Mr Clifford Terry v Burswood Resort (Management) Limited T/A Crown

[2013] FWC 6513

[2013] FWC 6513

FAIR WORK COMMISSION

DECISION

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

Mr Clifford Terry
v
Burswood Resort (Management) Limited T/A Crown
(U2012/17133)

DEPUTY PRESIDENT MCCARTHY PERTH, 10 SEPTEMBER 2013

Termination of Employment.

[1] Mr Clifford Terry (the Applicant) lodged an application for unfair dismissal remedy (the application) on 21 December 2012. The Applicant asserted that he was unfairly dismissed from his employment by Burswood Resort (Management) Ltd trading as Crown (the Respondent). The Applicant's employment ceased on 11 December 2012. The Applicant had been employed as a sales and service consultant within the Respondent's customer contact centre since 15 September 2008. In that role he was responsible for handling customer interactions and telephone enquiries.

[2] The Respondent disputes that the Applicant was unfairly dismissed and lodged an employer’s response to the application (employer’s response) on 6 February 2013. The Respondent asserts that the Applicant had been dismissed for making inappropriate comments to three other members of staff and because the majority of the time the allegations and complaints about his conduct were being investigated and canvassed with him, he refused to co-operate or actively participate. Rather, during that investigation process, which involved meetings with the Applicant to canvas issues and provide him with the opportunity to respond to them, the Applicant is asserted to have been belligerent and threatening.

[3] The events that led to the termination of the employment of the Applicant arose in August 2012. Prior to that time there had been a number of matters relating to conduct and performance of the Applicant however it is not necessary to deal with those matters prior to August 2012.

[4] In August 2012 complaints were made by a number of female staff that the Applicant had harassed them through inappropriate language and conduct. On 31 August 2012 the
Applicant was requested to attend a meeting to discuss the allegations. The express details of the incidents that gave rise to the complaints by other staff were not outlined in the letter however it is clear enough what the meeting would be about. A meeting eventually took place on 11 September 2012. Staff from the human resources section met with the Applicant who was accompanied by a union representative from United Voice. At the meeting the allegations of three employees and a customer were read to the Applicant. It was explained to him that his comments in the workplace had made a number of people feel uncomfortable. A response from the Applicant was not sought at that time. The Applicant and his representative requested more detail about the complaints.

[5] The Applicant was advised that the complainants had requested the comments cease. The Applicant immediately denied that he had breached any policy or procedure. On 12 September 2012 the Applicant wrote to the human resource section of the Respondent and asserted that the complaints of each of the three employees were false and not true. The Applicant requested the time and dates of the incidents and the names of the people who made the accusations which he considered had tarnished his reputation and caused an injury to his reputation and his character. The Applicant also asserted that it was an unlawful act.

[6] As a consequence of the Applicant's letter the Respondent conducted an investigation into his complaints and obtained witness statements from those that made them. A meeting was arranged for 18 October 2012. The Applicant was advised in the letter that if he was unable to provide an explanation for concerns about the allegations further disciplinary action may be taken. It was noted that Applicant’s representative from United Voice was also expected to attend.

[7] The meeting was conducted on 18 October 2012 and a detailed summary of the complaints made by other staff were read out. The Respondent did not disclose the names of the complainants, although one of them had informed the employer that she did not object to such a disclosure.

[8] At the meeting of 18 October 2012 the Applicant did not suggest that the complaints were not detailed. It was agreed there would be a further meeting on 23 October 2012. That meeting did not take place as the Respondent wanted to consider requests for further information made by United Voice including the names of the staff that had made the complaints and more specific evidence such as the dates and times of the incidents and CCTV for each and recordings. The Respondent wrote to the representative from United Voice on 26 October 2012 refusing to reveal the identity of employees but consenting to allowing the Applicant to hear the recording. The letter included the request that the Respondent was 'simply seeking Mr Terry's response to the specific allegations for the dates provided at the meeting'.

[9] On 30 October 2012 United Voice wrote to the Respondent seeking further evidence. They asserted that the evidence provided to the Applicant lacked substance and whilst they understood that the complainants did not wish their names to be released they did require the allegations be provided in writing including the dates and times of the incidents. They stated that if those details were not provided, there may be no further response and that they would contend that they would prove to be false and untrue as Mr Terry has no recollection of the ‘alleged incidents'. The Respondent replied to that request and provided written details of the allegations made and complaints about the Applicant's conduct. Notice of a further meeting to occur on 23 November 2012 was also given.

[10] A meeting took place on 23 November 2012 involving human resources staff, the Applicant, and two representatives from United Voice. Prior to the meeting United Voice wrote to the Respondent refuting all of the allegation presented and the validity of their origins. The letter stated that "We believe that the allegations raised are a personal and vindictive attempt by members of management to target a union delegate. The claims that have been presented are of a personal nature and open to interpretation. It is ridiculous that Crown have allowed this matter to continue to the level and for the amount of time that it has.” United Voice requested mediation between the Applicant and the staff involved and that the Applicant and United Voice wanted the matter resolved quickly so that the Applicant could continue to perform his duties without fear of reprisals.

[11] At the meeting on 23 November 2012 Mr McFarlane a representative from United Voice, who did not appear to have been involved in any substantial way prior to this time, continued to make allegations to the Respondent that the matter had not been resolved and dealt with as quickly as it should have been because of the Applicant's status as a union delegate. This was clearly and strongly refuted by the Respondent who requested that United Voice provide evidence in support of those contentions.

[12] At the meeting on 23 November 2012 a number of the specific allegations, mainly what I would regard as the more serious allegations, were refuted by the Applicant. However other elements and in particular those relating to comments that were unwelcome by the complainant's were not refuted. The Applicant was advised that he was suspended on full pay and further meetings would be conducted with him. He was also requested to provide specific responses to the specific allegations made and that a general denial would not be regarded as a sufficient response. It seems the Respondent's decision to suspend the Applicant was influenced by comments he is alleged to have made that were overheard indicating he intended to take the matter to court. A further letter was sent by the Respondent to United Voice on 26 November 2012 reflecting much of the above and requesting a further meeting take place. Yet another letter was sent by the Respondent to the Applicant on 28 November 2012 arranging a meeting for 30 November 2012 including the allegation about the Respondent being overheard stating "he is going to take them all to court".

[13] The meeting took place on the 30 November 2012. The Applicant read a response in respect to the allegations by the three employees indicating he could not recall any of the matters or incidents occurring that were contained in the allegations. The Applicant did admit that he had made the comments regarding taking the matter to court which he regretted making but stated that he was under stress when he made them. On 30 November 2012 United Voice also wrote to the Respondent identifying the list of incidents that the Applicant had raised with the union which supported the contention that he has been targeted by management due to his role as a union delegate. That letter was responded to on 5 December 2012 and United Voice advised that an investigation would be conducted. A meeting was scheduled for 6 December 2012 to discuss the findings of that investigation to date and provide the Applicant with the opportunity to explain his version of those events and to provide any further relevant material. It was also indicated that the Respondent wished to conclude the allegations, presumably those raised regarding victimisation or other discriminatory treatment of the Applicant due to his union delegate role.

[14] The meeting on 6 December 2012 took place and it was attended by Mr Terry together with two representatives from United Voice and two human resource executives from the Respondent. A copy of the investigation findings were provided together with supporting documentation which included statutory declarations from those that have been involved in some of the incidents United Voice had raised. The findings were that the allegations had not been substantiated.

[15] On 7 December 2012 a summary of the investigation findings of the allegations raised by the Applicant in relation to his role as a union delegate were provided to the union. On 10 December 2012 the Applicant was advised of a further meeting to take place on 11 December 2012 regarding the initial allegations and complaints about his conduct. That meeting took place and it was there that the Applicant was dismissed by the Respondent.

[16] Evidence was given at the FWC Hearing by the Applicant, by employees in support of the Applicant and two union officials that have been involved in the discussions. Evidence was also given by human resource staff of the Respondent, supervisory staff of the Applicant and three employees who had made the complaints about the Applicant.

[17] It should be noted that the Applicant was self represented at the Hearing on 27 and 28 August 2013, although up until 20 August 2013 he had been represented by United Voice who had lodged the application, participated in conciliation, other conferences, and settlement negotiations with the Respondent and indeed lodged witness statements on behalf of the Applicant. I've therefore taken into account the effect the late withdrawal of the representation of the Applicant by United Voice and the general inexperience the Applicant had in presenting a case of this nature.

[18] The evidence of the three females who made the complaints about the Applicant's conduct and behaviour established to my satisfaction that he had made comments of an unwelcome nature and that the three females involved were offended by those comments. I am also satisfied that the three females concerned did not conspire or collude or in any other way be involved in any mischief to cause discredit or any other damage to the Applicant. Rather I am satisfied that they complained because they wanted the conduct to conduct cease as it was upsetting to them.

[19] The evidence of the other employees in support of the Applicant indicate that in their experience the Applicant was courteous and respectful in his interactions with other people with them and any other people that they observed him having interactions with. The Applicant himself appeared to me to be a decent person and most likely unaware that his conduct and comments were offensive to those that they were directed at. The comments themselves were generally not sexual in nature but were insensitive and certainly unwelcome.

[20] In themselves I do not think that conduct the subject of the complaints would be a valid reason for termination of employment although they would warrant disciplinary action of some type and a course of awareness training. However, I consider that the Applicant throughout the investigation process undertaken and discussions about those complaints was uncooperative at least and belligerent at worst. His conduct during these processes in my view created the situation where the Respondent appeared to form the view that any other form of disciplinary action not involving the dismissal would be futile if not counter-productive. The Applicant should have accepted he could have made inappropriate comments, indicate some remorse, and that offence had not been intended. If he had, then most likely that would have resulted in some disciplinary type action but not dismissal. Rather, the Applicant embarked on a course that was almost a vendetta against the Respondent for responding to complaints that had been made and that it had an obligation to deal with.

[21] I have also taken into account the endeavour by United Voice, late in the discussions with the employer, to raise allegations of a very serious nature that the Respondent was treating the Applicant in a different manner than other employees would be treated purely because of his role as a union delegate. This was despite at least one of the female complainants involved contacting United Voice and expressing her concerns and raising her complaint with them directly. By taking this into account I am not doing so in adverse way to the Applicant but rather as a mitigating factor for the way that this matter was progressed and approached by United Voice through the discussions prior to the termination of employment.

[22] It is the combination of the conduct and the approach to the investigation and remedy taken by the Applicant that I consider is a valid reason for termination of employment.

[23] The outline of the events leading up to the termination involving the discussions, including the outlining of the conduct alleged to have occurred, the opportunities to respond to allegations, the procedures undertaken, the presence of union representatives throughout those discussions and considerations, the size of the employer and the presence of human resource expertise were canvassed above. I find none of those issues favour the Applicant and find each of them accorded fairness to him and ample opportunity in every procedural respect to respond. It is unfortunate he did not take those opportunities in a way that would most likely have seen him still employed by the Respondent.

[24] I find the dismissal was not harsh unreasonable or unjust. The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Applicant self-represented

Mr Jones (CCI) for the Respondent

Hearing details:

2013

Perth

August, 27 and 28.

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