Pili v Ayers Rock Resort Company Ltd
[1997] IRCA 294
•13 Nov 1997
DECISION NO:294/97
INDUSTRIAL RELATIONS COURT OF AUSTRALIA
INDUSTRIAL LAW - Alleged UNLAWFUL TERMINATION - whether VALID REASON for termination - alleged MISCONDUCT outside of work hours - fighting - whether conduct had relevant connection with employment - whether BREACH OF CONTRACT - whether contractual regulation of conduct after hours was reasonable - SUMMARY DISMISSAL - whether WAIVER of misconduct -whether breach of award term that dismissal not be harsh, unjust or unreasonable - whether employee was given OPPORTUNITY TO RESPOND.
Industrial Relations Act 1988 (now Workplace Relations Act 1996) - ss 170DB, 170DC, 170DE, 170EA, 170EDA.
Trespass Act 1987 (NT).
Yulara Tourist Village Management Act 1984 (N.T.).
Tourist Village Management Act 1984 (N.T.)
Hotel, Motels, Wine Saloons, Catering, Accommodation, Clubs and Casino Employees (NT) Consolidated Award 1986.Hussein v Westpac Banking Corporation (1995) 59 IR 103.
HEF of Australia v Western Hospital (1991) 4 VIR 310.
Dunning v Neata Glass Service Pty Ltd (unreported, IRCA No. 630 of 1995, Blockland JR, 17 October 1995).
Cook v Commissioner of Police (1996) 66 IR 361.
Osbourne v Woolworths SA Ltd (1992) 59 SAIR 600.
Re: Transfield Pty Limited re dismissal of a Union Delegate [1974] AR (NSW) 596.
Warner v Commissioner of State Revenue (unreported, IRCA No. 269 of 1997, RD Farrell JR, 16 September 1997).
North Australian Workers’ Union v Newcastle Protective Coating Pty Ltd (1971) 13 AILR 603.
AWU (WA Branch) v Argyle Diamond Mines Pty Ltd 73 WAIG 2650.
Western Mining Corporation Limited v The Australian Workers’ Union (WA) 77 WAIG 1079.
Hallam v St Barbara Mines Ltd (unreported, IRCA No. 286 of 1997, RD Farrell JR, 29 October 1997).
AEEFEU (WA Branch) v Rottnest Island Authority 74 WAIG 130.
Jupiters Ltd v Thirkettle and McGinness (unreported, IRCA No. 258 of 1997, Madgwick J, 25 July 1997).
Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370.
Wadey v YMCA Canberra (unreported, IRCA No. 542 of 1996, Moore J, 12 November 1996).
Westen v Union des Assurances de Paris (unreported, IRCA No. 660 of 1996, Madgwick J, 17 December 1996).EKA JOSIE PILI -v- AYERS ROCK RESORT COMPANY LIMITED
DI 1096 OF 1996JUDICIAL REGISTRAR: R.D. FARRELL JR
PLACE: PERTH (HEARD IN ALICE SPRINGS)
DATE: 13 NOVEMBER 1997GENERAL DISTRIBUTION
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
DI 1096 of 1996
BETWEEN: EKA JOSIE PILI
APPLICANTAND: AYERS ROCK RESORT COMPANY LIMITED
RESPONDENT
JUDICIAL
REGISTRAR:
R.D. FARRELL, JR
DATE OF ORDER:
13 NOVEMBER 1997
WHERE MADE:
PERTH (HEARD IN ALICE SPRINGS)
THE COURT ORDERS:
1. The application is dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
GENERAL DISTRIBUTION
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYDI 1096 of 1996
BETWEEN: EKA JOSIE PILI
APPLICANTAND: AYERS ROCK RESORT COMPANY LIMITED
RESPONDENTJUDICIAL
REGISTRAR: R.D. FARRELL, JRDATE: 13 NOVEMBER 1997
PLACE: PERTH (HEARD IN ALICE SPRINGS)
REASONS FOR DECISION
This is an application under Section 170EA of the then Industrial Relations Act 1988, now known as the Workplace Relations Act 1996 (“the Act”). The application is for reinstatement or, in the alternative, compensation arising from the alleged unlawful termination of the employment of the applicant, Ms Eka Josie Pili (“Ms Pili”), by the respondent, the Ayers Rock Resort Company Limited (“ARRC”).
ARRC owns and runs a resort complex at Yulara, in the Northern Territory. This complex is made up of a number of different businesses, each of which is targeted at a different portion of the tourist market, but almost all of which are owned by ARRC.
According to ARRC’s employee handbook, as at 1995 the resort had a residential community of almost 1,000 people and was the fourth largest population centre in the Northern Territory when fully occupied (following Darwin, Alice Springs and Katherine). ARRC led evidence to the effect that it had 600 employees on average, though it seems the number fluctuated on a seasonal basis.
The resort is isolated, being 445 kilometres by road from Alice Springs; Counsel for the respondent describes it as an “island in the desert”. People working at the resort rent accommodation owned by the Northern Territory Housing Commission (“NTHC”). The resort also has staff facilities such as bars and a gymnasium, a school, a medical centre, a police station, and a fire station.
Ms Pili was employed by ARRC as a receptionist at its campgrounds in June 1996. She had previously been employed by ARRC for 18 months up to June 1995. She was encouraged to return to ARRC by her former supervisors and it was not in dispute that she was good at her job. She was 29 years of age at the time of her dismissal.
The Incident
In the early hours of Sunday, 27 October 1996, Ms Pili became involved in an altercation (“the incident”) with another of ARRC’s employees, Ms Melody Catling (“Ms Catling”). This altercation, which led to Ms Pili being charged with assault and with unlawful damage to property, also set in train a chain of events which culminated in her dismissal.
Ms Pili had attended the Residents Club on the evening of Saturday 26 October 1996 with her cousin, Ms Stacey Etepo, who was also an ARRC employee. Ms Pili was staying at Ms Etepo’s unit until other appropriate accommodation became available for her. They were accompanied to the Residents Club by two other friends. The Residents Club is described in the employee handbook as a social spot for residents to visit, containing two bars and a range of entertainment, including live entertainment, pool tables, and a barbecue.
Ms Catling also attended the Residents Club that night. In October 1996, she was working at the airport for ARRC, having held other positions with ARRC over the previous 18 months. She also worked part-time behind the bar at the Residents Club, though she was not working that Saturday night. Ms Catling had never worked with Ms Pili.
Ms Pili concedes that she had too much to drink that night. As she and Ms Etepo were walking home from the Residents Club, they saw Ms Catling walk past them. Ms Catling did not notice them.
Ms Pili decided she wanted to talk to Ms Catling about tensions between them. Some time earlier, it is not clear whether it was weeks or months before, Ms Pili had inadvertently knocked a drink from Ms Catling’s hand while on the dance floor at the Resident’s Club. They had not previously had dealings with each other. Ms Catling immediately demanded the cost of another drink - $3.50. Ms Pili was not prepared to pay for another drink because she had very little money with her that night, and because she believed Ms Catling should not have had a drink on the dance floor. Their friends intervened to stop any further confrontation, with Ms Pili’s friend buying Ms Catling a drink. Ms Pili left the Club soon after.
Ms Pili approached Ms Catling about a week later, presented her with a drink and apologised. Ms Catling accepted her apology and told her she considered the matter over. Ms Pili was not happy with this response, being of the view that Ms Catling should have reciprocated the apology, given that she was, in Ms Pili’s view, at least partly to blame for the drink being spilt. However, Ms Pili said nothing about her unhappiness at the time.
Following those discussions, Ms Pili came to believe that Ms Catling’s friends were giving her “the evil eye” or “filthy looks”. As a result Ms Pili says she became increasingly upset. She decided, in her state of intoxication in the early hours of the Sunday morning, to confront Ms Catling about these matters.
Ms Catling says that she returned to her unit from the Residents Club at about 2.20am, and went to the toilet. While there, she heard a crash at her door. She left the toilet and made her way back toward the front of the unit and found Ms Pili in her living room, and the screen door apparently broken.
Ms Pili says that the aluminium screen door was on runners. When she went to enter Ms Catling’s unit, she couldn’t open the screen door but, because it was light, she was easily able to lift it off its tracks.
Three people were present during the altercation that followed: Ms Catling, Ms Pili and Ms Etepo. There were numerous differences in their evidence as to the timing and location of the events and statements that follow.
Leaving issues of timing and location aside, however, there is no dispute that:
· Ms Pili gained forcible entry into Ms Catling’s home;
· Ms Pili deliberately damaged the fly-screen door to Ms Catling’s unit to the extent that it required replacement;
· Ms Pili grabbed Ms Catling by the collar
· Ms Pili at some stage grabbed Ms Catling quite tightly by the throat, as if to strangle her, so that Ms Catling’s neck was scratched;
· Ms Pili probably hit Ms Catling in the face with the palm of her hand; Ms Catling says it happened while Ms Pili does not recall it but concedes that it is possible;
· Ms Pili pushed Ms Catling into the bedroom and onto her bed, holding her down; and
· Ms Etepo was continually trying to break up the altercation by pulling Ms Pili away and remonstrating with her.
Ms Pili harangued Ms Catling throughout the altercation, saying things like “what is your problem?” “Why did you ask for money for the drink?” “Why haven’t you apologised?” and “If you or your friends hassle me/don’t stop giving me dirty looks, I’ll come back and kill you”.
The differences in the accounts of the altercation might be summarised thus:
· Ms Catling recalls the incident as comprising an initial physical attack, a brief respite involving discussions around the kitchen table, followed by a further scuffle ending up on the bed, with Ms Etepo eventually persuading Ms Pili to leave. On being locked outside Ms Pili continued to call out to Ms Catling and kick the door for some time before leaving.
· Ms Pili recalls the incident as initially not involving any significant physical attack, and that she had left the unit after the kitchen table discussions until Ms Catling said something - it is not clear what - which caused Ms Pili to re-enter the unit and attack Ms Catling until they ended up on the bed. Ms Pili agrees that after she again withdrew, she remained outside for some time and says it was then that she snapped the screen door in half.
I do not see these variations as important, but am inclined to accept Ms Catling’s account as more reliable, given Ms Pili’s state of inebriation.
Within half an hour, Ms Catling had reported the incident to Mr Darren Porter, who was part of a security service provided by ARRC. The record of her account of the incident to him was broadly consistent with her evidence.Ms Catling was witnessed by Mr Darren Porter in the minutes following the incident to be “very upset, with marks around her neck, face and arms’. She visited her doctor on Monday 28 October 1996. The notes of that visit record:
· bruising on back of right upper arm
· bruising and scratches on back of left upper arm
· scratches at the base of the neck, back and front
· complains of pain on movement of right and left trapezius [muscles in the back]
· scratches left thumb
· Pain right and left thenar eminence [ie the palms at the base of the thumb] from resisting assault
· Consistent with alleged assault (no major injuries, 100% recovery expected)
· Emotionally upset. Not sleeping at her own place at present.
Ms Catling rang in sick for work on Sunday 27 October 1996, and resumed work the following day.
Ms Catling has since requested new accommodation.
According to rosters tendered into evidence, Ms Pili was rostered to work on Sunday 27 October 1996 from 12.00pm. As she recalls it, however, she had a rostered day off that day. She says they were over-staffed at the campground, and that sometimes the rosters were adjusted after they had been issued. However, this is not consistent with the evidence of Mrs Anne Krepelnik, the manager of the campgrounds, who was later concerned about staffing levels when the proposition of suspending Ms Pili was raised with her.
It seems possible that Ms Pili was, as a result of the altercation, absent on a day when she was rostered to work. It may have been regarded at the time as a standard “sick” day, with no-one making the connection to the events of the early hours of that morning. It certainly seems that little emphasis was placed on this at the time by anybody. It is likely therefore that recollections on the matter are unreliable. If required to make a finding, I would find on balance that it was more likely than not that Ms Pili was and remained rostered to work on Sunday 27 October 1996, and did not attend work as a result of the altercation. I place little weight on the finding, however, given that it was not a matter that ARRC relied upon at the time.
Ms Pili says she slept through most of Sunday. The Police visited her, and arranged for her to see them at the station on Monday morning.
She attended the police station as arranged and was interviewed, finger-printed and photographed. She was charged with unlawful damage to property and with assault, with the Court hearing scheduled for 14 November 1996 before the Court of Summary Jurisdiction, sitting at the resort.
ARRC’s Response to the Incident
Darren Porter is a security guard employed by Bottom Line Risk Pty Ltd, a security firm employed by ARRC to provide security services for employees and guests.
Mr Darren Porter’s Patrol Report and subsequent incident reports record that:
· he received a call from Ms Catling at 2.50am on Sunday, 27 October 1996 stating that she had been assaulted by Ms Pili and would like to press charges;
· he attended Ms Catling’s unit at 3.00am and spoke with her;
· he then called the Alice Springs police at 3.15am. They advised that, unless there was a risk of further assault, Ms Catling should call into the resort’s police station in the morning;
· Ms Catling advised Mr Porter that she would stay with a friend.
The security firm’s incident report forms require its officers to rank each incident on a scale which ranges from “minor” to “serious” to “major”. Mr Porter ranked the incident in question as “serious”.
Mr Porter reported the incident to Ms Deborah Kerrins, and Mr Glenn Cameron, ARRC’s then Human Resources Managers at about 11.30am on the morning of Monday 28 October 1996. The Human Resources section was in a period of transition at the time. Ms Kerrins was leaving ARRC for other employment. Mr Cameron had been employed as the new Human Resources Manager. The incident concerning Ms Pili occurred during their “hand-over period”. Mr Porter made his incident report available to both of them. It was agreed after discussion between Mr Cameron, Ms Kerrins and Mr Porter that Ms Pili should be interviewed about the matter, so that she had an opportunity to respond to Ms Catling’s allegations. Mr Cameron says he was of the view that, if the allegations appeared to be factually based, then Ms Pili should be at least suspended pending further investigations.
Ms Pili worked on Monday, 28 October 1996 as rostered, from 12.00pm until 8.30pm. She told the managers of the campground, Mr and Mrs Rudy and Anne Krepelnik, about the incident and the charges. Mrs Krepelnik volunteered in evidence that she found it difficult to believe that Ms Pili could do such a thing.
At about 4.20pm on Monday, 28 October 1996, about a day and a half after the incident, Mr Porter and Ms Kerrins interviewed Ms Pili at work at the campground reception for about forty minutes; Mr Cameron had an appointment elsewhere. Based upon the oral evidence of the participants, and upon notes made by Mr Porter and Ms Kerrins soon after, I find that the interview proceeded as follows.
Mr Porter and Ms Kerrins asked Ms Pili to provide them with a written statement about the incident. She replied that she had been advised by the police not to talk, write or sign anything until the criminal charges against her had been heard. Ms Pili understood that Ms Kerrin’s enquiry was directed at the consequences of the incident upon her employment; Indeed, she queried what business it was of “security”, given that the incident happened outside of work.
Ms Kerrins advised that if Ms Pili did not respond, then that would mean that ARRC would only have one side of the story to act on. She asked that Ms Pili tell them her account of what happened, suggesting that she just talk about it.
After some initial reluctance, Ms Pili explained that the conflict between she and Ms Catling had begun over a spilt drink three weeks before and had been building ever since. She said she had gone to the Residents Club and had drunk until she became intoxicated. She admitted she went to Ms Catling’s unit and damaged the fly-screen door. She offered to pay for the damage caused, and was advised she would be invoiced. She admitted to entering Ms Catling’s unit without her permission, in order to sort out her grievance with her. She admitted grabbing Ms Catling by the throat at one point and pushing her onto her bed, but denied striking her. Ms Kerrins noted that Ms Pili cried as she recounted the incident, and appeared to be regretful of her actions. Mr Porter agrees that Ms Pili appeared upset and genuinely sorry. ARRC does not dispute that Ms Pili is genuinely remorseful about her conduct.
When asked by Ms Kerrins about the risk of it happening again, Ms Pili offered not to return to the Residents’ Club. She pointed out that she had been charged with assault, that the hearing was scheduled in two weeks’ time and that she would not want to jeopardise that. She said she knew that what she did was wrong, but that she couldn’t change it.
Mr Porter then served Ms Pili with a notice banning her from the Residents’ Club. The notice was in a standard form, adapted from a form recommended by the Northern Territory Hotels and Hospitality Association, and was in the following terms:
“NOTICE TO STAY OFF PREMISES
“THE RESIDENTS CLUB (THE PREMISES)
TO: Name: Josie Pili
Address: Gregory Staff Flats Unit #20A
1. BECAUSE of your: *
Present/Previous
* Excessive Drinking *Quarrelsome Behaviour
* Threatening Behaviour * Insulting Behaviour
*Possession of Drugs* Violent Behaviour
* Disorderly Behaviour *Possession of Weapons
*Failure to leave licensed premises after being asked to doso by the manager or his representative.* STRIKE OUT WHATEVER DOES NOT APPLY.
YOU ARE GIVEN NOTICE pursuant to the Trespass Act 1987 to leave and stay off the premises and adjacent areas for (1) ONE
weeks/months from the date of this notice (maximum period 12 months).
2.If you fail to heed this notice and do re-enter or attempt to re-enter the premises within that time, you will be a Trespasser within the meaning of the Trespass Act 1987.
3.BECAUSE I suspect that you are likely to trespass on the premises contrary to this notice, YOU ARE WARNED to stay off the premises for the period to above, pursuant to Section 8(1) and/or 8(2) of the Trespass Act 1987.
4.TAKE NOTICE that if you enter and trespass on the premises within that period, you may be liable to arrest and/or a substantial fine.
SERVED AT: Yulara DATE: 28/10/96
TIME: 5:05
AM/PM SIGNED: (signed)(signed) Security
(*Licensee/*Manager/*Authorised Person - Designation)”
In his incident report dated 28 October 1996, Mr Porter records that the notice was served “for the meantime, until management makes a decision about the outcome of the incident”. He recalls Ms Kerrins telling Ms Pili she would be banned from the Residents Club until the court case. That is also Ms Pili’s recollection.
Mr Porter and Ms Kerrins then saw Mrs Krepelnik after interviewing Ms Pili. She was asked about Ms Pili’s previous behaviour and performance. I infer, based upon Mrs Krepelnik’s other evidence, that they would have received a favourable report. Mrs Krepelnik says Ms Kerrins advised her that Ms Pili may be “suspended”. Mrs Krepelnik voiced a preference that Ms Pili not be suspended, partly because of the staffing needs at the campgrounds. Ms Kerrins does not recollect this part of the discussion.
There were numerous irreconcilable differences in the evidence of the various participants concerning the events over the next four days. While the differences are perplexing, I am satisfied that they do not arise through any dishonesty on the part of the witnesses. Rather, a failure by most to keep records has led to confusions as to timing, such that almost every witness provided a different narrative of the events that followed.
The following account reflects my findings, on balance, concerning those events.
There was then a meeting at about 6.15pm on that Monday evening at the Pioneer Outback Lodge. It was attended by Mr Cameron, Mr Porter, Mr Scott Butcher (General Manager, Hotels), Mr Brian Bowers (the Manager of the Pioneer Outback Lodge, to whom Mrs Krepelnik reported) and Ms Rosemary Hooper, (whose role is unclear).
Mr Cameron says he was of the opinion that Ms Pili should cease work immediately. Mr Cameron says he was concerned that Ms Pili should not be left in a position where she was in close contact with guests and employees. He took the view that ARRC was obliged to provide a safe environment within which its employees could work and live. ARRC could not appear to have condoned Ms Pili’s conduct. It was decided that Ms Pili be suspended on full pay.
Mr Porter says that the suspension was to be until the end of the court case. Mr Cameron says Mr Porter is confused about the duration of the suspension. The other proposition was that the suspension was pending further investigation. The difficulty with that proposition is that there doesn’t appear to have been any further investigation.
There was evidence that it was thought that, rather than risk a “scene” at the campground, Ms Pili should be permitted to finish her shift before she was suspended from further work. She only had about half an hour left to work.
Mr Bowers says that it was arranged that he would speak to Ms Pili at the end of her shift on Monday night. Mr Bowers says he advised her at that time that she was suspended from work from the end of the shift. Mr Bowers says he told her that the incident was being further investigated and that they didn’t want her to work until it was clarified. This conversation was not put to Ms Pili. Mr Bowers also says Mrs Krepelnik had told him that she wanted Ms Pili to return to work.
Ms Pili’s evidence implicitly contradicts Mr Bower’s evidence, in that she says that she was surprised by developments the next day. On balance, I find that Mr Bowers did not talk to Ms Pili on Monday night, and that he has confused it with events later in the week. While the matter is not without doubt, I find on balance that the decision that Ms Pili should be suspended was made on the Monday night. It was not, however, communicated to Ms Pili until some time later.
Ms Pili had a rostered day off on Tuesday 29 October 1996. She stayed home to look after two of her nephews.
Mr Cameron received Ms Kerrin’s and Mr Porter’s written report as to Ms Pili’s admissions during their interview, and confirmed that she had been charged by the Police in connection with the incident. There was brief evidence of a meeting which took place at about 11.00am on Tuesday 29 October 1996, attended by Mr Cameron, Mrs Krepelnik, Mr Bowers and Mr Butcher. Mr Cameron formed the view that it was appropriate that Ms Pili be required to leave Yulara. He explained to them that this was different from terminating her employment.
Mr Cameron arranged that Mr Porter, accompanied by Ms Anne Krepelnik and another security guard, serve a further “banning notice” on Ms Pili at her residence at 4.30pm on Tuesday, 29 October 1996. The banning notice was in the following terms:
“NOTICE TO STAY OFF PREMISES
* All resort food & beverage outlets
- Sails in the Desert Hotel
- Outback Pioneer and BBQ
- Desert Gardens
* Residents Club
* Geckos Cafe ALL LICENSED PREMISES (THE PREMISES)TO: Name: Josie Pili
Address: #20A Gregory Staff Flats1.
Due to the termination of your employment, you are given 48 hours notice to leave Ayers Rock Resort.
YOU ARE GIVEN NOTICE pursuant to the Trespass Act 1987 to leave and stay off the premises and adjacent associated areas for three months from the date of this notice.
2.If you fail to heed this notice and do re-enter or attempt to re-enter the premises within that time, you will be a Trespasser within the meaning of the Trespass Act 1987.
3.BECAUSE I suspect that you are likely to trespass on the premises contrary to this notice, YOU ARE WARNED to stay off the premises for the period referred to above, pursuant to Section 8(1) and/or 8(2) of the Trespass ACT (sic) 1987.
4.TAKE NOTICE that if you enter and trespass on the premises within that period, you may be liable to arrest and/or a substantial fine.
SERVED AT: Yulara
DATE: 29/10/96TIME: 4:25
AM/PM SIGNED: (signed)
(signed) Security
(*Licensee/*Manager/*Authorised Person - Designation)
I have read and understood the abovementioned) conditions.
Signed: (signed)
Signed: (signed)
(Witness)”
As I understand this notice, ARRC was purporting to ban Ms Pili for three months from all its licensed premises “and adjacent associated areas” under the Trespass Act 1987. I understand this to be a power available to any person in the Northern Territory who is in lawful occupation of property. While it was not clear to me on the evidence, it seems to have been understood by the witnesses that the campgrounds fell within the identified premises. The notice also purports to give “48 hours notice to leave Ayers Rock Resort”. This is problematic given that, as I understand it on the evidence, areas of the resort such as the staff accommodation are not lawfully occupied by ARRC.
Mr Porter says he crossed out the words “Due to the termination of your employment” because Mr Cameron had told him that Ms Pili’s employment was not being terminated. It struck Mr Porter as unusual. At the time the notice was delivered, Ms Krepelnik also confirmed to Ms Pili her understanding that Ms Pili’s employment was not being terminated.
The notice was accompanied by the following letter (“the notice to vacate”):
“29 October 1996
Ms Josie Pili
G.S.F. Stage 4
Unit No. 20A
YULARA N.T. 0872Dear Josie,
I refer to an incident involving yourself and another resident on site on the morning of 27 October, 1996. Subsequent to that incident, it is my understanding that you have formally been charged with assault with a court hearing date set down for 14 November, 1996.
It is my duty to inform you that under the by-laws of the Yulara Tourist Village Management Act 1984, (Section 1.2, Part III) - Admission to Yulara, which states, “When it considers it necessary in the interests of public safety, the maintenance of good order, or the protection and preservation of Yulara, the Corporation may prohibit the entry of any persons, vehicle or animal to Yulara, or remove or cause the same to be removed from Yulara” - you are hereby given 48 hours notice to vacate the township of Yulara.
The exercising of our rights under the Act is regrettable, however, it is deemed necessary given the serious nature of the aforesaid conduct. I should also inform you that it is an offence to enter Yulara after notice of prohibited entry has been issued.
I trust you will adhere to the abovementioned requirements in a controlled and orderly manner, and take this opportunity to wish you well in your future endeavours.
Yours faithfully,
(signed)
Glenn Cameron
HUMAN RESOURCES MANAGER”
The notice to vacate goes further than the banning notice under the Trespass Act 1987. It purports to exercise powers conferred by bylaws made under the Yulara Tourist Village Management Act 1984 (N.T.) to exclude Ms Pili from the entire town of Yulara. This would, for example, include her accommodation, which is not owned by ARRC. The grounds relied upon for this exclusion were presumably the “interests of public safety” and the “maintenance of good order”.
In the course of the hearing, a letter on ARRC letterhead was tendered whereby Mr Grant Hunt, who was apparently the Managing Director of ARRC at the time, advised Mr Cameron on 21 October 1996 that he was appointed as a Warden for the purpose of all of the Bylaws made under the under the Yulara Tourist Village Management Act 1984 (N.T.). It is unclear whether it was Mr Hunt or “the Board of Directors” who made the appointment.
ARRC contend that Mr Cameron, as a duly appointed warden, was entitled under bylaw 3.1 to issue the notice to vacate.
I note at this point that a number of issues arise in relation to the notice to vacate. They include:
· whether by-law 3.1 was valid enacted. The preamble to the Yulara Tourist Village Management Act describes it as “an Act to provide for the municipal governance of the town of Yulara, and for other purposes”. Section 12 empowers Yulara Corporation Pty Ltd to “make by-laws, not inconsistent with this Act, prescribing all things required or permitted to be prescribed, or necessary or convenient to be prescribed, for or in relation to the exercise of its powers and the performance of its functions”. It seems to me arguable that such a broad power to exclude persons from the town goes further than is necessary or convenient for Yulara Corporation Pty Ltd in the performance of its municipal functions.
· whether Mr Cameron was validly appointed as a warden. Bylaw 2.1 provides that Yulara Corporation Pty Ltd may appoint any person to be a Warden. Bylaw 2.2 provides that a Warden is charged with the care, control and management of Yulara, and the enforcement of the Bylaws. Such evidence as is before the Court indicates that ARRC purported to appoint Mr Cameron, not Yulara Corporation Pty Ltd.
· Whether Mr Cameron, assuming he was properly appointed as a warden, had the authority to exercise Yulara Corporation Pty Ltd’s power to remove a person from Yulara. Bylaw 3.3 suggest that Yulara Corporation Pty Ltd must issue directions to the warden for such a removal. There was no clear evidence of such a direction.
Mr Cameron agrees he was aware and anticipated that Ms Pili would not be able to fulfil her employment obligations as a result of the issuing of these notices, so that they would effectively mean the termination of the employment relationship.
Ms Pili says that she was confused when these further notices were delivered, because the day before she had been issued with the one month’s ban from the Residents Club. She had thought that the matter had been dealt with, at least until after the court hearing.
Mrs Krepelnik suggested that Ms Pili give Mr Cameron a call, and gave her his number. Ms Pili called Mr Cameron; it was her first dealing with him. Mr Cameron and Mr Pili gave similar evidence as to what was said in the following conversation. However, Mr Cameron’s recollection of the circumstances of this conversation was somewhat different.
Ms Pili asked if she had lost her job. Mr Cameron did not answer directly.
She suggested that if her employment were not terminated then she could live at the nearby Mutitjulu community, where she had relatives, and continuing to work at Yulara. Mr Cameron replied that the notice to vacate meant that she was not allowed into Yulara at all, so that if she went to work she would be trespassing. He told her she was suspended pending further investigation of the incident. He explained to her that she would be at no financial disadvantage. He told her she was not required to attend work, and that if she did so, he would be left with no alternative but to terminate her employment.
Mrs Krepelnik’s evidence suggests that at this stage she was still of the belief that she would have to hire someone to fill in for Ms Pili only for the duration of Ms Pili’s three month exclusion from Yulara.
Ms Pili and Mr Cameron discussed the incident. Ms Pili said that she did not think that her exclusion from the workplace was fair or justified, and that the incident with Ms Catling had been a one-off situation. He told her that she was, in his view, an unacceptable risk to the public. She complained that he didn’t know her, and reiterated that her actions that night had been totally out of character.
Mr Cameron believes that Ms Pili understood that her employment was being effectively terminated on Tuesday by the banning order.
A union delegate heard of Ms Pili’s situation, and organised for solicitors to be briefed about the matter. Ms Pili was advised by the solicitors that she was within her rights to attend work, at least for the next 48 hours, if her employment was not terminated.
Ms Pili was rostered to work from 2.30pm until 9.00pm on Wednesday 30 October 1996.
Ms Pili says she attended work from 2.00pm on Wednesday 30 November 1996. Ms Etepo recalls Ms Pili leaving for work that day. Ms Pili recalls receiving a call from her solicitor at work at about 3.30pm, and being aware that her solicitors would be faxing Mr Cameron a letter that day.
On Wednesday 30 October 1996, Mr Cameron received a letter by facsimile transmission from a law firm identifying themselves as Ms Pili’s solicitors. The letter noted that the solicitors had advised Ms Pili that Mr Cameron’s purported notice to vacate was illegal and unenforceable. The letter pointed out that Mr Cameron’s actions would result in Ms Pili suffering significant financial loss, and sought confirmation by return that he was prepared to defer any action in relation to Ms Pili and to allow her to continue in her employment at least until her Court proceedings had concluded, failing which they advised that they had instructions to apply to the Supreme Court of the Northern Territory the next day for an injunction against ARRC.
Ms Pili recalls being approached by Mr Butcher and Mr Bowers later that day. Mr Bowers spoke with her, acknowledging that she was probably receiving all sorts of advice and that she may believe she had a right to attend work. He said that she should go and see Mr Cameron at ARRC’s head office the next day, Thursday, before she started work. She thinks this was at about 8.35pm. She is adamant that there was no meeting at Head Office that Wednesday.
Mrs Krepelnik’s recollection is that Ms Pili did attend work on the Wednesday. Mrs Krepelnik phoned the Human Resources section to advise them. Mrs Krepelnik does not recall Ms Pili continuing to work on Wednesday. It should be noted, however, that Mrs Krepelnik’s rostered hours were scheduled to conclude at 5.30pm on the Wednesday, only three hours after Ms Pili started.
Ms Krepelnik’s recollection is that Mr Butcher and Mr Bowers came over and that they met Ms Pili at the campgrounds reception. They asked if she would go with them to the ARRC office. Mrs Krepelnik was asked to accompany them, and they went across to the Head Office immediately.
Mr Bowers is also confident that Ms Pili did not work on Wednesday. He says that Mr Butcher led the conversation, and asked Ms Pili to come with them to Head Office to meet Mr Cameron. He says the meeting at Head Office occurred at about 3.30pm or 4.00pm on Wednesday.
While the differing accounts as to the events of Wednesday 30 October 1996 are difficult to reconcile, Ms Pili’s account seems to me the most likely. It is possible that the evening on which Mr Bowers spoke to Ms Pili at the end of her shift and advised her of her suspension was indeed the Wednesday, and not Monday as he recalls. It is possible that Mrs Krepelnik does not recall Ms Pili’s working on the Wednesday because she was only there for part of the time. Alternatively, it might not yet have been clear to Mrs Krepelnik that Mr Cameron did not wish Ms Pili to work in the interim before the notice to vacate came into effect. Again, this would be consistent with Mr Bowers recollection that on the evening he visited Ms Pili, Mrs Krepelnik objected to Ms Pili’s not being permitted to work.
Mrs Krepelnik’s and Mr Bower’s recollections of meeting Ms Pili and inviting her to attend with them at the head office, placed by them on the Wednesday afternoon, may have in fact taken place on the Thursday. Mrs Krepelnik recalled the formal termination of Ms Pili’s employment, which it is agreed took place on the Friday, as occurring the next day.
Accordingly, I find that Ms Pili worked a full shift on Wednesday. Indeed, that may have been shift that management decided not to “interrupt”, if it only came to Mr Bower’s attention near the end of the shift that Ms Pili was still working despite the suspension.
Mr Cameron says he received reports that Ms Pili might try to attend work. He recalls going to the campgrounds on a couple of occasions with the police to prevent such an occurrence, though he doesn’t recall when. Mr Cameron concedes that it is possible that Ms Pili did work and that it may not have come to his attention.
Ms Pili was rostered to work from 12.30pm until 9.00pm on Thursday 31 October 1996.
Ms Pili says that it was on that day that she attended a meeting at head office with Mr Cameron. She had spent the morning trying to find a union representative to attend her meeting with Mr Cameron, without success. Mr Butcher, Mr Bowers, Mr and Mrs Krepelnik were waiting for her at the campgrounds when she attended work at 12.30pm. She accepted their request that they all go and see Mr Cameron.
Ms Pili says that she was asked at head office if she realised that she was in breach of the 48 hour notice. I note in passing that this is odd given that the 48 hour notice hadn’t expired. She responded that she understood that they had to do what they had to do. She was told that the solicitors shouldn’t have given her that advice and that, as her employers they were entitled to tell her they didn’t want her to go into work. Mr Butcher quoted the by-laws to her.
Mrs Krepelnik says that Mr Cameron told Ms Pili that ARRC was exercising its rights as her employer under the Yulara Tourist Village Management Act to issue the ban. I again note in passing that the statute in question does not confer powers on ARRC or its associated corporations as an employer, but rather as a quasi-municipal authority. Mrs Krepelnik says that he told Ms Pili that if she insisted on returning to work, he would have no alternative but to terminate her employment. He conveyed his view that the best way to go about things would be to avoid that, so as not to damage Ms Pili’s reputation any further. Mrs Krepelnik says that Ms Pili seemed very confused.
Ms Pili recalls that the meeting concluded with Mr Cameron telling her to go home and wait until 4.00pm, because their respective solicitors were in conference concerning her and ARRC’s rights in the circumstances. She was to call him back at 4.00pm. Mr Bowers also recalls that they were waiting on a ruling from the solicitors. Mrs Krepelnik’s evidence is similar. Ms Etepo recalls Ms Pili returning home, and waiting on a call.
Ms Pili went to a friend’s place who had a telephone. When she called Mr Cameron at 4.05pm, she was told that they hadn’t yet heard from the solicitors. She called again twice during the ensuing 40 minutes, and was fobbed off. At 4.45pm, she called her own solicitors, who told her that they hadn’t heard from ARRC.
On returning home, she found a note asking that she contact security as soon as possible. When she rang, a security guard attended to advise her that the 48 hour notice had expired and that they would be enforcing it. She advised him of her legal advice. She attended a union delegates’ meeting that night. She was told on her return that Mr Cameron had attended her unit with security to speak with her. Similarly, the friend whose telephone she had used told her the police had visited looking for her.
It is agreed that on Friday, 1 November 1996, Ms Pili reported for work; she was rostered to work from 10.30am until 7.00pm.
On that morning she telephoned a Mr Van Dongen who told her that if she attended work then she would be arrested, and that it would affect her court hearing.
She attended work at the campground and saw Mrs Krepelnik. Mrs Krepelnik says Ms Pili came into her office, and seemed very nervous and very upset. Mr Krepelnik contacted Mr Cameron. Mr Cameron arrived with the Police. He advised her that he would have to terminate her employment and did so summarily. No notice of termination was issued.
Ms Pili was arrested and taken to the police station. There, the police issued a warning; no further charges were laid. She left on the basis that she would go to live at the Mutitjulu community, and would return to Yulara over the next three months only for her court hearing and in the event of a medical emergency.
When the charges of unlawful damage to property and assault was heard on 14 November 1996 by the Court of Summary Jurisdiction at Yulara, Ms Pili pleaded guilty and was placed on a six month good behaviour bond. No conviction was recorded.
Whether There was A Valid Reason for Termination: Contentions
Section 170EDA(1)(a) of the Act confers the onus upon ARRC to prove, for the purposes of Section 170DE(1), that there was a valid reason connected with Ms Pili’s conduct for the termination of Ms Pili’s employment.
ARRC contends that Ms Pili’s conduct in the course of the incident on the morning of Sunday 27 October 1996 was a valid reason for the termination of her employment.
While Ms Pili does not seek to defend her conduct in the course of the incident, she disputes that it can be a valid reason to terminate her employment because it occurred outside of working hours and was dealt with under the criminal law. She contends, therefore, that it should not also affect her employment. ARRC contends in response that there was a sufficient relevant connection between Ms Pili’s conduct and her employment for that conduct to constitute a valid reason for the termination of her employment.
Ms Pili also contends that ARRC cannot rely on the incident as the reason for the termination of her employment because ARRC, by its actions between Sunday 27 October 1996 and Friday 1 November 1996, effectively waived any right to rely upon the incident as grounds for the termination of her employment. She contends that the reason ARRC terminated her employment on Friday 1 November 1996 was her insistence on attending for work, which ARRC regarded as non-compliance with the notice to vacate. She challenges the validity of that notice, and says that non-compliance with the notice was not a valid reason for the termination of her employment.
ARRC disputes that its subsequent actions amounted to a waiver of any right to dismiss Ms Pili for her conduct during the incident. It does not concede that the notice to vacate was invalid, but contends that the validity of the notice is irrelevant.
Valid Reason: Whether the Incident Sufficiently Connected With Employment
As I have noted previously, Ms Pili is genuinely remorseful for her conduct on Sunday 27 October 1996. She does not seek to justify or defend it. However, her conduct has not only resulted in her being charged with a criminal offence and placed on a good behaviour bond, but has also resulted in her being dismissed from her employment and evicted from her residence. The conduct occurred away from her work premises and outside of her working hours. She points out that if she had been living in an ordinary country town of an equivalent size to Yulara, then the matter would have stopped with the criminal charge and would not have had consequences for her employment or for her living arrangements.
A test often applied by this Court in cases involving conduct outside of working hours is whether or not the conduct has a relevant connection to the employment: eg Hussein v Westpac Banking Corporation (1995) 59 IR 103.
ARRC pointed to a number of matters which it says establish such a connection between the incident and Ms Pili’s employment; Ms Pili disputed the relevance of many of those matters:
· Both Ms Pili and Ms Catling were employees of ARRC, as was Ms Etepo. However, it appears that they were employed in different businesses within the resort and were not required to work together. The fight would not, therefore, have affected working relationships, and indeed Mrs Krepelnik was supportive of the prospect of reinstatement;
· The assault took place on and resulted in damage to premises managed by ARRC. However, the premises were owned by the NTHC. Further, the incident occurred in private, so that residents other than Ms Catling were not affected and the ARRC’s business reputation need not have suffered;
· The assault required the involvement of Mr Porter, an employee of a security firm engaged by ARRC;
· Ms Catling was injured and distressed by the incident, and did not work on the Sunday, thus affecting ARRC as her employer. Ms Pili submitted that there was no medical evidence that the absence was caused by the assault, but I do not accept that submission;
· Ms Pili also did not work on the Sunday, when I have found that she was rostered to work. As I have observed, I place little weight on this factor;
· ARRC’s confidence and trust in Ms Pili was affected in terms of how she might behave in her dealings with guests and other employees in and outside of work. Ms Pili submits that her conduct was out of character and unlikely to be repeated; and
· It was an express term of Ms Pili’s employment contract that “Fighting with employees... off duty” is a misconduct offence warranting dismissal, and that some incidents may require instant dismissal.
With regard to that final issue, it is desirable that the terms of Ms Pili’s contractual arrangements are considered in some detail.
Ms Pili signed a written contract of employment when she was re-employed in June 1996.
The contract of employment is expressed to be subject to the acceptance by Ms Pili of policies and procedures outlined in ARRC’s employee handbook. Ms Pili had, after attending an orientation course on 24 and 25 June 1996, signed a form headed “Acceptance of Conditions” on 25 June 1996 whereby she:
· acknowledged receipt of the employee handbook;
· confirmed that she had read its contents; and
· agreed to abide by the rules and regulations detailed therein.
The “Employment Conditions and Guidelines” set out in the employee handbook include many relevant provisions, which I am satisfied form part of the employment contract.
Misconduct, “disciplinary incidents” and procedures for dealing with them are dealt with in the following extracts:
“Misconduct Offences
Ayers Rock Resort is a small community. Therefore any acts that cause continual discomfort to fellow residents will result in your dismissal. ARRC may dismiss, WITHOUT NOTICE, any employee who has acted in a way considered to be gross misconduct.
Dismissal from your employment with ARRC results in:
The termination of your tenancy lease. You are required to leave Ayers Rock Resort within 48 hours of dismissal. You will be barred from all Resort facilities from the moment of dismissal for a period of three months.
Misconduct offences warranting dismissal include the following list, but are not limited to these specific examples:
· Abusive language or behaviour to staff or guests.
· Any action, or behaviour, on, or off, duty likely to damage the Resort’s reputation and standing.
· Consuming alcohol, or being under the influence of the same, while on duty.
· Consuming illegal drugs, or being under the influence of the same, while on duty.
· Falsifying, altering or transferring your Employee Card.
· Fighting with employees or guests on or off duty.
· Possessing illegal weapons in the workplace.
· Providing false, or misleading information when applying for employment.
· Providing, selling, or transporting alcohol for residents of the Mutitjulu community, or other local Anangu (Aboriginal) communities.
· Refusal to carry out a reasonable instruction from an immediate supervisor, or Department Head.
· Deliberately climbing, or walking, on restricted sections of Uluru, or Kata Tjuta National Park.
· Soliciting, or collecting funds, while on duty, without permission or licence.
· Stealing property belonging to ARRC, employees or guests.
· Wilful rudeness to guest and residents while on, or off, duty.
· Wilfully damaging, destroying, wasting, or defacing resort property.
· Wilful violation of fire and safety regulations.
· Entering Aboriginal land without permits or permission.
· Riding bicycles/motorbikes on footpaths/or firetrails.
· Being convicted of an offence which precludes you from carrying out your duties.”
“Disciplinary Incidents
Any employees of ARRC found violating Resort policies will be subject to disciplinary action, or dismissal. Disciplinary incidents will include the following acts, but are not limited to these specific examples:
· Using entrances/exits while on duty other than designated staff entrances/exits.
· Repeated tardiness or absenteeism.
· Falsifying timesheets.
· Not adhering to resort grooming standards.
· Smoking in unauthorised areas.
· Eating in the workplace, other than during a designated meal break time.
· Unauthorised use of Resort vehicles or equipment.
· Repeated disturbances in staff accommodation.
· misbehaviour when using guest accommodation benefits.”
“Disciplinary Procedures
In cases of substandard performance, or an incident of misconduct, formal disciplinary action will be undertaken after the staff member has had the opportunity of counselling and/or retraining and also a review of expected performance standards.
Step One: Verbal Warning
Issued in cases of substandard performance, or breaches of the Resort policies or misconduct not requiring a more severe warning or dismissal. Written notification that a Verbal Warning has been issued will be forwarded to HRD. Supervisor and Department Head will be present
Step Two: First Written Warning
Issued in cases of poor performance where the staff member has previously been verbally warned, or for repeated misconduct if sufficiently serious to warrant bypassing the verbal warning step.
Department Head and/or Human Resources Department (HRD) will be presentStep Three: Final Written Warning
Issued in cases of continued poor performance where the staff member has previously been verbally warned and warned in writing, or repeated misconduct or in cases of serious misconduct, where instant dismissal is not warranted.
Department Head and/or Human Resources Department (HRD) will be presentStep Four: Dismissal
Dismissal will follow when the employee has failed to respond to the FINAL WRITTEN WARNING or if the incident requires Instant Dismissal.
Department Head and/or Human Resources Department (HRD) will be presentInstant Dismissal
This will be enforced by the Resident Manager and/or the Senior Executive responsible for the area in which the employee works.
Resident Manager / Senior Executive and HRD will be presentSuspension
The most Senior Executive in the property at the time is the only person who can suspend an employee. This action must be taken within 24 hours. Suspension can take place as the result of a disciplinary incident, or misconduct offence, requiring immediate action.
Barring
Misconduct while socialising in the Resort may result in you being barred from all Food and Beverage outlets in the Resort. A barring may last from 2 - 12 months. A barring order is issued by the Business Manager, and copies are provided to the Police and the Human Resources Department (HRD).”
It is thus an express term of the employment contract that “Fighting with employees... off duty” is a misconduct offence warranting dismissal.
The contract permits dismissal without warnings “if the incident requires instant dismissal”, and dismissal without notice where an employee has “acted in a way considered to be gross misconduct”. It also provides for suspension, but requires that it be imposed within 24 hours.
More generally, the enumerated offences and incidents include many references to employee behaviour while off duty or in staff accommodation. The link between the employment and the accommodation arrangements is reinforced by the statement that dismissal from employment brings with it consequential termination of tenancy and barring from the resort.
Other extracts from the employee handbook reveal similar links between employment by ARRC and access to accommodation at Yulara. Some examples follow:
“Staff Accommodation
ARRC is the appointed manager for the Northern Territory Housing Commission owned residential housing at Ayers Rock Resort. Accommodation ranges from bed-sit flatettes, flats with shared facilities, to one, two and three bedroom houses. When you accept a position with ARRC accommodation will be provided from within the pool of available residences. There are strict criteria for the allocation of accommodation that can be detailed by the Housing Co-ordinator. There is no other accommodation available within Ayers Rock Resort.
You will accept a formal and binding tenancy agreement between yourself (lessee) and ARRC (lessor). Please read your tenancy agreement carefully.
Requests to move to a different style of housing should be made through your Manager, who will pass it on to the Housing Manager.
The bond on your accommodation may be paid up front if you wish, or arrangements can be made to pay it progressively from your pay over a four (4) week period.
A Tenant’s Handbook is available from the Housing Co-ordinator.”
“Rent Subsidies
ARRC is the manager of staff accommodation on behalf of the Northern Territory Housing Commission. ARRC employees who meet all the following criteria are eligible for rental subsidies:
· Primary employment is with ARRC; and
· Working more than 30 hours per week; and
· Contracting agent in the lease with ARRC (ie. the leasee)”
“Resignation
... Your accommodation will be inspected prior to your departure. Please contact the Housing Manager to arrange a suitable time for your inspection. Your bond will be returned within 28 days of the property being cleared by the Housing Manager.
If repairs and/or cleaning are required the cost of these may be deducted from your bond. If the cost of repairs/cleaning exceeds your bond you will be invoiced for the outstanding amount or it will be deducted from your final pay. All unsettled accounts will be pursued.”
Ms Pili points out that ARRC did not in fact provide her accommodation pursuant to her contract of employment; she was staying at accommodation leased by friends and family, as their guest, pending the availability of suitable accommodation from ARRC.
Finally, there is a detailed section of the employee handbook dealing with the role of the security service provided by ARRC.
“Security
Bottom Line Risk is employed by ARRCL to ensure that the quality of life of all employees and residents is maintained. They also provide the resort with Risk Management services which include health & safety, cash and key control etc.
Security is the responsibility of all staff...
Your contact with Security will be varied. It can range from:-
- O.H. & S. training
- Procedures for key control / cash control
- Investigation of reported incidents
- Noise complaints in staff housingHow to lodge an Incident Report
1.Report forms are available form the workplace, housing or by calling security direct.
2.An incident report is to be completed by the individual affected and forwarded to security for follow-up.
3.Security will investigate the incident.
4.Appropriate action to be taken by security with employer and/or Human Resources.
5.Complainant notified by security of action taken.
Disturbances at night
1. If a tenant is disturbed by noise or other behaviour at night they should notify security directly by calling. 562185.
2. The duty security officer will attend the disturbance.
Security response to noise complaints
Security will:
1. Speak to the tenant to keep noise down.
2. Go back 15 - 30 minutes later to follow up.
3. If noise is at an unacceptable level, speak to all participants and ask to disperse.
4. Take the names of participants who are obnoxious, rude or refuse to comply, Or CALL POLICE FOR ASSISTANCE.
5. Take appropriate action the next day. Eg participant will be spoken to be Security, or employer notified, a warning will be issued - verbal or written. Human Resources will be advised for more serious action.”
Again, this makes it clear that the behaviour of employees in their accommodation is regarded under the contract as relevant to their employment. There is express provision that ARRC and its Human Resources personnel will be involved in any “appropriate action” flowing from any misbehaviour.
I turn now to canvass the relevant case law. In deciding Hussein v Westpac Banking Corporation, Staindl JR quoted the following passage from the reasons of Lawrence DP of the Australian Industrial Relations Commission in HEF of Australia v Western Hospital (1991) 4 VIR 310 at 324:
“The conviction of an individual for a criminal offence does not necessarily have any effect upon that person’s employment. The question of the relevance of a conviction or an employee’s alleged misbehaviour to the employee’s work should be considered in terms of whether or not the employee has breached an express or implied term of his or her contract of employment...
In dealing with such issues in unfair dismissal claims, two questions will need to be asked. First did the employee do the things which are alleged against him? Second, did the action have any relevant connection to the performance of his duties as an employee?...(my emphasis)”
In Hussein v Westpac Banking Corporation a bank employee was dismissed because he was guilty of the fraudulent use of a credit card issued to him by another bank. Thus the relevant connection with employment was the connection with the duties of the employee.
There have been other cases where the focus has been upon the duties of the employee.
For example, this Court has upheld the dismissal of an apprentice glazier who was dismissed for breaking windows (not the employer’s) outside of working hours and later convicted of unlawful damage to property, where the employer was one of only two glazier companies in the city: Dunning v Neata Glass Service Pty Ltd (unreported, IRCA No. 630 of 1995, Blokland JR, 17 October 1995)
Similarly, the Court as presently constituted has upheld the dismissal of a police officer who was dismissed because he assaulted members of the public and members of the police while off-duty: Cook v Commissioner of Police (1996) 66 IR 361
In other cases, the relevant connection with the employment relates to other matters.
In Osbourne v Woolworths SA Ltd (1992) 59 SAIR 600, a bakers assistant employed by a supermarket was dismissed because, while on annual leave, he stole goods from a shopping bag left at a cafe near the supermarket, and was later identified to the owner of the goods as an employee of the supermarket. The relevant connection with the employment in that case was the damage to the reputation of the employer.
In Re Transfield Pty Limited re dismissal of a Union Delegate [1974] AR(NSW) 596, where an employee was dismissed because he assaulted his foreman outside working hours, the relevant connection with the employment was the effect of the employee’s conduct on his working relationship with the foreman with whom he worked.
In Warner v Commissioner of State Revenue (unreported, IRCA No. 269 of 1997, RD Farrell JR, 16 September 1997), a public servant was dismissed because he broke the glass of a fire alarm and activated it at an informal social gathering on work premises after working hours, summoning the fire brigade to the work premises without good cause. In that case, relevant connections to the employment included the fact that the incident occurred on work premises, that there was damage to the employer’s property and that it tended to bring the employer into disrepute.
A particular group of cases, which might conveniently be referred to as “mining camp” cases, deal with misconduct outside of working hours in closed communities of employees or fellow workers.
In North Australian Workers’ Union v Newcastle Protective Coating Pty Ltd (1971) 13 AILR 603, the Commonwealth Conciliation and Arbitration Commission held that, even though the employees’ conduct occurred “away from the job”, there was a relevant connection with the employment because the employees’ misconduct occurred in accommodation quarters provided by a third party under arrangement with the employer as part of the contract of employment, and because it was made clear to the employees in their contract of employment that their duties extended to proper use of accommodation facilities. The commission further found that, given the remoteness of the place of work, it was reasonable that their duties be so extended.
In AWU (WA Branch) v Argyle Diamond Mines Pty Ltd 73 WAIG 2650, the Full Bench of the Western Australian Industrial Relations Commission similarly found that a fight between two employees outside of work hours in the toilets of a bar in the mine’s accommodation village had a relevant connection with their employment, even though the Commission accepted that the fight did not have the potential to disrupt the harmony of running of the village or, presumably, the mine.
In Western Mining Corporation Limited v AWU (WA Branch) 77 WAIG 1079, the Full Bench of the Western Australian Industrial Relations Commission upheld the dismissal of an employee for being found guilty of possession of cannabis in a mining camp, because the accommodation was provided by the employer and it was held there was a risk that the cannabis would be consumed and adversely affect the safety of the work force.
Again, the Court as presently constituted has recently in Hallam v St Barbara Mines Ltd (unreported, IRCA No. 286 of 1997, RD Farrell JR, 29 October 1997) upheld the dismissal of a mine employee who threw stones at and struck a fellow employee in a mining camp after an argument about use of a phone booth, notwithstanding that the employees did not work together and that the incident happened outside of working hours.
From my review of the cases, it appears that the enquiry into whether there is a relevant connection between the conduct and the employment is conducted for two purposes.
First, there may be some doubt as to the breadth of the employee’s obligations under the contract, and whether the employee, by his or her conduct, in fact breached the contract of employment.
Secondly, assuming, as in the present case, that the conduct amounts to a breach of an express term of the employment contract, the Court might consider that the term is so unrelated to the employment that it is unreasonable. Where an employment contract sets the standard of conduct required of its employees at an unreasonable level, the Court may find that a breach of that standard is not a valid reason for termination.
To cite an absurd example, Ms Pili’s employment contract might have specified that the playing of chess off duty was a misconduct offence warranting dismissal. I would have thought that the breach of that contractual term would not constitute a valid reason for termination, because the conduct did not have a relevant connection with the employment.
At one point in her closing submissions, Ms Pili indicated that she does not submit that the standards of conduct set by ARRC in the employee handbook are unreasonable, but only that their application to her case was unreasonable. However, many of her submissions did seem directed at the proposition that it was unreasonable for the employer to seek to regulate behaviour after hours in a community like Yulara.
Ms Pili submits that Yulara is more like a country town than a mining camp. Indeed, in the past, when there had been separate management contracts with various entities for the resort’s numerous hotels and other facilities, it had been very much like a country town. People working at different businesses within the resort had different employers.
However, since 1992, ARRC has taken over the management of all the resort’s assets. Now almost every employee has ARRC as his or her employer. It is difficult to see, however, why this would should have a practical effect on the nature of life in Yulara for permanent residents of the community.
It is still far from being merely staff quarters. Yulara continues to provide services to surrounding areas, rather than solely to resort patrons and employees. Those living in the community include friends and family of ARRC employees, and employees of other business operations incidental to the resort complex.
I have some sympathy for Ms Pili’s submission. It does seem undesirable, from the point of view of an employee and a citizen, that one be answerable to one’s employer for one’s conduct twenty four hours a day, seven days a week, with the only respite being holidays away during annual leave. The position is different in mining camps, where employees are usually engaged on a “fly in-fly out” basis and have regular periods away from the camp.
This concern is magnified when the employer exercises the powers of one’s landlord, purports to perform the functions of one’s local municipal council, and also provides a private policing service acting in close liaison with the official police force.
In the circumstances, it is only a slight exaggeration to liken acceptance of employment with ARRC to joining the armed services, or perhaps even to the taking of holy orders.
It may seem an odd way to run what is apparently the fourth biggest population centre in the Northern Territory, given the usual expectations of the Australian citizenry as to privacy, and particularly the separation between work and leisure.
However, the case which most closely resembles the facts of this application, AEEFEU (WA Branch) v Rottnest Island Authority 74 WAIG 130, a decision of Commissioner George of the Western Australian Industrial Relations Commission, suggests a different perspective. There are many parallels with this application, so I will describe the decision in some detail.
Rottnest Island is a small island just off the coast of Western Australia near Perth. It is a popular holiday destination, especially for families. In that case, Mr Kruger, who was employed as a cycle mechanic on the island by the Rottnest Island Authority, assaulted another resident of the island, Mr Hooper, in the toilets of a public bar on the island. Mr Kruger was on annual leave at the time. Mr Hooper was also employed by the Rottnest Island Authority but there was no suggestion that he was also employed in the cycle hire shop with Mr Kruger. Mr Kruger was charged with assault.
When Mr Kruger was employed, he had agreed to abide by the “Code of Conduct for Personnel Employed on Rottnest Island”. The code of conduct included the following relevant passages:
“4. PROTECTION OF RESIDENTS’ RIGHTS
As a Resident, you are entitled to have your privacy respected and your property protected. You also have an obligation to ensure that other people are accorded the same courtesy.
As an employee on Rottnest, you have a right to expect that occupational health, safety and welfare conditions are of a high standard...
5. WORK ON ROTTNEST
There are significant benefits to living and working in an environment such as Rottnest:...
There are also many pressures which are not readily evident:
· Many people find themselves isolated especially in the winter months.
· Others find difficulty in the fact that staff work, live and have recreation in the company of the same people all the time.
· The fact of not owning your own home or having use of your own vehicle to get away when you want can cause pressures.
· The constant influx of visitors to the island, lack of some facilities and price of commodities are other factors which cause some people anxiety...
6. CODE OF CONDUCT
...You would of course realise every resident must comply with the terms of the Rottnest Island Authority Act and its Regulations.
In addition, you should be aware of the following actions which, if undertaken, may lead to dismissal:
1. Use or distribution of prohibited drugs on Rottnest;
2. Consumption of alcohol during working hours;
3. Abuse or misuse of a vehicle on the island including driving under the influence of alcohol;
4. Creating a public disturbance, damage to any property or theft.
You will appreciate that each of these is aimed at protecting your own welfare, both inside and outside the workplace, the island asset and the popularity of Rottnest as a visitor destination...”
Commissioner George was satisfied that the code of conduct formed an integral part of Mr Kruger’s employment contract, and that the fight could be regarded as a “public disturbance” under that code. While accepting that the fight and its aftermath was only witnessed by residents of the island - there were no tourists in the bar - he noted that the code was developed as much to protect and regulate the members of the island community in the unusual environment in which they lived and worked as it was to satisfy concerns about the perceptions of visitors to the island. In the circumstances, he was satisfied that the code did not impose unreasonable requirements on those to whom it applied.
After citing the Full Bench’s decision in AWU (WA Branch) v Argyle Diamond Mines Pty Ltd, Commissioner George added that the environment at Rottnest Island clearly placed employees on the island in a different category to those in a normal environment where work and leisure can be clearly separated. Despite the union’s submission that the mining camp cases were distinguishable on the basis that Rottnest Island was a public place and not a closed town, it was the Commissioner’s view that the circumstances of employees on the island were much more akin to those of employees in closed communities such as the Argyle Diamond Mine where similar standards of conduct are required.
AEEFEU (WA Branch) v Rottnest Island Authority is not a decision of this court, and I am therefore not bound to follow it. However, ARRC relied heavily upon the Commissioner’s reasoning.
I have disclosed my concerns about the reasonableness of the arrangements at Yulara from the perspective of an employee. It is obviously also necessary to consider it from the perspective of the employer.
ARRC says that the purpose of the standards of conduct after hours or in staff accommodation imposed upon each employee by their employment contract is to avoid discomfort to and ensure the safety and quality of life of the other employees. It is in the employer’s interests to maximise its employees’ quality of life, because it does not wish to exacerbate problems it already had keeping and retaining the services of quality employees, due to Yulara’s isolation.
In this particular case, it is in ARRC’s interests that Ms Catling be and feel protected against physical attacks or intrusion into her home by Ms Pili. It does not wish to lose Ms Catling’s services, whether for a day or entirely through Ms Catling choosing to leave the resort.
Ms Pili would submit that ARRC can rely on the criminal law to achieve that purpose. ARRC would ask why it should be limited to the criminal law when Ms Pili is its employee. Why can ARRC not require Ms Pili to adhere to contractual obligations which enhance the interests of its business?
On this argument, the acceptance by a prospective employee of ARRC’s jurisdiction over what would otherwise be her private conduct is the price she pays for ARRC’s enhanced ability of safeguard her quality of life and safety. It was, so to speak, a package deal and Ms Pili signed it.
In conclusion, I consider this case to be at the outer limits of the reasonable reach of contractual obligations over the private conduct of employees. I reach my finding on this question with some misgivings and not without hesitation. The result may well have been different had Ms Catling, for example, not been an employee of ARRC.
However, in the circumstances of this case I find on balance that there was a sufficient relevant connection between Ms Pili’s conduct and her employment, and that the incident was therefore capable of being a valid reason for the termination of her employment.
Valid Reason: Whether ARRC Waived its Right to Rely upon the Incident.
As I have noted earlier, Ms Pili contends that ARRC cannot rely on the incident as the reason for the termination of her employment because ARRC, by its actions between Sunday 27 October 1996 and Friday 1 November 1996, effectively waived any right to rely upon the incident as grounds for the termination of her employment.
She contends that the reason ARRC terminated her employment on Friday 1 November 1996 was her insistence on attending for work, which ARRC regarded as non-compliance with the notice to vacate. She challenges the validity of that notice, and says that non-compliance with the notice was not a valid reason for the termination of her employment.
She also contends that ARRC did not follow disciplinary procedures required by the employment contract.
ARRC took five steps to response to the incident. They were:
· the notice under the Trespass Act issued on Monday 28 October 1997 banning Ms Pili from the Resident’s Club for one month;
· the banning notice under the Trespass Act issued on Tuesday 29 October 1997 banning Ms Pili from all licensed premises and adjacent associated areas for three months;
· the notice to vacate under the Yulara Tourist Village Management Act issued on Tuesday 29 October 1996 giving Ms Pili 48 hours notice to vacate the township of Yulara;
· the suspension of Ms Pili from work; and
· the summary dismissal of Ms Pili on Friday 1 November 1996.
Only two of those steps, the suspension and the dismissal, were concerned with Ms Pili’s status as an employee. The other notices could have been issued to anyone at Yulara, whether or not they were employees of ARRC.
The details of the suspension are unclear. I have accepted on balance that the decision to suspend Ms Pili was taken by Mr Cameron at about 6.30pm on the Monday evening. It seems however to have been assumed that Ms Pili would understand that she was suspended when the notices were issued on the Tuesday; apparently the usual practice when employees were dismissed was to pay them during the 48 hour notice period, which was used for packing up. I also accept that, in the course of their telephone conversation after the notices were issued, Mr Cameron advised Ms Pili that she had been suspended. It would seem that, in the midst of all the other things that she was being told, Ms Pili may not have grasped the significance of this information. This is not surprising.
In the event, as I have found, it was necessary for Mr Bowers and Mr Butcher to expressly confirm to Ms Pili at about 8.30pm on the Wednesday evening that she was suspended from working.
However, while I have found that Ms Pili worked on the Wednesday, I place no great significance on this finding. I am satisfied that it occurred without the knowledge, consent or even acquiescence of Mr Cameron. It can not, in my view, be said that her continuing to work was condoned by ARRC, nor that it constituted a waiver by ARRC of any right to dismiss her as a result of her previous conduct.
I should also consider, at this point, the possibility that ARRC failed to comply with the requirement of its disciplinary procedures, which formed part of the employment contract, that the action of suspending an employee “must be taken within 24 hours”.
It is unclear whether the 24 hour time limit is intended to run from the time at which the conduct occurred, or the time at which the conduct came to the attention of ARRC. The latter interpretation is in my view more sensible, as the purpose of the requirement was presumably to ensure that any decision to suspend was made promptly, rather than to remove the option to suspend in some cases altogether.
Mr Porter reported the incident to ARRC at 11.30am on the Monday. The decision to suspend was made promptly by about 6.30pm but, as I have found on balance, was not communicated to Ms Pili until after the notices were served at about 4.30pm on the Tuesday. This is more than 24 hours later.
However, given that Ms Pili had a rostered day off on the Tuesday, any failure to comply with the 24 hour limit had no effect on her working arrangements, and I am therefore satisfied that ARRC substantially complied with its disciplinary procedures in that respect.
With regard to the dismissal, Mr Cameron did not formally advise Ms Pili that her employment was terminated until Friday 1 November 1997, over five days after the incident. At first glance, this would not appear to qualify as an “instant dismissal” for the purposes of the disciplinary procedures.
I accept, of course, that any decision to dismiss “instantly” or without notice may appropriately be delayed pending a proper and adequate investigation of the employee’s alleged conduct. However, there had been no further investigation of the incident since the afternoon of Tuesday 29 October 1997, when Ms Pili was expressly told that she had been suspended but that her employment had not been terminated.
Mr Cameron decided at that time not to dismiss her, but instead to proceed by relying on ARRC’s status as an occupier of property and its purported status as a municipal authority to issue the banning notice and the notice to vacate.
It seems this was not ARRC’s normal practice. Mr Porter thought it unusual. While the employees handbook states that dismissal from employment with ARRC for misconduct results in:
· the termination of tenancy;
· a requirement to leave Ayers Rock Resort within 48 hours; and
· barring from all Resort facilities for a period of three months
these are treated as consequences of such a dismissal - not as alternatives to it.
There are at least three possible rationales for Mr Cameron’s decision on the Tuesday to effectively evict Ms Pili while formally leaving the employment relationship on foot.
The first is that suggested by Mr Cameron himself, which is that he was giving Ms Pili the opportunity to vacate Yulara and presumably resign her employment, rather than directly dismiss her. It was, as he put it, the best way to go about things so as not to damage Ms Pili’s reputation further or affect her employment history.
The second possibility is that Mr Cameron sought to end the employment relationship without having to formally dismiss Ms Pili, in order to avoid the possibility of a claim for unlawful termination. It would appear that the advice Ms Pili was receiving was premised on the assumption that this was Mr Cameron’s intention. Ms Pili therefore continually presented herself for work in order to make it necessary for ARRC to act.
Mr Cameron’s actions are, however, also consistent with a third possibility, whereby the decision was an interim measure, rather than an alternative to dismissal. Ms Pili was to be suspended and required to leave the resort for three months. It may be that her employment status would have been reviewed after the hearing of the charges against her. A potential outcome of such an approach would have been that the suspension could have been lifted at the end of her three month period of exclusion, and that Ms Pili could have then returned to work. Mrs Krepelnik’s evidence suggests that she assumed that this was ARRC’s proposed course of action. I have also noted references in the evidence to Ms Pili being told that her suspension or banning was to be until the Court hearing.
I accept that the first rationale may have played some part in Mr Cameron’s reasoning, but I do not believe it to be the sole or even the chief explanation for the manner in which he proceeded.
Mr Cameron, by conceding that in his view the employment had effectively been terminated on Tuesday 29 October 1996 by the delivery of the notice to vacate and of the banning notice, gives implicit support to the second rationale.
If the third rationale were correct, and it had not necessarily been Mr Cameron’s intention to secure the ending of Ms Pili’s employment, he had ample opportunity to minimise the likelihood that she resign or abandon her employment by clearly advising her that there remained a possibility that she could return to work after the notices lapsed. He did not do so.
I therefore accept Ms Pili’s contention that Mr Cameron was seeking to end the employment relationship without having to formally dismiss Ms Pili, in order to avoid the possibility of a claim for unlawful termination. The suspension and eviction were thus intended not as an interim measure, but as an alternative to dismissal.
That being so, Ms Pili submits that on the Tuesday at the conclusion of ARRC’s investigations into the incident, Mr Cameron chose not to dismiss her for her previous conduct.
Instead, he chose to merely suspend her and, in what she submits was an improper confusion of ARRC’s role as an occupier of property and any role under the Yulara Tourist Village Management Act with its role as an employer, to issue the banning notice and the notice to vacate, intending by these indirect measures to force Ms Pili out of her employment.
Ms Pili submits that having chosen not to dismiss her on the Tuesday for her part in the incident, Mr Cameron was no longer entitled to dismiss her for that reason on the following Friday. She submits that in choosing to react indirectly to her conduct, he waived ARRC’s right to later react directly. In effect, she is submitting that he is hoist on his own petard.
While I appreciate the irony inherent in this submission, I cannot accept it. The proposed analysis of the course of events is in my view too artificial.
The Act is concerned not with whether or not Ms Pili was dismissed, but rather with whether or not her employment was terminated at the initiative of ARRC.
Had Mr Cameron continued with his strategy, Ms Pili may have felt forced to resign. Alternatively, ARRC may have sought to rely upon her physical exclusion from the resort as grounds for contending that the employment contract was at an end because Ms Pili could not meet her obligation to attend for work. In those circumstances, I would have had no hesitation in finding that there had been a termination at the initiative of the employer, and that the incident was the reason for the termination.
It would seem to me an odd result were I to find otherwise on the basis that Mr Cameron abandoned the strategy on Friday 1 November 1996 and instead directly dismissed Ms Pili.
Mr Cameron’s response on the Tuesday to the investigation Ms Pili’s conduct was to take steps to bring about the ending of the employment relationship or, in other words to effect a termination at the initiative of the employer. That he initially sought to do so indirectly does not amount, in my view, to a waiver of ARRC’s right to achieve that result more directly.
If this were not so, then an employer could never offer an employee the opportunity to resign without waiving their right to dismiss if that offer is not accepted.
Valid Reason: Whether Breach of Award
Ms Pili’s contract provides that the terms and conditions relating to termination of the employment contract would be “(a)s per the relevant award”. The award nominated by the contract for the purposes of wages is the Hotel, Motels, Wine Saloons, Catering, Accommodation, Clubs and Casino Employees (NT) Consolidated Award 1986 (“the Award”).
The relevant clause of the award reads as follows:
“15 - TERMS OF EMPLOYMENT
(a)All employees (other than casual employees) shall be engaged by the week.
(b)Provided that weekly employees shall be subject to a period of 14 days probation during which either the employer or the employee may terminate the contract of employment by giving one days notice.
(c) - (g) ...
Termination of employment
(h)(i) Notice of termination by employer
(1)In order to terminate the employment of an employee the employer shall give to the employee the following notice:
Period of continuous service
Period of notice 1 year or less 1 week 1 year and up to the completion of 3 years 2 weeks
3 years and up to the completion of 5 years 3 weeks
5 years and over 4 weeks (2)In addition to the notice in subparagraph 15(h)(i)(1) hereof, employees over 45 years of age at the time of the giving of the notice with not less than two years continuous service, shall be entitled to an additional week's notice
(3) Payment in lieu of the notice prescribed in subparagraphs 15(h)(i)(1) and 15(h)(i)(2) hereof shall be made if the appropriate notice period is not given.
Provided that employment may be terminated by part of the period of notice specified and part payment in lieu thereof.
(4)In calculating any payment in lieu of notice, the wages an employee would have received in respect of the ordinary time he or she would have worked during the period of notice, had his or her employment not been terminated, shall be used.
(5)The period of notice in this clause shall not apply in the case of dismissal for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices, or employees engaged for a specific period of time or for a specific task or tasks.
(6)For the purposes of this clause, continuity of service shall be calculated in the manner prescribed by subclause 25(c) - Continuous Service, of this Award.
Notice of termination by employee
(ii) ...
Statement of employment
(iv) ...
Summary dismissal
(v) Notwithstanding the provisions of subparagraph 15(h)(i)(1) hereof, the employer shall have the right to dismiss any employee without notice for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty and in such cases the wages shall be paid up to the time of dismissal only.
Unfair dismissals
(vi) Termination of employment by an employer shall not be harsh, unjust or unreasonable.
For the purposes of this clause, termination of employment shall include terminations with or without notice.
Without limiting the above, except where a distinction, exclusion, or preference is based on the inherent requirements of particular position, termination on the ground of race, colour, sex, sexual preference, marital status, family responsibilities, pregnancy, religion, political opinion, union membership or activity, national extraction and social origin shall constitute a harsh, unjust or unreasonable termination of employment...
Disputes settlement procedures - unfair dismissals
(vii)... “
The terms of the award, which provide that “termination of employment by an employer shall not be harsh, unjust or unreasonable” raise another possible basis upon which ARRC might be found to have not had a valid reason to terminate Ms Pili’s employment.
In Jupiters Ltd v Thirkettle and McGinness (unreported, IRCA No. 258 of 1997, Madgwick J, 25 July 1997), the employer was bound by an award, a clause of which provided that termination of employment by an employer “shall not be harsh, unjust or unreasonable”.
Madgwick J held that the breach of that clause by the employer rendered invalid what would otherwise have been a valid reason for terminating the applicant’s employment.
This decision would seem to be applicable to these facts, so that if the Court were to find that the termination of Ms Pili’s employment was “harsh, unjust or unreasonable”, then ARRC would not be found to have a valid reason for the termination.
While this was not an issue expressly raised by Ms Pili, it is obviously relevant in the circumstances of this case and it is appropriate that I address it.
In very broad terms, the term “valid reason” is increasingly being regarded as embracing concepts of justice: Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370 per Lee J and of reasonableness: Wadey v YMCA Canberra (unreported, IRCA No. 542 of 1996, Moore J, 12 November 1996); see also generally Westen v Union des Assurances de Paris (unreported, IRCA No. 660 of 1996, Madgwick J, 17 December 1996).
I am satisfied that ARRC’s decision to respond to Ms Pili’s part in the incident by terminating her employment was not unreasonable nor unjust.
Having accepted that the incident was relevantly connected with her employment, it must be recognised that it was a serious incident which appropriately had serious consequences in terms of her employment.
Ms Pili submits that the incident could have been dealt with by a suspension or by banning her from licensed premises. She points out that the banning notice is, in its terms, expressed to be a potential response to “Possession of Drugs” “Violent Behaviour” and “Possession of Weapons”, which she submits is behaviour of at least equivalent seriousness.
It must be remembered however that the banning notices are not exclusively issued to employees. They may also be issued to those against whom the sanction of dismissal is unavailable. Further, the extract from the employees handbook quoted earlier suggests that banning notices are often issued to employees as a supplement to dismissal, rather than only as an alternative.
Ms Pili’s conduct was unprovoked and apparently irrational. The victim of her attack was alone and in her own home. She suffered physical injuries and I accept that she was also traumatised by the incident in a psychological sense.
Ms Pili suggests, however, that the incident was out of character and unlikely to be repeated. She had the opportunity to put that proposition to Mr Cameron. Ms Krepelnik was also asked about Ms Pili’s previous behaviour and performance. Ms Pili’s four months of service, even if viewed together with her previous eighteen months, was not long in absolute terms, though I accept that allowance must be made for ARRC’s high rates of employee turnover.
Ultimately, I am satisfied that it was not harsh for an employer, when responding to conduct of this nature, to decide not to give an employee a second chance.
The terms of the award provision raise no other new issues. I find therefore that clause 15 of the Award was not breached, and that ARRC had a valid reason for the termination of Ms Pili’s employment for the purposes of Section 170DE of the Act.
Whether Ms Pili had an Opportunity to Defend Herself
Section 170DC of the Act requires that an employee must be given the opportunity to defend herself or himself against allegations relating to their conduct.
Ms Pili submits that ARRC did not conduct a proper investigation into the incident, and failed to provide her with an adequate opportunity to respond to the allegations.
While I accept that Ms Pili may have disputed the relevance of the incident to her employment, I cannot accept that she was in any doubt that ARRC regarded it as relevant and that termination of her employment was a possible outcome.
While a number of criticisms might legitimately be levelled at the manner in which ARRC handled of the termination of Ms Pili’s employment, I accept that its investigation of the matter, and the opportunities Ms Pili had to respond in the interview with Ms Kerrins and Mr Porter on the Monday, in the telephone discussion with Mr Cameron on the Tuesday and to a lesser extent in the meeting with Mr Cameron and other on the Thursday, amounted to a sufficient opportunity for Ms Pili to defend herself against the allegations made about her conduct. To hold otherwise would not, in my view, be a practical, common sense application of section 170DC.
Whether Ms Pili Received all the Notice to Which she was Entitled.
Ms Pili submits that, because she was not dismissed immediately, the incident was not treated as serious misconduct, and she was therefore entitled to a week’s notice of termination under Section 170DB of the Act.
I have found that a decision was taken to suspend Ms Pili within 24 hours of ARRC receiving advice of the incident and that ARRC did not consent, condone or acquiesce to her resuming work until her dismissal was effected. I am therefore satisfied that the incident was regarded by ARRC as serious misconduct. I am independently satisfied that the exception in Section 170DB(1)(b) is applicable and that there was therefore no breach of Section 170DB.
Conclusion
I will therefore order that the application be dismissed.
I certify that this and the preceding forty two (42) pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.Associate:
Date: 13 November 1997
APPEARANCES
Representative for the Applicant: Ms L. Weatherhead
Australian Liquor, Hospitality & Miscellaneous Workers Union
Counsel for the Respondent: Mr M. Sant
Solicitors for the Respondent: Anderson Legal
Dates of Hearing: 7, 8 & 9 April 1997
Final Submissions: 24 April 1997
Date of Decision: 13 November 1997
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