the Employee Handbook and at most was a minor breach which did not constitute a valid reason for his dismissal.

[57] As previously noted, in his oral evidence Mr Straschko conceded among other things that he was aware as at 21 December 2018 that Casino staff should not be handling gaming chips other than in the course of their duties.

[58] In short, the Respondent in its submissions dealt with each of the three reasons cited in the termination letter for Mr Straschko’s dismissal, contending that the conduct attributed to Mr Straschko had been made out. Among other things, the Respondent submitted that:

• as an experienced dealer Mr Straschko knew, or ought to have known, of the inappropriateness of handling gaming chips while off duty;

• Mr Straschko’s conduct towards Mr Kingsley and in giving the finger to Mr Kingsley and towards the Casino’s CCTV cameras was contrary to the requirements set out in its Employee Handbook; and

• Mr Straschko’s conduct in providing instructions to Mr Gowor in relation to his gambling at the Casino was contrary to the relevant requirement set out in the Employee Handbook.

[59] The Respondent also disputed Mr Straschko’s submissions on the issue of whether there was a valid reason for his dismissal.

[60] I would observe initially that I found both Mr Straschko and Mr Gowor not to be credible witnesses. Their evidence in large part was self-serving and at times both evasive and difficult to accept, particularly when considered against the backdrop of the CCTV footage of the incidents of 21 December 2018. I found their inability to recall the details of their conversation concerning the Roulette Card when confronted by the CCTV footage of them sitting in the Main Aisle at around 7:30pm on 21 December 2018, even allowing for the passage of time between that night and 1 February 2019 when they were first shown the relevant CCTV footage, to be implausible.

[61] The issue of whether there was a valid reason for dismissal in circumstances where the dismissal relates to the conduct of an employee was canvassed by a Full Bench of the AIRC in King v Freshmore (Vic) Pty Ltd (King) 29. In King the Full Bench, drawing on Moore J’s comments in Edwards v Guidice30, stated:

“[23] When a reason for a termination is based on the conduct of the employee, the Commission must, if it is an issue in the proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s.170CG(3)(a). The Commission must determine whether the alleged conduct took place and what it involved.

[24] The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”

[62] In this case it is alleged that Mr Straschko used gaming chips to purchase food and drinks, blew smoke into Mr Kingsley’s face and instructed Mr Gowor in how to gamble at the Casino. In his oral evidence, Mr Straschko agreed that the CCTV footage showed him handling gaming chips and paying for food and drinks with gaming chips. Accordingly, that conduct is not disputed. However, Mr Straschko disputed the other two allegations. In respect of the first of those allegations, i.e. that he blew smoke into Mr Kingsley’s face, the CCTV shows Mr Straschko when talking to Mr Kingsley outside the Casino inhaling from his vaping device and then exhaling several seconds later when facing Mr Kingsley. It appears from the CCTV footage that the vapour drifts into Mr Kingsley’s face. That CCTV footage also shows Mr Straschko “giving the finger” to the Casino’s CCTV cameras after he left the Casino and also supports a finding that he was doing so when rubbing his head as he walked away from Mr Kingsley. As to the allegation that Mr Straschko instructed Mr Gowor in how to gamble at the Casino, the CCTV footage of Mr Straschko and Mr Gowor sitting in the Main Aisle around 7:30pm on 21 December 2018 clearly shows Mr Straschko and Mr Gowor having an intense conversation about the Roulette Card, with Mr Straschko at times pointing to the image of the roulette wheel on the Card and writing on the Card near that image. The CCTV footage does not support either Mr Straschko’s or Mr Gowor’s characterisation of their discussion. More significantly however, that CCTV footage supports a finding that, on the balance of probabilities, Mr Straschko was instructing and/or advising Mr Gowor on how to gamble at roulette.

[63] In summary, I am satisfied that the alleged conduct attributed to Mr Straschko did occur.

[64] I turn now to consider whether Mr Straschko’s conduct constituted a valid reason for his dismissal. Relevant considerations regarding that issue are:

• the 2018 Casino Canberra Employee Handbook which as previously noted states:

You must not instruct a friend, family member or any other person in relation to how to gamble while in the Casino;

• the document headed “1. Introduction to Work in a Casino” which states:

f) chips may only be touched in the normal course of play and “playing” with chips is strictly forbidden.” (Underlining added); and

• the 2018 Casino Canberra Employee Handbook which also states:

YOUR BEHAVIOUR

As a Casino Canberra team member you must always adhere to the following standards:

• …

• You must treat all people with dignity, courtesy, honesty, fairness and respect at all times. 31

[65] While Mr Straschko disputed that he had seen either of the above documents, he did acknowledge in his oral evidence that copies of the Respondent’s policies and procedures were available online and could be accessed via the computer in the staff room at the Casino. Mr Straschko also disputed that he had been made aware of the consultations regarding the 2018 Casino Canberra Employee Handbook. However, I accept Mr Maundrell’s evidence that staff were advised of those consultations through the daily shift briefings for Gaming staff. As to the document headed “1. Introduction to Work in a Casino”, I am inclined to accept Mr Beyer’s evidence that the document was provided to all Gaming staff as part of their induction training. Even if I am wrong on that point, having regard to the Respondent’s witness evidence, I am satisfied that it was notorious among Gaming staff that the handling of gaming chips other than in the course of their duties was not permitted. Against that background, it is in my view implausible that Mr Straschko was not aware of that requirement despite his evidence to the contrary. As to the incident involving Mr Kingsley and Mr Straschko’s subsequent actions in “giving the finger” towards the CCTV cameras, even allowing for the fact that Mr Straschko would have been upset at having been asked to leave the Casino, there is no excuse for his disrespectful, unprofessional and arguably petulant behaviour. As to whether Mr Straschko instructed Mr Gowor in how to gamble in the Casino on 21 December 2018, Mr Straschko’s evidence was that he knew not to advise anyone or give instruction on how to play roulette though he also stated that he did not know that doing so was serious misconduct or a sackable offence. The latter does not however diminish the significance of his conduct in doing so.

[66] Taking all the above into account, I am satisfied that there was a valid reason for Mr Straschko’s dismissal related to his conduct on the night or 21 December 2018.

Notification of the valid reason – s.387(b)

[67] Mr Straschko submitted that he was notified of the reason for his dismissal in the termination letter but that there was significant uncertainty in the letter as to the reasons for his dismissal.

[68] The Respondent submitted that Mr Straschko was notified of the reason for his dismissal in plain and clear terms and given sufficient opportunity to respond to all relevant matters. In its submissions, the Respondent highlighted among other things its correspondence to Mr Straschko of 24 December 2018 and 21 January 2019 which it contended notified him of the reasons for his termination, Mr Straschko’s interviews with Ms Mellor and Mr Maundrell on 28 December 2018 and 1 February 2019 respectively and Mr Straschko’s responses of 27 December 2018, 23 and 31 January 2019 and 6 February 2019. At the hearing the Respondent contended that this consideration was met, highlighting that what Mr Straschko had before him on 21 January and 1 February 2019 were the allegations that led to his dismissal with Mr Maundrell’s letter of 21 January 2019 (see paragraph [14] above) setting out his findings in respect of the initial allegations and also setting out the further allegations.

[69] The Full Bench in Crozier v Palazzo Corporation (Crozier) 32 stated as follows in respect of the equivalent provisions to s.387(b) and (c) in the Workplace Relations Act 1996:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170CG(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[70] Mr Straschko was provided with several opportunities to respond to the allegations regarding his conduct on 21 December 2018 (those opportunities are outlined in greater deal at paragraph [76] below). While I note that Mr Straschko was not provided with Mr Maundrell’s final investigation report prior to his dismissal or given the opportunity to show cause as to why he should not be dismissed having regard to the conclusions set out in the final investigation report, I also note that:

• Mr Maundrell’s letter of 21 January 2019 set out his findings in relation to the initial allegations and his conclusions in relation to Mr Straschko’s handling of gaming chips and conduct; and

• that letter and Ms Mellor’s letter of 24 December 2018 both stated that “[d]epending on the outcome of the investigation … disciplinary action may be required (up to and including termination of your employment).” 33

[71] On balance, I do not consider that Mr Straschko was disadvantaged by not seeing the final investigation report or not being asked to show cause prior to being dismissed. This is because each of the reasons relating to Mr Straschko’s conduct on 21 December 2018 were all put to him prior to his dismissal.

[72] Finally, I do not accept Mr Straschko’s contention that the termination letter was unclear as to the reasons for his dismissal. In my view, when the termination letter is read objectively there can be no doubt as to the reasons underpinning Mr Straschko’s dismissal.

[73] As such, I am satisfied that Mr Straschko was notified of the valid reason for his dismissal prior to the termination of his employment.

Opportunity to respond related to the capacity or conduct of the person – s.387(c)

[74] Mr Straschko contended that he was not provided with an opportunity to respond to the allegations against him, adding among other things that he was not given an opportunity to respond to or comment on the action which the Casino proposed to take in the light of the findings set out in the investigation report.

[75] The Respondent submitted that Mr Straschko was made aware of the precise nature of its concerns and given an opportunity to respond to the reasons for his termination before it made the decision to terminate his employment. The Respondent also reiterated its submissions at paragraph [68] above in respect of this consideration.

[76] The material before the Commission indicates that the Respondent wrote to Mr Straschko on 24 December 2018 setting out the initial allegations regarding the incident of 21 December 2018, with Ms Mellor meeting with Mr Straschko on 28 December 2018 to discuss the allegations. On 31 December 2018 Mr Straschko provided a written statement regarding the allegations. Mr Maundrell subsequently wrote to Mr Straschko on 21 January 2019 setting out his findings in relation to the initial allegations and his conclusions in relation to Mr Straschko’s handling of gaming chips and conduct towards Casino staff, setting out in detail a further allegation regarding Mr Straschko’s conduct on the night of 21 December 2018 and inviting Mr Straschko’s response on those issues. Mr Straschko provided a preliminary response on 23 January 2019 and a further written response to Mr Maundrell on 31 January 2019 prior to meeting with him on 1 February 2019 to discuss the matters raised in the letter of 21 January 2019. At that meeting, Mr Straschko was also shown some of the CCTV footage of the incidents of 21 December 2018 and invited to say anything he wished to regarding that footage. On 6 February 2019 Mr Straschko provided further information to Mr Maundrell regarding the further allegation set out in the letter of 21 January 2019, with Mr Maundrell forwarding that further information to Ms Bach shortly after he received it.

[77] Having regard to the above, I am satisfied that Mr Straschko was provided with the opportunity to respond to the various reasons related to his conduct. Against that background, this consideration does not point to Mr Straschko’s dismissal being unfair.

Unreasonable refusal by the employer to allow a support person – s.387(d)

[78] Mr Straschko acknowledged that the Casino did not refuse the presence of a support person throughout the process which resulted in the termination of his employment.

[79] The Respondent submitted that Mr Straschko was supported by a person of his choosing, Mr Gowor, at all relevant times.

[80] Against that background, this factor is a neutral consideration in this case.

Warnings regarding unsatisfactory performance – s.387(e)

[81] Mr Straschko submitted that his dismissal was not related to unsatisfactory performance.

[82] The Respondent submitted that to the extent the dismissal relied on past incidents of unsatisfactory performance Mr Straschko had received numerous warnings and/or counselling in relation to past incidents of unsatisfactory performance and misconduct. At the hearing, the Respondent submitted that Mr Straschko’s dismissal related primarily to his conduct, adding that he could not say that he had not been warned about unsatisfactory performance and conduct on a multitude of occasions before his dismissal.

[83] Mr Straschko was not dismissed due to unsatisfactory performance. Accordingly, this consideration is not relevant in this case.

Impact of the size of the employer on the procedures followed – s.387(f)

Absence of dedicated human resources management specialist/expertise on the procedures followed – s.387(g)

[84] Mr Straschko submitted that the Casino was a highly regulated and substantive operation which employed human resources and legal staff, adding that as such it could be expected to deal with investigations and the termination of employment in a professional and proper manner.

[85] The Respondent noted in its submissions that it was not a small business employer, that it involved its in-house legal counsel and other appropriate staff in the procedures effecting Mr Straschko’s dismissal and that there was no absence of dedicated human resource management specialists or expertise.

[86] There is nothing suggesting that the size of the Respondent in any way impacted on its approach in this case. Beyond that, I note the Respondent’s submissions regarding the involvement of its in-house legal counsel, Mr Maundrell, and the availability of human resource specialist or expertise. Accordingly, both these factors are neutral considerations in this case.

Other relevant matters – s.387(h)

[87] Mr Straschko submitted that the Commission should have regard to the following matters:

• his length or service with the Respondent, i.e. 9 years and five months;

• that he had apologised for his behaviour;

• that he would effectively be shut out of his chosen career given the Casino was the only casino in the Australian Capital Territory;

• the Respondent’s failure to properly consider and investigate in any meaningful way his allegations of bullying and mistreatment;

• the Respondent’s failure to interview both Mr Gowor and Mr Kingsley as part of its investigation;

• the issues he had previously raised regarding his long service leave entitlements raised an inference that he was regarded as a ‘trouble maker’ and that this was likely to have been a factor in the decision to terminate his employment; and

• the financial pressure which the Casino was under raised an inference that he was dismissed as a way of avoiding making him redundant.

[88] The Respondent submitted inter alia that:

• Mr Straschko had worked for it for 9 years and five months;

• the Commission should have regard to Mr Straschko’s disciplinary record over recent years;

• while in his response of 31 December 2018 Mr Straschko apologised to all staff who witnessed his obscene gestures towards the CCTV cameras there was no reasonable justification for his behaviour and the lack of respect shown to his colleagues;

• while in his response of 31 January 2019 Mr Straschko made an allegation against an unnamed supervisor, he had not subsequently identified the manager or supervisor or provided any further details regarding the allegation;

• there was nothing preventing Mr Straschko providing Mr Gowor’s account of what had occurred on 21 December 2018 prior to the investigation being completed and his employment being terminated;

• the CCTV footage of Mr Kingsley’s interaction with Mr Straschko spoke for itself; and

• there was no credible evidence to support Mr Straschko’s ‘trouble maker’ and redundancy assertions.

[89] Of the matters raised by Mr Straschko and the Respondent, there are three matters which I consider relevant. They are Mr Straschko’s length of service, that he apologised for his behaviour with Mr Kingsley when leaving the Casino’s premises and Mr Straschko’s disciplinary record. The other matters raised by Mr Straschko are not relevant for the following reasons:

• there was no need to interview Mr Kingsley given his email of 21 December 2018 and the CCTV footage of Mr Straschko’s interaction with Mr Kingsley that night;

• there was nothing which prevented Mr Straschko providing a statement from Mr Gowor and/or Ms Gowor to either Ms Mellor or Mr Maundrell as part of the investigation process;

• the Australian Capital Territory is not a small labour market;

• Mr Straschko’s allegations of bullying and harassment bore no relationship to the reasons for his dismissal; and

• Mr Straschko provided no probative evidence the support his ‘trouble maker’ and redundancy assertions.

Conclusion

[90] Drawing on the above analysis, I find that there was a valid reason for Mr Straschko’s dismissal related to his conduct, that Mr Straschko was notified of the reason prior to his dismissal and given the opportunity to respond to that reason, that Mr Straschko’s length or service with the Respondent, his disciplinary record and his apology in respect of his behaviour when asked to leave the Casino are relevant matters and that the remaining criteria in s.387 of the Act are either neutral considerations or not relevant in this case.

[91] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd 34 by McHugh and Gummow JJ as follows:

“.... 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.”

[92] While I note Mr Straschko’s almost 10 years of employment with the Respondent, the weight that can be attached to his length of service is cancelled out by his extensive disciplinary record over the five or so years prior to his dismissal. Having been issued with six written warnings and having twice been placed on a performance improvement plan over that period it not an enviable record. Further, instructing or advising a friend or family member on how to gamble in the Casino was not only contrary to Mr Straschko’s obligation to act in the best interests of his employer (as set out in Corporate Code of Conduct included in the 2015 Casino Canberra Employee Handbook 35 and presumably referred to in the Aquis Entertainment – Code of Conduct cited in the 2018 version of the Handbook36) but in my view amounted to a fundamental breach of the employee/employer relationship which warranted dismissal. Similarly, his use of gaming chips to purchase food and drinks was inconsistent with the requirement which was commonly understood by Gaming staff that they should only handle gaming chips in the course of their duties. The fact that Mr Straschko apologised for one aspect of his conduct on the night of 21 December 2018, i.e. the incident involving Mr Kingsley, does not overcome the seriousness of his misconduct on that night.

[93] Against that background and having considered all the criteria in s.387 of the Act, I find that Mr Straschko’s dismissal was not harsh, unjust or unreasonable. Accordingly, his application is dismissed. An order to that effect will be issued in conjunction with this decision.

Appearances:

J. Gowor for the Applicant.
J. Wilson for the Respondent.

Hearing Details:

Canberra
2019
June 26 and 27

Printed by authority of the Commonwealth Government Printer

1 AE421917

2 Exhibit 4 at “SRM-5”

3 Ibid

4 Ibid at “SRM-8”

5 Ibid at “SRM-10”

6 Ibid

7 Ibid at “SRM-11”

8 Exhibit 11 at “RMB-9”

9 Exhibits 1 and 2

10 Exhibit 7 at “RB-1”

11 Exhibit 5

12 Exhibit 4 at “SRM-1”

13 Exhibit 1 at paragraph 50

14 Exhibit 3

15 Exhibit 4

16 Ibid at “SRM-22”, “SRM-23”, “SRM-25”, “SRM-27”, “SRM-29” and “SRM-32”

17 Exhibit 5 – 21.12 @ 18.49 – Sitting in Onyx Lounge.pef

18 Ibid – 21.12 @ 18.57 – Sitting in Main Aisle (cam 86).pef; 21.12 @ 18.57 – Sitting in Main Aisle (cam 157).pef and 21.12 @ 19.27 – Sitting in Main Aisle (cam 157).pef

19 Exhibit 7

20 “Clean Hands” is a procedure used by Dealers to prove that nothing is being concealed in their hands.

21 Exhibit 7 at “RB-1”

22 Exhibit 8

23 Exhibit 9

24 Exhibit 10

25 Ibid at “BG-1”

26 Exhibit 11

27 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373

28 Ibid

29 Print S4213

30 (1999) 169 ALR 89 at 92 per Moore J

31 Exhibit 4 at page 14 of “SRM-2”

32 (2000) 98 IR 137

33 Exhibit 4 at “SRM-5” and “SRM-11”

34 [1995] HCA 24; (1995) 185 CLR 410 at 465

35 Exhibit 4 at page 29 of “SRM-1”

36 Ibid at page 14 of “SRM-2”

Matthew Straschko v Casino Canberra Limited