Mr John Heggart v South Newcastle Rugby League Club Limited T/A Souths Merewether

[2013] FWC 4811

[2013] FWC 4811

FAIR WORK COMMISSION

DECISION

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

Mr John Heggart
v
South Newcastle Rugby League Club Limited T/A Souths Merewether
(U2013/788)

COMMISSIONER MACDONALD SYDNEY, 8 NOVEMBER 2013

Application for relief from unfair dismissal - several allegations mostly not proven - issue of trust between employee and employer broken - valid reason for dismissal - application denied.

[1] This decision arises from an application by Mr John Heggart (the Applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by South Newcastle Rugby League Club Ltd (the Employer/the Respondent/the Club).

[2] The unfair dismissal application was filed on 14 March 2013.

[3] The Employer’s response to the unfair dismissal application was filed on the 9 April 2013.

[4] The unfair dismissal application was listed for conciliation before a Fair Work Commission (FWC) Conciliator on 12 April 2013 but did not resolve.

[5] The unfair dismissal application was held over a six day hearing in Newcastle on 23, 24 and 25 July, 23 August and 3 September. Final submissions took place in Sydney on 17 September.

[6] The Applicant was represented by Mr C Acev, Industrial Advocate of United Voice, Liquor and Hospitality Division (the Union). Mr Acev called five witnesses (three of whom were called pursuant to an Order Requiring a Person to Attend Fair Work Australia - Form F51).

[7] The witnesses called are:

John Heggart - the Applicant

Joanne King - Union Organiser

* Mikahla Sims - Casual employee

* Kurt Polglase - Former employee (supervisor)

* Stewart Bradley - Employee

* Called pursuant to Form F51

[8] The Respondent was represented by Mr Craig Langton, Workplace Relations Advocate, The Registered Clubs Association of New South Wales (Registered Clubs Assn). Mr Langton was assisted by Ms S Tyler (Registered Clubs Assn) and called the following witnesses:

Stephen Pringle - Chief Executive Officer

Matthew Lister - Operations Manager

Adam Laws - Club Supervisor

Sarahanne Field - Gaming Attendant

Laurie Patison - Bar Attendant

Stewart Bradley - Gaming Attendant

Bronwyn Littlewood - Club Visitor

[9] During the proceedings, there was frequent viewing and re-viewing of CCTV footage from the Club’s premises in respect of the grounds for dismissal of the Applicant.

BACKGROUND

[10] The Applicant was employed by the Respondent on or about 7 October 2009, as initially a casual door person and later as a permanent part-time door person (Receptionist) at the South Newcastle Rugby League Club t/as Souths Merewether.

[11] The Applicant’s dismissal arose out of his alleged conduct towards visitors to the Club on Wednesday, 20 February 2013. His Termination of Employment letter of 7 March 2013 (signed by Steve Pringle, Chief Executive Officer) described his conduct as “extremely rude and abrupt” to a group of customers. The Applicant denies that allegation.

[12] The Termination of Employment letter also advised that:

(a) The Applicant was issued a written warning on 6 February 2013 regarding an incident that had occurred on 17 January 2013;

(b) At a Return to Work Meeting on 6 February 2013, the Chief Executive Officer asked the Applicant to be aware of the manner in which he talked to customers in person and over the phone;

(c) The Applicant had been in neglect of his duties, did not assist other staff in end of shift and lock-up procedures and clocked off at a later time and in doing so, wrongfully claimed wages. Those dates were Sunday 10 February 2013 - Thursday 14 February and Saturday 16 February. The Applicant denied any wrongdoing and had responded with “prove it” and “nothing more to add”;

(d) The Applicant had been issued with a new Job Description on Monday 11 February and it contained the point that the Applicant was to “Assist with end of trade and lock-up procedures as required.”

(e) The Applicant was rostered to work Thursday 21 February to end of roster Friday, 22 February at 12.30 am. The Applicant was using his Ipad from 12.02 am to 12.18 am at this reception desk (work station) instead of assisting other staff with end of shift and lock-up procedures. When asked about the Ipad use, the Applicant responded he was making notes about a lack of security on the night but the Chief Executive Officer was yet to receive any such note or comment;

(f) The Applicant’s denial of any wrongdoing as to his manner in dealing with people concerned the Club, the most.

FINAL SUBMISSIONS

For the Applicant

[13] Mr Acev of the Union spoke to the Union filed submissions of 14 June and 17 September 2013. He addressed the reasons for dismissal set out in the letter of dismissal dated 7 March 2013 and other matters. A summary of those submissions is set out below:

(a) The Respondent issued a warning to the Applicant for allegedly not acting correctly in his handling of an incident involving a patron Dave Allen. The warning was unfairly issued given that the Applicant complied with the Respondent’s Handbook and relied upon his experience as a former police officer in dealing with the incident.

(b) The Respondent’s letter of dismissal said that the Applicant had been extremely rude and abrupt to a group of customers on Wednesday 20 February 2013. The Applicant denied this allegation. The Respondent relied upon CCTV footage to support its allegation but it had no sound recording. The Respondent relied upon a member of this group for witness evidence - Ms Bronwyn Littlewood, whose evidence, the Union submitted, could be given little weight.

(c) The Respondent’s letter of dismissal said that the Applicant had defrauded the Respondent by wrongfully claiming wages - that is, that on two dates, the Applicant was neglectful of his duties in that he ceased work at indicated times and in doing so, did not assist staff in end of shift procedures and then clocked off at a later time and in doing so wrongfully claimed wages. The neglect occurred when the Applicant moved from his reception desk work station towards the end of his shift to a lounge area and sat/watched television whilst other staff were engaged in end of shift procedures. The Applicant denied these allegations. The Applicant was not asked by bar staff to assist them in their end of shift procedures. The Applicant, whilst sitting in the lounge area, was carrying out a surveillance/security function.

(d) The claim by the Employer that on a particular date, the Applicant had been given permission by a supervisor to knock-off early but then sat around in the club to knock-off time and, in doing so, wrongfully claimed wages up to knock-off time was untrue and denied.

(d) The Applicant had been denied procedural fairness by the Respondent - that is the Applicant had been given faulty and incomplete CCTV footage and asked to comment on the same in a meeting(s) leading up to his dismissal. Mr Pringle, Chief Executive Officer had become aggressive in his questioning of the Applicant about the allegations against the Applicant and had not put all the allegations to the Applicant for a response.

(e) The Respondent’s claim of wrongfully claiming wages (defrauding the club) was a serious misconduct issue and the Respondent carried the evidentiary onus to prove the allegation.

(f) The Respondent had failed to inform the Applicant of any alleged unsatisfactory work performance issues in order for the Applicant to address those alleged issues.

(g) Two female witnesses called by the Respondent raised concerns about alleged inappropriate comments made by the Applicant. Neither employee had made a formal complaint, the Union said, about these concerns whilst the Applicant was still engaged as an employee. The “feelings” that these two female employees have against the Applicant’s potential return to work do not form a sound reason for preventing his reinstatement.

(h) The dismissal of the Applicant was harsh, unjust and unreasonable. The Applicant sought reinstatement, continuity of employment and restoration of lost wages.

(i) In the alternate, the Applicant sought compensation.

For the Respondent

[14] Mr Langton, on behalf of the Respondent spoke to his filed submissions of 10 July 2013 and addressed issues that arose during the proceedings. A summary of those submissions is set out below:

(a) The Applicant was dismissed for his behaviour towards patrons on 20 February 2013 and also wrongfully claiming wages for the shifts on 10, 14, 16 and 21 February.

(b) This case was not one of serious misconduct because the Employer provided notice in lieu on dismissal. The Employer took the view that the Applicant’s conduct justified dismissal but the conduct was not to the extent that notice should not be provided.

(c) The claim of denial of procedural fairness as to giving the Applicant the opportunity to improve his performance was denied. The Applicant was counselled twice regarding his customer service performance on 20 July and 6 September 2012 and received a written final warning on 6 February 2013 for his dealing with a patron, Dave Allen, on 17 January 2013.

(d) Re 20 February Incident. The Applicant had been extremely rude and abrupt to a group of patrons seeking to enter the Club. Ms Bronwyn Littlewood had not heard the alleged comment made to another group member (Emma Jasiak) but gave evidence that the Applicant showed “no respect” to the group as paying customers and human beings.

(e) The Applicant’s denial of his behaviour towards the group was to be rejected. He had been formally counselled twice in 2012 about his manner over the phone and towards customers.

(f) The Applicant, as well, was aware of the Employer’s expectations regarding customer service at a meeting on 6 February 2013 and at a meeting for reception staff on 11 February 2013.

(g) The 6 February meeting arising out of which he was given a written final warning, concerned the Dave Allen incident. This patron had made a threat against a supervisor Adam Laws who was not immediately made aware of the threat. The Applicant did not follow the Respondent’s Handbook for reporting that threat.

(h) Re Applicant wrongfully claiming wages for his shifts on 10, 14, 16 and 21 February 2013. On these night shifts, the Applicant was required to work until the Club closes. That is, he was to complete his duties and having done so, assist other employees with their end of trade and lock-up procedures, as required. Alternatively, the Applicant should seek instruction from the supervisor on duty if there are any other duties to perform. Instead of doing other work, after completing his duties as the receptionist/doorman, the Applicant sat around in the lounge area watching television. Thus, the Applicant was intentionally doing nothing and receiving payment. On one occasion, he was at his workstation but using his Ipad.

(i) The Applicant’s claim that he was engaging in a security/surveillance role whilst seated in the lounge area towards end of his shift, was rejected. The Respondent did not give him this role. The Applicant’s alleged surveillance role is a fabrication/defence against the allegations raised by the Respondent that he was sitting around, watching television.

(j) The Union put subpoenas on three persons to appear as witnesses: Mr Mikalya Sims and Mr Stewart Bradley (current employees) and Mr Kurt Polglase (former employee). Not much weight should be given to the evidence of these two witnesses.

(k) Since the Applicant’s dismissal, evidence had come to light of inappropriate comments of a sexual nature being made by the Applicant against two female employees. The Respondent relied upon this evidence for the purpose of reflection on the character of the Applicant.

(l) The Applicant’s dismissal was not harsh, unjust or unreasonable. The Applicant had not been denied procedural fairness. The Respondent opposed the reinstatement of the Applicant.

(m) If the FWC found that the Applicant was unfairly dismissed, then reinstatement was inappropriate because the trust and confidence between the Applicant and the Employer had broken down.

Applicant in Reply

[15] Mr Acev in reply put the following:

(a) The relevant industrial instrument (Ex. 12) only allows for casual employees to be sent home by the Employer before their rostered finished time. The Applicant was not engaged as a casual and his knock-off time was the time stated in his roster.

(b) The onus of proof is upon the Respondent because this dismissal is based on serious and wilful misconduct.

(c) The Applicant was not rude and abrupt. His voice is deep and almost authoritative in nature, being an ex-policeman.

(d) The Applicant did not put his surveillance defence during his two meetings with the Chief Executive Officer because he did not get a chance to do so. Thus, the 7 March meeting (the second meeting) was arbitrarily cut short by the C.E.O.

CONSIDERATION

[16] John Heggart filed an unfair dismissal application against his dismissal for serious and wilful misconduct.

[17] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:

a) “whether the application was made within the period required in subsection 394(2);

b) whether the person was protected from unfair dismissal;

c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

d) whether the dismissal was a case of genuine redundancy.”

[18] The unfair dismissal application was made seven (7) days after termination and was therefore made within the twenty-one day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.

[19] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised section 382 as an issue for my consideration. Therefore, the Applicant is a person protected from unfair dismissal.

[20] Paragraph (c) and (d) of section 396 have no relevance in this case.

[21] The Applicant claimed that he had been unfairly dismissed and sought reinstatement and money for lost remuneration. In the alternate, he sought compensation.

[22] Section 385 of the Act provides that a person has been unfairly dismissed if FWC is satisfied as to four criteria:

a) “the person has been dismissed; and

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

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

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

[23] Paragraph (a) of section 395 is satisfied by way of the dismissal of the Applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the Applicant said his dismissal was harsh, unjust and unreasonable.

[24] In order to determine whether the Applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWC to consider the factors set out in section 387. Those factors are:

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

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

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

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

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

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

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

h) any other matter that FWC considers relevant.”

(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);

[25] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issues put against the Applicant related to his conduct.

Termination of Employment Letter

[26] The Termination of Employment letter of 7 March 2013, sets out two grounds for the Applicant’s dismissal: (a) being “extremely rude and abrupt” to a group of customers on Wednesday 20 February 2013; and (b) neglect of duties on certain dates being 10,14,16 and 21 February 2013. As well, the termination letter referred to a warning letter given to the Applicant on 6 February regarding a Club incident on 17 January. The Respondent subsequently raised that the Applicant had been counselled twice in 2012 regarding his customer service performance and also raised that the Applicant had made inappropriate comments to two female comployees. Set out below is a consideration of the evidence pertaining to those issues.

Counselling of Applicant in 2012

[27] Mr Pringle, Chief Executive Officer, deposed that he had counselled the Applicant on 20 July and 6 September 2012 regarding his behaviour at reception: phone manner, rude and abrupt re 20 July and absent from his reception duties re September 2012. (Ex. 5, para 9)

[28] Under cross-examination, the Applicant denied he was counselled on 20 July. He agreed there was a discussion with Mr Pringle but the Applicant was asked to produce a report about a complaint by a customer. The report was presented and he heard nothing further. (PN 1138 - 1148)

[29] The Applicant agreed he was questioned by Mr Pringle about being absent from his reception desk duties allegedly for five minutes. (PN 1149 - 1156) He denied he was counselled. (PN 1220 - 1221)

Dave Allen Incident - 17 January 2013

[30] A patron (Ms Kim Melick) made a complaint by email about another patron’s behaviour (Dave Allen) on the night of Thursday, 17 January. Ms Melick’s email is of the same date and made at 11.57 pm.

[31] Ms Melick’s email asserted amongst other things that:

● “A patron had used the “f” and “c” word over 100 times between 10 pm and 11.50 pm”

● The Applicant spoke to the patron but he should have thrown the patron out.

● Ms Melick was close to ringing the licensing police.

● The language was absolutely disgusting and not acceptable.

● The patron was intoxicated and still being served drinks.” (Ex. 2, Annex. C, pg. 34)

[32] The Applicant had dealt with Dave Allen that night in respect of his swearing and offensive behaviour.

[33] The next morning, Friday 18 January, the Applicant returned to the Club and had a conversation with Mr Matthew Lister, Operations Manager, about the Dave Allen incident.

[34] Mr Pringle began a background investigation into the incident. On Saturday, 19 January, Mr Pringle met with the Applicant and following a very brief discussion, Mr Pringle suspended the Applicant from duty on full pay.

[35] There was a formal meeting on 24 January to discuss the Dave Allen incident. The Applicant had a solicitor in attendance.

[36] Another formal meeting occurred on 2 February. The Applicant was not legally represented. Arising out of the meeting, the Applicant was advised he would be given a written warning.

[37] The Applicant returned to work on 6 February. He was provided with his Warning Letter (Ex. 5, Annex. P) The letter advised the reasons for the warning as follows:

● “Not taking the appropriate action against a patron that was swearing, and continued to swear in your presence, and who made threats against a fellow Member of Staff.

● That you didn’t report the incident immediately to the Supervisor on duty.”

[38] The appropriate action about the swearing was to warn the patron to stop swearing immediately. Once swearing persisted, the patron should have been asked to leave - per the Warning Letter.

[39] The Applicant made out a Statement of Facts concerning the Dave Allen incident. (Ex. 2, Annex. A, pg. 25) According to his account, he spoke to Dave Allen three times in a short space of time.

[40] On the first occasion, Dave Allen was swearing (“f” and “c” words) and the Applicant asked Allen to calm down. Allen agreed. Allen had also been making comments about the Supervisor, Adam Laws, who was on duty that night. The swearing was partly used in referring to Laws but also in the context of threatening Laws. Thus, “...if he (Laws) comes near me I will fucking smash his head in.”

[41] At the second occasion, when the Applicant toured the bar area (rather than being called back) just after 11.30 pm (about 10 minutes after the first occasion), Allen said, “I am still fucking upset with that fat bastard. If he comes near me, I tell you, I will fucking smash him”. The conversation continued but that incensed Allen further. The Applicant asked Allen to stop swearing.

[42] The Applicant returned to the reception desk (his work station). About five minutes later, two female patrons passed by. One of them was Ms Kim Melick who went home and filed her email complaint several minutes later.

[43] About five minutes later, Allen emerged and said to the Applicant, “What that fat cunt did to me tonight was wrong. He made me feel like a criminal. I have been coming here since I was fucking 16 and to cop shit like that, I am pissed.” The conversation continued very briefly and then Allen left the building (around midnight, Macdonald C).

[44] The Applicant then said in his Statement of Facts, “I shortly thereafter had a conversation with Mr Laws and informed him of the events”.

[45] The Union submitted that the issuing of the Warning Letter was unfair, given the circumstances, and therefore the dismissal lacked a valid reason to support it.

[46] The Applicant’s defence to the claim of not taking appropriate action to deal with the swearing/obscene language of Allen, was to say that he calmed the situation down by the way in which he dealt with Allen. He said in his Statement of Facts that he had no doubt that the situation was volatile and if he had summonsed the Supervisor, Adam Laws, then any confrontation between these two in all probability would have resulted in a very serious melee. (Ex. 2, Annex. A, pg. 30)

[47] The Union referred to the Employee Handbook to support the Applicant’s defence. (Ex. 5, Annex. O) That Handbook under Dealing with Complaints said, in part, “5. Take immediate action to solve the problem yourself or pass it on to someone who can.”

[48] Having considered the evidence as to the claimed inappropriate action of the Applicant, I reject that claim. Thus, the Applicant assessed the situation confronting him and had Dave Allen agree to stop the swearing. It was put that the Applicant drew upon his experience as a police officer in calming the situation. There is no evidence that the situation could have been handled in a more appropriate way. No witness came forward to criticise the Applicant’s handling of the situation.

[49] Ms Melick said to the Applicant on her way out of the Club that the Applicant “should have kicked him (Allen) out ages ago”. (Ex. 5, Annex. E) Under questioning from myself, Mr Pringle said that a staff person does not have the right to physically grab a patron and take them outside. (PN 4189)

[50] In that same response to my question, Mr Pringle said that the Applicant should have warned the patron or asked him to leave. However, I accept that the Applicant was best placed to make the call as to how to handle the situation - given the offensive language, the threat against Laws and the intensity of Allen’s tone and body language.

[51] It was not, as it turned out, the ideal response by the Applicant’s from the Club’s point of view because Ms Melick complained and no doubt, at play in the Club’s response, is how to deal with calming and not losing a patron(s). (I note in passing that Ms Melick complained that Allen had used the “f” and “c” word over 100 times between 10.00 pm and 11.50 pm but without leaving the Club until after the “over 100 times”.)

[52] For the above reasoning, I reject this ground that the Applicant had not dealt with the situation appropriately. If he had warned or asked the patron to leave, then that might have intensified the patron’s attitude towards the Supervisor, Laws, who had a conversation around 10.45 pm that night with Allen. During that conversation, Allen questioned Laws as to whether Laws was calling Allen a thief. (Ex. 9, para. 4)

[53] The other ground relied upon to support the warning was the failure to immediately alert a fellow staff member (Laws, the Supervisor) of a threat against himself. The Club relies upon the Employee Handbook at Clause 3.5 Security:

“All members of staff are required to act conscientiously in ensuring the security of Members, Guests and Staff. All matters concerning security must be referred to the Duty Manager or Supervisor. This includes the issue of personal threat to staff by a Member or Guest. Should this occur, please inform the Duty Manager immediately as the concern arises so that the situation may be observed and Police attendance requested if necessary.”

[54] Did the Applicant immediately alert Laws, the Supervisor, of the threats by Allen against him?

[55] On the Applicant’s account per his Statement of Facts, he claims to have notified Laws “of the events” after Allen and Melick had left the Club.

[56] Adam Laws deposed he had no knowledge that there had been an incident until after he received the email complaint of Melick’s. This was forwarded to him a few minutes after midnight. Shortly after he informed the Applicant of receipt of the email complaint. (Ex. 9, paras. 8 & 9) Melick’s email says nothing of the threats against Laws. When did he know about the threats against him?

[57] There had been a first threat during the first conversation (between 11.20 pm and 11.30 pm) and a second threat during the second conversation (between 11.30 pm and around 11.40 pm). (Ex. 2, Annex. A, pg. 25)

[58] On the Applicant’s account, he did not inform Laws of the first threat after leaving the area. The Applicant then returned to the bar area where Allen was located. Thus, the Applicant had the opportunity to inform Laws of the first threat before returning to the bar area but did not do so. The second threat was made and again the Applicant did not inform Laws but returned to his reception work area. On any view of it, he has failed to inform Laws, (also the Supervisor) immediately.

[59] The Applicant’s defence that Laws was working in a safe area of the Club (the Club’s vault) is rejected. The Club’s policy on Security is rightly heightened as to the significance of security to the staffs’ wellbeing by reference to possible Police involvement. The Applicant failed to immediately advise Laws (the Supervisor) as to either threat to his person.

[60] I accept that the Applicant was entitled to exercise his discretion through experience as to how to deal with Dave Allen but the Applicant did not have the discretion to ignore the Security Clause to immediately inform the Duty Manager (or in his/her absence) the Supervisor of the two threats. As it turned out, the Supervisor was the person being threatened.

[61] As to when Laws knew about the threats against him,Matthew Lister deposed that the Applicant said he had not told Laws the night before. (Ex. 6, para 6) Under cross-examination from the Union, Lister said that Laws did not know about the threats until the next day or the day after. (PN 5027) This evidence of Lister’s was not challenged.

[62] Mr Lister then raised the concern that he has heard of people waiting outside for hours for someone to finish a shift and smash them over the head but he did not think that was a cause for concern for the Allen threats. (PN 5028 - 5029)

[63] Having considered the foregoing, I find that the Applicant did not comply with the Security Clause contained in the Employee Handbook. That is, he failed to immediately advise the Supervisor that a staff member was under threat and that person was the Supervisor. I also find on the weight of the evidence that the Applicant did not advise Laws at all as to the threats.

[64] Accordingly, the Union’s claim that the Warning Letter issued by the Club was unfair, is rejected. The failure to advise Adam Laws of the threats to his person, potentially could have had serious consequences.

Further Complaints

[65] The Applicant had returned to work on 6 February following suspension arising out of the Dave Allen incident.

[66] On 22 February, Mr Pringle received a telephone and then email complaint about an incident on 20 February. The complaint was from Rose Littlewood and the complaint was against the Applicant. (Ex. 5, Annex. T and U respectively)

[67] On the same day, Mr Lister, Operations Manager advised Mr Pringle that a Sarahanne Field had claimed that the Applicant was bludging at end of shifts lately and had made inappropriate comments to her.

[68] Mr Pringle telephoned Ms Field that same day to discuss her complaints.

[69] Later that same day, Mr Pringle telephoned the Applicant to advise of the 20 February complaint and the inappropriate sexual harassment allegation. A letter of suspension was sent to the Applicant. (Ex. 5, Annex. V)

[70] On 1 March, Mr Pringle emailed the Applicant (at 1.29 pm) advising that his behaviour (“bludging” per Ms Field) at end of shift on certain dates would be added to the other two issues for a meeting at 3.00 pm on 1 March (Ex. 5, Annex. EE)

[71] A follow-up meeting was held on 7 March with the Applicant again represented by the Union. At the conclusion of this meeting, the Applicant was dismissed.

Complaint of 20 February

[72] The Rosanna Littlewood email of 22 February went to the service she and her party received on 20 February from the receptionist who demanded to know where the party was from; rudely stopped Rosanna from signing the register until a member could be found; the party was interrogated as to why they were there; he wanted to know why they were meeting people for dinner; and one of the party was addressed with “Oi” as she moved toward entry to the Club proper.

[73] Witness statements were filed by Rosanna Littlewood and Loren Littlewood but neither person appeared to give evidence. Accordingly, their statements do not form part of the evidence.

[74] Only Ms Bronwyn Littlewood gave evidence in support of the 20 February complaint. (Ex. 4) She deposed that she drove her mother (Rosanna) to the front entrance where her mother met two persons - Loren Littlewood (sister of Bronwyn) and Loren’s partner, Emma Jasiak. Bronwyn Littlewood then parked the car.

[75] Bronwyn Littlewood deposed that when she arrived at the front desk, she was greeted by what seemed to be a commotion of sorts with the Applicant.

[76] Under cross-examination, Bronwyn Littlewood was not sure that she had heard the Applicant say, “Oi You can’t go in there.” (Ex. 4, para 4) She had not been present for the entire “commotion”. However, she maintained that the Applicant’s manner was one of interrogation. She took offence at his tone of voice of intimidating her party. PN 2685 - 2699)

[77] The Applicant denied these allegations.

[78] There was CCTV footage of the incident but it is without audio.

[79] Ms Bronwyn Littlewood presented as a since witness. Based on her demeanour, I have no doubt that she was genuine in her complaint as to the Applicant’s manner of presentation to her party.

End of shift Incidents

[80] Mr Pringle set out in his letter of 1 March, to the Applicant, a matter going to the Applicant’s action (inaction) at the end of shift on certain dates. This issue was raised a couple of hours later at the first meeting (1 March) between the parties.

[81] The termination letter of 7 March (provided during the second meeting between the parties), sets out the following explanation as to this additional matter:

“That on the following dates and times you were in neglect of your duties in that you ceased work at the indicated times, did not assist other staff in end of shift procedures, and clocked off at a later time (also as indicated) and in doing so, wrongfully claiming wages;” (Ex. 2, Annex. R, pg. 85)

[82] Of the four dates/times listed, two concern the allegation of watching TV for 30 minutes and 15 minutes on said dates and in doing so, failed to assist staff who were still working.

[83] In the context of the foregoing Mr Pringle in his termination letter referred to the Applicant’s job description (Ex. 5, annex. Q) which had the following specific point: “Assist with end of trade and lock-up procedures, as required” (emphasis added)

[84] The fourth, end of shift allegation, was that on Friday morning 22 February from 12.02 am to 12.18 am, the Applicant was on his Ipad in the Reception Area instead of assisting other staff with end of shift and lock-up procedures. The Applicant’s rostered knock-off time was 12.30 am.

[85] The Club relied upon, in the main, CCTV footage of the Applicant sitting around for a certain period of time towards the end of his shift in the lounge area. He could be observed seated with his hands behind his head. Occasionally, he seems to be conversing with staff, including supervisory staff.

[86] The Applicant said that he was not sitting around bludging but was carrying out a security role. Thus, from his seated position he deposed he could observe the Gaming Area Cash Desk entrance door; the front door; the bar and bistro area; the new safe area and maintain a watch on the toilets behind. (Ex. 2, para 78, pg 22)

[87] I note for the moment that this evidence comes from the Applicant’s witness statement made out on 24 June 2013. The second meeting at which he was dismissed took place on 7 March.

[88] The Club’s case against the Applicant is that he was sitting around watching TV (bludging) and therefore in breach of a specific point in his job description to assist staff with end of trade and lock-up procedures.

[89] But this aspect of the job description was qualified by “as required”. The Club’s interpretation of “as required” is that the Applicant had to be pro-active in seeking to carry out work once he had concluded his duties for the night.

[90] The Union put that “as required” meant that the Applicant was to help out if the need arises. That need could arise if a supervisor or staff member sought assistance from the Applicant who said under cross-examination, “I was always there and available for - to do anything if anyone ever asked me.” (PN 1469) No witness came forward to say they had asked for his assistance and been refused. The CCTV footage viewing in my court room elicited that one or more supervisors had spoken to the Applicant whilst he was in his seated position and he was not questioned as to what he was doing.

[91] Apart from the foregoing defence going to the two occasions raised by the Club, at other times, the Applicant was involved in his own clean up and lock-up duties which he enumerated in his witness statement. (Ex. 2, para 78)

[92] Having considered the evidence, I reject the Club’s allegation that the Applicant was in breach of a specific aspect of his job description because of the qualification “as required”. The specific aspect is open to interpretation. It is not written in clear language that if the Receptionist has finished his/her duties for the shift and has free time, then the Receptionist should seek out a supervisor for further work.

[93] The view of one or more bar staff that he appeared to be bludging whilst they were still in the process of cleaning up/locking up is understandable. But their observation has to be seen in context. Not only did they not ask for his help but they are relying upon two instances out of three and a half years of employment by the Applicant with the Club. He works in a separate area of the Club to the bar staff. He carries out his own clean-up/lock-up duties.

[94] This “bludging” was reported by a bar staff member and it came to the attention of Mr Pringle. Absent the other issues raised against the Applicant, then this “bludging” issue was one for talking to the Applicant and asking him to approach a supervisor to see if his services were required elsewhere.

[95] The Club claimed that these two instances of “bludging” constituted a wrongful claiming of wages. For the reasoning set out above, I reject that claim.

[96] There is another feature to these two “bludging” incidents.

[97] The Applicant gave evidence that he was not “bludging” but carrying out a security role. The particular seat location he occupied allowed him to carry out observational - security roles. In that regard, he could observe certain areas of the Club for security purposes.

[98] The Club rejected this defence and said in final submissions that it was a fabrication and a belatedly raised fabricated defence which called into the question the credibility of the Applicant. (PN 6268 - 6292)

[99] The Union responded in reply, during final submissions, that the Applicant did not have the opportunity to raise this defence because Mr Pringle arbitrarily cut the second meeting of 7 March short. Further, there was an allegation of some criminal intent by the Club in regard to the allegation that the Applicant had wrongfully claimed wages when sitting around watching TV. As to that criminal intent, the Applicant adopted the defence of “Prove it” to Mr Pringle rather than say something that may incriminate himself.

[100] I reject this defence by the Union on behalf of the Applicant.

[101] There were two meetings by the Club with the Applicant - 1 and 7 March. On the day of the first meeting, the Club sent an email/letter to the Applicant raising the new allegation (Matter No. 3) of “bludging”. I accept that the Applicant did not have the time to prepare a defence to this allegation with only two hours or less notice before the meeting.

[102] But the Applicant had a seven day time slot in which to prepare a defence for the 7 March meeting.

[103] I agree that Mr Pringle brought the second meeting to a close for deliberation and then reconvened the meeting to announce the Applicant’s dismissal. But before doing so, the issue of the “bludging” was raised by Mr Pringle for comment.

[104] There were four witnesses (the Applicant, the Applicant’s union representative, Mr Pringle and Mr Lister) who gave their account of the 7 March meeting. It is only the Applicant who deposed that Mr Pringle raised the concept that the Applicant was defrauding the Club of extra wages by claiming wages whilst watching TV. (Ex. 2, para 67) The other three witnesses give the same account that Mr Pringle put one or more of the “bludging” allegations to the Applicant and he responded, “Prove it”.

[105] On the Applicant’s account, he was asked about the “bludging” issue but did not put the defence that he was to put during the proceedings that he was carrying out an observation/security role. He had the opportunity to put that defence and had seven days in which to think about and put that defence when asked.

[106] Mr Pringle, Chief Executive Officer, said that the Applicant did not have a security duty. (PN 4057 - 4063)

[107] The Club called into question the credibility of the Applicant arising out of what it said was a fabricated defence Having considered the evidence, I concur. The Applicant had seven days in which to prepare his defence to this “bludging” allegation. He was given the opportunity to provide that defence on 7 March but did not do so. He merely responded, “Prove it” to the “bludging” allegations. This alleged observation/security function was not a duty given to him by the Club. It is not listed as a duty in the new job description given to him on 6 February 2013. (Ex. 2, Annex. E3, pg. 41)

[108] Accordingly, I accept that this was a fabricated defence and it reflects on the Applicant’s credit for the purposes of assessing the overall unfair dismissal application.

Ipad - 22 February

[109] The Applicant was observed by CCTV footage using his Ipad at the Reception Desk (his work station) towards the end of his shift which concluded at 12.30 am on Friday, 22 February. He was observed using the Ipad from 12.02 am to 12.18 am (16 minutes duration).

[110] At the 7 March meeting, the Applicant responded to this allegation by saying that he was using his Ipad to write a report on the lack of security on a Thursday night. (Ex. 5, para. 55)

[111] The Applicant was put on notice about this Ipad allegation in the letter of 1 March sent to him. He gave the above defence of writing a report at the 7 March meeting and never produced a report on 7 March nor since. The failure to produce a security report did not and does not assist the Applicant’s case and his credibility.

[112] I find, that the Applicant was not preparing a Report when using his Ipad. Further, this false defence by the Applicant puts this issue into the same category as to his fabricated claim that he was carrying out an observational/security role whilst seated in the lounge area. Again the false Ipad security report defence raises the issue of trust between the employee and the employer.

[113] I reject the Club’s claim that the 16 minute duration use of the Ipad for non-work purposes represented a wrongful claiming of wages. It was only 16 minutes and a one-off event. The club’s claim that the other three incidents represented a wrongful claiming of wages was rejected by FWC for the reasoning set out above.

Approved Early Knock Off - 10 February

[114] The last of the four allegations about wrongfully claiming wages is based on the Club’s allegation that the Applicant sought approval from Mr Adam Laws to have an early knock-off on the night of 10 February. The request was approved. The Applicant was, however, paid wages for a full shift.

[115] The Applicant denied any wrong-doing. He denied asking for an early knock-off.

[116] The Club’s case against the Applicant on this allegation is rejected.

[117] Firstly, if the Applicant asked for an early knock-off, then why did he remain on the Club’s premises instead of going home or somewhere else ?

[118] There is a procedure for dealing with adjusting an employee’s shift time when the employee leaves before their rostered finish time. In this case, Mr Laws, Supervisor, is required to sign the Applicant’s time card for verification of a time change to the Applicant’s span of work hours for that shift. Mr Laws did not do so. (PN 5555 - 5557 and 5580 - 5587)

Further, Mr Laws had not amended the Applicant’s roster to reflect an approved early knock-off. (PN 5595 - 5598)

[119] For the above reasoning, I find that this allegation has not been made out by the Club.

Conclusion as to Valid Reason

[120] Having considered the evidence and submissions, I find that the Club had a valid reason for the dismissal of the Applicant. This is so, because of the belated defence of carrying out an observation/security role in response to the “bludging” allegations and his failure to produce the claimed security report he was preparing on his Ipad.

[121] The evidence (or lack of) surrounding these two issues left only the possibility of drawing the conclusion that both defences by the Applicant were false.

[122] The Club, in its final submissions, pursued the fabricated defence of a security role being carried out by the Applicant, as one going to trust. That is, the Club could not trust the Applicant because of that fabricated defence. Falling into the same category as that, is the Applicant’s claim that he was preparing a security report on his Ipad but he has never produced that report - not ever for the purpose of supporting his claim that he was unfairly dismissed.

[123] I concur with the Club’s submission, that these two issues go to the heart of the employer-employee relationship in that the Club has lost trust in the Applicant. That loss of trust for the incidents set out above, is a valid reason for dismissal.

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

[124] I am satisfied that the Applicant was notified of the reasons for his dismissal.

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

[125] The Applicant did raise this matter as an issue. The Union said that Mr Pringle had cut the second meeting of 7 March short and in doing so, denied the Applicant the opportunity to respond. I accept that Mr Pringle brought the meeting to a close for deliberation as to the Club’s response but the Applicant was able to respond to the allegations raised. I accept that Mr Pringle may have “lost it” in his demeanour during one or both meetings and that is a matter for him to take on board for the future.

[126] The fact that the Applicant was provided with only a part of the relevant CCTV footage in order for him to prepare a defence is rejected. This is because the Union successfully submitted that the Applicant’s job description said he should assist, “as required” and I did not give that term a mandatory interpretation that the Applicant was required to assist other staff - even if that was desirable.

(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;

[127] The Applicant did not raise this issue as he had union representation.

(c) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal;

[128] The Applicant’s performance had been raised with him as to his manner as a Receptionist. I do not need to decide whether he had been counselled. Suffice to say, his manner with guests had been raised with him.

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

[129] This was not an issue.

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

[130] This was not an issue.

(h) any other matters that FWC considers relevant;

[131] I was not formally addressed on this factor by the advocates.

Was the Dismissal Unfair ?

[132] I have found that the dismissal of the Applicant was for a valid reason: section 387(a). But was the dismissal unfair having regrd to the evidence pertaining to the matters set out in section 387(b) to (h) inclusive? The term “unfair” has three elements as in “harsh”, “unjust” or “unreasonable” dismissal and each of these elements has its own meaning: Byrne v Australian Airlines Ltd [1995] HCA 24; [1995] 185 CLR 410.

[133] Even though an employer can have a valid reason for dismissal, it remains a bedrock principle in unfair dismissal jurisprudence that a dismissal may be “harsh, unjust or unreasonable”, even in cases involving breach of an employer’s policy as explained by the majority Full Bench decision in B, C and D v Australian Postal Corporation t/as Austrlia Post.

“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John Button; Windsor Smith v Liu [1998] PrintQ3462; Caspanello v Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd [2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; Erskine v Chalmers Industries Pty Ltd [2001] citing Allied Express Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 82 IR 102 at 109; ALH Group Pty Ltd t/a the Royal Exchange Hotel v Mulhall [2002]. That principle reflects the approach of the High Court in Victoria v Commonwealth and is consequence of the reality that in any given case there may be “relevant matters” that do not bear upon whether there was a “valid reason” for the dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”.

[42] Broadly speaking, circumstances bearing upon whether a dismissal for misconduct is harsh, unjust or unreasonable fall into three broad categories:”

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[43] The determination of whether there was a “valid reason” proceeds by reference to the matters in category (1) and occurs before there is a consideration of what Northrop J described as “substantive fairness” from the perspective of the employee. Matters in categories (2) and (3) are then properly brought to account in the overall consideration of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason”.

...

[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) [1992] FCA 209; (1992) 41 IR 452 Sheppard and Heerey JJ observed (at p 460):

“Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable.”

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable:

Kangan Batman TAFE v Hart [2005], Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]; Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].”

[134] In consideration of the “relevant matters” that bear upon whether the dismissal of the Applicant was “harsh, unjust or unreasonable”, I find that his dismissal was not harsh, unjust or unreasonable. There were no “relevant matters” for my consideration. The Applicant’s defences to the allegations were found to be false and struck at the heart of the employer-employee relationship. The necessary trust was removed by the Applicant’s false defences.

SUMMARY

[135] I have found that the Club had a valid reason for the dismissal of the Applicant.

[136] I considered whether, however, the dismissal might still be unfair having regard to “relevant matters” of which I found there to be none.

[137] Accordingly, I dismiss the Applicant’s claim of unfair dismissal and the file is closed.

COMMISSIONER

Appearances:

Mr C Acev, Industrial Advocate of United Voice, Liquor and Hospitality Division, for the Applicant.

Mr C Langton, Workplace Relations Advocate for the Registered Clubs Association of New South Wales.

Hearing details:

2013

Newcastle

July 23, 24, 25

August 3

September 3

Sydney

September 17

Printed by authority of the Commonwealth Government Printer

<Price code {C}, PR539073>