Ms Jane Louise Peterson v Belmont Golf Club Ltd
[2010] FWA 7926
•29 OCTOBER 2010
[2010] FWA 7926 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Jane Louise Peterson
v
Belmont Golf Club Ltd
(U2010/523)
COMMISSIONER MACDONALD | SYDNEY, 29 OCTOBER 2010 |
Application for unfair dismissal - termination on ground of inappropriate conduct - application declined by FWA
[1] This decision arises from an application by Jane Peterson (the applicant) pursuant to section 394 of the Fair Work Act (the Act) for a remedy in respect of her dismissal by Belmont Golf Club Ltd (the respondent).
[2] The dismissal was advised on 26 March 2010 when the applicant was advised by mail that she had been dismissed. The letter of dismissal was dated 25 March 2010.
[3] The unfair dismissal application was lodged with Fair Work Australia (FWA) on 31 March 2010.
[4] The application was dealt with by an FWA Conciliator on 29 April but did not settle. The application was programmed for Hearing.
[5] The Hearing took place before myself in Newcastle on 17, 18 August and 6, 7 September 2010.
[6] The applicant was represented by Mr Chris Acev, Union Official, Liquor, Hospitality & Miscellaneous Union, Liquor & Hospitality Division, NSW Branch (the Union). Mr Acev called the following witnesses:
Sue Oliver | golf club member |
Maria Camilleri | golf club member |
Fran Pryor | golf club member |
Jane Peterson | the applicant |
[7] The respondent was represented by Mr Richard Tait, of the Registered Clubs Association of New South Wales. Mr Tait called the following witnesses:
Wayne Lambert | former Secretary Manager |
Peta Collard | Bar Attendant |
Iain Mayo | Bar Attendant |
Paul Crittenden | Honorary Treasurer & Director |
[8] Prior to the commencement of the second day of the Hearing, an inspection was held at Belmont Golf Club. Present at the inspection was Mr Acev, Mr Tait and myself. We inspected the relevant bar area and surrounds.
BACKGROUND
[9] The applicant was employed by the Belmont Golf Club (near Swansea, Newcastle) since 24 February 2000. At the time of her dismissal, she was employed as Bar Supervisor.
[10] The incident, for which the applicant was dismissed, occurred on 18 March 2010. On that day, the applicant was working the bar, serving the golfers who had finished their round of golf for the day. The service being provided included the service of drinks and coffee.
[11] Apart from the applicant, there was a Bar Attendant assisting. Her name is Peta Collard and she was a witness in the proceedings.
[12] Also working that day and near to the bar area, was the Secretary Manager, Wayne Lambert. He was working in the safe room located directly behind and at one end of the bar. The safe room is separated from the bar by a door. At the time of the incident, the door was slightly ajar by a few centimetres.
[13] Whilst working in the safe room, Wayne Lambert deposed that he heard the applicant say: “This place is a fucking circus, its run by a bunch of clowns, its a fucking circus.” 1
[14] After hearing these comments, he walked out of the safe room, but not into the bar area. Instead, he exited the safe room from a back door, which exits into the reception desk area. He walked a short distance to the bar area. He deposed this took approximately 20 seconds. He noticed the applicant behind the bar, near the coffee machine. Directly opposite the applicant (on the other side of the bar) was a club member (Rob Toby). He noticed as well, Peta Collard, in the bar area. He said that when the applicant spoke those words, she would have been within five (5) metres of where he was seated in the safe room. 2
[15] Mr Lambert deposed that he did not speak to the applicant at the time, as he did not wish to inflame the situation. He approached the applicant two days later on Saturday, 20 March at 8.00am. He asked her to speak with him on the following Wednesday, 24 March. There was a disagreement between the applicant and Mr Lambert as to whether he had indicated that there were some serious issues to discuss. The applicant said she was not aware of there being serious issues for discussion.
[16] On 22 March, Wayne Lambert approached Peta Collard who had been working the bar at the time of the alleged derogatory comments of the applicant. She was asked if she had heard the applicant make any derogatory comments and she confirmed she had. Mr Lambert asked her if she was prepared to make out a witness statement. Ms Collard deposed that she said she did not want to get involved in the matter. 3
[17] The meeting that Mr Lambert asked the applicant to attend did take place on 24 March. There was a dispute in the evidence as to the conversation between Mr Lambert and the applicant prior to the meeting taking place. The applicant said she was caught unawares by the attendance of the Club Captain (Ross Jack) at the meeting and caught unawares that she would need a support person. This support person was Marie Goff - financial controller - who was called at short notice.
[18] Mr Lambert put his allegation to the applicant as to the foul language outburst of 18 March.
[19] The applicant denied making any such comment. She deposed that she suggested that Mr Lambert had his wires crossed and was he sure he was not talking about Rob Toby’s outburst. Mr Toby was present at the bar at the time. The applicant said that Rob Toby was furious after missing out on a tender for the Belmont Golf Club and was calling the club for everything, swearing and demanding to see Mr Lambert and find out why he had missed out on the tender. 4
[20] A short time later, the meeting concluded with Mr Lambert suspending forthwith the applicant from further duties.
[21] Mr Lambert considered the applicant’s response to the allegation and her employment history the next day. On that same day, he decided to terminate her services and wrote out a letter to that affect on the same day - 25 March. The applicant received that letter in the mail the next day and that was her first notification of her dismissal.
[22] On or around 1 July 2010, Peta Collard was approached by Mr Lambert and asked if she would make out a witness statement. After being told that Mr Iain Mayo and Mr Roberson would be providing witness statements, she felt that she should as well. 5 She deposed that she heard the applicant say, “this place is a circus and they run it like a bunch of clowns.”6
FINAL SUBMISSIONS
For the Applicant
[23] Mr Acev put the following in final submissions:
(a) The respondent relied upon the alleged derogatory comments of 18 March and the applicant’s employment history to support her termination.
(b) As to the employment history, the only evidence that exists of the meeting of 7 August 2009, that gave rise to a first and final warning, is a diary note made by Mr Lambert. The accuracy of that diary note and the other diary notes relied upon by Mr Lambert, for use against the applicant, are at the least questionable as to their accuracy.
(c) There is little justification for the issuing of the first and final warning.
(d) The evidence showed that Mr Lambert was lacking as a manager. He was intimidated by the applicant, not because of her behaviour, but because of her expertise, knowledge and ability.
(e) The other matter relied upon for the dismissal, was Mr Lambert’s claim that he overheard the applicant make a foul and derogatory comment about the Club. The applicant denied making such a comment, as claimed by Mr Lambert. No other variation of that alleged statement (as said by Ms Collard) was put to the applicant by Mr Lambert during his questioning of the applicant prior to dismissal.
(f) The evidence of Mr Lambert and Ms Collard as to what they claim they heard from the applicant, are contradictory. Mr Lambert says that he heard foul and derogatory language. Ms Collard makes no reference to foul language use in her claim as to what she heard from the applicant. Accordingly, Mr Lambert’s claim as to what he heard must be untrue.
(g) There was no valid reason for the termination of the applicant.
(h) The applicant sought reinstatement, continuity of employment and the appropriate back pay. Evidence going to re-establishing this employment relationship did not prevent an order for reinstatement. Mr Lambert, who dismissed the applicant, had resigned his employment.
(i) Failing reinstatement, then maximum compensation was sought.
For the Respondent
[24] Mr Tait, for the respondent, put the following in final submissions:
(a) The respondent was opposed to reinstatement.
(b) The employment history (as contained in Mr Lambert’s diary notes) showed that Mr Lambert acted correctly in dismissing the applicant. The diary notes gave examples of the applicant being critical of the management of the Club. Some of that criticism was made in public and against staff, management and directors.
(c) Mr Lambert said that he heard the applicant utter certain words of a foul and derogatory manner. This was a ground for dismissal. Ms Collard’s evidence does not refer to the foul language but only the derogatory language, which in itself is a ground for dismissal.
(d) The witnesses called by the applicant are golfing members of the Club. They are a group of lady golfers who are critical of the way the Clubs is run.
(e) The evidence showed that there was a valid reason for dismissing the applicant and the application for reinstatement was opposed. (Mr Tait did not put the back-up submission that if I found the dismissal unfair, then reinstatement should not be granted on the ground that reinstatement was impracticable.)
CONSIDERATION
[25] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[26] The unfair dismissal application was made five (5) days after termination and was therefore made within the fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.
[27] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for my consideration. Therefore, the applicant is a person protected from unfair dismissal.
[28] Paragraph (c) and (d) of section 396 have no relevance in this case.
[29] The applicant claimed that she had been unfairly dismissed and sought reinstatement and money for lost remuneration.
[30] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:
“(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[31] Paragraph (a) of section 395 is satisfied by way of the dismissal of the applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the applicant said her dismissal was harsh and/or unjust and/or unreasonable.
[32] In order to determine whether the applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the factors set out in section 387. Those factors are:
“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matter that FWA considers relevant.”
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);
[33] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issues put against the applicant related to her conduct.
[34] Mr Lambert set out in writing, the reasons for the applicant’s dismissal. The termination of employment letter is dated 25 March 2010. 7 The termination letter advises that as a consequence of a series of events going back a number of months, that the employment relationship has irreparably broken down. In particular, the incident of 18 March 2010 is cited as a ground for termination.
[35] For convenience sake, the consideration of the evidence is going to those incidents will be split into a consideration of the “18 March Incident” and a consideration of all other incidents under the heading of “Past Employment Incidents”. The incidents coming under the latter heading, culminated in the issuing of a first and final warning letter to the applicant. The Union challenged these incidents as grounds for the issuing of the first and final warning.
Past Employment Incidents
[36] The bulk of the evidence going to past employment incidents, came from Mr Lambert. Other evidence came from Paul Crittenden and Iain Mayo.
[37] The basis for the past employment incidents was a document created by Wayne Lambert and headed; “Notes that have been entered in my diary from discussion with Jane Peterson” (“diary notes”). 8 Mr Lambert gave evidence that he maintained a diary and recorded events in that diary. His evidence was that his diary notes were a “verbatim” reflection of his actual diary entries.9
[38] The diary notes covered the period 1 April to 2 August 2009 inclusive. The diary notes centred around the applicant. They included observations about the applicant’s conduct at work and the reported interaction between the applicant and another person(s) at work. Not all of the diary entries represented direct observation or interaction by Mr Lambert. Some of the diary entries were reported to Mr Lambert (indirect evidence).
[39] Mr Lambert decided to act upon his diary notes and to that end he gave the applicant written notice, by letter of 4 August 2009, of a meeting for 7 August. The letter advised that the meeting concerned the applicant’s “on-going employment”. The two listed agenda items were her on-going criticism of the Club and the General Manager of the Club to members of the Club and to staff and her non-compliance with attending work in accordance with her rostered times. The applicant was invited to have a union representative. The respondent would be represented by an advocate from Clubs NSW. 10
[40] The applicant was provided with a copy of the diary notes about ten (10) minutes before the meeting of 7 August. The applicant was represented by Elaine Gibson, union official from the Union. Representing Clubs NSW was Mr Tait (the respondent’s advocate for the Hearing). The applicant gave evidence that the diary notes were discussed at that meeting; a break was taken during the meeting for a discussion between the applicant and her union representative; on resumption of the meeting, the applicant apologised; and Mr Lambert then advised he needed to consider overnight whether he should dismiss the applicant for her inappropriate behaviour. 11 Instead of dismissal, the applicant was given a letter of 10 August 2009, advising that she was on a Final Written Warning.12
[41] The applicant advised in re-examination, that she did not challenge or dispute at the time the Final Written Warning. 13
[42] Against that backdrop of an apology for inappropriate behaviour and not challenging the Final Written Warning, the applicant challenged in court, much of the content of the diary notes as to its accuracy and/or context. Despite that challenge, Mr Lambert still stood by his decision to issue the Final Written Warning, when cross-examined on the diary notes.
[43] It is not necessary to consider each diary entry and the evidence about the same, in evaluating whether there was a valid reason for the dismissal. Some of the diary entries have a theme which is consistent with the incident that led to the applicant’s dismissal: that is, inappropriate behaviour. I will now record the relevant parts of those entries:
- 3 April - Wayne Lambert spoke to the applicant about roster, staff hours, wages, etc. The applicant became very angry and aggressive. She indicated that Wayne Lambert had a lack of knowledge of running a club; she showed total disrespect and proceeded to yell and scream from behind the bar; two staff members (Scott and Maria) had to calm her down.
- 9 April - Wayne Lambert spoke to applicant and asked her to cease making comments to members (of the Club) and patrons regarding board members and other staff members. Jane (the applicant) made comments to other staff members that the new roster would not work and continued to undermine and disrespect the authority of Wayne Lambert.
- 11 April - Wayne Lambert asked for the beer cart sales to be entered in the till as a separate sale ... Jane (the applicant) was angry and aggressive towards the instruction .... Jane questioned why Lambert wanted it done that way ... she questioned Wayne Lambert’s authority ... and again asked if Wayne Lambert had any knowledge of running a club.
[44] The Final Written Warning letter of 10 August 2009, advised that the applicant was being warned about her continued poor attitude behaviour toward Wayne Lambert and the Board (Belmont Golf Club), especially in regard to criticisms of changes made by management and which were designed to run the Club more efficiently. Among the expectations and standards set out for the applicant was that she was to support management and not be openly critical to staff, members (of the Club) and directors; and any concerns were to be raised in a calm and professional manner.
The 18 March Incident
[45] The applicant was dismissed because of an incident on 18 March 2010. Wayne Lambert deposed that he was working in the safe room located behind the bar. He heard the applicant (who was working at the bar) say, “This place is a fucking circus, it’s run by a bunch of clowns, it’s a fucking circus.” He said the safe room door was ajar and that it was clearly the applicant whom he said, made the above comment. The applicant would have been within five (5) metres of where he was seated, although around the corner. He walked out of the safe room but did not go directly into the bar area. Instead, he took a detour route via the reception area - to the bar area - and this took about twenty (20) seconds. He then observed the applicant behind the bar, near the coffee machine, and at that bar directly opposite the applicant was a Club member (Mr Rob Toby). Mr Lambert also noticed Ms Peta Collard (Bar Attendant) at the bar. 14
[46] Ms Collard gave evidence. She deposed that initially she did not want to get involved in the matter when approached by Mr Lambert as to what she had heard. She confirmed she heard what Mr Lambert put to her but did not want to get involved as she did not want to cause or make drama. She later changed her mind when told that two other employees would be making out witness statements.
[47] Peta Collard’s witness statement records that she observed the applicant to be talking to a member of the Club, down at the coffee machine end of the bar. She overheard the applicant say to the member, words to the effect of “this place is a circus and they it run it like a bunch of clowns.” 15
[48] Peta Collard’s witness statement also recorded that Mr Lambert approached her on or around 22 March (four (4) days after the incident). He asked if she heard the applicant ‘say words to the effect of “this place is run like a circus and they’re a bunch of clowns’” Peta Collard responded “yes”. 16
[49] Mr Lambert met with the applicant on 24 March 2010. He put to her his allegation as to what he deposed he heard her say. The applicant denied making such comment. 17 She deposed she suggested to Mr Lambert that he had his wires crossed (as to what he heard) and maybe he was talking about Rob Toby’s outburst on 18 March. She said Mr Toby was furious after missing out on the tender (for a job with the Club) and was calling the Club for everything, swearing and demanding to see Wayne Lambert to see why he had missed out on the job.
[50] Apart from the applicant denying she uttered the words deposed by Mr Lambert, the applicant also had three members of the Club give evidence in support of her case: Sue Oliver, Maria Camilleri and Fran Pryor. All three were in the Club on 18 March, after the ladies golfing competition. All three deposed that one or more lady members were discussing the problems at the Club and that the language was quite “colourful”, when speaking about the Board and management. They deposed that they had not heard the applicant express an opinion (let alone of a colourful nature) adverse to the Board and its management. 18
[51] As to their evidence, two observations can be made, firstly, there is the question of bias. The evidence throughout the Hearing showed that there was one or more factions amongst some of the Club members and one or more of these factions was/were opposed to the current Board of Directors. Thus, one of the lady witnesses deposed that “this place is run by a bunch of dickheads,” (referring to the Board and management of the Club). 19 My observation of the demeanour of the three witnesses is that they were highly supportive of the applicant. They were biased in her favour and biased, to one degree or another, against the Board and/or its policy direction(s). My other observation (apart from bias) is that the evidence of the three witnesses does not contradict the evidence of Mr Wayne Lambert. Their collective evidence is that they did not hear her utter the words alleged by Wayne Lambert. That collective evidence does not mean that the applicant did not utter those alleged words.
[52] The applicant said to Wayne Lambert that he must have had his wires crossed and heard Rob Toby utter, presumably those words or similar words. Rob Toby was not called as a witness to show that Wayne Lambert had his wires crossed.
[53] Apart from the applicant denying that she uttered the words alleged by Wayne Lambert, the Union also put forward a defence as to why I should reject Mr Lambert’s version of the words uttered. This defence involved a consideration of certain wording in the termination letter, Mr Lambert’s version of the words uttered and Peta Collard’s version of the words uttered by the applicant.
[54] The termination letter said in part that “you (the applicant) used foul and derogatory language in reference to the Club itself, as well in reference to the Board of Directors and Secretary Manager, whilst speaking to a Club member.” 20 The Union pointed out that it was only Mr Lambert’s version of words uttered that included the word, “fucking” and therefore the above quoted words as the reason for dismissal, were only referring to Mr Lambert’s version. By contrast, it was submitted that the above quoted words as the reason for dismissal, were not referring to Peta Collard’s version of words uttered as her version did not contain the word “fucking”. Even more, Wayne Lambert said in the witness box that his version of the words uttered were so clear in his mind, that he would swear on a stack of bibles and go to his grave that his version is what he heard the applicant say. It was then put to myself that Ms Collard’s version contradicts substantively the version put by Mr Lambert. Her version was substantively different because her version lacked the word “fucking, (and hence no reference to foul language); her version lacked the gravity and the intensity of Mr Lambert’s version. Therefore, I really only had before me for consideration, two (2) conflicting pieces of evidence: Mr Lambert’s version and the applicant’s denial.
[55] I reject that submission by the Union. The evidence of Peta Collard corroborates that of Wayne Lambert. It matters not that her version as to what she recalled the applicant uttering, does not contain the word “fucking.” It is trite to say that two people can witness the same car accident but give different version of the car accident. For example, one witness says a red coloured car, the other an orange colour; one says it was a male driver, the other says it was a female driver. Be that as it may, they both witnessed a car accident. With or without that descriptor, (“fucking”) the versions of Wayne Lambert and Peta Collard corroborate each other that the applicant criticised the Club (“this place is a (fucking) circus”) and criticised those who ran the Club (“it is run by (fucking) clowns”). The words “run by” would entitle Wayne Lambert to say in his dismissal letter that the applicant’s criticism was wide ranging: the Board of Directors and Secretary Manager (Wayne Lambert himself).
[56] The Union sought to undermine the evidence of Wayne Lambert and Peta Collard (as they are entitled to do) by arguing that certain factors may have impacted on Lambert’s and Collard’s hearing capacity. For example, Wayne Lambert was not in the bar area itself when the alleged words were uttered - he was in the safe room with the door (common to the safe room and the bar area) only slightly ajar and therefore he would have had hearing difficulties. Peta Collard was questioned as to where she was actually positioned in the bar when the alleged words were uttered. The noise emanating from the gaming room and the sports room, and the noise of the coffee machine etc. were raised as distracting factors. None of that evidence impacted on the conviction of Wayne Lambert and Peta Collard in the witness box as to what they say they heard the applicant say.
[57] Having considered the evidence on this issue, I find that the applicant uttered the words as stated by Mr Lambert. The evidence of Peta Collard supports that finding.
[58] In coming to that conclusion I find that the criticism made by the applicant, is consistent with the criticism for which she was given a Final Written Warning in August 2009. In that regard, I extracted above, certain parts of Wayne Lambert’s diary notes being evidence of previous criticisms made by the applicant of Wayne Lambert, Board members and other staff (3, 9 and 11 April). Although the applicant challenged, during the Hearing, the various matters (including that she criticised Wayne Lambert) for which she was given a Final Written Warning, I have rejected that challenge.
[59] In so rejecting that challenge, I was persuaded by the following issues:
(a) the applicant apologised at the time (7 August 2009) for her inappropriate behaviour (including for criticising Wayne Lambert, the Board and staff). In doing so, she acknowledged her own inappropriate behaviour.
(b) during her meeting of 7 August with Wayne Lambert, she was accompanied by a union official. Thus, the applicant had representation to assist her as to her responses (and apology) at that meeting.
(c) the applicant did not challenge the Final Written Warning letter. That is, she did not respond to the letter by diplomatically acknowledging the Final Warning but protesting her innocence so to speak.
(d) arising out of the Hearing, I had the opportunity to observe the witnesses in the giving of their evidence. Wayne Lambert and Peta Collard were subjected to a sustained questioning of their evidence but neither could be shaken as to their evidence as to the applicant’s inappropriate behaviour. In particular, Peta Collard (a reluctant witness called by the respondent) gave as good as she got under questioning from the Union.
(e) The applicant denied she acted in an angry and/or aggressive way in respect of evidence given by witnesses that she acted that way. The applicant, however, admitted that she talked loud and was assertive. 21 As to that, the applicant interrupted the Hearing after she had given her evidence and was at the time seated at the bar table, alongside her Union advocate, Mr Chris Acev. The first occasion was when Peta Collard was in the witness box and responding to questioning from Mr Acev. As to one response/answer given by Ms Collard, the applicant interjected from the bar table with the answer, “No”. To this interjection, I instructed that there was be no interchange between Peta Collard and the applicant.22 Later on, Mr Paul Crittenden gave evidence. Whilst he was being cross-examined by Mr Acev of the Union, Mr Tait interrupted and sought my attention. He advised that the applicant was making comments from the bar table in response to answers given by Mr Crittenden. Before I could respond to this legitimate protest, Mr Acev said, “I’ll caution Ms Peterson (the applicant) again, Commissioner.”23 The protest by Mr Tait was legitimate because the applicant could be heard in court, to be commenting on the evidence of Mr Crittenden. This was inappropriate conduct for court proceedings and Mr Acev properly advised the court that he would caution his client (the applicant). I was conscious of this audible commentary from the applicant and I was seated the most further away in the court room from the applicant. The significance of this ongoing audible commentary on Mr Crittenden’s evidence given from the witness box, is that it was inappropriate conduct on the part of the applicant and this was the very theme being run by the respondent that the applicant engaged in inappropriate conduct - that is, spoke out in public and made criticism of one or more persons or policies or procedures or the Club itself.
(f) the weight of the evidence was against the applicant as to her inappropriate behaviour. Although she denied inappropriate behaviour (but having apologised for it on 7 August 2009), there was evidence of her inappropriate behaviour from Wayne Lambert, Peta Collard, Iain Mayo and Paul Crittenden. I was being asked to accept that these four witnesses were all wrong or had taken the applicant’s comments out of context.
(g) the applicant’s evidence roamed at times and I made that observation known whilst the applicant was still giving evidence in the witness box.
(h) the applicant’s evidence of denial of claims of inappropriate behaviour was not credible. I was being asked to repeatedly accept that the claims were either not true or her conduct had been taken out of context. Based on the evidence provided by the witnesses called by the respondent, the responses given by the applicant in the witness box and my observation of her demeanour, I formed the view that the applicant’s denial of claims of inappropriate behaviour was not credible.
[60] Given the foregoing evaluation of the evidence, I have found that the applicant engaged in inappropriate behaviour - not only that for which she apologised in August 2009 but her outburst behind the bar, in a public area, on 18 March 2010.
[61] The applicant’s outburst on 18 March was one that was heard by Wayne Lambert and Peta Collard. It matters not that Peta Collard did not report the word “fucking” when she gave her evidence as to what she heard. Her version as to what she heard was consistent with Mr Lambert’s - that is, the applicant criticised the Club and those who ran the Club. I also hold that, with or without the word, “fucking”, either version represents a serious derogatory statement against the Club and those who run it. Thus, the applicant made a serious derogatory statement against her employer - and did so in a public forum.
[62] Those who ran the Club were entitled to take offence at this serious derogatory comment by the applicant and to say in the dismissal letter that the employment relationship between the applicant and those who ran the Club had irreparably broken down.
[63] Having considered all of the evidence and submissions, I find that there was a valid reason for the dismissal of the applicant.
(b) whether the person was notified of that reason
[64] The applicant conceded that she was notified of the reason for dismissal.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[65] The applicant was called to a meeting with Mr Lambert and given an opportunity to respond. The Union, however, on behalf of the applicant submitted that the applicant was not told of the agenda before the meeting and was somewhat caught unawares. Be that as it may, the applicant denied that she made the statement asserted by Mr Lambert.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussion relation to dismissal
[66] The applicant had a support person with her. The Union made the same submission as for (c) above.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about the unsatisfactory performance before the dismissal
[67] The applicant was previously warned about her inappropriate behaviour and given a letter headed, Final Written Warning.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[68] This factor was not an issue.
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal
[69] This factor was not an issue.
(h) any other matters that FWA considers relevant
[70] The applicant had a lengthy period of service with the Club (10 years). There was no evidence against the applicant as to her capacity to perform her job - the applicant began as a casual bar attendant and became the full time bar supervisor. The three lady golfers who gave evidence in support of the applicant, spoke glowingly about the applicant’s dedication to her job. The person who dismissed the applicant, Wayne Lambert, had resigned his employment with the Club and therefore there was no impediment in that regard to reinstating the applicant.
[71] Having considered all of the evidence concerning the above factors (b) to (h) inclusive, I am still of the view that the respondent had a valid reason for terminating the services of the applicant.
CONCLUSION
[72] The applicant filed an unfair dismissal application and sought reinstatement as her primary remedy. In the alternate, she sought compensation on the ground of an unfair dismissal.
[73] The applicant claimed an unfair dismissal against the background of having been given a Final Written Warning for inappropriate behaviour. She was dismissed several months after being given that Final Written Warning for the same issue - inappropriate behaviour.
[74] For the reasoning set out in the Decision, and having considered all of the evidence, I have found that the dismissal of the applicant was not unfair: that is, was not harsh, unjust or unreasonable.
[75] Even if I had found that the dismissal was unfair, I would not have ordered the reinstatement of the applicant as I took the view that the employment relationship had irretrievably broken down. I specifically asked the advocates to address me in final submissions on the impracticability of re-establishing the employer-employee relationship. I have formed the view that the relationship could not be re-established given the seriousness of the derogatory comment made on 18 March 2010 and that it was made in the public forum; the pattern of conduct by the applicant in criticising one or more persons at a time in respect of the Club’s policies, procedures or management of the Club; and based on my observation of the applicant’s demeanour in respect of her evidence in the witness box and bar table commentary, as that demeanour relates to her relationship with the Club’s managerial and non-managerial staff.
[76] I formally advise that I decline to intervene in the decision of the respondent to terminate the services of the applicant.
COMMISSIONER
Appearances:
Mr C Acev, union official, for the applicant
Mr R Tait, employer advocate, for the respondent
Hearing details:
2010
Newcastle
17 and 18 August
6 and 7 September
1 Ex 11, para 8
2 ibid, para 9 - 11
3 Ex 14, para 13
4 Ex 4, para 41
5 Ex 14, para 15 -16
6 ibid, para 7
7 Ex 12
8 Ex 4, Annex B & Ex 11, Annex I
9 PN 2114, 18 August 2010
10 Ex 11, Annex H
11 PN 1598 to PN 1610, 18 August 2010
12 Ex 4, Annex C & Ex 11, Annex J
13 PN 2020 to PN 2026, 18 August 2010
14 Ex 11, paras 7 to 12
15 Ex 14, paras 6 & 7
16 ibid, paras 10 to 12
17 Ex 4, para 40
18 Ex 1, Ex 2 & Ex 3
19 Ex 1, para 6
20 Ex 12
21 PN 887, 17 August 2010
22 PN 2966, 6 September 2010
23 PN 3431 to 3433, 6 September 2010
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