Mrs Kerri Trail v O'Brien Group Australia
[2021] FWC 4098
•14 JULY 2021
| [2021] FWC 4098 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mrs Kerri Trail
v
O'Brien Group Australia
(U2020/13105)
COMMISSIONER HUNT | BRISBANE, 14 JULY 2021 |
Application for unfair dismissal remedy – jurisdictional objection – does a resignation constitute a dismissal – dismissal found - whether a valid reason for dismissal – dismissal harsh unjust and unreasonable – application granted – compensation awarded
[1] On 2 October 2020, Mrs Kerri Trail made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed from employment with O'Brien Group Australia (the Respondent) and that the dismissal was harsh, unjust or unreasonable.
[2] In its Form F3 – Employer Response to Unfair Dismissal Application, the Respondent raised a jurisdictional objection pursuant to s.368(1)(b) of the Act contending that Mrs Trail had resigned from her employment and was not forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.
When has a person been unfairly dismissed?
[3] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[4] As set out above in s.385 of the Act, only employees who have been dismissed are able to make an application for an unfair remedy application under the Act.
[5] Section 386(1) of the Act provides that a person has been dismissed if:
(a) the person’s employment with their employer has been terminated on the employer’s initiative; or
(b) the person has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.
[6] Mrs Trail resigned from her employment on 16 September 2020. Accordingly, it is necessary, in determining the jurisdictional objection, to conclude if Mrs Trail was forced to resign from her employment because of conduct, or a course of conduct engaged in by the Respondent.
Background
[7] The Respondent is a privately owned business, operating in Australia for 30 years. It has catering contracts with many major sporting and recreational stadiums including Suncorp Stadium, Metricon Stadium, the GABBA, and AAMI Park.
[8] Mr Michael O’Brien is a Director of the Respondent. His daughter, Ms Anne-Maree O’Brien is the Operations Director. Mr Simon Camp is employed by the Respondent as the Venue Catering Manager at Suncorp Stadium.
[9] Mrs Trail began working for the Respondent on 20 November 2015. At the time of the employment relationship ceasing, she was employed as a Venue Manager at Metricon Stadium on the Gold Coast.
[10] On 11 September 2020, Mr Simon Camp sent a First Letter of Warning to Mrs Trail which said:
“Dear Kerri
First Letter of Warning
The Venue Manager position is one of trust and operating in the best interests of the company.
We had a discussion on the phone last week where you categorically denied any knowledge of Aaron Sim working at Metricon Stadium under the influence of alcohol.
It has since been brought to my attention that you were clearly aware of the issues around Aaron and his conduct while working as the Executive Chef at Metricon Stadium.
The consequence of "turning a blind eye" to an act of gross misconduct is far reaching and could ultimately result in a criminal prosecution for the company as well as putting the catering contract at Metricon Stadium at risk.
In light of your inaction in dealing with such a serious matter I have no option but to issue you with a written warning.
This is a First Letter of Warning.
Yours faithfully
Simon Camp”
[11] On 16 September 2020, Mrs Trail was issued with a Second Letter of Warning dated 12 September 2020. This provided:
“Dear Kerri
Second Letter of Warning
During our meeting yesterday at Metricon Stadium you informed me that you had requested from the Gold Coast Suns two tickets for the Geelong v Richmond game played that night.
You also advised me that you had previously requested and received tickets for the Geelong v Port Adelaide game on the 14th August.
I asked if you had complied with the company's Gifts, Hospitality and Benefits Policy and Procedure to which you confirmed that you hadn't.
This is in direct conflict to Company Policies and Procedure and falls under the category of gross misconduct. The severity of this breach is heightened given that we are in the midst of delicate contractual negotiations with the Gold Coast Suns.
You should also be aware that over the past 9 years of the Catering Contract when others have requested tickets from Michael O'Brien to Metricon Stadium, he has personally purchased these tickets through the Ticketing Agency rather than request favours from the Gold Coast Suns.
In light of this I have no option but to issue you with a written warning. This is a Second Letter of Warning.
Yours faithfully
Simon Camp”
[12] On 16 September 2020, Mrs Trail tendered a resignation which read:
“After much angst and stress I have decided to tender my resignation as Venue Catering Manager. I have not made this decision lightly and I have discussed this at length with my family.
I have put in a lot of excessive hours over the past 5 years and have sacrificed quality of life to give my very best to O'Brien Group Australia.
Unfortunately, with the way some things have transpired over the last few weeks and months, I no longer have the capacity or ability to endure the workload, the stress levels and the ongoing indirect bullying that has been taking place.
• I have been excluded from meetings and email correspondence
• I have been excluded from financial discussions relating to the business that the Venue Manager role would normally be a part of
• I have been excluded from the redevelopment project
• I have continually had to find out about company decisions from direct reports or the Stadium General Manager which in itself is so unprofessional and embarrassing, not only for me but for OBGA.
All of which the above 4 points constitutes Bullying and Harassment.
On the 26 August I was on the receiving end of information that advised the company could not afford to make a particular staff member redundant so it was important to ensure that any meetings were formalised, a witness was present and everything was documented so that this staff member could be performance managed out of the business.
In my 35 years of working life I have never received any form of disciplinary action however over the last 7 days I have received 2 written warnings and have been witness to the issuing of another one. In every instance company policy and procedure was not followed and there was a blatant disregard for due process to be followed:
• A formal meeting was not arranged
• There was no option or offer to have a support person present
• No evidence was presented
• An apparent investigation took place with statements taken from only selected staff members when it was well known that other staff members had a different version of events
All of the above has made it untenable for me to continue my employment with OBGA, but also leads me to believe there is a concerted effort to have me performance managed out of the business to avoid a redundancy payment.
As required in my employment contract, I offer 4 weeks' notice from today, making my last day of work Wednesday 14th October.
I would also request that all days in lieu owing at the end of this time are paid in full. With the company ban put in place from March 2020, prohibiting days in lieu to be used, it would be reasonable to expect these to be paid out at the end of my employment.
Regards
Kerri Trail”
Hearing
[13] The matter was originally listed for a three-day telephone hearing on 19 and 20 January 2021 and 1 February 2021. As the matter progressed it became necessary to hear the matter for a further day on 9 February 2021.
[14] Mrs Trail appeared and gave evidence. She was supported by Mr Matthew Dakai throughout the hearing. Mr Dakai also gave evidence. Ms O’Brien represented the Respondent throughout the hearing and gave evidence. Her mother, Mrs Elizabeth O’Brien, shareholder and manager of the Respondent attended throughout the hearing.
[15] As a result of the parties being self-represented, it became necessary to recall witnesses throughout the four days of the hearing, causing the matter to blow-out the expected hearing time. In addition to the witnesses above, the following people gave evidence:
• Mr Aaron Sim, former Executive Chef of the Respondent;
• Mr Simon Camp, Venue Catering Manager for the Respondent at Suncorp Stadium;
• Mr Michael O’Brien, Director of the Respondent;
• Mr Bevan Campbell, Queensland O’Brien Group Executive Chef;
• Mr Elliot Scott, Venue Catering Manager for the Respondent at Metricon Stadium;
• Mr Ben Trevers-Grace, Operations Manager for the Respondent;
• Ms Kerri Bailey, former Venue Manager, Gabba Stadium and former Operations Manager, Suncorp Stadium;
• Mr Tim Carey, General Manager at Metricon Stadium for the Gold Coast Football Club;
• Mr Dan Smith, General Manager of the Respondent.
Preface
[16] In preparing this decision, I considered it necessary to include a very large amount of transcript from the proceedings. Regrettably, this has resulted in the decision being extraordinarily long.
[17] I considered it necessary to include a substantial amount of transcript on account of the evidence given by some of the Respondent’s witnesses. When an application comes before the Commission and a person has resigned their employment, the hurdle is very much the Applicant’s to overcome to demonstrate that there has been a dismissal. On the face of Mrs Trail’s application, one might say that it would be very difficult for her to demonstrate that there has been a dismissal in accordance with the Act. However, after spending days with the Respondent’s witnesses, and in particular, Ms O’Brien, the evidence of some of the Respondent’s witnesses really must be read at some length to understand how it is Mrs Trail came to resign her employment.
[18] I will canvass in greater detail in Consideration the reasons why I have concluded the application in the manner that I have. In reading the evidence given by some of the Respondent’s witnesses in these proceedings, there is, it appears to me, an unwavering sense of entitlement, arrogance and ineptness. No matter how questions were put to some of the witnesses, there was no moving from their righteous position. There appeared to me no independence of opinion, which I consider is regrettably, because the Respondent is a family-run organisation. It is my view that there is nobody senior enough in the business with relevant gravitas and independence to inform the O’Brien family that they are not, relevant to this matter, doing the correct thing. There is no independent legal thought or decent human resource practice given to performance management of employees, of which the Respondent employs thousands. It is, regrettably, the O’Brien way, and if you’re in the tent, you’re in the tent. If you’re out, you’re out.
Evidence of Mrs Trail
[19] In oral evidence Mrs Trail explained the role of a Venue Manager. She said that it encompassed a great deal including the financial success of the business, forecasting, stakeholder communication and engagement. The role is responsible for cost of goods, staffing, food and beverage, and information for all stakeholders. Mrs Trail was the most senior member of staff on-site at the Metricon Stadium.
[20] Mrs Trail stated that despite having worked for the Respondent since November 2015 without issue, in late April/early May 2020, she first raised her concerns of being bullied in a phone call with Mr Smith.
[21] During the hearing, Mrs Trail stated that while her contract stipulated that she was to report to Mr Smith, she was informed by Mr Camp that she had to follow his directions. It is her evidence that Mr Camp made it clear that when he was giving her directions it was directly from Mr O’Brien. Accordingly, Mrs Trail followed Mr Camp’s directions.
Mr Camp’s conduct
[22] As a result of being stood down from work as of 31 March 2020 due to COVID-19 closures, Mr Smith’s directive had been that no staff were to attend for work, and if they were to enter the workplace, they needed to seek approval. Mrs Trail became entitled to JobKeeper payments. Her evidence is that Mr Camp called her numerous times during the period of time where she was directed not to attend for work, informing her that she was on JobKeeper and should be at work. He asked her questions that she did not have the answer to as she was not at work. She considered that Mr Camp was acting in contradiction to the directive issued by Mr Smith.
[23] Following this, Mrs Trail called Mr Smith in tears, reporting that Mr Camp had spoken to her in a direct, abrupt and rude manner. She informed him that she felt like she was being threatened and discriminated against for not being at work. Mrs Trail said that Mr Smith advised that there was no requirement for her to be at work and he would speak to Mr Camp. Mr Smith informed her that she was doing the right thing. Mr Smith asked if she wanted to take this matter further. Mrs Trail advised she did not wish to at that time as she did not want to antagonise Mr Camp, and she did not want to be on the receiving end of any more hostile phone calls.
[24] In her oral evidence, Mrs Trail stated that Mr Camp belittled her for not being at work when a clear direction had been given from Mr Smith not to attend work without his permission. 1 Mrs Trail further said that Mr Camp was questioning her about stock levels that she wasn't aware of and saying things like, “You know that little virus that's going around, it's shut us down. You need to get rid of stock.”2
[25] During cross-examination, Ms O’Brien put to Mrs Trail that it was fair of Mr Camp to be worried about the $159,000 worth of stock sitting at Metricon Stadium at that time when the stadium was locked up; Mrs Trail replied, “I guess so”. Mrs Trail remarked that Mr Camp was calling asking why she wasn’t at work, but he did not direct or request her to attend work to perform a stocktake. Mrs Trail agreed that at a later date, employees in Queensland and Melbourne attended upon their respective stadiums and packaged items which were either sold at discounted rates (alcohol) or donated to the homeless (soft drink). The kegs of beer were returned to the supplier and food was already frozen. 3
Not required to attend meeting with landlord
[26] On 8 July 2020, Mrs Trail was scheduled to attend a stadium meeting with Mr Camp, Mr Carey and Mr O’Brien via video conference. Mrs Trail said that Mr Carey had requested her attendance at the meeting and Mr O’Brien had confirmed by email that she would be at the meeting with Mr Camp. Approximately one hour prior to the meeting, Mr Camp called her and advised that Mr O’Brien did not want her in attendance and not to take this personally. She said that she felt excluded and felt that this would never happen to the Venue Managers from Suncorp Stadium or the Gabba. Mrs Trail could not understand why she would not be included in discussions that were relevant to the venue she managed.
[27] Prior to the meeting, Mrs Trail saw Mr Carey and he asked her, “What the fuck is going on”. Mr Carey informed her that Mr O’Brien had called him to let him know she would not be at the meeting. Mrs Trail said to Mr Carey that she could not comment as she did not know what was going on or why she was being excluded.
[28] Mr Carey told her that he would come and see her after the meeting had ended to fill her in on what had happened. After the meeting, Mr Carey came to her office and told her that there was no reason for her not to be in attendance. She said that she was really embarrassed to be put in that position and to be finding out information from the Stadium General Manager rather than her employer.
[29] When asked about this event in cross-examination, Mrs Trail stated:
“Tim Carey had called the meeting the meeting to begin with and he had asked for me to be included in the meeting. Simon had also called me and said he was coming down to the meeting and that I was to set up the videoconference for it. The meeting was due to start early in the morning and I was driving into that meeting when Simon Camp called me; not Michael O'Brien. Simon Camp called me to tell me, and his words were, try not to take this personally, but Michael doesn't want you at the meeting. I was literally sitting at the traffic lights turning to drive into the stadium when that happened. I was quite upset. I parked, I went into the stadium and as I was going in, I saw Tim Carey and he told me that Michael O'Brien had called him to tell him that I was no longer invited to the meeting. Tim was shocked. He said that he was the one who had invited me to the meeting. He wanted me there as Venue Manager because they had things that they wanted to discuss. Again, it's just - Michael called Simon to call me to tell me not to attend the meeting. But Michael called Tim to tell him that I had been uninvited.” 4
Ostracised by Ms O’Brien
[30] Mrs Trail said that on 23 July 2020, Ms O’Brien and Mrs O’Brien came to Metricon and did a walk-around of the venue. Mrs Trail said that she was not invited on the walk-around. However, during this time they engaged Mr Dakai and Mr Elliot Scott to discuss venue improvements to the retail areas. She said that she was not included in these discussions and saw an email from Ms O’Brien sent the following day to Mr Dakai outlining updates/changes that needed to happen. Mrs Trail said that she felt incredibly stressed and anxious to learn that she was not included in these discussions or email correspondence.
[31] In cross-examination, Mrs Trail conceded that it was common practice for member of the O’Brien family to come in and walk-around and meet with different staff members on site, along with the Venue Mangers. 5 However, Mrs Trail further noted that she thought there was a pattern because there had been a substantial number of events held June to September 2020, and Ms O’Brien had not, on any occasion, specifically spoken to her on site. She noted that Ms O’Brien had met and spoken with Mr Dakai, Mr Sim, Mr Scott, and Mr Trevers-Grace.6
[32] Mrs Trail noted that Ms O’Brien asked her how she was on occasions but never discussed any work-related topics with her. She noted that Ms O’Brien would discuss more substantive issues with other staff members, with Mrs Trail being informed from those staff members at a later date. 7
[33] In mid-August 2020, Mrs Trail participated in a conference call with other Venue Managers. At its conclusion she asked Mr Camp to stay on the call as she wanted to discuss her ongoing exclusion from emails and meetings that had been happening for a number of weeks. Mr Scott was present with her during this time. Mrs Trail advised Mr Camp that she was being excluded from meetings and discussions that she should be part of. She used an example of new menus or outlets being introduced to Suncorp Stadium, where Mr Camp works, and imagine him not being included in the discussion and planning. Mr Camp responded, “It wouldn’t fucking happen. Point taken.” Mrs Trail said that Mr Camp said that he would rectify this, however she continued to be excluded even after this conversation.
[34] On 22 August 2020, Mr Camp and Ms O’Brien attended Metricon Stadium to conduct a walk-around and discuss redevelopment. Mrs Trail was directed to arrange carparking passes and entry wristbands. Mr Dakai, one of her direct reports, was taken on the walk-around throughout the venue, including the corporate spaces, which are not part of Mr Dakai’s role. She said that Mr Daki advised her that he continually referred Mr Camp and Ms O’Brien back to her to discuss these areas as he was not across them and could not answer some of their queries. She said she was not included on the walk-around and was never asked any questions regarding any of the corporate areas.
[35] On 24 August 2020, Mrs Trail received a phone call from Mr Trevers-Grace and separate text messages from Mr Dakai advising that they had been having discussions with Ms O’Brien and Ms Caroline O’Brien (O’Brien Group Australia owner/director) regarding the redevelopment of Metricon and there was going to be a meeting held the following day. Mrs Trail said that she was not included in the discussions or invited to the meeting. She attended the meeting of her own volition as she believed that she needed to be across these important venue-related discussions. Mrs Trail was humiliated to find out about the meeting in the manner in which she did. She said she felt undermined, embarrassed, and quite worthless.
Concerns regarding the Head Chef – performance manage him out of the business
[36] On 26 August 2020, Mrs Trail had a meeting with Mr Aaron Sim and Mr Scott regarding a staff member, the Head Chef at Metricon Stadium. They further discussed some general game day feedback that she had received. Upon completion of this meeting, Mr Sim relayed the meeting details to Mr Camp and Mr Campbell. Mr Camp was at Metricon Stadium and he came into Mrs Trail’s office and questioned her about the meeting and the issues with the Head Chef. Her evidence is that Mr Camp stated that the company could not afford to make the Head Chef redundant, so it was important to ensure that any meetings with him were formalised, a witness was present, and everything was documented so that the Head Chef could be performance-managed out of the business.
[37] Mrs Trail stated that she advised Mr Camp that it was not a formal complaint; it was general game day feedback which she was following up and she was preparing to have a meeting with the Head Chef. Mr Camp directed her to call Mr Smith and advise him of the situation with the Head Chef. Mrs Trail said she advised Mr Smith of the process she intended to take, which was to discuss this feedback with the relevant employee, thereby bringing the feedback to his attention. She said that Mr Smith advised that he agreed with the process she was undertaking. Mrs Trail could not understand why Mr Camp had referred to a redundancy over a staff performance issue.
Mrs Trail left off emails
[38] On 1 September 2020, Mrs Trail was forwarded an email from Mr Trevers-Grace, who noted, “He keeps leaving you off”. Mr Camp had sent an email to Mr Trevers-Grace regarding point-of-sale allocation, and Mrs Trail said that she was embarrassed again to be left off an email and to have this brought to her attention by a co-worker. She said that she believed that everyone around her was aware of her being cut out of meetings and emails, and that she was being approached on a daily basis by other staff members asking her what was going on and why this was occurring. She responded with, “I don’t know” or “I don’t know why.”
[39] On 2 September 2020, Mr Camp sent an email which copied in Mr Dakai and Mr Scott but did not include Mrs Trail. The topic was regarding beer taps, which Mrs Trail considers had a direct impact on the venue she managed. She was upset that two of her direct reports were included in the email, and she was again left out. She said that she felt totally insignificant and was becoming more and more stressed about the implications of being omitted from communications.
2 September 2020 – secretly taped conversation
[40] Later that same day, Mr Camp called her and asked if she was somewhere private. She told him she was in the stadium meeting room heating up her lunch. Mr Camp informed her that she was on speaker phone with Ms O’Brien. During the course of the hearing it became clear the telephone conversation was recorded by Ms O’Brien without Mrs Trail’s knowledge. It is prudent to understand what was discussed during this conversation:
“Kerri Trail (“KT”): Hey Simon. | |
Simon Camp (“SC”): Hey Kerri. Uh, I’m here with Anne-Maree. | |
Anne-Maree O’Brien (“AMO”): Hi Kerri, how are you going? | |
KT: | Hey Anne-Maree. |
SC: | Um, we just want to go over uh um a couple of things. Are you in an area where no one else can hear? |
KT: | Yes, I am. |
SC: | Ok. |
KT: | [inaudible] |
SC: | Ok so it’s about Aaron. |
KT: | Yep. |
SC: | Um are you aware of his uh alcohol consumption? |
KT: | As in, like, outside of work stuff? |
SC: | No, inside of work. |
KT: | No. I know, uh I think it was, maybe comm games or just after comm games, Kim asked me if I was aware of anything or had any |
SC: | Wait, sorry who did? |
KT: | Kim |
SC: | Tim Carey? |
KT: | Kim, Kim, Kim [inaudible] |
SC: | Oh Kim |
KT: | Yes Kim, I think it was after comm games, um questioned me about it, um I had said back then that I had a couple of instances where I thought maybe he had um you know come to work, I would* say intoxicated, but I think she caught up with him um, at the time and had a discussion with him about it [*unclear if the word is would or wouldn’t] |
SC: | Ok have you, have you noticed anything since then, like recently? |
KT: | The only time I guess I have, I haven’t questioned him about it, but I wondered, was when he had his really bad foot, maybe about a month ago um and I asked him to go home. He said that he was on a lot of pain medication and antibiotics and that they were messing him up a little bit. So, I sent him home and in words he had indicated that he wasn’t, I guess, himself and that he thought that he should go home as well, and he went, and I think he had four days off. |
AMO: | Could you sense alcohol was a part of it at that time? |
KT: | Uh I don’t know. He just seemed, he seemed slurry and swaying on his feet um, I thought that maybe it could have been alcohol, I couldn’t smell anything, but when I did question him, I didn’t outrightly ask him if he had been drinking but I said that he didn’t seem right and he seemed slurry and that’s when he told me that he was on strong pain medication and antibiotics. |
AMO: | Mm yeah. Look, I had a chat to him on the weekend, which you might be aware of, but I, he said the same thing to me and obviously he had the limp and he has had the foot infection, and he is on all the medication. But I could very much smell the alcohol on him um, very, you know undoubtedly and so I did speak directly to him about it. Look, you know his performance was fine on the weekend and you know, there was no problems, but it was just something that, I thought I should say to him. But you know, I can tell, you know I know he’s got a lot going on in his life um and that there are things he is going through the ups and downs of, which I can’t imagine what he has really gone through with his kids and everything as well, but you know I guess we are just trying to understand how on a day to day basis um, you know you.. Has [name] said anything to you or any other staff, you know that? |
KT: | Um, Matt and I have discussed it. Um [name] has never said anything to me. Matt and I have talked about it. Um, Matt has said that he doesn’t know, he hasn’t had a conversation with Aaron, but that, would indicate anything, but we have both been I guess a little bit concerned about it, whether he’s, I don’t know if he is having anything to drink during the day, I can’t say, but whether or not he is having it at night and then coming into work in the morning and still um potentially being affected by it. |
AMO: | Yeah so, I mean you’re saying you don’t smell it on it him during the day? |
KT: | I can’t say I have Anne-Maree and look when I am talking around comm games time, um, yes, probably I could have but I also put that down to whatever he was having overnight and then coming to work still smelling of alcohol. |
AMO: | How do you think he is, obviously he is going through a lot of stuff, how do you think he is?... people like [name] and that who work very closely with him everyday, they, um, I mean to me, when I was even in the kitchen I would have thought, the other night Joe was working very closely with him you know how could he….like you know they must be all aware of it, because when you’re working so close, I mean I’m just there for a few hours and it was um, profoundly obvious. You know that I would have thought all chefs who were moving around in the kitchen with him and you guys in the office, would have seen signs of it. |
KT: | Yeah well [name] has never ever mentioned anything to me aside from the day we sent him home um and [name] did not indicate that he thought he had been drinking, he just said that he was a bit of a hazard, were his words to me, he was a hazard waiting to happen and he needs to go home. |
AMO: | Yep |
SC: | So um you’ve never had a conversation with him about alcohol? |
KT: | No I haven’t. The only one, I know Kim did and maybe Kerri Bailey but, she never shared that with me. |
AMO: | Yep, what do you think Kim said to him when they spoke? |
KT: | Well Kim spoke to me after um she’d met with Aaron and she told me that he, he had denied it and said that he definitely wasn’t drinking at work and he got quite I guess, angry at her, um, but assured her that that wasn’t the case that nothing was happening. |
AMO: | Mm, yeah Dad had an open conversation with him about 18 months ago and Aaron said yes he did have a problem. For us, it is easier if we could just talk about it and we could at least, you know, get him help and you know all that kind of thing. |
KT: | Yeah, yeah look I know he does drink a lot, he certainly tries it on most nights, I would think. A few times where I have had to contact him outside of hours, I mean you can tell that he has been drinking, but I mean I suppose outside of hours, you know not sure what you can do there but um |
AMO: | Yeah |
KT: | Yeah uh, look there are days probably where I sort of thought I am not sure. But yeah, I don’t know, I certainly never seen him do anything at work, from an alcohol perspective, that would make me think that he was drinking here but |
AMO: | Yeah no look his performance, I mean on the weekend, his food is fantastic, and I just think that he uh, has pulled it together, but if there is an ongoing issue, prefer to um, you know but Dad did say he would prefer to get him the help that he needs to carry on. Rather than…We just don’t want to brush it under the carpet either. We don’t think it’s right for him, we feel a duty of care to him, to, to help him through it. |
KT: | Yeah, yeah and that’s um, I don’t really know what else to sort of share with you. I think I know, when I was away, when I wasn’t here, cos Maria and I um have been quite close, Maria had said to me a few times that she thought that he had been drinking, or was intoxicated, but I wasn’t here at that time but that is what she had said, then Kim had raised it with me, so it sort of.. |
SC: | So, it has been going on a long time? |
AMO: | Yeah |
KT: | Well certainly since that I’m aware, since comm games. |
AMO: | And it was around that time, that he had started to have problems with his family and things, would you say it coincided around that time? |
KT: | Well, yeah I mean um it was probably around that time that [child] was born um |
AMO: | Yeah, yeah, special needs, yeah |
KT: | which you know had a lot of trouble ongoing with him and his um, health |
AMO: | Yeah look um, hearing those stories then, wow, it was so challenging what he was going through and everything, like it was um, full on |
KT: | Yeah and I think, he is having a lot of, I mean I know he is having a lot of trouble now with his umm wife and not being given access to the kids, and um there is a bit of a battle going on, because um I know it is causing him a lot of upset |
AMO: | Yeah, yeah, and then financially, the strain, on it as well, it would be pretty hard |
KT: | mm yeah, so |
AMO: | Ok well that’s good, well thank you |
SC: | Just on [name], you know I was there last week, and you said those staff had put that complaint in, what happened with that? |
KT: | Well I called Dan |
SC: | Oh, right |
KT: | and spoke to Dan about it and I told him that I had spoken to you and that you said to involve him, um so when I explained it all to Dan, Dan just said to basically sit down with him and have an informal chat with him and let him know what the expectations are you know, with dealing with front of house and um you know just remind him of how he needs to behave so |
SC: | So, did you do that? |
KT: | That’s on today, between us we have had different days off, and that, so I am going to chat with him today |
SC: | Are you going to have a witness in there? |
KT: | I can do |
AMO: | And just make a note of it as well. |
SC: | You need to document the whole thing um you need a witness. A third party. |
KT: | Well, what I might do then is maybe wait until tomorrow when Elliot is back. |
SC: | Ok |
AMO: | What was the complaints Kerri? |
KT: | Well, it was uh quite informal I guess, in the sense um, I was talking to Victoria and Taylah just about sweets and set up and things like that and they both commented that they were struggling to deal with [name] from a front of house perspective, the way that he was speaking to them, not acknowledging them um. You know they had Chrissy, from Suncorp there, and they just sort of said when she is in the kitchen, it’s smooth, it’s you know, its easy to work. If something changes she goes with the flow but if something happens, if you get a dietary or packs change um, [name] he just he will throw things around, he’ll swear, um, you know just really I guess making it a little bit difficult for them and them not wanting to go into kitchen and have to discuss things with him because they are scared they are going to get you know their head bitten off. I’ve spoken to Aaron about it and just said that we needed to follow up and half a chat with him. And then.. um Aaron spoke to Simon and yeah then I spoke to Dan so Dan just said to have a chat about it and just remind him of the expectations and how he needs to be talking to people and you know, that it is not an old school chefs kitchen and that he’s gotta, so |
AMO: | Yeah, yeah the old day chefs used to talk to people its gladly not accepted anymore |
SC: | Yes this definitely needs a third party and the whole thing needs to be documented um, so we’ve got a record of it |
KT” | Ok well I can just move it to tomorrow, cos Elliot’s back, because I prefer, I don’t just want to bring in anybody |
SC: | Elliot is a good call |
KT: | So, I will just reschedule it to tomorrow and get Elliot to come along |
SC: | Ok, alright |
AMO: | Great ok thanks Kerri, thanks for your time |
KT: | Let me know if you need anything else |
AMO: | Thank you |
SC: | Alright, bye.” |
Warning letter issued to Mr Sim
[41] The following day, Mr Camp called Mrs Trail and informed her that she would need to attend a meeting with Mr Camp via Zoom, and she would need to bring Mr Sim with her so that Mr Sim would be issued with a warning. Mr Camp instructed her not to give Mr Sim a “heads up” as to what the meeting was about. Mr Camp instructed Mrs Trail to print off the warning letter and to attend the meeting.
[42] Mrs Trail felt very uncomfortable about this course of action. It was her understanding that the Respondent’s Disciplinary Action and Warnings Procedure Section 4.2 Written Warnings, required certain processes to be followed before issuing an employee a written warning. She said that there was no formal meeting notice, no support person for Mr Sim and he was not aware of what the meeting was about until Mr Camp called in via Zoom. Furthermore, she said that she was Mr Sim’s direct report and had only been made aware of this at the time she was called to print out the letter.
[43] The written warning issued to Mr Sim stated the following:
“Dear Aaron
First Letter of Warning
Over the past few months it has been brought to my attention that on several occasions you are dealing with a personal issue with regards to alcohol which is affecting your performance in regards to your role at O’Brien Group Australia.
Given that you’re a Senior Team Member of the Gold Coast team, this concerning behaviour is not acceptable.
As a reminder, please refer to our Company Policy in relation to alcohol.
6.3. Testing for alcohol and other drugs
O’Brien Group does not operate a blanket testing program for drugs and alcohol however where the Company has reason to suspect that a person is under the influence of Alcohol or Drugs in possible contravention of this policy, the company may direct the person to undergo an Alcohol and / or Drug test.
If a person is directed to participate in an Alcohol and / or Drug test and he or she refuses to undergo such a test, this shall be considered to be refusal of a reasonable and lawful direction. It may also lead to an inference that the person is under the influence of Alcohol and / or Drugs. As such, the person will be subject to disciplinary action which may include termination of employment or services for refusal to obey a lawful and reasonable direction.
Testing may be carried out by the following:
• Medical practitioner
• Police officer
• Service provider appointed by O’Brien Group.
Working under the influence of alcohol clearly effects and is detrimental to delivering quality leadership and performance at Metricon Stadium. You’re letting our company and yourself down.
It is my understanding that at last Saturday night’s match between Gold Coast and North Melbourne, it was evident you weren’t fully focussed and not delivering a first class outcome for our Landlord and customers as a consequence of alcohol.
I’m personally committed to ensuring that you take appropriate remedial action to address this issue.
This is a First Letter of Warning
Yours faithfully
Simon Camp”
[44] In issuing the warning letter to Mr Sim, and conducting the meeting in the manner in which it was conducted, Mrs Trail considered that it was Mr Camp’s intention was to ambush Mr Sim and not to give him any time to prepare a response. After the call ended, she apologised to Mr Sim as she felt that he was not given a fair opportunity, nor did she consider that due process had been followed.
[45] Mrs Trail said that Mr Sim was terribly upset and angry to be put in this position when no official investigation had taken place. She said that in the letter it states, “as a reminder, there is a policy regarding testing for alcohol and other drugs”. Mrs Trail confirmed that Mr Sim was not requested to undertake a drug or alcohol test, therefore she was mortified that disciplinary action could be enforced and sustained.
[46] Mrs Trail stated that not long after the meeting with Mr Sim, Mr Camp called her and asked how Mr Sim was, following the meeting. She informed Mr Camp that Mr Sim was very upset and angry. Mr Camp responded, “That is disappointing as by not accepting the written warning, Aaron was implying that Anne-Maree was lying”. He further said, “Michael O’Brien would not take too kindly to his daughter being called a liar”. Mr Camp then went on to say that Ms O’Brien was a Harvard graduated Barrister, did not drink or smoke, and would know if someone was intoxicated.
Mr Camp removing Mrs Trail from emails
[47] On 11 September 2020, a supplier to the Respondent, Unilever, sent an email to Mr Smith, including Mrs Trail and others, notifying of a price increase to products. Mr Camp was included in that email. When Mr Camp then forwarded that email to all other recipients to discuss it internally, describing the proposed price increase as ridiculous, he did not naturally reply to the Unilever account manager. He did, however, go out of his way to remove Mrs Trail from the ongoing emails discussing the price increase and his proposal to consider a competitor. She was the only Respondent employee to be removed from the email. The email included her direct reports, Mr Dakai, Mr Trevers-Grace and Mr Scott. Mr Camp in fact added Mr Scott to the email as he had not been earlier included in the email.
[48] This email was again brought to Mrs Trail’s attention by her direct report who asked her if she had seen Mr Camp’s response. Mrs Trail said that she was absolutely shocked and disheartened to see that she had been removed from this communication which related to price increases at the venue which she needed to be across.
[49] Approximately two hours later, Ms O’Brien sent an email to various Venue Managers, and to Mr Dakai regarding a preferred signage and sticker supplier. Mrs Trail was not included in the email, yet Mr Dakai, the Regional Catering Operations Manager was. Mr Dakai forwarded the email to Mrs Trail, noting orally, “Another email you’ve not been included in.” Mrs Trail stated that she was close to tears and feeling extremely vulnerable about her position and what she considered to be the ongoing and purposeful exclusion that was taking place.
First written warning issued without notice
[50] Around four hours later that same day, at 3:30pm, the following occurred as described by Mrs Trail:
• A formal meeting was not arranged and no notice of meeting was issued.
• Mr Camp walked into the office that she shared with other team members. He asked them to leave the room as he needed to have a private discussion with her. He asked Mr Scott to remain as a witness. Mr Scott was one of her direct reports, which made her feel totally uncomfortable and embarrassed to have a direct report who she managed on a daily basis, sitting in a room witnessing her being issued with a written warning.
• There was no option or offer for her to have a support person present and no evidence was presented.
• She was advised by Mr Camp that statements had been taken although she didn’t know who provided the statements and nothing was shown to her at the time (or since). She was not asked to provide a written statement. Mr Scott and Mr Dakai, who had been questioned about the incident, were also not asked to provide written statements.
• During this disciplinary action there was a conversation around providing tickets to a former employee, Kerri Bailey (former Venue Manager, Gabba Stadium and former Operations Manager, Suncorp Stadium). Mrs Trail confirmed that she did provide Kerri Bailey tickets, however, she was not aware that sporting tickets needed to be entered into a gift registry or that she had to seek approval from Mr O’Brien.
[51] The warning letter issued to Mrs Trail is reproduced at [10].
Mrs Trail requests the warning letter be reviewed
[52] On 12 September 2020, Mrs Trail sent an email to Mr Camp, responding to the first written warning. The email is reproduced below:
“Dear Simon
I wish to follow up on the written warning that was issued to me yesterday as I do not agree with the context of the letter or some of the statements made.
1. I did not categorically deny any knowledge of Aaron Sim working under the influence of alcohol. You asked me if I thought/knew Aaron was intoxicated whilst at work on Sunday (30 August 2020). I expressed to you that I was not aware of this and that Aaron did not exhibit any behavior on the night that would lead me to believe he was intoxicated. My biggest frustration on the night was the delay in getting main course out in Chairman's room. Whilst observing Aaron in the kitchen during this time he did not appear to be intoxicated.
2. I advised you on the phone that on an occasion I had sent Aaron home from work (16 August 2020) as I initially was concerned that he could have been intoxicated. He seemed what I would term as "groggy". When I spoke to him he advised that he was on strong pain killers and antibiotics for his foot (he had been limping for a couple of days) and these were causing him to be drowsy. I advised him that he needed to go home until his foot was better and he was finished with the pain killers. Aaron remained off work for the following 4 days.
3. I also told you that sometime in 2018, either during or after the Commonwealth Games that Kim Gerhardt told me she was going to speak to Aaron about rumors she had heard about him being intoxicated at work. I believe at the time Kim met with Aaron to discuss this but I was not privy to the discussion or the outcome.
In regards to point 1, I was made aware at a later date, that on the night, both Matt Dakai and Elliott Scott were questioned and asked if Aaron appeared to be intoxicated. Matt and Elliott, in their opinions, both advised that they did not think Aaron was intoxicated. Elliott worked in Chairman's kitchen from gates through until main course was served and commented that he didn't notice anything.
In regards to point 2, since the events that transpired earlier in the week around Aaron's resignation, I have been told by yourself and Dan Smith, that discussions had taken place directly with Aaron, over a period of time, regarding concerns about him being intoxicated or having an alcohol dependency problem, and there were discussions with other senior managers about these same concerns but to my knowledge no action was taken. At no point in time was this information shared with me, or was I alerted that there was a concern regarding Aaron. If I was aware of this then my actions relating to point 2 would have been very different and I would not have just taken Aaron's word that he was on pain killers. I most certainly would have escalated my concerns to yourself or Dan.
I understand that the allegations of Aaron being intoxicated at work are severe and could have wide reaching implications. I would never intentionally do anything to put this company at risk in any way. I have very high personal ethics and morals and am devastated to have been put in this position where I am accused of gross misconduct. I am extremely distraught that the company, Michael, and everyone else involved has also been put in this position.
I accept that as Venue Manager I have a large responsibility of trust and I will always operate in the best interest of the company. If I have breached that trust then I am truly sorry. I would ask that you consider the abovementioned details and review the written warning and the statements made.
Sincerely
Kerri Trail”
[53] Within two hours Mr Camp responded:
“Kerri
I have gone through my notes, I am not prepared to review your decision and the warning stands.
I also have 3 written statements from senior members of staff confirming my position.”
[54] Mrs Trail stated that she was shocked that Mr Camp’s response was returned in less than two hours and she could not understand how a review could have been conducted in this timeframe or be compliant with the Disciplinary Action and Warnings: Policy and Procedure.
Disciplinary Action and Warnings: Policy and Procedure
[55] The Policy and Procedure is reproduced below. It is lengthy. It is Mrs Trail’s contention that the Respondent has elected not to follow it relevant to the matters contained in the two warning letters issued to her, and also in the way it went about providing a written warning to Mr Sim:
“DISCIPLINARY ACTION AND WARNINGS: POLICY AND PROCEDURE
1. Application
This Policy and Procedure applies to all O'Brien Group team members, including employees, contractors, volunteers and work experience staff. All team members are required to comply with and are responsible for knowing and understanding the policy and procedure.
2. Purpose
O'Brien Group acknowledges that, from time to time, employee behaviour and performance may fall below the expected standards as detailed in the specific job description and orientation / induction processes. The purpose of this policy is to establish an equitable and consistent approach to addressing unsatisfactory work performance and/ or conduct by:
• Ensuring counselling takes place to reinforce the expected performance or conduct standards; Establishing a process under which warnings may be issued and discussed; and
• Providing for disciplinary action when performance or conduct does not improve.
3. Policy Statement
It is the Policy of O'Brien Group to ensure that when action needs to be taken against an employee for unsatisfactory performance, misconduct or breach of company policy, such action will be appropriate, reasonable and in compliance with O'Brien Group process, Fair Work guidelines and procedural fairness principles.
4. Procedure Statement
4.1 Counselling and Disciplinary Procedures
OBGA counselling and disciplinary procedures have three distinct, but not necessarily sequential components:
• Informal counselling (face-to-face feedback);
• Formal counselling; and
• Disciplinary procedures (including warnings).
The decision as to which of the three components initially apply will be based on the seriousness of the employee's behaviour and/ or performance and will depend on the facts and circumstances as identified by, or conveyed to, the relevant O'Brien Group manager.
4.1.1 Informal counselling
Informal counselling and/or face-to-face feedback will normally occur when, in the manager' s opinion, the employee's behaviour is such that formal disciplinary action is not appropriate. Where it is established during the informal discussion that the behaviour expectations have not been met, feedback given must be constructive and delivered to encourage the employee to achieve and maintain expected behaviour/performance standards.
If the discussion confirms that misconduct has occurred, the employee should be:
Advised of how the behaviour and/or performance is inconsistent with O'Brien Group expectations and their employment contractual obligations;
Provided with an opportunity to respond to the concern and to raise any other matter that they consider relevant; and
Engaged in jointly identifying a plan of action to improve performance standards or outline the appropriate conduct expected.
After the informal counselling session the manager will keep a diary note of the discussion and where appropriate , plan a subsequent discussion with the employee to review the behaviour or performance.
4.1.2 Formal counselling
Formal counselling will normally occur when:
• The employee has previously been counselled informally but behaviour has not improved to the expected standard (unacceptable performance);
• The employee's misconduct is such that, in the opinion of the manager, formal counselling is appropriate.
• The formal counselling session will take place as soon as possible after the behaviour and/or performance issue is identified with the employee being advised in writing of:
• When and where the interview will take place;
• The matter/s that will be discussed (i.e. specific details of the alleged unacceptable performance/misconduct);
• Their opportunity to respond; and
• The opportunity for them to bring a support person/observer to the interview.
At the meeting the coordinator and employee will review and discuss the allegations and their responses to these allegations as well as any additional incidents, information and prior relevant corrective action plans.
At the conclusion of the formal counselling session a written record of the meeting will be provided to the employee confirming:
• The issue of concern;
• The agreed actions and timelines;
• Any assistance/support to be provided (if relevant);
• Date and time for any subsequent meeting; and
• Disciplinary action taken with the possibility of further action should the required expectations for behaviour and/or performance not be achieved.
The employee should sign the record to acknowledge it is an accurate record of the meeting and their acknowledgement they have understood the issues raised . The record should be kept in the employee's personnel file.
4.1.3 Disciplinary action
Disciplinary action may be taken where the alleged misconduct and / or unacceptable performance continues, or is of a serious nature. Disciplinary action may include written warnings and/ or termination of employment.
4.2 Written warnings
The purpose of a written warning is to emphasise to the employee that their misconduct or performance is unacceptable and to make clear that further disciplinary action may be taken. A written warning may be given to an employee when:
• The employee has previously been through the formal counselling process and has not met the required standards or expectations; or
• The employee's performance or misconduct is of a serious nature and requires immediate action .
Written warnings must also detail the support and/or training to be provided to the employee as well as the expected timeframes for review of the identified issue/s.
There is no set number of written warnings an employee should or can receive. For many employees just receiving one warning is enough for them to improve their performance or change their behaviour. Other employees may require multiple warnings and even then they may not address the concerns raised.
Warning Process
• Arrange a formal meeting with the team member;
• Advise the team member that they have the option to have a support person to assist with any discussions relating to their performance/ conduct . The support person is of their choice; however, the person must NOT be acting in a professional capacity (such as a lawyer) and is there only to support the team member and not to participate in the discussion;
• Outline the reasons for the warning, including presentation of any evidence to support the allegation/s;
• Outline the expected standards of behaviour or performance and an explanation of how the employees' actions or behaviours breached O'Brien Group policy;
• Detail any history of counselling (previous related matters);
• Detail any action required to rectify the performance/conduct. This may include counselling, training, workload adjustments or improved performance (give specific examples of where the improvement is required);
• Give the team member the opportunity to respond to allegations;
• Consider the team member' s response to the allegations. If the facts are in dispute or the employee provides a credible explanation the manager may decide to withdraw the warning;
• Advise the team member of the consequences that, if there is no improvement within the required timeframe, or a repeat of issues in the case of misconduct, further disciplinary action may be taken, up to and including termination of employment;
• Document the discussion. The team member should sign the documentation to confirm their understanding of the discussion;
• Keep a copy on the team member's file.
An employee being given a warning should be reassured that the warning does not mean that their employment will be terminated. The warning does not need to define the employee and they should take it as an opportunity to improve their performance or change their behaviour. The employee should however understand that a formal written warning is serious and they should ensure that they follow any agreed actions or instructions otherwise they may face further disciplinary actions including additional warnings and up to termination of employment.
4.3 Termination
Employees do not have to be given a specific number of warnings (i.e. three warnings) before they can be dismissed, however if the manager decides that the employee should be terminated it is important to follow the correct process to avoid any claim or action by the employee relating to the dismissal.
4.3.1 Show cause meeting
The purpose of this meeting is to ask the employee to show cause as to why their employment should not be terminated. Depending on the circumstances, the employee may be stood down on full pay until a meeting is scheduled. Employees will be required to respond, in writing and prior to the scheduled meeting, addressing the allegations and their reasons why employment should not be terminated .
Requests for an employee to attend a show cause meeting shall be made in writing outlining:
• When and where the meeting will take place;
• Who else will be involved in the meeting (i.e. Management representative)
• The specific issue that will be discussed (i.e. alleged unacceptable performance/misconduct);
• Their opportunity to respond; and
• The opportunity for them to bring a support person/observer to the meeting.
At the meeting the manager and employee should review and discuss the allegations and their responses to these allegations as well as any additional incidents, information and prior relevant corrective action plans. A decision surrounding the employee's continued employment will be made at this meeting.
4.3.2 Notice and Final Pay
Employees terminated as a result of misconduct or unacceptable performance will be given notice as per their Industrial Award and will receive any outstanding leave and/o r TOIL entitlements (if applicable). Terminated employees will be issued with a Statement of Service.
4.4 Instant dismissal (Serious Misconduct)
A team member who has committed serious misconduct can be dismissed without notice following the substantiation of allegations .
Serious misconduct includes, in the course of employment, the team member engaging in theft, fraud, assault, intoxication at work, a serious breach of policies and procedures or conduct that causes serious and imminent risk to the health or safety of a person or the reputation, viability or profitability of the employer's business.
Immediately arrange a meeting with the team member when you become aware of the team member's suspected misconduct:
• Advise the employee of the allegations
• Advise them of the process to be followed
• If necessary, stand down the team member with full pay while the employer investigates the allegation
• Alternatives to stand down include placing the team member on supervised shifts, or other interventions that minimise the potential risk of the person remaining in the environment at that time (for example, if someone is accused of assaulting a client, it would be unwise to leave them in an unsupervised environment whilst the mattes are unresolved or unclear).
Ensure you:
• Give the team member an opportunity to respond to the allegations during the process
• Document all conversations & findings of the investigation (This may include statements from other team members, clients etc.) On completion of an investigation, arrange a meeting with the team member to discuss findings
• Advise the team member they have the option to have a support person support person present to assist with any discussions relating to their performance/conduct. The support person is of their choice; however, the person is NOT to act in a professional capacity (such as a lawyer) and is there only to support the team member and not to participate in the discussion.
• Discuss the findings of the investigation with the team member and allow them to see any evidence, documentation, witness statements etc., and consider the team member's response.
• Consider the team member's further response to the investigation. If not satisfactory, the team member can be terminated immediately.
• Provide the team member with the reason for the termination in writing.
• Arrange to pay the team member any outstanding wages and entitlements.
4.5 Human Resources
Where time and circumstances permit, the manager should brief the Human Resources Manager (either via email or verbally) before commencing any formal disciplinary action procedure such as issuing warnings or terminating employment . The Human Resources Manager can provide advice and assistance on how to manage the process. They may also make themselves available to attend any of the scheduled meetings, conduct the process themselves and/ or assist with the preparation of any related documentation .
Where time permits, any proposed written warning should be sent to the Human Resources Manager before being issued to the employee to ensure it is worded correctly, is clear and unambiguous and complies with O'Brien Group policy and Fair Work guidelines.
A copy of any written warnings issued to an employee should also be sent to the Human Resources Manager.
The Human Resources Manager should be notified as soon as possible if an employee is terminated instantly. The manager should provide to the Human Resources Manager a summary of the circumstances, any conservations with the employee and any documentation or other evidence relating to the issue or incident.
4.6 Procedural Fairness
All actions under this Policy and Procedure will be conducted following the principles of Procedural Fairness. Maintaining Procedural Fairness is important to ensure that:
(a) The interests of the parties are protected;
(b) The credibility of the process is maintained;
(c) Any investigation and findings can be relied upon when making employment and disciplinary decisions.
To that end, O'Brien Group will ensure that:
• The respondent is aware of all of the allegations made against them in sufficient detail;
• The respondent is allowed a reasonable opportunity, including adequate time, to respond to each of the allegations;
• Investigations are carried out in a reasonable timeframe ;
• All participants are given the opportunity to have a support person attend interviews pertaining to the investigation; All participants are required to maintain strict confidentiality;
• All participants are given the opportunity to respond to any contradictory evidence.
5. Definitions
Procedural Fairness | means acting fairly in administrative decision making. It relates to the fairness of the procedure by which a decision is made, and not the perceived fairness of that decision. |
Disciplinary Action | is a process for dealing with job-related behaviour that does not meet expected and communicated performance standards. |
Misconduct | unacceptable or improper behaviour |
6. Legislation
Not Applicable
7. Other References
HR.012 Workplace Grievance and Complaints Policy and Procedure
HR.014 Abandonment of Employment Policy and Procedure
HR.017 Separation (Ending Employment) Policy and Procedure
HR.027 Performance Management Policy and Procedure
HR.0 28 Performance Review Policy and Procedure ADM .011 Privacy Policy.”
[56] Noting that she had been issued a written warning without any form of allegation having been put to her, Mrs Trail felt bullied and harassed by Mr Camp. She considered that this was the manner in which the Respondent would intend to performance manager her out of the business.
“This is the O’Brien way”
[57] On 14 September 2020, Mrs Trail had a 40 minute Zoom call with Mr Smith regarding the written warning, and the exclusion from meetings and emails. She informed him that she felt she was being bullied and the goal of the company was to performance manage her out.
[58] She said that during this phone call she was crying, shaking and had difficulty breathing. She told Mr Smith that she knew having this conversation with him was going to cause her grief with Mr Camp and the O’Brien’s. Mrs Trail stated she felt this way because she thought it could further jeopardise her employment and they could retaliate against her and make her life more difficult than what they had already made it.
[59] Mrs Trail said that Mr Smith advised her, “This is the O’Brien way” and not to take it personally as this is how they operate. Mr Smith said that he knew this was not a justification for the company’s behaviour, but it is just how they work. She asked Mr Smith to be honest with her, and he should inform her what was happening with her role. She said to him that she had worked extremely hard for the company, and if she was no longer wanted, the company should do the right thing and offer her a redundancy. She informed him it was not appropriate for the business to performance manage her out or find ways to get rid of her.
[60] Mrs Trail told Mr Smith that everything that was happening to her constituted bullying, and she was being singled out and picked on and she could not understand why. She said that Mr Smith informed her that he had a meeting scheduled with Mr Camp for later in the afternoon and he would speak to him about this, however he would try not to expose her in the conversation in order to not receive further exclusion.
[61] Mrs Trail said that Mr Camp called her on the same day and asked when she would be back at work as he needed to follow up on another matter. She advised Mr Camp that she would be back at work on 16 September 2020.
Second written warning issued without notice
[62] At approximately 8:30am on 16 September 2020, Mrs Trail received a telephone call from Mr Camp. He asked her if she was at work, to which she responded, “Yes”. He advised her she was on speaker phone and Ms Samantha Ryan, Corporate Operations Manager at Suncorp Stadium was present with him at his office. Ms Ryan was one of Mr Camp’s direct reports.
[63] During this conversation, Mr Camp informed her she was to receive a second written warning, reproduced at [11]. Mrs Trail’s evidence is that she was further humiliated to be issued a second written warning in this manner, with no due process, no time to prepare and no support person. She noted that this was witnessed by a direct report of Mr Camp, all whilst being in her office which is a shared space with other employees.
[64] Mrs Trail said that during this phone call she was advised that during the telephone call she had with Mr Camp and Ms O’Brien on 2 September 2020, Ms O’Brien had recorded the telephone call, and that there was a transcript of the conversation. Mrs Trail noted in evidence that Ms O’Brien had not informed her that the conversation was being recorded.
[65] During the telephone call where she was issued the second written warning, Mr Camp stated on three occasions that Ms O’Brien was a Harvard graduated barrister. Mrs Trail considered that Mr Camp was making this statement (which is incorrect) to suggest that Ms O’Brien would know if someone was intoxicated or not. She felt like he was trying to intimidate her into accepting the first written warning.
[66] During this phone call, Mrs Trail was becoming increasingly upset. She considered that whether Ms O’Brien can tell if somebody is intoxicated or not, or if they are a Harvard graduated barrister (which Ms O’Brien is not), Mrs Trail wanted the law and procedural fairness to be followed. She considered that the Respondent had blatantly disregarded its own Policy and Procedure yet again.
[67] Mrs Trail stated that this just solidified the ongoing bullying, exclusion and intimidation that had been repeatedly happening over the last couple of months.
Discussion with Mr Smith
[68] Approximately 30 minutes after the meeting was held and she was issued with a second written warning dated 12 September 2020, Mrs Trail called Mr Smith. She was distraught and shocked as to what had just occurred. She asked Mr Smith if he knew that she had received the second written warning; he advised that he only just found out in the last few minutes when Mr Camp had emailed him a copy of the warning. Mrs Trail tried to the best of her ability to repeat the conversation that had taken place with Mr Camp. When she referred to the multiple comments regarding Ms O’Brien being a Harvard graduate barrister, Mr Smith’s response was, “Tell me he didn’t say that.” Mrs Trail stated, “Yes, he did, on multiple occasions.” She told Mr Smith that it was bullying, and she wouldn’t take it anymore.
[69] Mrs Trail informed Mr Smith that she was too distraught to stay at work and needed to go home and think things through. She again reiterated to Mr Smith that she felt she was being performance managed out of the business and that the company should do the right thing and make her redundant if they didn’t want her to be there anymore. Mr Smith advised her that her mental health was a priority and she should go home; he would follow up with Mr Camp.
[70] At approximately 9:55am on 16 September 2020, Mr Camp attempted to call Mrs Trail, but she did not answer his call as she was still extremely distraught, shaking and could barely speak. Mr Camp sent her a text message asking her to call him. Once she had calmed down, she called Mr Camp back. He advised that he wanted to have an “off the record” chat without any witnesses. Mr Camp said he apologised if she felt that she was being left off emails as that was not his intention. He stated that regarding the Unilever email he had removed Mrs Trail and Kevin Baker (Venue Manager at Gabba Stadium) as he did not feel that they needed to be on this type of correspondence. At the time of this conversation, Mrs Trail did not respond to this assertion made by Mr Camp, but now, having had the opportunity to review the email, Mr Baker was never on the original email, so Mr Camp was not correct. Further, while she was the only Respondent employee removed from the email, Mr Scott was added in.
Resignation letter sent that day
[71] Later that same day, at 4:40pm, Mrs Trail emailed her resignation letter to Mr Smith. Mr Smith responded via email at 8.30pm that night advising that her resignation had been accepted and acknowledged that she had provided four weeks’ notice but proposed that her resignation be effective immediately. She said that this only reiterated to her that the company did not want her and had achieved the outcome they were after which was to force her out either by resigning or performance management.
Exclusionary behaviour
[72] Mrs Trail stated that in the three months leading up to her resignation she had been subjected to blatant bullying and intimidation, exclusion from workplace meetings and emails that were required for her to do her job. She said that she has had direct reports continually questioning her about her position within the company and asking why she has been excluded. Mrs Trail stated that she had also had Mr Carey approach her on several occasions asking the same questions and also forwarding her emails from Mr Camp and Mr O’Brien to ensure she was kept in the loop on discussions taking place, that as Venue Manager she should have been across. She said that Mr Carey also raised his concerns with her about who he should be communicating with and why she was being removed from important venue related meetings. She said that this was embarrassing to her and made her feel like she was not valued as an employee and was purposefully being excluded.
[73] Mrs Trail stated that she had been deliberately denied access to venue related information, demonstrated within the emails she has provided in her evidence. She stated that she was aware there are more emails and meetings that she was also excluded from, however she no longer has access to obtain copies of this information.
Failure of company to follow its policies and procedures
[74] Mrs Trail said that she has been put through three disciplinary meetings, where at no time was the company policy and procedure followed or adhered to. She said that in addition to this, when she disputed the version of events that took place for the first written warning, the company’s Workplace Grievance and Complaints Policy and Procedure (not reproduced in this decision) was also not adhered to.
[75] It is Mrs Trail’s contention that the Respondent tried to intimidate her because she would not accept the version of events that were put forward. She said she felt totally belittled by the whole process. There was no formal investigation, no evidence and no proper review carried out.
Failure of company to inquire regarding her well-being
[76] Mrs Trail stated that despite her assertions that she was being bullied, nobody from the business bothered to get in touch with her to investigate or check on her well-being. She said despite informing Mr Smith on several occasions how distraught she was regarding this matter, and how much stress and angst it was causing her, there was no attempt to check on her welfare or mental state. She said that in stark contrast to this, she has had multiple welfare calls directly from the Metricon Stadium team, the landlord’s staff, offering support and assistance through this traumatic time.
[77] Mrs Trail stated that the company policy on Workplace Investigation (Non Injury) clearly states that workplace bullying requires an investigation to take place. She said that this did not happen and since 16 September 2020, no-one from O’Brien Group Australia has been in touch with her to follow up on her reported bullying. She said that the company policy on Workplace Bullying has also been totally disregarded.
[78] Mrs Trail stated that she has been humiliated and embarrassed in front of her team, co-workers, and stakeholders. She said that her confidence has been eroded and she has become physically ill when she thinks about the way she has been treated. Mrs Trail stated that this has impacted not only her work life but her home life as well. She has not been able to sleep. She stated that she is constantly tearful and anxious and is emotionally devastated by everything that has happened.
Discoveries following resignation
[79] Mrs Trail stated that on 17 September 2020, after her forced resignation, she had a conversation with Ms Bailey, whom she had given tickets to. It is her evidence that Ms Bailey was extremely shocked that Mrs Trail had received a written warning for this, as it was common practice throughout O’Brien Group. She stated that Ms Bailey advised her that on numerous occasions she received tickets to several sporting events and concerts, and that many other staff members had also received free tickets from Venue Managers or various stadium stakeholders.
Cross-examination
[80] Relevant to the meeting Mrs Trail was excluded from on 8 July 2020, Mrs Trail conceded that she was not privy to commercial-in-confidence information regarding how much the Respondent pays to its landlords at each stadium. She accepted that this might have been discussed by Mr O’Brien at this meeting, however she repeated her grievance that she had originally been invited and was then informed by Mr Camp, and not Mr O’Brien that she was no longer invited to the meeting. 8
[81] Mrs Trail was asked questions in cross-examination regarding her contention that Ms O’Brien was excluding her from various meetings and conversations. Mrs Trail gave the following evidence: 9
Ms O’Brien: | So, your preferred way of operating is to be involved in every discussion that I have with all the staff at Metricon stadium, every phone call and email that I'm asking, even when it's not even discussing expenditure, but their ideas? Are you saying that you feel bullied because you weren't involved in every one of those conversations? |
Mrs Trail: | It was being excluded. How can I perform my duty as a Venue Manager, when I don't even know what's happening, when what decisions are going to be made or things that are going to be thrown out there and ideas. And if you can call Aaron and you can call Matt, would I not have relevant input as a Venue Manager, as well, as to the sale mix of items, the cost of goods, what sold well, what didn't? |
[82] Regarding Mr Sim’s alleged alcohol consumption while at work on 30 August 2020, the following questions were put and answered: 10
Ms O’Brien: | In your opinion, who should have I and Simon Camp have gone to, when I had serious concerns about Aaron's alcohol consumption on the night of the game? Who do you think in the company we should have gone to, to ask? |
Mrs Trail: | On the Sunday? |
Ms O’Brien: | Just following the events of that, and my concern, what do you think I should have done? Who do you think I should have spoken to, to find out if there was a problem that we had to solve? |
Mrs Trail: | Well, on the Sunday, when you thought there was an issue, you should have come and spoken to me. |
Ms O’Brien: | So, you're saying it's a problem I didn't question you on that night, if you thought that he was drunk, though I hadn't seen you at the time, but I saw the other staff. You're saying it's a problem that you were called three days later? |
Mrs Trail: | Well, you did see me on the night, because we were both in Chairman's kitchen during the plate-up and service of entrée and main, so we were both in there. We were there the entire time that entrees and mains went out. So, I was there; you did see me. |
Ms O’Brien: | In your view, was it incorrect for us to call and ask you if you knew anything when we were trying to work out if there was a problem with his drinking? Whilst working for O'Brien Group at Metricon, were we incorrect to call you and ask? Would you prefer that we didn't call you and ask? |
Mrs Trail: | No, yes you should have called me and asked. But you should also have addressed it with me on the evening when you knew I had worked with Aaron. You had been there; we had been in the kitchen. You're saying you didn't see me. We stood in the kitchen, literally side by side. I was wiping plates, as were you and Aaron was on the opposite side of us with Elliott. |
Ms O’Brien: | With Aaron standing opposite us, you wanted me to ask you if you thought he was drunk. You wanted me to ask you in front of Aaron in the kitchen? Is that correct? |
Mrs Trail: | No, at the conclusion, when main course had been done, you could have asked. You could have called me. You could have seen me at any point, but you chose not to. |
Ms O’Brien: | At the conclusion of the main course, that is when I spoke to Aaron himself and asked him if he was drunk; I asked him directly. I know your statement says it was after main course I questioned him personally if he had been drinking? |
Mrs Trail: | But you said you noticed it as soon as you arrived and that you could smell it on him. |
Ms O’Brien: | That's correct - walking around by himself? |
Mrs Trail: | And you asked Matt, and you asked Elliott before main course. |
……….. ……….. | |
Ms O’Brien: | ……..Anyway, moving forward, are you aware of O'Brien Group's responsibility if something had gone wrong that night or on any occasion as Aaron having this drinking problem, which seems to have existed for quite some time? Are you aware of the position O'Brien Group would be in, such as the MCG when there was a Chef that on ANZAC day a couple of years ago, served detergent to customers and 30 of them were vomiting in the Chairman's room? Are you aware of the stories in the past years on the Gold Coast where a Chef served dish drainer to someone and she's then had 40 operations on her oesophagus and lining because of the Chef there? Are you aware of stories like that, that do happen and are real and are a real liability for the O'Brien Group and the responsibility we hold? Are you aware of that seriousness that O'Brien takes? |
Mrs Trail: | I wasn't aware of those stores that you've just relayed, but I'm certainly aware of the food safety side of things and how it's paramount to what we were doing. |
Commissioner: | Ms O'Brien, the one at the MCG that you're referring to, is that the one where everyone was throwing - I recall everyone was throwing up in the dining room? |
Ms O’Brien: | Yes. |
Commissioner: | That was food poisoning, wasn't it? |
Ms O’Brien: | It never said exactly what it was, but there were stories that – [redacted] But it was never proven that it was - - - |
Commissioner: | Yes, I remember the ghastly scenes of people very well dressed, all throwing up at the tables, yes. |
Ms O’Brien: | Yes, and they remain horror stories to anyone in the industry, which we try our best to never be in that situation. Of course, it's always something that we're very cognisant of, as our responsibility to make sure that that doesn't happen. I must say, Commissioner, that going through this case and the actions we have taken, I certainly do not regret that O'Brien Group hold their responsibility extremely high and I would hate to be in a case right now where a child got poisoned from our responsibility of a drunk Chef and that we hadn't acted. I don't shy away from the fact that we take it all very seriously and my father often repeats to us the seriousness of our role; it's not just parties and events, it's a serious responsibility we carry, and duty of care to our customers. |
Commissioner: | Well, you walked around with him for two hours. If you thought he was drunk, wouldn't you have stood him down? |
Ms O’Brien: | Pardon, Commissioner? |
Commissioner: | It's for you, Ms O'Brien. |
Ms O’Brien: | Yes. |
Commissioner: | If you walked around with him for two hours, if you thought he was drunk, why wouldn't you have stood him aside; stood him down? Had your next best Chef do the work. |
Ms O’Brien: | Yes. No, at the time, I could see that he - I could smell that he smelt incredibly strong of alcohol and my father said to me - and he was still - he wasn't stumbling all over the place, but the smell was the profound sign of concern for me. I am, I must say, an asthmatic that's allergic to everything and can smell everything a mile off, more than normal person could. So, I didn't doubt my sense of smell and I said to my father before service, what should I do when I was concerned. He said wait till after service; don't rattle him. If he seems like he's holding it together, then speak to him after main service, which I did. But I was concerned, and I did think to do exactly what you're saying, Commissioner, during main course service, when he was struggling to get the food out on time, but I was at that time, thinking should I run to another kitchen and get another Chef to help him. I asked Aaron, do you want help and I was about to join the line of food service myself to help him, but he assured me that it was fine and the other Chefs did support him to bring it together. But the biggest concern of the night was the sense of smell, of alcohol, that did not disappear for the two hours that I walked around with him. |
Commissioner: | Well, I know what I would do if I suspected somebody smelling of alcohol. I wouldn't let them work for the next two hours…… |
Evidence given relevant to Taylor Swift concert
[397] It is not a factor of consideration relevant to whether there was a dismissal. However, the Respondent, and in particular, Mr O’Brien sought to make an extraordinarily big deal over Mrs Trail’s attendance at the Taylor Swift concert at the Gabba while she was recovering from cancer.
[398] I accept and prefer Mrs Trail’s evidence and Ms Bailey’s evidence over Mr O’Brien’s. For whatever reason, Mr O’Brien considers Mrs Trail asked for a corporate box and indeed had 12 people in attendance during the concert, I do not accept Mr O’Brien’s evidence.
[399] Ms Bailey’s evidence is clear; the request for tickets was made by her. She emailed Mr O’Brien and requested four tickets. She explained that Mrs Trail is a huge fan and it would mean a great deal to her and her daughter if she could attend. It was, in fact a surprise for Mrs Trail. I accept Mrs Trail’s evidence that her party was of five people only (four became five). It may be usual for Mr O’Brien, in his position, to mix well with all people within a corporate box. Mrs Trail was, at the time, recovering from cancer and in attendance with her daughter and three others. I do not consider it beyond comprehension that she might not have mixed with the other people in the corporate box; people she cannot identify. Mr O’Brien was not able to say who the other people were, simply asserting they must have been guests of Mrs Trail. I accept that they were not.
Conclusion on dismissal
[400] Mrs Trail had been held in high regard by the Respondent until she was not; the relationship began to deteriorate at the Respondent’s initiative throughout 2020. Mr Camp’s increased involvement at Metricon Stadium commenced the creep of the beginning of the end.
[401] Ms O’Brien also began to turn off; she began to imagine a future with Mr Scott and Mr Dakai running the venue, without Mrs Trail.
[402] Mr Smith reflected on the conduct of the family, described as “the O’Brien way”. It was evident throughout the hearing that with no independence, the O’Brien family makes decisions as it sees fit, without regard to its own written policies, procedural fairness or a fair go. This is evident in the way Mr Sim and Mrs Trail were treated. Declarations are made relevant to employees’ conduct; investigations are not properly conducted.
[403] Mr Camp, with no experience in following the Respondent’s disciplinary policy and procedure and with no understanding of how to properly conduct an investigation was the manager tasked with executing the written warnings. Mr Smith and the HR team were not consulted. I am not certain they would have any impact if they were consulted; Mr Smith’s HR knowledge is, in my view, unsatisfactory, and sadly, impotent against the family’s determination to do things their way.
[404] Mrs Trail was, in a relatively short period of time, faced with a situation where she had, I accept, been ostracised and unfairly issued with two written warnings. I accept her evidence that she was not aware of the anti-bullying provisions within the Act. Certainly, in her pleadings with Mr Smith, alleging she had been bullied, he did not inform her of the avenues available to her, including bringing an anti-bullying application before the Commission. He did not encourage her to take a substantial break from work; he encouraged her to look after her immediate mental health, however he did not inform her that if she considered she was suffering a workplace injury she could make a workers’ compensation claim.
[405] Understanding how distraught Mrs Trail was given the receipt of two written warnings in such quick succession, the unsatisfactory handling by Mr Smith of the issue before him, the further phone call from Mr Camp on 16 September 2020 and to a lesser extent, Ms O’Brien’s email which Mrs Trail considered to be chastising, I accept that Mrs Trail considered that if she did not resign, giving the required notice, she would likely be dismissed. I accept her concerns were real and termination of her employment would likely be realised given the manner in which she had been treated in the prior months, weeks and days.
[406] I am satisfied that the conduct engaged in by the Respondent was the principal constituting factor leading to the termination. I am satisfied there was sufficient causal connection between the Respondent’s conduct to Mrs Trail and the resignation such that it forced the resignation.
[407] On the evidence before me, I am satisfied that the Respondent engaged in the conduct that it did with an intention to bring the employment relationship to an end, or that it would have that probable result.
[408] I do not consider the conduct of the Respondent to be ambiguous. I accept that Mrs Trail had no effective or real choice but to resign her employment.
[409] In coming to my conclusion, I have objectively analysed the Respondent’s conduct.
[410] I am satisfied, having regard to all of the evidence and submissions before me that Mrs Trail resigned having been forced to do so because of a course of conduct engaged in by the Respondent.
[411] Having determined that Mrs Trail was dismissed pursuant to s.386(1)(b) of the Act, I must now determine if Mrs Trail has been unfairly dismissed having regard to the criteria in s.387 of the Act.
Was the dismissal unfair?
[412] A dismissal may be unfair, when examining if it is ‘harsh, unjust or unreasonable’ by having regard to the following reasoning of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd:88
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[413] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter.89 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)
[414] When considering whether there is a valid reason for termination, the decision of North J in Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 provides guidance as to what the Commission must consider:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, common-sense way to ensure that the employer and employee are treated fairly.”
[415] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.90
[416] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.91 “The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.”92
[417] The Respondent must have a valid reason for the dismissal of Mrs Trail, although it need not be the reason given to the Applicant at the time of the dismissal.93 Following Mrs Trail’s resignation, the Respondent discovered a number of emails where it has concluded, and it is not disputed by Mrs Trail, that she solicited various tickets for people known to her, including former employees, or she facilitated the giving by Mr Carey of tickets to former employees.
[418] These matters were not known to the Respondent in early September 2020. By virtue of the authority in Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 these matters must be considered and assessed against the criteria in s.387 of the Act.
[419] I am not satisfied that Mrs Trail had ever observed Mr Sim under the influence of alcohol at work. She had heard of concerns around the time of the Commonwealth Games, however she was not tasked to deal with those concerns. The conduct of any inquiry was not with Mrs Trail and I accept the evidence of Mr Trevers-Grace that he alone held discussions with Mr Smith. I do not accept Ms Bailey’s evidence that Mrs Trail was privy to the discussions held, as I consider her evidence to be weak on account of Mrs Trail’s supposed presence in the office within the stadium. I prefer the evidence of Mrs Trail and Mr Trevers-Grace over Ms Bailey.
[420] Relevant to the period of time when Mrs Trail observed Mr Sim groggy at work, I accept that she considered his explanation of being on pain killers to be a reasonable explanation. She afforded him a period of four days to recuperate. I consider that Mrs Trail was truthful when she replied to Ms Bailey’s text message in mid-August 2020. Further, I consider she was truthful when she was asked relevant questions by Ms O’Brien and Mr Camp on 2 September 2020.
[421] If anybody was concealing information during the telephone call of 2 September 2020, it was Ms O’Brien and Mr Camp. I consider they ought to have informed Mrs Trail of the many instances various people held suspicions relevant to Mr Sim’s alleged drinking at work.
[422] I accept Mrs Trail’s evidence that she did not observe Mr Sim smelling of alcohol during the plate service on 30 August 2020. This evidence is corroborated by Mr Dakai and Mr Scott.
[423] Regarding Mrs Trail’s deletion of emails upon her resignation, I accept that she did not purposefully delete any emails referencing having secured tickets for other people in breach of the ticketing policy. I accept Mrs Trail’s evidence that she did not purposefully and discriminately delete only the ticketing emails. If so, she would have removed the emails from the sent items folder, deleted them and then further emptied the “deleted items” emails.
[424] I do not accept the Respondent’s contentions that Mrs Trail deliberately concealed the amount of times she had procured tickets for others. When first asked about this, it was during the time when she was receiving her first written warning. Her acknowledgement of securing tickets for Ms Bailey came about because of the questioning by Mr Camp. I consider that Mrs Trail gave the best answer she could give during an unexpected line of questioning and a very difficult time for her, receiving a written warning. I accept Mrs Trail’s evidence that once she had the opportunity to think further about the issue, she recalled further instances of securing tickets for others.
[425] Mrs Trail was not aware of the details of the policy and it certainly has not put before senior employees in the business for some time. Many employees who gave evidence before the Commission affirmed that they had no knowledge of the detail within the policy, and it appears to have been largely ignored. The Respondent made no attempts, it seems, to periodically educate team members on the policy. As I have said above, Ms Bailey was re-engaged following Mrs Trail’s departure, even with the Respondent’s knowledge that Ms Bailey had been the recipient of solicited tickets. Ms Bailey gave honest evidence that at the time of the hearing she did not know the relevant details of the policy.
[426] If Mrs Trail had been properly consulted relevant to the policy breach, given appropriate time to reveal other policy breaches, and the Respondent satisfied itself that its policy was not widely promulgated, I am of the view that Mrs Trail would have deserved a written warning at the highest. This would have been a first written warning, as I do not consider she deserved a written warning relevant to Mr Sim.
[427] Having regard to the above, I do not consider that there was a valid reason for the dismissal.
Notification of the valid reason - s.387(b)
[428] Mrs Trail resigned her employment, therefore this criteria is a neutral consideration. The warning letters issued to Mrs Trail are noted.
Opportunity to respond - s.387(c)
[429] If the matters arising out of Mrs Trail’s repeated breach of the policy, unbeknownst to her carries relevant weight in the s.387(a) consideration, the decision of ASP Group (Placements) Pty Ltd v O’Loughlin94 is the authority that if the employer has not provided the employee with an opportunity to respond, and became aware of relevant events subsequent to the dismissal, the employer will have to wear that in the consideration of s.387(c).
[430] As is clear in my earlier consideration as to whether there was a dismissal, Mrs Trail was not provided with a proper opportunity to respond to matters put before her. She was warned and then offered a cursory opportunity to respond, which carried no weight because any review of an issued written warning is not a genuine review.
[431] I conclude that Mrs Trail was not given an opportunity to respond.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[432] Mrs Trail did not request particular support persons in the meetings she had with Mr Camp and therefore she was not refused a support person. Regrettably, Mr Camp organised for direct reports of Mrs Trail to observe her being issued with the two written warnings.
[433] This criterion is a neutral consideration.
Warnings regarding unsatisfactory performance - s.387(e)
[434] It is clear that the two warnings issued to Mrs Trail are entirely unsatisfactory and should not have been issued in the substance and the manner in which they were issued.
[435] I accept that following a thorough investigation into the ticketing issue, it may have been appropriate to issue to Mrs Trail a first written warning relevant to soliciting tickets, however in doing so, the Respondent would have needed to consider how widespread the issue was among its management team. I do not consider that Mrs Trail’s acts in soliciting tickets in breach of the policy constituted misconduct as she, like others, was not familiar with the policy.
Impact of the size of the Respondent on procedures followed - s.387(f); and
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[436] The Respondent is a large organisation, employing thousands of employees. On the evidence before the Commission its human resources function is unsophisticated and largely impotent when regard is had for the O’Brien family’s overreach on such issues.
Other relevant matters - s.387(h)
[437] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant. I consider the following matters to be relevant to the determination of whether the dismissal of Mrs Trail was harsh, unjust or unreasonable.
[438] I have had regard to the Respondent’s failure to follow the Disciplinary Action and Warnings: Policy and Procedure. It is a well-written document and appropriately explains how the Respondent will conduct relevant investigations when considering whether to discipline an employee. It should have been followed by the Respondent, however it is clear that neither Mr O’Brien, Ms O’Brien, Mr Smith or Mr Camp have had any regard to it since its inception.
[439] Ms O’Brien’s statements to the Commission that it is not required to be followed and that the Respondent is simply required to follow “the law” is very concerning. Even more concerning is Ms O’Brien’s declaration that the Respondent will now water the policy and procedure down.
[440] I have had regard to my findings relevant to Mr Camp and Ms O’Brien’s conduct towards Mrs Trail in the months leading up to her resignation where they largely ostracized her or excluded her unnecessarily from relevant emails.
[441] I have had regard to Mrs Trail’s otherwise exemplary employment record for a period of approximately five years.
[442] I have had regard to the considerable generosity of the Respondent and the O’Brien family in ensuring that Mrs Trail was financially looked-after during her approximate one-year battle with cancer, when she required a substantial period of time off work. I note this period was between 2018 and 2019.
Conclusion
[443] I have determined that there was no valid reason for the dismissal.
[444] I have determined that Mrs Trail was not given an opportunity to respond.
[445] I have determined that the warning letters issued to Mrs Trail were unsatisfactory.
[446] Having made the findings above, and in consideration of all of the material before the Commission at s.387, I find that the dismissal was harsh, unjust and unreasonable.
Remedy
[447] Section 390 of the Act reads as follows:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[448] Mrs Trail is a person protected from unfair dismissal for the Act’s purposes, and is a person who has been unfairly dismissed. Accordingly, I am empowered to exercise discretion as to whether she can be reinstated.
[449] Mrs Trail does not seek reinstatement, and I am satisfied in all of the circumstances that reinstatement is inappropriate.
[450] I now turn to consideration of compensation.
Compensation
[451] Section 392 of the Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.’
Authorities
[452] The approach to the calculation of compensation is set out in a decision of a Full Bench of the Australian Industrial Relations Commission in Sprigg v Paul’s Licensed Festival Supermarket.95 That approach, with some refinement, has subsequently been endorsed and adopted by Full Benches of the Commission in Bowden v Ottrey Homes Cobram and District Retirement Villages inc T/A Ottrey96; Jetstar Airways Pty Ltd v Neeteson-Lemkes97 and McCulloch v Calvary Health Care98 (McCulloch).
[453] I have had regard to the above authorities, and I have considered the submission of each party. It is not necessary to summarise the submissions.
The effect of the order on the viability of the Respondent
[454] An award of compensation in this matter would not affect the viability of the Respondent.
The length of Mrs Trail’s service
[455] Mrs Trail had been employed for a period of approximately five years. This is not a short period of time, nor is it a long period of time.
The remuneration that Mrs Trail would have received, or would have been likely to receive, if she had not been dismissed
[456] I am of the view that Mrs Trail would have been dismissed within a period of 14 weeks by the Respondent on account of its aggressive march towards finding fault with Mrs Trail. Mr Camp had been implanted, and Mr Dakai and Mr Scott were being favoured over Mrs Trail because of their youth and “look”. I am satisfied that the Respondent would have found some fault in Mrs Trail’s conduct or capacity within a period of 14 weeks such to dismiss her.
[457] Mrs Trail’s remuneration was $105,000 plus superannuation. The weekly amount is $2,019.23. I consider she would have earned 14 x $2,019.23 = $28,269.22.
The efforts of Mrs Trail (if any) to mitigate the loss suffered because of the dismissal
[458] Mrs Trail gave evidence that she had been actively applying for full time positions since 17 September 2020. She was offered a fulltime position with a salary of $66,000. She completed only four shifts on account of the hours being 5:30pm to 3:30am, five days per week. She stated that the hours of work were not physically or mentally suitable for her.
[459] Mrs Trail accepted a casual food and beverage role commencing 10 October 2020. At the time of giving evidence, she was working between 28 to 32 hours per week.
[460] I am satisfied that Mrs Trail made all efforts to mitigate the loss suffered because of the dismissal.
The amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation
[461] Mrs Trail was paid four weeks’ notice and not required to work out her notice period. This is an amount of 4 x $2,019.23 = $8,076.92.
[462] It will be necessary to determine Mrs Trail’s gross earnings from other employment between 17 September 2020 and 23 December 2020 so as to make an appropriate deduction from the amount at [456].
The amount of any income reasonably likely to be so earned by Mrs Trail during the period between the making of the order for compensation and the actual compensation
[463] This consideration is not relevant.
Other relevant matters
[464] I do not consider there are any other relevant matters for consideration.
Misconduct reduces amount
[465] Section 392(3) requires that if the Commission is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person then the Commission must reduce the amount it would otherwise order by an appropriate amount on account of the misconduct.
[466] The section requires that consideration be given by the Commission to whether misconduct contributed to the decision to dismiss an employee even where it has been found there was no valid reason for the termination.99 The absence of a valid reason may be relevant to the appropriate amount by which compensation should be reduced.100
[467] I have found earlier that there was not a valid reason for the dismissal, and I do not accept that Mrs Trail engaged in misconduct. Where she did breach the gift policy, I do not consider that it constituted misconduct. Where Mrs Trail used foul language in an email in December 2019 at [209], relevant to Mr O’Brien’s visit to the stadium on this occasion, I consider it was extremely inappropriate. It was not, however conduct that contributed to the Respondent’s decision to dismiss Mrs Trail. Accordingly, there is no deduction required. I have, however, used my discretion to make an appropriate deduction on account of the inappropriateness of the email, discovered following Mrs Trail’s departure from the Respondent.
Shock, distress etc. disregarded
[468] I confirm that any amount ordered does not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt caused to Mrs Trail by the manner of the dismissal.
Compensation Cap
[469] The high-income threshold immediately prior to the dismissal was $153, 600, and the amount for 26 weeks was $76, 800. The amount of compensation the Commission will order does not exceed the compensation cap.
Payment by instalments
[470] This is not an appropriate consideration given the size of the Respondent.
Order of compensation
[471] I have determined that the Respondent is to pay to Mrs Trail an amount of $28,269.22 less $8,076.92 for the notice period paid to her and less any earnings from her in other employment between 17 September 2020 and 23 December 2020. I have made a further deduction of 10% on account of the inappropriateness of the email at [209], disparaging Mr O’Brien. The calculation will look like this:
Compensation of 14 weeks: | 14 x $2,019.23 | $28,269.22 |
Less remuneration earned between 17 September 2020 and 23 December 2020 | To be confirmed | |
Total: | To be confirmed | |
Less 10% | To be confirmed | |
Total: | To be confirmed | |
Less 4 weeks’ notice: | 4 x $2,019.23 | -$8,076.92 |
Total: | To be confirmed | |
[472] In addition, the Respondent is to pay superannuation on the amount, once determined, at the rate of 9.5% (as it was prior to 1 July 2021) into Mrs Trail’s superannuation fund.
[473]
Mrs Trail is directed to provide evidence of her gross earnings between 17 September 2020 and 23 December 2020 to my chambers by Monday, 19 July 2021. COMMISSIONER
Appearances:
Trail K, Applicant.
O’Brien A, Respondent.
Hearing details:
19 January 2021, by Telephone.
20 January 2021, by Telephone.
1 February 2021, by Telephone.
9 February 2021, by Telephone.
Printed by authority of the Commonwealth Government Printer
<PR731633>
1 Transcript at PN355.
2 Ibid at PN355.
3 Ibid at PN374.
4 Ibid at PN376.
5 Ibid at PN389.
6 Ibid at PN390.
7 Ibid at PN392.
8 Ibid at PN385.
9 Ibid at PN408.
10 Ibid at PN420-PN443.
11 Ibid at PN471.
12 Ibid at PN478-PN485.
13 Ibid at PN486-PN543.
14 Ibid at PN563-PN565.
15 Ibid at PN580-Pn594.
16 Ibid at PN600-PN614.
17 Ibid at PN655-PN657.
18 Ibid at PN1375.
19 Ibid at PN1382.
20 Ibid at PN1386.
21 Ibid at PN1396.
22 Ibid at PN1397-PN1414.
23 Ibid at PN1451.
24 Ibid at PN1473-PN1477.
25 Ibid at PN1502.
26 Ibid at PN1523-PN1529.
27 Ibid at PN1546.
28 Ibid at PN257-PN258.
29 Ibid at PN170-PN173.
30 Ibid at PN178-PN181.
31 Ibid at PN275-PN281.
32 Ibid at PN708.
33 Ibid at PN733-PN741.
34 Ibid at PN760.
35 Ibid at PN764.
36 Ibid at PN1152.
37 Ibid at PN1593-PN1610.
38 Ibid at PN1620-PN1640.
39 Ibid at PN1649-PN1670.
40 Ibid at PN1672-PN1680.
41 Ibid at PN2567-PN2572.
42 Ibid at PN2582-PN2588.
43 Ibid at PN2610.
44 Ibid at PN1836.
45 Ibid at PN1881.
46 Ibid at PN1900-PN1903.
47 Ibid at PN1917-PN1923.
48 Ibid at PN3314-PN3327.
49 Ibid at PN3328-PN3337.
50 Ibid at PN859.
51 Ibid at PN868-PN873.
52 Ibid at PN881-PN887.
53 Ibid at PN890-PN902.
54 Ibid at PN903-PN941.
55 Ibid at PN966.
56 Ibid at PN967-PN984.
57 Ibid at PN989-PN992.
58 Ibid at PN997-PN1007.
59 Ibid at PN1236-PN1242
60 Ibid at PN1249.
61 Ibid at PN838.
62 Ibid at PN1282.
63 Ibid at PN836.
64 Ibid at PN836.
65 Ibid at PN1344.
66 Ibid at PN1775-PN1789.
67 Ibid at PN2699-PN2741.
68 Ibid at PN2780.
69 Ibid at PN2775.
70 Ibid at PN2857-PN2867.
71 Ibid at PN1756.
72 Ibid at PN2068.
73 Ibid at PN1756-PN1758.
74 Ibid at PN2091-PN2101
75 Ibid at PN2169-PN2187.
76 Ibid at PN2194.
77 Ibid at PN1755.
78 Ibid at PN2244-2245.
79 Ibid at PN2783-PN2817
80 Ibid at PN2533.
81 Workplace Relations Act 1996 (Cth).
82 [2006] AIRC 496 (PR973462).
83 [2017] FWCFB 3491.
84 Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30,
[(2009) 185 IR 359].
85 O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at
para. 23, [(2006) 58 AILR 100].
86 PN1496.
87 PN2063, PN2068, PN2080, PN2194, PN2299.
88 (1995) 185 CLR 410, [465].
89 Sayer v Melsteel[2011] FWAFB 7498 at [20].
90 Walton v Mermaid Dry Cleaners Pty Ltd(1996) 142 ALR 681, 685.
91 Edwards v Justice Giudice [1999] FCA 1836, [7].
92 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
93 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
94ASP Group (Placements) Pty Ltd v O’Loughlin[2011] FWAFB 5230
95 (1998) 88 IR 21.
96 [2013] FWCFB 431.
97 [2014] FWCFB 8683.
98 [2015] FWCFB 2267.
99 Read v Gordon Square Child Care Centre Inc.[2013] FWCFB 762 [83].
100 Ibid.
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