Mr Andreas Bletas v The Star Entertainment Qld Limited T/A the Star (formerly Jupiters)

[2019] FWC 2792

[2019] FWC 2792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andreas Bletas
v
The Star Entertainment Qld Limited T/A The Star (formerly Jupiters)
(U2018/11076)

COMMISSIONER HUNT BRISBANE, 24 APRIL 2019

Application for an unfair dismissal remedy – failure to wear uniform vest – Applicant claimed authorisation given not to wear vest – Applicant refused to participate in workplace meetings regarding vest – Respondent concerned that Applicant’s behaviour erratic – Applicant refused direction to attend independent medical examination – Applicant dismissed for failure to follow reasonable and lawful direction – dismissal not unfair – application dismissed.

[1] Mr Andreas Bletas has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by The Star Entertainment Qld Limited T/A Star Casino (Star).

[2] Mr Bletas began working for Star on 1 April 2010 as a Table Games Croupier. He was dismissed from his position on 5 October 2018. At the time of his dismissal Mr Bletas’ employment was covered by the Jupiters Hotel & Casino Enterprise Agreement 2014 (the Agreement).

[3] There are no jurisdictional issues for me to determine. I am satisfied that Mr Bletas is a person protected from unfair dismissal pursuant to s.382 of the Act. Mr Bletas’ application was made within the 21-day statutory time limit. 1

[4] The only matter that I must determine is whether Mr Bletas’ dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.

Hearing

[5] This matter was listed for hearing before me in Brisbane on 13 and 14 February 2019. Leave was granted for Ms Leanne Tacey of Anderson Gray Lawyers to appear for Mr Bletas, and for Mr Marc McKechnie of Counsel to appear for Star, instructed by King & Wood Mallesons.

[6] Mr Bletas gave evidence on his own behalf. Mr Daniel Lorraway, Organiser for United Voice, who is based at Star’s Gold Coast operations also appeared and gave evidence in support of Mr Bletas.

[7] The following persons appeared at the hearing and gave evidence in support of Star:

•  Ms Simone Keat, Human Resources Manager;

•  Ms Anne Hardy, Director of Gaming;

•  Mr Ian Brown, General Manager of Gaming;

•  Mr Jim Graham, Gaming Operations Manager;

•  Mr Glenn Ivey, Gaming Operations Manager;

•  Mr Roger Spence, Gaming Area Manager.

Evidence of Mr Andreas Bletas

[8] Mr Bletas provided a witness statement in these proceedings. 2 He first worked for Star as a Croupier from around April 1996 until September 1998 when he resigned from his employment and relocated to America. After returning to Australia in 2009, he recommenced casual employment on 1 April 2010 as a Croupier. He later became a permanent part-time employee of Star in January 2018.

[9] Mr Bletas gave evidence that from the recommencement of his employment with Star until 26 August 2018 he was not subject to any disciplinary action in relation to his conduct or performance at work.

[10] In approximately March 2017, Star changed the type of waistcoat/vest required to be worn by table games dealers, causing him to overheat. 3 He raised concerns regarding the vests and his overheating with his managers in early April 2017, and over time he also raised these concerns to onsite and offsite union delegates and representatives.

[11] In September 2017 Mr Bletas was diagnosed with type-2 diabetes. His doctor advised him that due to his diagnosis, he was more prone to overheating. 4 He further stated that in late 2017 or early 2018 he provided medical certificates to the Gaming Manager, Ms Sue Lloyd, which provided that he suffers paraesthesia.5 Mr Bletas explained to Ms Lloyd that this condition was linked to his diabetes.

[12] During February 2018 he removed his vest during a shift due to overheating. Mr Bletas and Ms Lloyd then had a dispute about the vest. Mr Bletas gave evidence that Ms Lloyd yelled, “Put your vest back on Andreas!” His evidence was that he reminded Ms Lloyd he has diabetes which affects his body temperature, and that the vest was causing him to overheat. He stated this exchange was witnessed by Mr Christian Stewart, Pit Boss.

[13] Mr Bletas gave evidence that on several occasions between February 2018 and August 2018 he raised his concerns about the vest with several Pit Bosses, and complained to Mr Danny Lorraway, United Voice Organiser and Mr Ray Dowling, United Voice Officer. On advice from Mr Lorraway, Mr Bletas completed two hazard reports, which he stated he personally handed to Ms Simone Keat, HR Manager.

[14] In April 2018, and in response to his concerns, Ms Lloyd ordered him a lighter vest. In June 2018, he was asked to go to the office, where he saw Mr Jim Graham, Ms Lloyd and Mr Glenn Ivey. Ms Lloyd presented the new vest to Mr Bletas, and Mr Bletas thanked her for getting the vest for him. His evidence was that on his way out of the office, Ms Lloyd stated words to the effect, “Oh Andreas, don’t tell anyone else about this”. 6

[15] Mr Bletas explained that his new vest was silver and didn’t blend with the other dealers’ gold vests. As a result, he was directed on one occasion by a Pit Boss, to change his vest for a gold one. Mr Bletas gave evidence that he explained to the Pit Boss why his vest was different, and after the Pit Boss made a call to the office, he apologised and allowed Mr Bletas to continue wearing it. Mr Bletas’ evidence was that these misunderstandings occurred regularly, meaning managers often had to call the office to confirm Mr Bletas was authorised to wear the silver vest.

[16] Mr Bletas gave evidence that in June or July of 2018 he was asked to return the vest as it was too small, and he returned to wearing the gold vest which caused him to overheat.

[17] On 3 August 2018 Mr Bletas met with Mr Geoff Hogg, General Manager to explain his concerns regarding the vest. His evidence was that he explained his medical condition to Mr Hogg, and that he had been attempting to raise his concerns through other channels, but nothing was being done to resolve the issue. He explained to Mr Hogg that every time he removed the vest due to overheating, he felt he was deliberately being harassed or ostracised by his managers and other staff. 7 Mr Bletas gave evidence that Mr Hogg expressed sympathy for his situation, and advised he would speak with Mr Ian Brown, General Manager of Gaming to alleviate the situation.8

[18] A second meeting with Mr Hogg was held on 24 August 2018, which Mr Bletas attended with his support person, Mr Lorraway. Mr Bletas gave evidence that at this meeting, Mr Hogg advised he had spoken with Mr Brown who indicated a memo had been sent out ‘months ago’ indicating that if a dealer was uncomfortable or feeling faint, they could remove their vest. Mr Bletas advised Mr Hogg that he had heard about a memo, but had never seen it, and further there remained a consensus among the dealers that if they removed their vest, they may be in trouble. Mr Hogg indicated that the problem had been resolved, and Mr Bletas gave evidence that he replied:

“Yes, that’s good, however, when you take it off you are subjected to humiliation and ostracisation [sic] by your managers or even other dealers … There needs to be some kind of meeting held in order to ensure that we are not harassed when removing the vest”. 9

[19] Mr Bletas’ evidence was that Mr Hogg again confirmed the problem had been resolved, and further stated, “Andreas, I authorise you not to have to wear it at all on account of your current medical situation, if you wish”. 10

Events of 26 August 2018

[20] Mr Bletas stated that during his next shift on 26 August 2018 he was challenged by a number of managers as to why he was not wearing a vest. Each occasion is detailed below:

(a) Mr Ivey and Mr Graham

Mr Ivey:	Where’s your vest?
Mr Bletas:	Hi Glenn, I have been authorised to have it as optional from Geoff Hogg as I have a medical reason. Hasn’t anyone informed you?
Mr Ivey:	No, I’ll check on that.
Mr Bletas:	OK, well I don’t have my own vest right now because I had to hand it in as we were supposed to be getting a smaller size. I can see if I can get a spare from uniform room if you like?
Mr Ivey:	No, that’s all right. When’s the last time you did compliance training?
Mr Bletas:	I’m not sure off the top of my head.
Mr Ivey:	Oh OK, I may have to pull you off the game sometime during the day to do compliance training.
Mr Bletas:	That’s fine.

(b) Mr Roger Spence and Mr Jimmy Sommerville

Mr Sommerville:	There he is.
Mr Spence:	Where is your uniform?
Mr Bletas:	I don’t have one anymore.
Mr Spence:	You’ve got a problem.
Mr Bletas:	Um yes I have a medical condition.
Mr Spence:	What medical condition?
Mr Bletas:	Diabetes. I’ve talked to Geoff as well and he has OK’d it.
Mr Spence:	Who’s Geoff?
Mr Bletas:	The boss, Geoff Hogg.
Mr Spence:	He’s your boss too.
Mr Bletas:	I know Roger, so I am following his directions. I have a medical condition. Can you please step back away from me, you’re right in my face.
[Mr Spence moved forward and touched my arm].
Can you please not touch me?
Mr Spence:	I did not touch you.
Mr Bletas:	Yes, you did.
Mr Spence:	No, I didn’t touch you.
[other employees arrived and a short time later the conversation continued]
Mr Bletas:	Didn’t Glenn call you and let you know?
Mr Spence:	It’s OK, I will check on it.
Mr Bletas:	Didn’t he tell you?
Mr Spence:	No! No-one told me anything.
Mr Bletas:	Look Roger I can go get a vest or you can check, it’s up to you. I’ll step away now, OK?

[21] Mr Bletas dealt a game for approximately 1hr, 20 minutes. At approximately 3.40pm, and after a break, Mr Spence asked Mr Bletas to wait while he found him a table to deal. The conversation continued:

Mr Spence:	Sorry Andreas, no one told me. I’m really, really sorry.
[shake hands]
Mr Bletas:	That’s OK, let’s just move on, I’ve always liked you Roger, and we shouldn’t have to be at odds.
Mr Spence:	They want to talk to you in the office.
Mr Bletas:	I spoke to Mr Hogg and Mr Ivey was informed before the shift, so I really don’t want to meet with him.
Tell him to check it like you did and as he said he would to me before the shift.
If they want to meet then have him put that in writing and I’ll email Geoff Hogg.

[22] Mr Spence then made a phone call. Mr Bletas suspected that it was to Mr Ivey. The following was discussed when Mr Graham came to the pit:

Mr Graham:	You need to get into the office. We’re going to tell you how it works around here.
Mr Bletas:	Jimmy I spoke to Glenn before the shift, right? So you know already. Listen Jimmy, this man (Mr Spence) has apologised for what happened earlier, why do you have to be so aggressive? This feels like harassment to me especially since you knew about the vest before the shift and so did Glenn. You were well aware of my situation before the shift and now you and Glenn want to play your little head games, when are you going to grow up and act like men? And while we’re talking, I need to say that I don’t appreciate how you say my name as Andre-ass.
Mr Graham:	Whoa! Whoa! Whoa!
Mr Bletas:	Don’t whoa whoa whoa me Jimmy.
Mr Graham:	I never said anything.
Mr Bletas:	Not now but you have in the past and it’s disrespectful.
Mr Graham:	So, you’re not coming?
Mr Bletas:	Not today.

[23] Mr Bletas’ evidence is that Mr Graham left and Mr Bletas reported to Mr Spence that he did not want to be in the same room as Mr Ivey and Mr Graham without a support person. He informed Mr Spence that he would email Mr Hogg. Mr Spence shortly found him a game to deal.

[24] At approximately 5.20pm, Mr Bletas and Mr Ivey had the following conversation:

Mr Ivey:	Why won’t you meet with me?
Mr Bletas:	Glenn, I spoke to you pre-shift about my situation and now I’ve got your pit bosses all over me. Besides I don’t have a witness.
Mr Ivey:	I’ll provide a witness for you.
Mr Bletas:	No thanks Glenn. If you want, put it in writing, but I can’t meet with you unsupervised.
Mr Ivey:	Oh, so you won’t give me an opportunity?
Mr Bletas:	For what? I already spoke to you before, Glenn.
I already spoke to you, right?

[25] It is Mr Bletas’ evidence that Mr Ivey looked unhappy, waved his hands and then walked off.

[26] Mr Bletas stated that at around 6.00pm, Ms Loredana Van Der Heyden, Pitt Boss walked up to him in the pit and thrust a folder at him and the following exchange occurred:

Ms Van Der Heyden:	This is from Glenn, he’s giving you what you want, in writing, just the way you want it.
Mr Bletas:	Thanks Lore, just leave it on the podium and I’ll take it to my locker on my break.
Ms Van Der Heyden:	No, you’ll take it there now!

[27] Mr Bletas went to take the letter to his locker. On his way there he saw Mr Ivey standing outside of the pit with his arms folded across his chest, staring dead ahead. He appeared to Mr Bletas to be agitated. Mr Bletas said that he tried to ‘defuse’ the situation by saying to him, “Hi Glenn. I’ve got your letter, I’m going to put it in my locker right now.”

[28] Mr Bletas said that Mr Ivey did not make eye contact. Mr Bletas moved closer to Mr Ivey and put out his hand in a friendly manner. Mr Ivey unfolded his arms and shook his hand. The following exchange occurred:

Mr Ivey:	Why aren’t you coming to the office?
Mr Bletas:	You know why Glenn. I explained my situation to you before the shift and now here we are, you’ve got your whole staff giving me a hard time. Besides that, I don’t have a witness and I need at least 24-48 hours to organise that.
Mr Ivey:	I’ll provide a witness for you.
Mr Bletas:	No thanks Glenn. I just can’t trust you to meet with you alone or with your friends to bully me.

[29] Mr Bletas stated that after the events of 26 August 2018 he just felt like going home early so he asked for an ‘early out’. Mr Bletas was replaced by another employee and finished his shift at approximately 8:00pm, after which he returned home.

[30] Upon returning home, Mr Bletas read the letter, the effect of:

(a) Directed him to attend a meeting with Mr Graham and Mr Ivey on 28 August 2018;

(b) Stated the purpose of the meeting was to discuss his conduct and behaviour in relation to not wearing the correct uniform and the events of that afternoon; and

(c) Stated that if the allegations were substantiated, he could be subject to disciplinary action and his employment could be terminated.

[31] Mr Bletas gave evidence that he was upset by the letter, as the vest issue had not been fixed as Mr Hogg had said that it would be.

[32] Mr Bletas attempted to contact Mr Adam Ridley, United Voice Delegate, on 27 August 2018, to make arrangements to have a union representative present as support person for the meeting of 28 August, set to commence at 10:00am.

[33] However, at 7:47am on 28 August 2018 Mr Bletas sent the following email to Ms Jackie Tosh, Mr Hogg’s Executive Assistant: 11

“Hello Geoff

I am sending you this email in the hope that we can have this current hostile work environment dealt with.

We have had our meetings – the last one DJ of Workers Union fame was present.

Thank you DJ

At that meeting as I recall it, We discuss the ongoing 2 year long dilemma of hot, stuffy vests as part of the uniform we wear yes?

You and I had a friendly courteous back & forth banter regarding my perspective on the problem. I finally understood that you had spoken to Ian Brown and that the situation had been resolved, or as you put it handled, yes?

Well Geoff, No it wasn’t.

As evidenced by this formal letter that was HAND GIVEN to me by Pit Boss Loredana. I speaks for itself.

Geoff, I can no longer work on these same days as Glenn Ivey.

It’s impossible, irreconcilable. I will work Friday Saturday this week on which I believe he is off.

I will work on his off days and it’s fine with me that he gets his 5 days as opposed to my 2. That’s fine, that’s fine Geoff, that’s fine.

As long as I help to feed myself, my mother, Vicky, and my pet Stumpy- we do soo enjoy our shopping at the discount bin at Woolies.

So much so that we ended up going to hospital last month with salmonella!

I will NOT and SHOULD NOT be subjected to this type of harassment, bullying & ostracization that I was subject to all day from the pit bosses to the floor people etc. So I ended up early out at 8pm and lost 2 hours of Sunday rates. (That I expect to be given to me BTW )

Not all mind not all the management are thus inclined. Unfortunately they are the ones in the toughest more demanding sections of the casino floor and always seem never to advance.

I would like to thank Pit Boss Roger for stepping up to me and apologizing early on in the day. He stood before me like a man and extended his hand as a gentleman should.

He is a gentleman like you are a gentleman as is DJ, Adam (Dealer Union Representative) on swing, Paul Cowd, my brother George and many, many more fine people that we have.

Geoff, I expect that you and Ian Brown take care of this business because here I am typing out emails at 5 am in the morning instead of sleeping.

I will not be attended his “formal meeting” at 10am this morning nor will I be contacting him ever or speaking to this person.

Ever.

Can yourself or Ian please handle this??

I will text copy of the letter to Jackie Tosh right now – I appreciate you Jackie, you have been a tremendous help

Feel free to call me on [phone number] and, gentlemen, if we could please not have my brother hear of this, if possible…

Thank you &

Best regards

Andreas Bletas [sic]”

[34] Mr Bletas sent Mr Ivey a text message requesting the meeting be rescheduled, informing Mr Ivey that Ms Tosh is his ‘point of contact’.

[35] That evening, Ms Hardy attempted to contact Mr Bletas by hone. He sent her a text message to inform her to contact either his union representative or Ms Tosh, and to put it in writing.

[36] On 30 August 2018, Mr Bletas was informed by text message from Ms Hardy that he had been placed on special paid leave and was not required to attend work. On the same date, Mr Bletas received an email from Ms Keat, requesting that he attend a formal meeting on 31 August 2018 at 2:30pm. His evidence was that this letter confirmed, among other things, that:

•  He was not required to attend his next rostered shift, and he was placed on “Special Paid Leave”;

•  He was not to contact Mr Hogg any further regarding his matter;

•  He could bring a support person to the meeting of 31 August;

•  If he did not attend the meeting, he would be subject to further disciplinary action; and

•  His employment was at risk. 12

[37] Mr Bletas’ evidence was that at 7:55pm on 30 August, he received a text from Ms Keat which confirmed the meeting would include discussion regarding his continued refusal to follow a reasonable directive. 13

[38] Mr Bletas sent the following email to Ms Keat, Ms Hardy and Ms Tosh at 6.00pm on 30 August 2018: 14

“Hi Simone

We have not met to my knowledge and please refer to the text replies that I have sent to Anne regarding any future meetings. I don’t want to be in an controlled formal meeting with 2 on 1 or 3 on 1, even 4 on 1, the one meaning me, with a group of people who are running their own agenda.

That has to stop as does this apparent need for table games managers to micro-manage and control through conformity, peer group pressure and/or humiliation and rumor mongering. Glenn Ivey being the quintessential example of this off putting behavior.

Sorry but its time to put this type of thinking to bed once and for all.

As I said refer to texts I’ve sent to Anne. Hopefully after this we can meet under better circumstances.

Regards

Andreas”

Meeting of 31 August 2018

[39] Mr Bletas gave evidence about the meeting of 31 August 2018. Mr Bletas stated that he attended with Mr Ridley and Mr Lorraway from United Voice, Ms Keat and Ms Hardy.

[40] Mr Bletas stated that he said that he had not wished to meet with Mr Graham and Mr Ivey on 26 August 2018, as he had felt threatened by them on that day, and he wanted the ‘allegations’ in writing so that there would be a record of what was to be discussed at the relevant meeting. He stated that despite providing a detailed explanation of what happened on 26 August 2018, Ms Hardy was not interested in hearing what he had to say and was intent on defending all of Mr Ivey’s actions.

[41] Mr Bletas attempted to return the discussion to the issue of the vests, in response to which Ms Keat questioned him about his medical condition. Mr Bletas stated that he advised her that a medical certificate was on record with HR, and he offered to provide her with a copy of his National Diabetes Services Scheme card. 15 Further, he stated to Ms Keat that he had been directed to hand in his specially ordered vest to Ms Lloyd.

[42] Mr Bletas stated that as the meeting progressed, he put to Ms Hardy that she and other Star managers had not done anything to alleviate the vest issue, and suggested that the way that he and other staff that had issues with the vests had been treated had made the issue worse. After he said that to Ms Hardy she berated him for disrespecting her staff, to which Mr Bletas responded, “So, what you’re saying is that you and your staff respect me?”

[43] Mr Bletas stated that Ms Keat rolled her eyes at his response and asked whether he would be willing to change shifts. Mr Bletas agreed that he would prefer to change to the ‘graveyard’ shift.

[44] Mr Bletas stated that Ms Keat provided him with a copy of Star’s grievance policy and said that she would investigate his side of the story.

[45] On 10 September 2018 Mr Bletas received a letter from Ms Hardy, indicating that the meeting of 31 August 2018 was to be reconvened on 12 September 2018. The letter stated the following further issues to be discussed: 16

“...

1. Your tone and manner in your email to Geoff Hogg, Managing Director on 28 August 2018 was rude, sarcastic and disrespectful and in breach of The Star Entertainment Group Code of Conduct and values;

2. On Sunday 26 August 2018 after receiving you Notice of Meeting letter, you approached Glenn Ivey, GOM in Star Café and allegedly slapped Glenn on the back of the neck/shoulders with the letter stating “I got your letter”. Glenn found this disrespectful and rude. If proven this is also a breach of the Code of Conduct and The Star Entertainment Group values with regards to respect for colleagues.

3. On Sunday 26 August 2018 after receiving your Notice of Meeting letter, after allegedly slapping Glenn on the back of the neck/shoulders with the letter stating “I got your letter” you then proceeded to be very vocal and make reference to the letter in front of other team members. We remind you as per our letter dated 30 August 2018:

“This letter and anything relating to this matter is strictly confidential and must not be discussed with any other team member or third party outside of your nominated support person (who for, your benefit is also required to keep the matter confidential). We treat these matters very seriously, if you are found to have breached your confidentiality obligations you may be subject to disciplinary action up to and including the termination of your employment”.

4. On Sunday 26 August 2018 in the Pit when discussing you not wearing your vest and a request for you to attend the GOM office, Roger Spence, GAM had to approach you and in the Pit to discuss this and you made a threat to him stating words to the effect “I like you Roger…it’s best you don’t get involved as I don’t want to have to come after you as well”. Roger believes this comment was threatening and inappropriate.

5. Witness statements obtained and surveillance from the Pit on 26 August 2018 demonstrates you behaving in an inappropriate and aggressive manner towards Glenn Ivey, GOM, Roger Spence, GAM and Jim Graham, GOM. We will provide you with examples of this during the meeting. This behaviour constitutes a breach of our Code of Conduct and values of respect and professionalism.”

[46] After receiving Ms Hardy’s letter of 10 September 2018, Mr Andreas emailed Ms Hardy in response, copying in Ms Tosh, and which stated, amongst other things: 17

“… I must say that I’m very very disappointed in what is being conveyed within.

It may be best to clear the air with Geoff before you and I meet again….

I’m sure you understand the importance of that and as you chose to bring his name into this, I”m [sic] also including his contact email in this response.

Before I send a copy to my attorney – I’d like to get permission from Geoff, just to have his take on this.

…

I also recall that in the last meeting in (which we never finished in 3 hours) you brought up the name [name]. I’d like to know why? Please explain because as far as I know, he is on extended leave?”

[47] On 11 September 2018, Mr Bletas received a telephone call from Star’s scheduling department enquiring why he was absent from a rostered shift. Mr Bletas informed the department he was on special leave and had been directed not to attend work. He asked that the department contact Ms Hardy to confirm the reason for his absence.

[48] Mr Bletas sent a text message and email to Ms Hardy following this exchange, requesting that he be allowed to return to work. Mr Bletas’ email is relevant to the events that followed in this matter, and is extracted below:

“Good morning Anne

I have forwarded your voice message from Friday 7th September to the message bank at ph. Number [redacted] regarding special leave status for Monday Sept 10th. Hopefully you can verify that you have received it(?), if not Adam and I can share it with you when next we meet …

As I said to you and Simone at the last meeting I felt a bit funny about this special leave status and I think its only fair that I come back to work. If the vest is still an issue for you and Glen then I’ll be happy to wear I for your benefit, however as Geoff Hogg informed DJ and I at our last meeting, Ian Brown had sent out a memo many months ago stating that if anyone has any issues with over heating, feeling faint etc because of the vest then he had authorized us to remove it.

He was quite adamant about it. – In a nice way of course!

I think we need to have that memo at our next meeting when DJ returns as obviously yourself and Glen seem to be at odds with Ian Brown’s directive. Any thoughts on this?

Perhaps we should also have Glenn Ivey at the next meeting as he especially seems to have a real issue with this and as he said to me on that day, that He wants me to give him the opportunity to explain. I’d really like to hear him out in Geoff and Ian’s presence.

I hope I am reading into this correctly. Its really hard sometimes as I think we are communicating at different levels, especially if it takes over 3 hours just to go through some questions, and as I recall, you didn’t seem to want to answer why you and Glen are ignoring your Duty of Care for the employees in Table Games.

This is why I was insisting on written communications only from the start as apparently we are not all on the same page. If we are going to continue verbal communication then I suggest we have both audio and video taping of said communications, otherwise it all seems to become convoluted.

Let me know your thoughts as well as Simone’s. I do apologize to Simone that we took so long at the last meeting and kept her away from her family that night…

Kind regards

Andreas”

[49] On 12 September 2018 Mr Bletas received an email from Mr Brown requesting that he attend a meeting with him that day. Mr Bletas agreed to meet, on the basis that it was an informal meeting. Mr Bletas’ evidence was that at this informal meeting, Mr Brown stated:

•  He had spoken with Mr Hogg, and a memo had been sent out;

•  He was sorry for the miscommunication within the team;

•  He was going to review the surveillance footage in relation to the events of 26 August; and

•  That Mr Bletas was to remain on special leave while he conducted his investigation. 18

[50] Mr Bletas stated this was the first of three meetings with Mr Brown, and that Mr Brown was his point of contact for Star from this point on. 19

[51] Mr Bletas stated that he met with Mr Brown on 14 September 2018, during which the following conversation occurred:

Mr Brown:	Look Andreas there’s no easy way to say this, but we heard from a source that you are seeing a psychiatrist in Melbourne.
Mr Bletas:	Huh? Ian, really? You heard? From who?
Mr Brown:	Uhh the union.
Mr Bletas:	Who in the union? Bring that person here right now.
Mr Brown:	Uh, can’t tell you. But they said that you told them that.
Mr Bletas:	That’s ridiculous, not to mention it’s slanderous. Ian, the last time I was in Melbourne was 9 years ago and that was to visit friends. Just tell me who said that.
Mr Brown:	Uh I got to check on it and I’ll let you know.
Mr Bletas:	Did you check the surveillance tape?
Mr Brown:	Yes and looks like you slapped him [Glenn Ivey].
Mr Bletas:	Are you kidding me? I slapped him? Let’s check them together and I’ll walk you through from my perspective.
Mr Brown:	Well, look Andreas, I think that before you come back, we should just get you checked out by a doctor to make sure you’re ok.
Mr Bletas:	I’m fine, Ian. That’s not necessary.
Mr Brown:	No, no. We just want to make sure you are ok.
Mr Bletas:	I’m fine.
Mr Brown:	To be honest I can’t let you come back to work unless you agree to do it.
Mr Bletas:	OK so, I’ll make an appointment with my doctor and get that done for you.
Mr Brown:	Ohhh, we will do it here on the premises. We have a psychiatrist that does an independent examination. He’s a really nice man Dr Freiburg. Don’t worry, it’s on us we will pay for all of it.
Mr Bletas:	Well how can it be independent when the casino pays for it?
Mr Brown:	Oh, don’t worry about that. I will be here and I’ll walk you through it.
Mr Bletas:	But I’ve never felt the need to even see a psychiatrist. Aside from this situation, I’m good, ready to get back to work. Besides, why would I even entertain the idea of putting myself in the hands of a doctor that I’ve never even met?
Mr Brown:	Ok Andreas, I’ll check everything out again to make sure, and I’ll talk to the union again.
Mr Bletas:	Fine, Ian, fine.

[52] Mr Bletas spoke with a former Star employee who had been examined by Dr Freiburg at an independent medical examination (IME) and dismissed by Star.

[53] On 24 September 2018 Mr Bletas again met with Mr Brown. A conversation to the following effect occurred:

Mr Brown:	There are concerns around mental health issues.
Mr Bletas:	I do not have any mental health issues. I’ve contacted my union representative and they’ve confirmed that the allegations that the union had raised any mental health issues in relation to me are false.
Mr Brown:	I am in a bit of a bind. I can’t let you come back to work until you see the doctor. We have made an appointment for you to see Dr Freiburg, till then just stay home and relax and here is all the paperwork.
Mr Bletas:	Hang on a second, we discussed this last time and I had refused it then, so I haven’t changed my mind.
Mr Brown:	So you don’t want to do this.
Mr Bletas:	Ok Ian, wait a minute, I will look at this without agreeing to do it.

[54] Upon reviewing the paperwork given to him by Mr Brown, Mr Bletas found a letter dated 24 September 2018 and signed by Mr Brown which stated, in summary terms:

“…Further to our discussion on Friday 14 September 2018 we discussed our concerns about your well-being and behaviours at work. During this meeting I asked if you were willing to attend an appointment with a medical specialist for an independent medical evaluation, you advised that you were not willing to do so. Given our ongoing concerns, as a result we are now directing you to attend this appointment.

Next steps

We need to investigate your ongoing ability to safely perform the inherent requirements of your substantive role of Games Dealer.

In order to do this, The Star will engage a medical specialist to make an assessment of your condition and employment status.

We have made an appointment with a preferred medical specialist, Dr Freiberg, as set out below:

Date: Saturday, 6 October 2018

Time: Afternoon (actual time to be confirmed shortly)

Location: On Property (actual room location to be confirmed)

…

Medical assessment is a reasonable direction

The Star notes that it must pay Dr Freiberg even if you fail to attend the appointment. The Star also considers it to be a reasonable, and indeed necessary direction that you attend the appointment with Dr Freiberg.

We consider our request for you to attend the associated medical appointment as a reasonable direction of your employer. Should you refuse this direction this would constitute misconduct, and you may be subject to disciplinary action up to and including the termination of your employment.

Please also sign and return to me, the attached consent form by 5pm Friday 28 September 2018 that Dr Freiberg can prepare the report for The Star.

…

Yours sincerely,

Ian Brown

General Manager Gaming [original emphasis]”.

[55] Mr Bletas gave evidence that the letter did not provide Dr Freiberg’s qualifications and/or specialist field. 20

[56] On 1 October 2018 he sent a text message to Mr Brown asking to be told which of the United Voice representatives had stated Mr Bletas was seeing a psychiatrist in Melbourne. Mr Brown did not respond.

[57] On 2 October 2018 Mr Brown sent the following email to Mr Bletas: 21

“Dear Andreas

Medical Assessment is a reasonable direction

Thank you for your text message on Monday 1 October 2018. The Star Gold Coast considers it to be a reasonable, and indeed necessary direction that you attend the appointment with Dr Freiburg. I would like to take this opportunity to strongly encourage you to follow this direction. As discussed previously, we are concerned about your erratic and unprofessional behaviour at work and disordered conversations with management. Feedback from United Voice in relation to your conduct and behaviours with them has also concerned us.

We consider our request for you to attend the associated medical appointment as a reasonable direction of your employer. Andreas, we are not able to continue to pay for you to remain on paid special leave (given we do not consider you are currently able to perform the inherent requirements of your role in the front of house position of Dealer) and you will not agree to attend a medical assessment to allow us to obtain a report as to you fitness for work. This means you will leave us no choice but to review your ongoing employment arrangements with us. I need to advise you that should you refuse this direction this would constitute misconduct, and you may be subject to disciplinary action up to and including the termination of your employment.

Can I please strongly encourage you to confirm with me by 5pm, tomorrow 3 October 2018, the consent form already provided to you so that Dr Freiburg can prepare the report for The Star Gold Coast.

If you do not contact us to confirm your attendance at the medical assessment, we will be unable to determine if you can safely perform the inherent requirements of your substantive role. Therefore, we will not be able to offer you continued employment and your employment with us will end. We confirm that we will make such a decision if we do not hear from you by 5pm, tomorrow.

Alternatively, if you do not wish to engage in a medical assessment you may choose to resign from your employment with The Star.

Please don’t hesitate to contact me if you have any questions or if you need clarification on the above.

Kind regards

Ian Brown

General Manager

Gaming Operations [original emphasis].”

[58] On 3 October 2018 Mr Bletas sent an email to Mr Brown copying in Ms Tosh, Ms Hardy and Ms Keat, in which he:

•  Denied suffering any mental health issues;

•  Stated Mr Brown was relying on hearsay for directing him to attend an independent medical examination (IME);

•  Stated that he could provide a “certificate of capacity” from his own doctor, whom he had been seeing for “34 years”;

•  Raised concerns regarding Star’s directives, and noted his trust had been betrayed;

•  Proposed to take legal action;

•  Requested a meeting be held to achieve a resolution of all issues; and

•  Invited Mr Brown, his wife and any other people named in his letter to join him for dinner at the Star the next night when Mr Bletas dined with his mother. 22

[59] At 1:23pm on 4 October 2018, Mr Brown sent the following email to Mr Bletas: 23

“Hi Andreas,

Thank you for your email dated 3 October 2018.

You are of course welcome to provide us with any information from your Family GP to assist The Star Gold Coast’s assessment of this matter. However, it is not reasonable for you to insist that only Geoff Hogg may view such medical documentation from your doctor. Mr Hogg is the Managing Director of both Queensland The Star properties and is not responsible for dealing with this matter – that responsibility rests with myself and the HR team members involved. As such, we would need to review that evidence.

The Star Gold Coast’s position remains that it is a reasonable for you to attend the appointment with Dr Freiburg on 6 October 2018. The Star Gold Coast has provided you with the basis on which we require you to attend the assessment with Dr Freiburg, both verbally and in writing, and it is untrue to assert that our reasons are based on hearsay evidence. We remain concerned with your behaviours and the language used in your emails. We have concerns regarding your mental health Andreas and we wish to ensure you are well and remain well. The Star is seeking to assist you with this process. If there is a mental health concern, it can then be properly diagnosed so you can obtain any necessary treatment.

I am unclear what you have been told about Dr Freiburg and by whom (or their motives for doing so) – however he is a very experienced psychiatrist who runs his own private practice in Sydney. He is very familiar with the workplaces of casinos and hospitality industry. He is a very personable individual and your appointment with him would not involve any “psychological interrogation” or “railroading”. Dr Freiburg does not make assessments over the phone and would meet with you in person, at the Gold Coast, for approximately 2 hours. I trust you will agree to meet with Dr Freiburg.

Ultimately, it is a reasonable direction of your employer and you are still required to advise whether you will attend this assessment and to sign the consent form by 5pm today Thursday 4 October – or a decision regarding your ongoing employment will be made at that time. The Star Gold Coast has already provided you with two occasions to agree to attend the appointment. This is the last and final time we will extend the opportunity to you. I hope you make the decision to co-operate with us.

As you know, The Star Gold Coast also has a free and confidential Employee Assistance Program, that is available 24/7 and you can contact them on [number redacted].

I tried to contact you on your mobile before I sent this email and please call me if you would like to discuss this further.

Thank you

Kind regards

Ian Brown

General Manager

Gaming Operations [original emphasis]”

[60] Mr Bletas’ evidence was that he responded to Mr Brown by text at 3:00pm and stated that he was in meetings and would not be available until the evening to address Mr Brown’s email. Mr Bletas again requested the names of the union representatives who had stated that he was seeing a psychiatrist in Melbourne. Mr Bletas stated that he sent a further text at around 3:30pm enquiring whether Dr Freiberg would be willing to meet with him and a lawyer for “an informal meeting”. Mr Bletas sent a third text to Mr Brown at 4.30pm, advising the 5:00pm deadline did not give him enough time to respond and that he would respond after returning home. Those text messages are extracted below: 24

Mr Bletas
3:00pm 4 October 2018:

“Sorry Ian

Im in meetings all day till evening

Thanks [emoticon]

Just a quick question about it if you don’t mind?

Have you found out who in United Voice has been spreading lies about me?

Please reply here or via email

Thanks again

Andreas”

Mr Bletas
4:29pm 4 October 2018:

“Hi Ian

Just glanced at your email

I see you have a new ultimatum deadline…

4pm today

Hmm

Not enough time for response

I’ll send you a reply tonight when I get home from dinner… [emoticon]”

Mr Bletas
Allegedly sent at 3:30pm, although appearing below
text message of 4:29pm:

“Also ask Mr Freburg if he would be willing to meet with me and my legal counsel off property just informally initially of course …

And if he wouldn’t mind being video and audio taped…

Thanks again

AB”

[61] At 8:22pm on 4 October 2018 Mr Bletas sent the following email to Mr Brown copying in Ms Tosh, Ms Hardy and Ms Keat: 25

“Hi Ian

I can show you the report – that’s fine, but when you say “we” who are exactly are you referring to ? Please furnish all the concerned names for the record as it has been our experience with you and your team that you don’t respect ur privacy so we need to make sure my personal information stays personal.

Since our texts earlier today I have received more information RE: Freburg.

Apparently he is under investigation for false diagnoses. He has been referred to as a Quack, Criminal, Destroyer of Lives, Casino Hatchet Man, Termination Tool etc etc.

Is it true that he is on your payroll? That would also make it a conflict of interest.

Sorry Ian, doesn’t sound like someone I should talk to much less trust to do a fair assessment, especially when again you have failed to provide any real reason for you to continually harass me over this.

I have checked with the Union members who were present at the 3 1/2 meeting I had with Simone and Anne.

They are shocked & flabbergasted at your allegation of any knowledge of the rumor you have perpetuated about my seeing a psychiatrist in Melbourne, indeed I will take legal action against anyone who is involved in this slander. Apparently the Union also agree that legal action should be taken as their organizations reputation and integrity is at stake as well.

Ian, do you realize you asked me about this false Melbourne story weeks ago? And it was on the basis of that story you are doing this ? Why are you so pushy about it? Whom did you hear it from? When was the last time you, yourself got pushed into getting a mental health assessment? Please answer these questions in writing thank you.

I really believe that you owe me an apology over this.

Having said that, I think we could still possibly resolve our differences in our next meetings with the right direction and supervision. As you and your team seem to have difficulty giving straight answers, I strongly suggest we video tape any future formal discussions.

Also, I think t would be best that I went to another department or at least another shift as suggested by Simone and Anne.

Maybe I should discuss that with Geoff Hogg as unfortunately, you and your team have let me down too many times.

By the way, has Glenn Ivey seen your house Doctor yet? We think it would be good for him having witnessed over several years his cold manipulative mannerisms and aggressive attitude towards my fellow staff members. Have you spoken to him about his behaviour towards me as you promised?

Seems you have one set of rules for us and another for yourselves – namely none. When was the last time you formally disciplined any of your team ? This seems to be a case for what I call “selective enforcement” whereby rules are applied to whomever you see fit.

Ian, forgive me for saying this but I believe that you lack the leadership qualities necessary to deal with this matter. In fact, given your behaviour you are part of the problem certainly not the solution, especially since you had promised me to resolve the matter quickly. Perhaps it might be a good idea for you to step aside and let someone else run things.

You were right in saying that it was your fault, although that in no way excuses Glenn Ivey for his actions especially when I had informed him of my meeting with Geoff and the situation with the vests BEFORE I started the shift.

Pit Boss Roger checked it all out over the phone and came back to me and apologized, why couldn’t he?? Instead he and his crew harassed me the entire day until I finally had enough and put in for an EO – on a Sunday leaving after 6 hours instead of 8.

Anyways, I sincerely do wish you the best – I’m hoping you will listen to what I’m saying and stop this silly unreasonable nonsense with Freburg. Are you really serious when you say that you think I’m not capable of dealing? Are you now claiming to make diagnoses?

Please instruct Jackie Tosh to ask Geoff to intercede in this matter. I’m ready to meet formally and document everything regarding this incident and others. Again, we insist on having our own video & audio copies of future meetings

Have a nice evening, regards to Tanya

Andreas [smiley face] [sic]”

[62] At 4:47pm on 5 October 2018, Mr Bletas received an email from Mr Brown attaching a letter terminating his employment, which stated: 26

“Dear Andreas

Termination of your employment

This letter serves to confirm the termination of your employment today 5 October 2018.

Your employment has been terminated on the basis of your continued refusal to follow a reasonable and lawful direction of your employment whilst on paid special leave, specifically we reasonably required that you attend a medical assessment with an independent medical specialist at The Star Gold Coast’s expense – as a result of our ongoing serious concerns regarding your mental health. We gave you several opportunities to comply with this direction. You continued to refuse to comply and ultimately did not comply.

We further advise that for the period of the next six (6) months you will be prohibited from being on the Company’s premises, even as a guest using the services of the restaurants, theatre or other amenities.

We also take this opportunity of reminding you of your continuing obligations to the Company after the termination of your employment, including in relation to intellectual property and confidential information.

A more detailed letter to again confirm the termination of your employment, and the reasons for it, will follow in due course.

Yours sincerely

Ian Brown”

[63] Mr Bletas stated that at 4:49pm on 5 October 2018, he sent a text to Mr Brown in an effort to save his employment. The emails exchanged are detailed below:

Mr Bletas – Text message
4:49pm 5 October 2018:

“Hi mate

After much debate with my legal advisor

I think I will come in to see Dr Freburg

But I will definitely need a second support person

Since its 10 mins before the deadline

Please respond

ASAP

Thanks Ian

Kind Regards

Andreas [smiley face]”

Mr Bletas – Email
5:00pm 5 October 2018:

“Ok I think I’ll meet Dr Freburg

I need independant witnesses though

Thanks Ian [sic]”

Mr Brown – Email
6:33pm 5 October 2018:

“Good afternoon Andreas.

I am in receipt of your email below and wish to advise that we have cancelled Dr Freiburg appointment for tomorrow as we did not received the signed consent form by 5pm Thursday 4 October 2018.

Kind regards

Ian Brown

General Manager

Gaming Operations [original emphasis]”

[64] On 11 October 2018, Mr Bletas received a second termination letter which expanded on the reasons for Mr Bletas’ dismissal, and stated: 27

“Dear Andreas

Termination of your employment

Further to our letter dated 5 October 2018, the purpose of this letter is to provide you with further details and reasons for the termination of your employment with The Star Gold Coast.

Summary of Actions by The Star Gold Coast

On 26 August 2018, we issued you with a notice of meeting letter requesting you to attend a formal meeting. The purpose of this meeting was to address concerns that you were not following a reasonable directive by our Gaming Leaders including refusal to meet with them and insisting that they put any requests in writing.

On 30 August 2018, after you had been afforded the opportunity to meet with Managing Director, Geoff Hogg, we issued a further notice of meeting to you advising you that you were placed on special leave and you would be required to respond to the initial letter dated 26 August 2018 and additional allegations including that we deemed your behaviour showing lack of respect for management and insubordination. We advised you to refrain from contacting Mr Hogg any further. We also reminded you that you do not have a right to request for The Star Gold Coast to put every communication to you in writing and that our requirement to meet with you is a reasonable direction and an obligation in your employment contract.

On 31 August 2018 you attended a formal meeting with Simone Keat, HR Manager and Anne Hardy, Director of Gaming. You elected to have a support person from United Voice with you at this meeting. This meeting was adjourned for us to further investigate matters raised by you and fully establish the circumstances and facts.

On 10 September 2018 after further investigation, you were issued with a further notice of meeting requesting you to attend a meeting on 12 September 2018. This letter detailed that after obtaining witness statements and reviewing surveillance footage we required you to respond to further allegations. The letter alleged, amongst other matters, that you slapped Glenn Ivey, GOM with your notice of meeting letter and that you made a threat towards Roger Spence including “I like you Roger…its best you don’t get involved I don’t want to come after you as well”. The letter also included an allegation that you behaved in an inappropriate and aggressive manner at work towards Glen Ivey, Roger Spence and Jim Graham.

However, this meeting was postponed as we were concerned about your behaviour, well-being and mental health. The Star Gold Coast provided you with paid time off work (paid special leave) to allow you to regroup and demonstrate your mental wellbeing to us.

On 12 September 2018 I met with you front of house, in a less formal capacity to discuss your concerns raised throughout this process. You advised me of your meetings with Mr Hogg in relation to your uniform, specifically the vest. You also stated that you had a number of personal matters affecting you, including a boundary dispute with your neighbour.

On 14 September 2018 I met with you again front of house to discuss my ongoing concerns with your well-being and behaviour. I also advised you that we had been advised by United Voice that you were seeing a Psychiatrist in Melbourne and were on prescription medication. You denied these claims and when asked if you would be willing to see an independent medical specialist due to our ongoing concerns around your erratic behaviour and mental health, you refused to comply with this request. I stated that I would provide you with more time to feel better and that our next meeting may result in a formal direction to attend a medical assessment.

On 24 September 2018 I met with you to discuss The Star Gold Coast’s direction for you to attend an assessment by an independent medical specialist. At this meeting, I issued you with a letter confirming this request and that this was a reasonable and lawful direction. This letter requested that you comply by returning a signed authority by 5pm 28 September 2018. You did not return the signed authority by the deadline. You sent me a text on 1 October 2018 asking for named of those who alleged you had seen a Doctor in Melbourne and the names of the Union Representatives involved.

On Tuesday 2 October 2018 I sent you a further email reiterating the importance of you complying with our direction and extended the deadline to 5pm Wednesday 3 October 2018. In this email I reminded you that if you did not contact me to confirm your attendance at this medical assessment, we would be unable to determine of you can safely perform the inherent role requirements of your role as a Dealer, and as such your employment with The Star Gold Coast may end.

On Wednesday 3 October 2018 you emailed me and made allegations of defamation and advised that you felt you had gone “above and beyond” what was reasonable to satisfy The Star Gold Coast of your wellbeing. You stated the work environment was toxic and you were ready to “name names”. We will write you separately in relation to that issue.

On Thursday 4 October 2018 I called your mobile and you did not answer. I then sent you a text message to advise you that you needed to respond to my email and that my email required a response by 5pm Thursday 4 October 2018. You responded to my text stating that you were in “meetings”. I advised you again in a text message that your ongoing employment may be at risk and to read the email and respond by 5pm. You sent me a text message at 4.29pm stating you had seen the email and did not have enough time to respond and that you would reply when you got home from dinner that night. You replied later that evening via email stating that you would not attend the appointment with the psychiatrist, and that you wished to video tape all future meetings with The Start Gold Coast. In this email you also asked me to “step aside” from dealing with your matter and stated “please instruct Jackie Tosh to intercede in this matter”. I note that Ms Tosh is Mr Hogg’s Executive Assistant. You then stated that you were ready to “formally document everything” and again insisted on video and audio recordings of all meetings. I note that your email response was not only unreasonable and unprofessional, but more importantly you refused to comply with our reasonable direction to attend an independent medical assessment.

At 4.47pm on Friday 5 October 2018 I emailed you with a letter confirming your employment had been terminated as you had refused to follow a reasonable direction by The Star Gold Coast to attend an independent medical assessment and therefore we could not assess your ongoing ability to perform the inherent requirements of your role.

Outcome

As outlined in our letter dated 5 October 2018, your employment has been terminated on the basis of your continued refusal to follow a reasonable direction of your employer whilst on paid special leave. Specifically, we reasonably required that you attend a medical assessment with an independent medical specialist at The Star Gold Coast’s expense – as a result of our ongoing concerns regarding your behaviour and mental health. We gave you several opportunities to comply with this direction. You continued to refuse to comply and ultimately did not comply.

As a result, The Star Gold Coast made the decision to terminate your employment with notice (paid in lieu). The termination of your employment took effect Friday 5 October 2018 as notified to you in the short form termination letter sent to you on the day.

Next steps

You will be paid 5 weeks’ in lieu of notice of termination. You will also be paid the balance of any termination entitlements that are owed to you, less any monies owed by you to The Star Gold Coast.

If you have any remaining The Star Gold Coast property in your possession, please arrange with me on the number below to return these to us immediately including your casino licence, employment identification and locker key.

We also take this opportunity of reminding you of your continuing obligations to The Star Gold Coast after the termination of your employment, including in relation to intellectual property, confidential information, and any post-employment restrictions that may apply to you.

We wish you the best in your future endeavours.

Yours faithfully

Ian Brown”

[65] As part of Mr Bletas’ evidence, he stated he holds a category 416 firearms licence, which allows him to own rifles and shotguns only. 28

Cross-examination

[66] In cross-examination Mr Bletas agreed that upon receiving Mr Brown’s letter dated 24 September 2018 directing him to attend an appointment with Dr Freiburg, he knew that a consequence of not agreeing to attend the IME was termination of employment.

[67] Mr Bletas denied that he knew why Star was requesting him to be examined by Dr Freiburg.

[68] Relevant to the letter dated 2 October 2018, he agreed that he was informed that if he didn’t meet with Dr Freiburg he would be dismissed.

[69] Relevant to the email dated 4 October 2018, he agreed that Star provided reasons as to why it required him to be examined by Dr Freiburg. He then stated that he still doesn’t know why he was being directed to be examined by Dr Freiburg. He explained that he has an idea why he was being directed, but he does not know why.

[70] Relevant to the email sent by Mr Bletas on 3 October 2018, it was put to him that he had unequivocally decided against seeing Dr Freiburg. Mr Bletas agreed in cross-examination that he had made a decision in his mind that he would not see Dr Freiburg.

[71] In answering a question from me, I asked him why, when he had said concerning things about Mr Brown, why did he then wish to have his regards passed on to Mr Brown’s wife, Tanya and invite her to dinner. He said he was trying to make some peace and resolve the situation.

[72] Mr Bletas determined that Mr Brown had been appropriate during the first meeting, but he had then performed a ‘flip-flop’ at the second meeting and was simply backing up ‘his own people’.

[73] The CCTV footage of 26 August 2018 was shown to Mr Bletas. He agreed that he pointed his finger at Mr Graham. Relevant to the conversation with Mr Ivey, after watching the footage he agreed that he shook Mr Ivey’s hand at 5.20pm at [24] where his written evidence did not cover that.

[74] When asked why he had declared Jackie Tosh as his contact person, he stated, “Jackie Tosh was my point of contact. I cannot contact Mr Hogg directly. I have to go through his secretary. There’s a buffer there.” He agreed that Mr Hogg is the ‘big boss’. It was put to Mr Bletas that it was ridiculous that Ms Tosh could be his personal contact. Mr Bletas answered, “That’s your opinion.”

[75] Relevant to requesting Ms Keat become a Facebook friend following his dismissal, Mr Bletas gave evidence that following the meeting of 31 August 2018 she was ‘very sympathetic’ towards him. When I referred him to Ms Keat’s notes, he agreed that perhaps she was not sympathetic towards him. I asked him why he was writing to her after he had been dismissed through messenger. He disagreed that it was ‘creepy’.

[76] I questioned Mr Bletas as to whether he had, as it had been suggested apparently by a United Voice organiser, been seeing a psychiatrist in Melbourne to overcome gun licencing laws in Queensland. He attested to not having been to Melbourne since around 2009. He has not seen a psychiatrist in his life.

[77] Mr Bletas agreed that he had occasionally worked in casual jobs since the dismissal. His earnings since the dismissal up until 18 February 2019 amount to $750.

Re-examination

[78] I questioned Mr Bletas as to why on 26 August 2018 he shook Mr Spence’s hand, and then shook Mr Ivey’s hand twice. He answered that he shook Mr Ivey’s hand a second time because Mr Ivey looked upset, and he considered that he was deliberately not looking at him. He thought it was the right thing to do. He disagreed that he was being combative when he approached Mr Ivey on the second occasion, at approximately 7.00pm.

[79] I asked him why he wanted to shake the hand of somebody that he didn’t want to meet with unsupervised. I put it to him that it was an unusual thing to do. He did not think it was an odd thing to do.

[80] I questioned Mr Bletas how often he shook colleagues’ hands when he had already been at work for several hours. He answered me by saying that he personally doesn’t have an issue with Mr Ivey. He also gave evidence that Mr Ivey is a manipulative type of person and he likes to ‘stir the pot’.

[81] His evidence was that he could not be directed to have a meeting without a witness present. He had been told by ‘the union’ that he had to have a witness present.

[82] In re-examination Mr Bletas stated that when he objected to being seen by Dr Freiburg, he felt that he was not being listened to and he was being lied to, and the Star was covering for Mr Ivey.

[83] He confirmed that on 5 October 2018 he was considering seeing Dr Freiburg, but with special circumstances including videoing and a support person in order to save his job. Mr Bletas stated that Dr Freiburg would have provided a subjective analysis to the Star as opposed to an objective analysis. He relied on the advice of an earlier terminated employee that Dr Freiburg would provide a report to the Star to have him terminated.

[84] It was Mr Bletas’ preference that his own GP recommend a specialist who could conduct an IME. He would have liked to have done that, but he did not provide the name of any such recommended specialist to the Star. He responded to me that he did not need to as he ‘felt fine’.

[85] Mr Bletas stated that if the Queensland Police Service trusts him to have long guns in his home, with ammunition, why should Star have any issue?

[86] On the issue of reinstatement, he said that he would see three psychiatrists, as long as it was not Dr Freiburg. He stated that he considered reinstatement to be appropriate as he considered that he had not done anything wrong.

[87] In re-examination he stated that he does not have a problem with Mr Ivey.

[88] I questioned Mr Bletas as to what would happen if he ran into Mr Ridley in the workplace? He said that he had never had any problem with Mr Ridley, and had been speaking normally with him up until he was dismissed.

[89] Mr Bletas stated that he had never been asked if he had a gun licence. He said that he acquired a long gun licence after he commenced at the Star. He is a target shooter, and he has no interest in hunting. He was not obliged to inform Star on acquiring a gun licence.

[90] In answering questions from me, Mr Bletas denied that he said to Mr Spence that he liked him and didn’t want to ‘come after him.’

Evidence of Mr Daniel Lorraway

[91] Mr Lorraway provided a witness statement in these proceedings and appeared as a witness in support of Mr Bletas. 29 Mr Lorraway confirmed that he is a United Voice Casino Organiser, based at the Star Casino on the Gold Coast. He gave evidence that in his role he has regularly advised union members that if they are concerned about meetings with management, they have a right to defer the meeting until they are able to have a union support person attend with them. He stated that is standard practice.30

[92] He gave evidence that in early 2018 he became aware that the new Star vests were causing a number of employees to overheat. Mr Bletas made a number of complaints to him about overheating in the vests, and treatment by his managers regarding the vest issue. Mr Bletas was not the only staff member to approach him about the vests, and he was not the only staff member to raise issues about their treatment by Mr Ivey. 31

[93] Mr Lorraway confirmed he advised members that if they had complaints about the vests, they should fill out hazard reports and submit them to the Workplace Health and Safety Department, and further that complaints about management should be put into writing and provided to Human Resources. Mr Lorraway stated, “There is generally a great reluctance by staff to make written complaints against management…” most commonly from a fear of losing their jobs or having their hours cut. 32

[94] On or about 19 August 2018, Mr Bletas approached him and said that he had met with Mr Hogg about several matters, including the overheating issue and how it had been handled by Star. Mr Bletas asked Mr Lorraway whether he would attend a second meeting scheduled with Mr Hogg for 24 August 2018, which Mr Lorraway agreed to.

[95] At the meeting of 24 August 2018, Mr Bletas spoke with Mr Hogg about a number of issues including the overheating issue, his diabetes and his treatment by Star managers regarding the vest. Mr Lorraway’s evidence confirmed that Mr Hogg advised a memo had been sent, stating dealers could remove their vests if they were overheating. Mr Lorraway recalled that Mr Hogg informed Mr Bletas that he did not have to wear the vest. Further, he said that if team members want to take it off due to suffering discomfort they just need to let their manager know. 33

[96] Mr Lorraway gave evidence that on 31 August 2018 he attended a meeting with Mr Bletas as his union representative and support person. Mr Ridley attended as an observer. Ms Anne Hardy and Ms Simone Keat attended the meeting for Star. Mr Bletas was animated and expressive during the meeting, but not aggressive. He stated that Mr Bletas would often digress, and raised the vest issue and treatment by Star management repeatedly, and particularly his treatment by Mr Ivey. Mr Lorraway stated that Ms Hardy occasionally questioned or challenged the comments made by Mr Bletas. Mr Lorraway noted the meeting went on for a couple of hours, and only ended when Ms Keat stated she needed to attend to a personal matter.

[97] Mr Lorraway gave evidence that a short time after this meeting, a HR representative from Star informed him that Star were concerned about Mr Bletas’ mental health and were going to send him for an IME. His evidence was that he never raised concerns regarding Mr Bletas’ mental health with Star’s management team, nor did he speak to anyone working for Star about Mr Bletas seeing a psychiatrist in Melbourne or that he was taking medication.
[98] Mr Ridley informed Mr Lorraway that Mr Bletas’ behaviour during the meeting of 31 August 2018 made him uncomfortable. Mr Lorraway said that Mr Ridley had informed him that Mr Bletas’ level of agitation concerned him. Mr Lorraway considered that Mr Ridley was scared. Mr Ridley informed Mr Lorraway generally that he was concerned with Mr Bletas’ mental state.

[99] In re-examination Mr Lorraway stated that Mr Ridley had been a delegate for about two years, and still requires training. He acknowledged that Mr Ridley would not have attended many meetings in his time as a delegate. He might have attended mundane-type meetings such as a member being late to work.

[100] Mr Lorraway advised Mr Ridley that if he felt scared, he could contact him and Mr Lorraway would attend all meetings with him from that point in time. Mr Ridley informed him that the animated nature of the conversation by Mr Bletas added to his concern. Mr Lorraway assumed that Mr Ridley scares more easily than he does; he hasn’t seen what Mr Lorraway has seen. Mr Lorraway had been present at the meeting of 31 August 2018, and he now agreed that Mr Bletas was quite agitated during the meeting. Mr Lorraway did not share Mr Ridley’s immediate concern.

[101] Mr Lorraway stated that during the meeting, the longer the vest issue went on, the more agitated Mr Bletas became over the vest issue.

[102] At some stage Mr Ridley informed Mr Lorraway that Mr Bletas has a firearms licence, and he said he wouldn’t be surprised if Mr Bletas had a firearm and ‘went nuts’ if Mr Bletas was dismissed.

[103] Mr Lorraway did not escalate Mr Ridley’s concern to anybody. He didn’t consider that Mr Ridley actually thought it would actually happen.

[104] Mr Ridley said to Mr Lorraway that it made him nervous when Mr Bletas put his hands behind his back during the meeting. Mr Ridley informed Mr Lorraway that he had reported his concerns to Star management.

[105] In answering questions from me, Mr Lorraway stated that the union encourages members to take a support person with them to meetings with management. If a person is requested to go to the office straight away without a support person, they should attend, but not answer questions if they are uncomfortable with it.

[106] Mr Lorraway stated that he had considered the Agreement required an employee to have a person with them during disciplinary meetings. A copy of the Agreement was produced and considered by the parties and myself during Mr Lorraway’s evidence. Having reviewed the Agreement, he confirmed that is not a requirement of the Agreement.

[107] Mr Lorraway confirmed his understanding that if an employee was directed to attend ‘the office’, they would need to attend unless an employee felt uncomfortable due to the manager’s behaviour. Mr Lorraway stated that if he had been contacted about Mr Bletas attending the meeting with Mr Ivey, he would have recommended Mr Bletas attend with a support person but then not answer any questions put by Mr Ivey. The support person would preferably have been a United Voice delegate, or if not available, another dealer. He said that typically at any point in time there might be around four delegates across the venue.

Evidence of Mr Glenn Ivey

[108] Mr Ivey, Gaming Operations Manager for Star, provided a witness statement in these proceedings. 34

[109] His evidence was that prior to 26 August 2018, he had interacted with Mr Bletas on occasion regarding his work performance. He was not aware of any medical issues relating to Mr Bletas. 35

[110] Mr Ivey stated that on 26 August 2018 he was in the office when he was advised by Mr Spence that Mr Bletas was not wearing his vest and had refused to come to the office to talk about it.

[111] Mr Graham, who was also in the office at that time, went to the gaming pit to speak with Mr Bletas. Mr Ivey stated that on Mr Graham’s return, he confirmed Mr Bletas was still refusing to attend the office to discuss his uniform.

[112] Mr Ivey’s evidence is that he spoke with Ms Keat about the issue, who suggested that Mr Bletas be allowed another chance to follow the directive to attend the office, and that a support person should be offered to attend with him.

[113] Mr Ivey stated that he went to the pit area and approached Mr Bletas at about 5:20pm, as Mr Bletas was returning from a break. Mr Bletas shook his hand in a strange way, which made Mr Ivey feel awkward. Mr Bletas became agitated, accusing Mr Ivey of touching his arm and stating “You can’t touch me!” Mr Ivey’s evidence regarding this interaction was that he had no recollection of making contact with Mr Bletas other than shaking his hand.

[114] Mr Ivey asked Mr Bletas to attend the office for a chat, and offered him a support person if he was feeling uncomfortable. He gave evidence that Mr Bletas replied, “If you want to talk to me it has to be in writing”. Mr Ivey stated that at no point did Mr Bletas advise him that he had approval of Mr Hogg not to wear the vest due to a medical reason.

[115] Mr Graham then prepared a Notice of Meeting directing Mr Bletas to attend a meeting. Mr Ivey stated that he gave that notice to Ms Loredana Van Der Heyden, Gaming Area Manager, to hand to Mr Bletas.

[116] Mr Ivey gave evidence that sometime later on 26 August 2018 while he was on his break, Mr Bletas approached him while carrying some papers. He rolled the papers up and hit Mr Ivey on the shoulder stating, “Yeah! I got your papers!” 36 Mr Ivey’s evidence was that Mr Bletas then walked away, but returned five minutes later while Mr Ivey was taking a phone call. Mr Ivey stated that while he continued his phone call Mr Bletas was talking at him about the date or time of the meeting to be conducted.

[117] Mr Ivey stated that Mr Bletas’ behaviour on 26 August 2018, including hitting him with the rolled up papers and trying to talk to him while he was clearly on a phone call, was inappropriate, odd and socially unacceptable. 37

[118] In re-examination, Mr Ivey said that there were four interactions he had with Mr Bletas on 26 August 2018:

•  Before shift

•  5.20pm

•  In the mealroom/staff canteen

•  Approximately 7.00pm

[119] Mr Ivey said that he could only recall the 7.00pm incident on the morning of the second day of the hearing after Mr McKechnie questioned him as to whether there had been additional conversations. Mr Ivey’s initial reaction was that no, there had not been, but he did recall it the morning of the hearing for the first time.

[120] Mr Ivey said that he addressed the whole group of employees starting at 2.00pm to inquire who required compliance training; he didn’t single Mr Bletas out.

[121] Relevant to Mr Ivey’s evidence as to being hit with a piece of paper by Mr Bletas, it was put to him that as a manager, he should have taken action if it had happened, including standing Mr Bletas down. Mr Ivey said that he was on a very important, personal phone call which he was not going to disrupt. When Mr Ivey finished the phone call Mr Bletas was no longer in the vicinity. Mr Ivey considered it to be disrespectful. He did not stand Mr Bletas down, as he had already been issued with a notice of meeting.

[122] Mr Ivey said that to the best of his knowledge, in the past two years only one other employee has made a complaint about him.

[123] Mr Ivey said that his involvement with Mr Bletas ended a few days after the incident on 26 August 2018 as the meeting of 28 August 2018 did not go ahead.

[124] Mr Ivey was asked questions relevant to the text messages sent by Mr Bletas to the Gaming Manager’s mobile phone on or around 29 August 2018. Mr Ivey pieced together that it was Mr Bletas who sent them. The messages were sent in about 18 messages as follows:

Email to: [Jackie tosh email address] for info & updates

And to reschedule your meeting

[wave hand emoji]

And

You learn

To speak and act

Respectably & Honestly

Enjoy your day

Hang on

Give me half hour

Might be able to rearrange for Saturday

U don’t mind coming in on your day off do you, Glenn?

I also have misplaced the paperwork

[sad face emoji]

Can you please email or text through a copy for me?

[email address supplied]

Thanks Glenn

[pray emoji and angel emoji]

[125] Mr Ivey understood that Ms Hardy became involved after these messages were received.

Evidence of Mr Roger Spence

[126] Mr Spence, Gaming Area Manager for Star, provided a witness statement in these proceedings. 38 Mr Spence stated that he reports to the Gaming Operations Manager. His evidence was that prior to 26 August 2018, he and Mr Bletas had worked different shifts and therefore their interactions were limited.

[127] Mr Bletas arrived at work around 2:00pm on 26 August 2018 and was not wearing his vest. Mr Spence asked why he was not wearing the required uniform, to which Mr Bletas informed he should speak with Geoff. Mr Spence responded, “Geoff?” to which Mr Bletas said, “You know! Your boss Geoff!”

[128] Mr Spence tried to have Mr Bletas clarify why he wasn’t wearing the vest, and in response Mr Bletas accused Mr Spence of touching him and being aggressive. Mr Spence responded, “I haven’t touched you Andreas, I’m just standing here”. Mr Bletas responded, “I can see you’re getting angry, so I’ll just stand over here while you calm down”. 39

[129] Mr Spence stated that he thought Mr Bletas’ conduct was strange and erratic; he had not touched Mr Bletas, and he was calm during the interaction. 40

[130] Mr Spence stated that Mr Bletas did not say anything about a medical condition which prevented him from wearing the required vest.

[131] He gave evidence that after this exchange, he walked Mr Bletas to a gaming table, and on the way over Mr Bletas said, “I like you Roger so it’s best you don’t get involved, because I don’t want to come after you as well”. 41 Mr Spence stated that he thought Mr Bletas was trying to irritate and agitate him by his statement.

[132] Mr Spence went to the office to speak with Mr Graham and Mr Ivey and asked them if they knew why Mr Bletas was not wearing his vest. They told Mr Spence that they would speak with Mr Bletas after his break.

[133] Mr Spence stated that at around 3:40pm after Mr Bletas finished his break, he asked Mr Bletas that he go to the office. Mr Bletas responded with words to the effect that he ‘doesn’t go to the office’ and ‘if they want to speak to me, they can put it in writing and send it to my email’. Mr Spence stated that Mr Bletas said that he had discussed the vest issue with Geoff and that he didn’t want to talk to Gaming Operations Managers as he had essentially bypassed them and had gone “straight to the top”, although he refused to tell Mr Spence the content of his discussions with Mr Hogg. Mr Spence considered that Mr Bletas’ behaviour was arrogant and unnecessarily combative. 42

[134] Mr Spence called Mr Graham and told him that Mr Bletas refused to attend the office, after which Mr Graham came out of the office into the pit to speak with Mr Bletas. Mr Spence recalled that Mr Bletas became more agitated at Mr Graham’s involvement and, before Mr Graham spoke, said to him, “Oh! Here we go! If you want to talk to me put it in writing!” 43 Mr Spence stated that Mr Graham walked away without saying anything.

[135] Mr Spence confirmed he had no further involvement in the matter, and did not speak with HR regarding progress of such.

[136] Mr Spence was not aware of any medical condition which would prevent Mr Bletas from wearing his required vest.

Cross-examination

[137] Mr Spence watched the video during the hearing. It is his evidence that he tried to get Mr Bletas to calm down. Ms Tacey suggested that it was Mr Spence who was angry, to which Mr Spence denied that he was angry. Ms Tacey then suggested that Mr Spence touched his arm, to which Mr Spence denied that he did.

[138] Mr Spence said Mr Bletas then touched him on his arm. At around 3.40pm, Mr Spence asked Mr Bletas to go to the office. Mr Bletas said he doesn’t ‘do the office’. He refused to go to the office, so Mr Spence spoke with Mr Graham. Mr Graham said he would come out.

[139] When Mr Graham came out, Mr Bletas said, “Oh here we go”, and “Don’t call me An-dre-ass”. Mr Spence could not recall Mr Graham replying. He could not recall Mr Graham saying, “Whoa, whoa, whoa!”

[140] Relevant to Mr Bletas shaking Mr Spence’s hand, it was Mr Spence’s evidence that he did not say to Mr Bletas that he was ‘correct’ in not wearing the vest. Mr Spence’s evidence is that if he had been apologising to Mr Bletas, there would be no reason for him to need to go to the office to deal with the situation about him not wearing the vest.

[141] Regarding the ‘threat’ made by Mr Bletas to Mr Spence, it was Mr Spence’s evidence that Mr Bletas’ behaviour was out of the ordinary. Mr Spence has worked in the casino industry for 34 years, and has seen a lot of things. Mr Spence denied that it was overly noisy. He remembers that Mr Bletas definitely made the statement. Mr Spence did not ask Mr Bletas what he meant, as Mr Bletas was in a strange mood, and Mr Spence didn’t want to ‘push any buttons’.

[142] Mr Spence stated that he completed an incident report. It was not, however, in Mr Spence’s evidence. It was produced during the hearing and admitted into evidence. It is reproduced below:

“Date of incident	Sunday, 26 August 2018	Employee Number	[employee number]
Your name	Roger Spence	Casino Licence Number (if applicable)
Manager who requested this report		Jim Graham

I, Roger Spence c/of [address], Gaming Area Manager, state the following:

Andreas Bletas came to Pit 2 at 13:57 and I noticed he had no vest on. I asked Andreas why he had no vest. Andreas said that my boss Geoff had said he didn’t need too. When I tried to ask Andreas to clarify this he became argumentative and accused me off touching him and said I was getting aggressive. I then asked Andreas if he could go to his table which he did.

After Andreas came back from a break at 15:40 I asked him to go to the office. Andreas stated that he doesn’t go to the office and if they want to speak with me they can put it in writing.

I then rang Jim Graham to inform him and Jim said he would come to the Pit to speak with him.

When Andreas saw Jim he said “Oh here we go, if you want to talk to me put it in writing and don’t call me Andre Ass. Jim had not spoken to Andreas at this point.

I directed Andreas to go to BA38.09 and walked to the table with him. Andreas said to me that he has always liked me and I shouldn’t get involved because he didn’t want to come after me too. [original emphasis]”

•  Further, it was reasonable to seek expert medical advice and not rely on advice from Mr Bletas’ own general practitioner, particularly in light of Star’s duty to Mr Bletas and other employees; and

•  Lack of performance issues or issues in relation to the inherent requirements of Mr Bletas’ role is irrelevant; the IME was intended to confirm Mr Bletas’ capacity to perform the inherent requirements of his role. 103

[297] Further to the above, Star submitted that Mr Bletas should have submitted to the IME. Star submitted that if the IME had resulted in an outcome with which Mr Bletas disagreed, he would then have been able to raise a dispute to this effect. 104

[298] In oral closing, Mr McKechnie submitted that the matter before the Commission is not a case relevant to vests or alleged management hostility; it is about a reasonable directive that was refused. The Commission was urged to find that Star held a genuine concern about Mr Bletas’ wellbeing. He was provided with repeated opportunities and extensions to meet the reasonable direction, to which he refused.

[299] It was submitted that Mr Bletas had decided in his mind that he was not going to see Dr Freiburg, and he knew that one of the consequences of such a decision was termination. In re-examination, he was asked if he was still considering attending Dr Freiburg’s appointment on 5 October 2018, to which he responded, “Absolutely not.”

[300] It was submitted that where Mr Bletas had decided against wearing the vest, nobody forced him to wear it. It was submitted that nobody harassed him. It is not clear why nobody showed Mr Bletas the memo which stated that it would be on a case-by-case basis.

[301] It was submitted that the video footage does not demonstrate hostility from Star management.

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

[302] Star submitted that Mr Bletas’ criticism of the dismissal process is misguided. It submitted that while Mr Bletas assumes that there is a “natural sequencing” involving an employee being advised of a proposed termination, the reason for it, and then provided an opportunity to respond, what the legislation considers is whether an employee was notified of the reason and given an opportunity to respond before the termination. Star submitted this process occurred here.

[303] Star submitted that the directions to attend the IME confirmed the requirement was mandatory and specified the consequences should Mr Bletas fail to comply. Mr Bletas was therefore advised non-compliance could result in termination, and he took the opportunity to respond in writing to the direction.

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

[304] Further to the above, Star submitted that the decision to terminate Mr Bletas’ employment was not taken until after his written responses had been received and considered; a process which was carried out over a number of days.

[305] Star submitted this satisfied an “opportunity to respond”.

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 dismissal

[306] Star submitted that s.387(d) relates to any refusal to allow a support person, and does not require the employer to offer a support person. Star conceded that there was no meeting between it and Mr Bletas regarding the dismissal, and therefore no requirement for a support person. Further, as Mr Bletas was on paid leave throughout the relevant period he was at liberty to seek the support of whomever he wanted when corresponding with Star.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[307] Star did not in its submissions prior to the hearing of this matter specifically address this criterion. However, it did respond to Mr Bletas’ criticisms of the direction to attend the IME and in doing so, submitted that its concerns about Mr Bletas’ mental health did not require conduct or performance issues to have been identified. Rather, the very purpose of the IME was to establish Mr Bletas’ capacity in relation to the inherent requirements of his role. 105

s.387(f)(g) and (h)

[308] Star did not in its submissions prior to the hearing of this matter specifically address these criteria.

[309] Star urged for the application to be dismissed.

Consideration

[310] I will address each of the criteria set out in s.387 of the Act separately.

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)

[311] Whilst a very large part of the hearing dealt with the issue of Mr Bletas not wearing a vest up until and including 26 August 2018, it was not the reason why he was dismissed. It is necessary, however, in my view to say some things about the issue.

[312] I accept Mr Bletas’ evidence, and that of Mr Lorraway, that when they met with Mr Hogg on 24 August 2018, he gave Mr Bletas general permission not to wear a vest if he was overheating. There is evidence before the Commission that Mr Hogg and Mr Brown discussed the memo that had been circulated. Mr Brown explained the memo to Mr Hogg and detailed that it was on a case-by-case basis.

[313] It is apparent, however, that following the meeting between Mr Hogg and Mr Brown, Mr Hogg again met with Mr Bletas and Mr Lorraway, where he issued to Mr Bletas an exemption. Disappointingly, and without any satisfactory explanation, this was not ever relayed to any other manager.

[314] Mr Hogg was not called as a witness when he could have been. There was no attempt to refute Mr Bletas’ evidence that he was provided with such an exemption by Mr Hogg. I accept, therefore, that when Mr Bletas attended for work on 26 August 2018 without a vest, he had permission from Mr Hogg to do so. The incidents that occurred from 26 August 2018 are a sad tale, when it appears that all it might have taken was Mr Hogg to issue to Mr Bletas a written exemption that he could show to any Pit Boss or Gaming Manager that sought to instruct him to wear a vest or inquire of him why he was not wearing a vest.

[315] Mr Bletas’ conduct up until 26 August 2018 should not have caused any concern for Star, and indeed, as he had an audience with the highest ranked manager on the Gold Coast, it is demonstrative that there were no concerns. If any had been held, Mr Hogg would have alerted HR or another manager to such concerns.

[316] Relevant to Mr Bletas’ refusal to attend a meeting with Mr Ivey and Mr Graham on 26 August 2018 during his shift, I find that Mr Bletas was under a genuine belief that he was not required to do so unless he could have a support person, such as a union delegate with him. It is clear from Mr Lorraway’s evidence that he himself was mistaken as to the rights afforded to employees under the Agreement, and this had been incorrectly communicated to United Voice members. It is difficult to be critical of any party on this mistaken view, including Star management who are likely not to have been aware of this mistaken view held by Mr Lorraway and Mr Bletas at the time.

[317] I find, however, that some of Mr Bletas’ conduct from 26 August 2018 to 31 August 2018 was often bizarre, taunting, insulting and obstinate. I do not accept Mr Bletas’ submission that it can be explained by his unique and inherent personality. The most concerning behaviours include:

(a) Saying to Mr Spence, “I like you Roger so it’s best you don’t get involved, because I don’t want to come after you as well”. I accept Mr Spence’s evidence that this was said to him by Mr Bletas, particularly so because a written account of the conversation was made contemporaneously;

(b) The CCTV footage of 26 August 2018 where Mr Bletas uncomfortably forces a handshake while at work with Mr Spence and Mr Ivey in situations where a handshake in the workplace appears to me to be unnecessary and unwelcome (at least in the case of Mr Ivey). Mr Bletas gave evidence that there was a further handshake in the workplace with Mr Ivey at approximately 7.00pm, and he did so because Mr Ivey looked upset and Mr Bletas considered that Mr Ivey was deliberately not looking at him. He thought it was the ‘right thing to do’ to shake his hand, but he also gave evidence that he said to Mr Ivey when asked to attend a meeting, “No thanks Glenn. I just can’t trust you to meet with you alone or with your friends to bully me.”;

(c) Emailing Mr Hogg the following on 28 August 2018 refusing to attend a meeting with Mr Ivey, when Mr Bletas gave evidence in questions from me that he ‘personally doesn’t have an issue with Mr Ivey’:

•  Geoff, I can no longer work on these same days as Glenn Ivey.

•  It’s impossible, irreconcilable. I will work Friday Saturday this week on which I believe he is off.

•  I will work on his off days and it’s fine with me that he gets his 5 days as opposed to my 2. That’s fine, that’s fine Geoff, that’s fine.

•  I will not be attended his “formal meeting” at 10am this morning nor will I be contacting him ever or speaking to this person.

•  Ever.

(d) To be clear, I do not find that it was inappropriate on 28 August 2018 for Mr Bletas to send an email to Mr Hogg, explaining that he understood that when they had met only days earlier he had been issued with an exemption from wearing a vest. The language within the email to Mr Hogg is at times concerning;

(e) Nominating Ms Tosh as his contact person when she is the Executive Assistant to the General Manager and should not ever be considered by a dealer to be his contact person unless she has agreed to be;

(f) Informing Ms Hardy when she called that if he had known it was her calling, he would not have taken her call. It would have been appropriate and indeed useful for Mr Bletas to have willingly taken a call from Ms Hardy given her seniority at Star and her ability to assist in resolving his issue;

(g) Sending to the Gaming Manager’s mobile phone a Phil Collins Youtube link to a song titled, “I don’t care anymore”. There is no evidence before the Commission that the link was opened, but I accept that it was a cause of concern to Star to have such a song title sent by an employee at around the same time the text messages below in (h) were sent. The lyrics are very melancholy and include the following:

“Well you can tell everyone I'm a down disgrace 
Drag my name all over the place 
I don't care anymore
You can tell everybody 'bout the state I'm in 
You won't catch me crying 'cause I just can't win
I don't care anymore, I don't care anymore

I don't care what you say
I don't play the same games you play

'Cause I've been talking to the people that you call your friends 
And it seems to me there's a means to and end
They don't care anymore
And as for me I can sit here and bide my time 
I got nothing to lose if I speak my mind 
I don't care anymore, I don't care no more

I don't care what you say 
We never played by the same rules anyway”

(h) Sending repeated, very short text messages to the Gaming Manager’s mobile phone where he appears to know that Mr Ivey is rostered on to read the messages. The text messages firstly nominate Ms Tosh as his contact person, and then become rude to Mr Ivey, and then facetious by asking Mr Ivey to hold the meeting with him on Saturday, Mr Ivey’s day off work:

“Email to: [Jackie tosh email address] for info & updates

And to reschedule your meeting

[wave hand emoji]

And

You learn

To speak and act

Respectably & Honestly

Enjoy your day

Hang on

Give me half hour

Might be able to rearrange for Saturday

U don’t mind coming in on your day off do you, Glenn?”

(i) Where Ms Hardy had informed Mr Bletas that he was on paid special leave and he was not required to attend for work until the meeting of 31 August 2018, he sent the following inappropriate texts to Ms Hardy declaring that he would attend for work and wasn’t interested in meeting with her or Ms Keat:

Mr Bletas:

Talk to Geoff Anne

You’re really not listening to me

I’ve cc’d you in an email reply to Simone

So based on that I think I should just come in and go to work

See how we go and then maybe set up something next week with Geoff

No hurry


Ms Hardy:

Dear Andreas, please see the email and attachment sent to your email address [address], you are required to attend the meeting tomorrow at 1630, this will be your opportunity to reply to the points raised in the letter, regards Anne Hardy


Mr Bletas:

No more messages tonite please

Thanks

I see you at work tomorrow


Ms Hardy:

Please remember you are on Special Paid Leave and not required at work until 1630 to attend the meeting, regards Anne Hardy


Mr Bletas:

Sorry no

I see you tomorrow at 12

No meetings

Thanks

(j) The meeting of 31 May 2018 where even on Mr Lorraway’s account, Mr Bletas’ behaviour was unorthodox, inappropriate and extremely agitated. Mr Lorraway had to request Mr Bletas sit numerous times throughout the meeting, and there were breaks to speak to him to calm him down and focus. The conduct of using one’s middle and pointer finger to look at one’s own eyes, then point them to Ms Keat and return them to your own eyes is menacing in such a meeting where it is not given nor expected to be in jest. I accept the evidence of Star’s witnesses that Mr Bletas was rambling, at times, on matters not relevant to the issue of the vest and overheating experienced by him. Further, I accept the evidence that he was, at times, leaning over the table towards Ms Keat and this conduct is inappropriate;

[318] Mr Bletas did not have many interaction with Star managers after 31 August 2018 until around 11 September 2018 when he sent an email to Ms Hardy. I do not consider his email of 11 September 2018 to be particularly concerning.

[319] When Mr Brown met with Mr Bletas on 14 September 2018, Mr Brown put to him that he was seeing a psychiatrist in Melbourne. Mr Brown had reviewed the footage by this time, and had learned of Mr Bletas’ conduct during the meeting of 31 August 2018. Mr Brown had informed Mr Hogg that he would take carriage of Mr Bletas’ issues.

[320] I accept that at this time, Star held genuine and reasonable concern into Mr Bletas’ wellbeing. I accept that Mr Bletas had been displaying unusual and inappropriate conduct that reasonably gave rise to a concern that Mr Bletas might have a mental health issue, warranting an IME. With the additional information available to Star as to Mr Bletas’ alleged visitation upon a psychiatrist in Melbourne, Mr Brown undertook to have Mr Bletas undertake an IME.

[321] Upon being informed of the name of the doctor who would examine him on Star property, and learning from a former Star employee that the doctor was a ‘career killer’, and would provide what he considered to be a biased report, Mr Bletas continued to refuse the request to be seen by the doctor.

[322] I have reviewed the ‘authority to doctor’ that Mr Bletas was requested to sign and provide to allow Dr Freiburg to provide a report to Star. Where it references authorising Dr Freiburg to ‘liaise and discuss with all of my treating doctors (past and present) my current medical status, my diagnosis, my prognosis and any other matter you consider relevant in preparing your report for my employer’, it does not go so far as require any other treating doctor, past and present to contribute to such discussion or provide any reports. I find that Mr Bletas’ concern was ill-founded, and the requirement for an examination was not a fishing expedition as he described. In completing the ‘authority to doctor’, it did not oblige any other doctors to speak with Dr Freiburg or oblige them to provide any information about Mr Bletas.

[323] Mr Bletas steadfastly refused to complete the ‘authority to doctor’ and agree to attend the examination with Dr Freiburg, scheduled for 6 October 2018. Star repeatedly informed Mr Bletas that he was obliged to attend the appointment and that his employment was at risk. The email from Mr Brown to Mr Bletas on 3 October 2018 was explicit in explaining that if he did not agree to attend his employment would end.

[324] I do not accept Mr Bletas’ submission and his pleadings with Star on 3 October 2018 that Star should have considered a certificate of capacity from his own treating doctor of 34 years as sufficient to demonstrate that he was not suffering from a mental illness. As explained to Mr Bletas during the hearing, a manual worker might not be convinced that they have a limp, but to observers, and their employer, they may exhibit a limp. Despite objections from a manual worker, and a certificate from their own treating doctor that they do not have a limp, it is reasonable for an independent doctor to determine if they indeed have a limp that might affect their ability to perform the inherent requirements of their role. An employer has a reasonable right to inquire about a potential mental illness as much as it is entitled to reasonably inquire about a potential physical illness or condition if the illness or condition might affect the employee’s ability to perform the inherent requirements of their role.

[325] Extensions were granted by Star to Mr Bletas to complete the consent and agree to be seen by Dr Freiburg. Originally he was required to agree by 28 September, then 3 October, then 4 October 2018. The closest Mr Bletas came to agreeing to see Dr Freiburg was on 4 October 2018 when he sent the following text message to Mr Brown at 4.29pm:

“Also ask Mr Freburg if he would be willing to meet with me and my legal counsel off property just informally initially of course …

And if he wouldn’t mind being video and audio taped…

Thanks again

AB”

[326] Star did not consider the text message to be an acceptance of the request for an IME with Dr Freiburg, and I am in agreement that it was not an acceptance by Mr Bletas. This is abundantly clear when regard is had for Mr Bletas’ email sent at 8.22pm on 4 October 2018 at [61].

[327] Whilst Star’s decision to have Mr Bletas attend an IME was not pursuant to a company policy, or in the Agreement, it was a decision it considered it could make. I have had regard to the following in a Full Bench of the Australian Industrial Relations Commission in Woolworths Limited v Cameron Brown PR963023 at [35]:

[35] What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of the actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT Case 106, albeit in a somewhat different context, it is not the role of the Commission “…to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”

[328] In a decision of Goldberg J in Thompson v IGT (Australia) Pty Ltd [2008] FCA 994, his Honour determined that Mr Thompson, when resisting a request by his employer to attend a psychiatric examination because it was not rationally connected to the history of his back injury stated at [43]:

“…that is not a matter in respect of which he is necessarily competent to judge. Certainly, having regard to the history to which I have referred, it is not an unreasonable request by the respondent.”

[329] In Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [72], Rares J said:

“Qantas’ requirements were reasonable requirements and were made solely for the purpose of assisting it in understanding how it would need to deal with Mr Kiernan in terms of matters to which Capt Miller’s evidence referred. Qantas required Mr Kiernan’s co-operation in order to make the operational side of the relationship work, bot for Mr Kiernan and for Qantas. Mr Kiernan, no doubt at the behest of the Association, withheld that co-operation without lawful justification.”

[330] The Agreement governing Mr Bletas’ employment provides for Star to require an employee to attend an IME if the employee has a pattern of absenteeism or extensive absenteeism in any year. As per the authority in Blackadder, unless the terms of the Agreement state that they are the only circumstances in which an IME can be reasonably requested, the terms are not exhaustive of the contractual right Star has to reasonably require its employee undertake an IME.

[331] I determine that Star acted reasonably in requiring Mr Bletas to attend an IME. I do not accept Mr Bletas’ submissions that his conduct did not extend trying to defend himself from vexatious allegations, negotiate a mutual resolution to the issues or protect his personal and private medical information.

[332] I have had regard to Mr Bletas’ contention that requiring him to attend an IME specifically with Dr Freiburg was unreasonable, when he had been protesting as to the objectively of Dr Freiburg, and he had undertaken research and spoken with a former employee who warned him against being seen by Dr Freiburg. Mr Bletas’ response to being seen by Dr Freiburg was to suggest that it was unnecessary, that he did not have a mental illness, and Star should accept his treating doctor’s assurances that he does not have a mental illness. Mr Bletas did not suggest, prior to his dismissal, that he should be seen by an alternative doctor.

[333] In Mr Bletas’ email of 4 October 2018, not only did he fail to offer up an alternative doctor to examine him, he attacked Mr Ivey and called for Mr Brown to stand aside from dealing with him. There is no evidence before me to satisfy me that Mr Bletas would have agreed, by 4 October 2018, to have been examined by an alternative doctor. Where Mr Bletas now states that would have been a reasonable alternative, it was not offered by him at the time, nor do I find that he would have agreed to such arrangement.

[334] I am satisfied that Star acted reasonably in requiring Mr Bletas to attend an IME with Dr Freiburg. I find it was a lawful and reasonable directive to issue.

[335] With all of the information that Star had before it by 5 October 2018 when Mr Bletas’ employment was terminated, I find that the reason for the dismissal was Mr Bletas’ repeated refusal of a lawful and reasonable direction. I find there was a valid reason for the dismissal.

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

[336] I accept Star’s submission that Mr Bletas was repeatedly advised that non-compliance with the direction, which it warned him was considered by Star to be reasonable could result in termination.

[337] Mr Bletas was aware of such correspondence when he communicated in writing his refusal, including on 4 October 2018, and prior to being informed of Star’s decision to terminate his employment. I find that Mr Bletas was notified of the reason for the dismissal.

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

[338] Mr Bletas was afforded numerous opportunities to agree to the lawful and reasonable direction to attend an IME with Dr Freiburg. He steadfastly refused, including in writing. I find that there was an opportunity to respond to the reason of the dismissal related to the conduct of Mr Bletas.

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 dismissal

[339] Mr Bletas was afforded a support person at the meeting of 31August 2018 when the meeting was related to his refusal to attend a meeting on 26 August 2018. In following meetings with Mr Brown, Mr Bletas was not unreasonably refused a support person. In any event, these meetings were not in relation to dismissal.

[340] No meeting was held with Mr Bletas relevant to the dismissal of his employment, and I find this is a neutral consideration.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[341] Mr Bletas was dismissed for conduct reasons and not for performance reasons. I find this is a neutral consideration.

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

[342] Star is a large employer with a dedicated human resources team. I do not find that Star’s size impacted on the procedures followed. These matters are a neutral consideration.

s.387(h) - Other matters

[343] As noted by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd: 107

“Relevantly advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round.”

[344] Mr Bletas had been employed by Star for a period of eight years. I have had regard to the fact that on termination, Mr Bletas lost a reasonable period of service and opportunity for long service leave at 10 years.

[345] I have taken into consideration Mr Bletas’ otherwise satisfactory employment for a period in excess of eight years.

Conclusion

[346] It is not necessary to have regard to Mr Bletas’ post-employment conduct, and I confirm that I have not done so in the consideration in s.387 of the Act. It would only have been necessary to have consideration to such conduct if upon making a finding of unfair dismissal I was determining if it was inappropriate to reinstate Mr Bletas.

[347] Having considered each of the matters specified in s.387 of the Act, including whether there are any other relevant matters which make Mr Bletas’ dismissal harsh, unjust or unreasonable, I am satisfied that the dismissal of Mr Bletas was not in all the circumstances harsh, unjust or unreasonable. The dismissal of Mr Bletas cannot fairly be characterised as a disproportionate response to his conduct.

[348] I find that Mr Bletas’ dismissal was not unfair and the application for unfair dismissal is dismissed. I Order accordingly.

COMMISSIONER

Appearances:

Ms L Tacey, Solicitor, Anderson Gray Lawyers, for the Applicant;

Mr M McKechnie of Counsel, instructed by King & Wood Mallesons, for the Respondent

Hearing details:

Brisbane, 13 & 14 February 2019.

Final written submissions:

Applicant’s submissions in Reply, 11 February 2019;

Submissions of the Respondent, 7 February 2019.

Printed by authority of the Commonwealth Government Printer

<PR707326>

 1   Fair Work Act 2009 s.394(2)(a).

 2   Witness Statement of Mr Andreas Bletas dated 11 February 2019.

 3 Ibid at [8].

 4 Ibid at [11].

 5 Ibid at [12].

 6 Ibid at [17].

 7 Ibid at [23].

 8 Ibid at [24].

 9 Ibid at [25].

 10   Ibid.

 11   Ibid, Attachment AB-4.

 12   Ibid at [38]; see also Attachment “AB_5” to Mr Bletas’ Statement.

 13 Ibid at [38].

 14   Ibid. Attachment AB-6.

 15 Ibid at [39].

 16   Ibid, AB-10.

 17   Ibid, AB-11.

 18 Ibid at [43].

 19 Ibid at [44].

 20   Ibid.

 21   Ibid, Attachment AB-16.

 22 Ibid at [51].

 23   Ibid, Attachment AB-18.

 24   Ibid, Attachment AB-9.

 25   Ibid, Attachment AB-19.

 26   Ibid, Attachment AB-22.

 27   Ibid, Attachment AB-23.

 28 Ibid at [55].

 29   Witness Statement of Mr Danny Lorrway dated 11 February 2019.

 30 Ibid at [2].

 31 Ibid at [5].

 32 Ibid at [6].

 33 Ibid at [8].

 34   Witness Statement of Mr Glenn Ivey dated 7 February 2019.

 35   Ibid at [2] - [3].

 36   Ibid at [12]-[13].

 37 Ibid at [15].

 38   Witness Statement of Mr Roger Spence dated 5 February 2019.

 39   Ibid at [5]-[6].

 40 Ibid at [7].

 41 Ibid at [10].

 42 Ibid at [13].

 43   Ibid, [16].

 44   Witness Statement of Mr Jim Graham dated 6 February 2019.

 45 Ibid at [4].

 46 Ibid at [6].

 47   Ibid at [8] – [10].

 48 Ibid at [15].

 49   Witness Statement of Ms Simone Keat dated 6 February 2019.

 50 Ibid at [5].

 51 Ibid at [11].

 52 Ibid at [13].

 53 Ibid at [14].

 54   Ibid at [19]-[20].

 55   Witness Statement of Ms Anne Hardy dated 6 February 2019.

 56   Ibid, [3].

 57 Ibid at [4].

 58   Ibid, [7].

 59 Ibid at [14].

 60 Ibid at [14].

 61 Ibid at [15].

 62   Ibid at [16]-[18].

 63   Ibid, Attachment AH-6.

 64   Ibid at [27]-[29].

 65   Witness Statement of Mr Ian Brown dated 6 February 2019.

 66   Attachment IB-1 of Mr Brown’s Witness Statement.

 67 Witness Statement of Mr Ian Brown dated 6 February 2019 at [8].

 68   Ibid, [26].

 69 Ibid at [31].

 70   Ibid.

 71 Ibid at [50].

 72 Ibid at [52].

 73 Ibid at [55].

 74   Ibid at [61]-[63].

 75 (1995) 185 CLR 410, [465].

 76   Sayer v Melsteel[2011] FWAFB 7498 at [20].

 77 Ibid at [11].

 78 Ibid at [16].

 79   (1996) 39 ALIR 3, 216.

 80   [2015] FWC 231, [374].

 81   Ibid, [117].

 82   Dix v Premium Beverage Solutions Pty Ltd [2013] FWC 1880.

 83   Leon B J Lovett v Pacific National (NSW) Pty Ltd (U2008/3524)

 84 (1995) 185 CLR 410, [465].

 85 (2004) 133 IR 458.

 86 [2016] NSWIRComm 10.

 87   Schoeman v Director General [2013] NSWIRComm 1018.

 88 Applicant’s Outline of Submissions filed 15 January 2019 at [52].

 89   Ibid.

 90   Ibid.

 91   Ibid.

 92   Ibid.

 93 Ibid at [57].

 94 Respondent’s Outline of Submissions filed 7 February 2019 at [2].

 95 Ibid at [3].

 96   Ibid at [4]; Rankin v Marine Power International [2001] VSC 150.

 97   Respondent’s Outline of Submissions filed 7 February 2019 at [4]; Woolworths v Brown [2005] AIRC 830.

 98 [2009] FCA 689.

 99 Ibid at [75].

 100 [2005] FCA 870.

 101 Ibid at [15].

 102 Respondent’s Outline of Submissions filed 7 February 2019 at [4].

 103   Ibid, [4].

 104   Ibid, [4].

 105   Ibid, [4].

 106 (1984) 295 CAR 188.

 107   (2003) unreported, PR931440 at [30].