Raymon Harris v Meadowbrook Golf Club T/A Meadowbrook Golf Club
[2021] FWC 145
•14 JANUARY 2021
| [2021] FWC 145 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Raymon Harris
v
Meadowbrook Golf Club T/A Meadowbrook Golf Club
(U2020/12404)
COMMISSIONER SIMPSON | BRISBANE, 14 JANUARY 2021 |
Application for unfair dismissal – Summary dismissal based on drug use at work – Allegation substantiated – After acquired knowledge of further misconduct – Application dismissed.
[1] On 15 September 2020, Mr Raymon Harris made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Meadowbrook Golf Club Pty Ltd (the Respondent).
Background
[2] Mr Harris commenced employment with the Respondent on 17 November 2019 until his dismissal on 26 August 2020.
[3] The matter was listed for conciliation before a staff Conciliator on 6 October 2020. The matter did not settle at conciliation and was allocated to me. I issued directions for filing of material and the matter was listed for Hearing on 11 January 2021. Mr Harris complied with those directions and filed material by the due date of 23 November 2020. The Respondent was required to file its material by 22 December 2020 however no material was filed.
[4] After a period of leave over the Christmas period, on 7 January 2021 my chambers contacted Mr Tom Linskey, a director of the Respondent to follow up whether the Respondent intended to file any material to support its case. The Respondent subsequently filed three witness statements on 7 January 2021.
[5] Mr Harris objected to the late material filed by the Respondent however I ultimately allowed the statements into evidence. Mr Harris was asked whether he sought an adjournment in the circumstances however he preferred for the matter to proceed.
[6] After seeking the views of the parties, the matter proceeded as a determinative conference rather than a hearing. Mr Harris earlier filed an application seeking orders for the attendance of Mr David Mellsop and Mr Matthew Rogers. Mr Rogers filed a witness statement as part of the Respondent’s case and was available for cross examination, so it was determined as unnecessary to issue the order in his case. I ruled against the application in respect of Mr Mellsop on the basis that the reasons provided by Mr Harris for the need for the order appeared not to be related to the reasons relied upon by the Respondent for Mr Harris’ dismissal.
[7] The Respondent advised it had 24 employees at the time of termination and on that basis I am satisfied the Small Business Fair Dismissal Code does not apply in this case.
Evidence
Events of 8 August 2020
[8] Ms Kylie Horne, an employee at the Respondent, gave evidence that she was at work at a function for a co-worker’s birthday on Saturday the 8th August 2020.
[9] Ms Horne said when she was up in the car park with Mr Harris near his car she was offered “weed” and witnessed him smoking it. In her oral evidence Ms Horne said on 8 August one of the staff members had an 18th birthday. She said the venue was hired by a staff member for the party. Ms Horne also confirmed she was an employee of the club.
[10] Ms Horne also said on 8 August 2020 she saw a bong in Mr Harris’ car, and saw him smoke it. She said she also remembered Mr Harris asking other people at the party whether they wanted to smoke the bong. Ms Horne said later at the bar in the Club Mr Harris asked her if she wanted to have a bong with him. Ms Horne was asked whether she had any marijuana at the party, to which she replied no.
[11] Mr Rogers, said he is part of the professional staff at the Respondent. Mr Rogers said in his statement that on Saturday 8 August after playing golf with Mr Harris and having a few beers afterwards, Mr Harris offered him and others if they wanted to go and smoke some cones in the car park of the Respondent to which he declined.
[12] Mr Harris sought for the evidence of Mr Rogers to be excluded on the basis that Mr Rogers confirmed during his oral evidence that it was not until after he found out Mr Harris had been dismissed, that he confirmed with Mr Tom Linskey the events of 8 August 2020. I declined this request given an employer can seek to rely on after acquired knowledge in relation to a dismissal and on that basis, it would be inappropriate to exclude the evidence at that stage.
[13] Mr Rogers was asked again for his recollection of the events of 8 August 2020. Mr Rogers repeated that after playing golf and having a few beers, Mr Harris asked him and others in the carpark whether they wanted to smoke cones, to which Mr Rogers said he replied no. Mr Rogers admitted he had too many drinks but said he recalled Mr Harris offering for him to go and have a cone in his car. Mr Rogers said others were present and were also offered to smoke cones. Mr Rogers was asked whether Mr Harris was seen with any marijuana. Mr Rogers confirmed Mr Harris offered him marijuana but that he did not see any.
[14] It was put to Mr Rogers, if they had a poor relationship why would Mr Harris offer Mr Rogers marijuana. Mr Rogers replied Mr Harris was drunk and offered the marijuana not just to Mr Rogers but to others as well.
[15] Ms Hayley Conder, an employee of Meadowbrook Golf Club, gave evidence in her statement that she was working in the bar at the Golf Course on the night of 8 August 2020.
[16] Ms Conder said she heard Mr Harris offer marijuana to the members he was in the bar with drinking. She said later on that night, it was an ongoing joke that Mr Harris was high all the time and he had a bong in his car.
[17] Ms Conder was also asked during her oral evidence when it was that she told Mr Linskey about the information contained in her statement. Ms Conder could not seem to remember but indicated it was after Mr Harris’ termination.
[18] Ms Conder said she believes she would have given the information after Kylie (Ms Horne) was brought in for an interview. Ms Conder was not clear, and said she did not know about the dates, but it appeared she provided information to Mr Linskey after Mr Harris was dismissed.
[19] Further to her statement Ms Conder was asked during her oral evidence to provide her recollection of what occurred on the night of 8 August. Ms Conder said she was working at the driving range and saw Mr Harris walk up to his car, and she saw Ms Horne walk her son to her car, and then she saw Mr Harris walking with Ms Horne and they were laughing about how Mr Harris offered Ms Horne marijuana and Mr Harris was apologetic to Ms Condor about having offered marijuana to Ms Horne.
[20] Ms Condor also said that later that night in the Club House Mr Harris asked her if Ms Condor would be angry at him if he took Ms Horne to smoke cones and Ms Condor claimed she replied “of course she would be” and also that Ms Horne did not want to. Ms Condor said that Mr Harris then went outside and she presumed he went to smoke marijuana.
[21] Ms Conder was asked if she saw Mr Harris smoking marijuana. Ms Conder said Mr Harris admitted to her that he had been using marijuana at the driving range. She said he kept saying “don’t be disappointed in me, don’t be angry at me”. Mr Harris put to Ms Condor that her was concern that on this one night he smoked pot. Ms Conder’s evidence was to the effect that Mr Harris told her that he goes to his car all the time to smoke marijuana.
[22] I am inclined to prefer the evidence of the witnesses for the Respondent over Mr Harris concerning the events of 8 August. I am satisfied from the evidence that on balance it is more likely than not, that during a private birthday function taking place at the Golf Club attended by a number of staff of the Respondent, Mr Harris offered a number of persons, including two employees of the Respondent in attendance marijuana. In the case of Mr Rogers who declined the offer, this occurred while they were drinking together, and in the case of Ms Horne, who also declined the offer, the marijuana was offered to her that night while in the carpark.
[23] The function, while at the Club, appears to have been a private function and not a work function. I’m also inclined however to accept Ms Condor’s evidence where she said that Mr Harris admitted to her that he goes to his car “all the time” to smoke marijuana. Her evidence was firm on the point and Mr Harris did not strongly refute Ms Condor’s evidence on the point when she gave it.
Tuesday 25 August 2020
[24] Ms Horne said in her statement she was approached by Tom (Linskey) and Steven Linskey on the 25th August 2020 who asked her if Mr Harris was doing drugs on the premises at work, to which she replied yes. Ms Horne said shortly after Mr Harris was asked to finish up work which he wasn’t happy about.
[25] In her oral evidence Ms Horne was asked to clarify when this information was given to Mr Linskey. Ms Horne said on the 25th of August. Ms Horne was asked how the information was given because she was not working that day. Ms Horne said it was in person in Stephen’s office. Mr Harris asked whether there was footage of Ms Horne entering the premises. Ms Horne said there would be. Mr Harris put it to Ms Horne that she gave the information to Mr Linskey after Mr Harris was terminated.
[26] Ms Horne again confirmed that she gave the information on 25 August. Mr Harris asked why she waited so long from 8 August. Ms Horne said she was asked by Tom and Stephen Linskey what she had seen, and she told them what she had seen. She said she was asked to come in for a meeting, which she did.
[27] On the basis of the evidence I am inclined to accept Ms Horne’s evidence that she spoke to Mr Linskey about Mr Harris using drugs at work on 25 August. One of the questions that Mr Harris put to Mr Linskey was when did Mr Linskey become aware of his alleged drug use. Mr Linskey answered a few days before he was terminated.
Wednesday 26 August 2020
[28] Mr Harris submitted that on 26 August 2020 at approximately 9.00am, he was asked by Mr Linskey, the Managing Director, to meet at 11.30am. Mr Harris said that at 11:30, Mr Linskey requested Mr Harris follow him into the General
Managers office and shut the door. Mr Harris submitted that during this meeting, Mr Linskey informed Mr Harris that “we don’t want you here anymore”. The evidence was that there was no one in the room other than Mr Harris and Mr Linskey.
[29] Mr Harris submitted Mr Linskey then asked Mr Harris to grab a piece of paper out of the printer and write a resignation letter. Mr Harris said Mr Linskey then informed him that it would be smart and make his life easier if he just resigned. Mr Harris submitted he was in shock, and asked Mr Linskey if he could take some time and email him later in the day to which Mr Linskey just shrugged his shoulders.
[30] Mr Harris submitted he then asked Mr Linskey why and what was the reason and Mr
Linskey responded it “is what it is”. Mr Harris submitted Mr Linskey then informed him to give his keys to the Mr Zimmerman.
[31] Mr Harris submitted he informed Mr Linskey that he would not resign and Mr Linskey responded to him “to be smart and think about it.” Mr Harris submitted he made two further requests for a Termination Letter. Mr Harris submitted that following the meeting, he received several text messages from Mr Linskey demanding he resign.
[32] Mr Linskey said Mr Harris was terminated because Mr Harris admitted to using illegal drugs during working hours and on the company premises. Mr Linskey said he told Mr Harris he did not want him anymore because of his drug use that was reported to him by two of the Respondent’s staff. Mr Linskey said Mr Harris said he uses marijuana for his anxiety. During his oral evidence Mr Linskey said he asked Mr Harris whether he was using dope on the property and Mr Harris’ answer was that he had to use it for anxiety and stress.
[33] Mr Linskey said the conversation with Mr Harris was rambling. He said Mr Harris is an extremely talented golfer and has a lot of good points and likes him as a person and that he has tried to help him in various ways both with his golf and his future career path. Mr Linskey said he suggested Mr Harris consider resigning to avoid the public outing of the reasons behind his leaving.
[34] Mr Linskey said the termination letter was there during the meeting and was put in front of Mr Harris. He said the question was whether Mr Harris was going to resign or be dismissed. Mr Linskey said Mr Harris began to accept that suggestion then changed his mind and stormed out leaving the letter of dismissal on the desk.
[35] In oral evidence Mr Harris denied Mr Linskey’s evidence that Mr Harris admitted to using marijuana for stress.
[36] Mr Linskey was asked during his oral evidence what led for the need for the meeting on 26 August. Mr Linskey said he had become aware of some questions raised over Mr Harris’ behaviour. He said it was confirmed by Ms Horne, Mr Rogers and Ms Conder. Mr Linskey said it was part of Mr Harris’ employment contract that he cannot use drugs. He said that the fact he admitted to using the drugs was the end of the matter.
[37] Mr Linskey said Mr Harris asked whether it could be forgotten about and if they could start again and Mr Linskey said no. Mr Linskey was asked to confirm when Ms Horne, Mr Rogers and Ms Conder notified him of what they had witnessed. He said the “blow up” occurred on 8 August but he had been asking questions beforehand, but they confirmed it on that date.
[38] It was put to Mr Harris he said in his Form F2 application there was no communication regarding his dismissal until the letter received on 2 September, but that Mr Linskey says he invited Mr Harris to resign on 26 August. Mr Harris said that Mr Linskey told him (in the meeting) he wasn’t wanted anymore, and it would be smart for Mr Harris to resign as it would make it easier for him to get another job. He said he then asked why he was being dismissed to which Mr Linskey shrugged his shoulders and said “toxic” and that there were a number of relationships that could not be mended.
[39] It was put to Mr Linskey, that in the Form F2 it says Mr Linskey informed Mr Harris to give his keys to Mr Zimmerman at the conclusion of the meeting of 26 August. Mr Linskey said there was nobody of the name Zimmerman but that, it could refer to Mr Samorini. Mr Linskey said he couldn’t remember but that it sounded correct. Mr Harris agreed it was Mr Samorini.
[40] On the basis of the evidence I am inclined to prefer Mr Linskey’s version of the conversation with Mr Harris on 26 August, including that Mr Harris admitted to Ms Linskey that he had used marijuana on the premises while at work to assist him with stress and anxiety. It is more plausible than Mr Harris’ alternative version which appears to be that Mr Linskey never gave him the reason of his drug use for asking him to resign as an alternative to termination. Mr Harris claimed the reason was that Mr Harris was “toxic” and problems with relationships with others. In the context of all of the events it seems highly unlikely that Mr Linskey would have asked Mr Harris to resign without raising the allegation concerning drug use. It is logical that Mr Linskey would offer the option of resignation as an alternative to the issue concerning drug use being made public as he has claimed.
[41] Whilst not much turns on it in the ultimate determination of this matter, I am inclined to the view the Mr Harris’ employment was probably terminated at the initiative of the Respondent at the point Mr Linskey directed Mr Harris to give his keys to another employee. Mr Linskey accepted in his oral evidence that Mr Harris was offered the opportunity to resign but failing that he would be terminated. Mr Harris refused to resign, and it was clear from this direction the Respondent did not intend for Mr Harris to continue in employment.
[42] Mr Harris has submitted that the allegations contained in the evidence of Ms Horne, Mr Rogers and Ms Condor were not made until after the meeting on 26 August, and were in effect manufactured after the event to retrospectively justify the Respondent’s actions.
[43] Mr Linskey’s own evidence on this point was that Ms Horne, Mr Rogers and Ms Conder “confirmed” questions that he had “become aware of” concerning Mr Harris’ behaviour.
[44] I have been satisfied Ms Horne did provide information to Mr Linskey on 25 August, concerning the allegation that Mr Harris was using drugs at work, this being the day before the meeting on 26 August. The evidence of Mr Rogers and Ms Condor indicates they did not speak to Mr Linskey until after his meeting with Mr Harris, and on that basis Mr Linskey conducted the meeting on 26 August without the benefit of having interviewed Mr Rogers and Ms Condor beforehand. However I have also accepted Mr Linskey’s evidence that Mr Harris admitted to Mr Linskey at the meeting that he had been using marijuana at work and on that basis the Respondent was entitled to be satisfied the allegation was made out.
[45] Mr Linskey said a “blow up” occurred on 8 August but he had been asking questions beforehand. Given Ms Condor’s evidence that Mr Harris made offers to smoke marijuana in front of a number of people at the Golf Club on 8 August, and Mr Linskey’s evidence that he had been “asking questions” before the events of 8 August it is likely Mr Linskey harboured a concern that Mr Harris had been using drugs while at work for some time before the issue was first raised with Mr Harris on 26 August.
27 August 2020
[46] Mr Harris claimed in his evidence that on Thursday 27 August 2020, he contacted Mr Linskey and again requested a termination letter. Mr Harris said Mr Linskey informed Mr Harris that he was busy but that he should come to the golf club that afternoon. Mr Harris said he went to the club and packed up his belongings. He said he then asked the Vice President of the golf club if they had seen his termination letter to which The Vice President was shocked to hear of the situation and didn’t know of a termination letter.
[47] Mr Harris said he was informed by Mr Linskey in a previous message the letter was on the General Manager’s desk. Mr Harris said he left the club without the termination letter as he did not feel it was appropriate to go to the General Manager’s office.
[48] Mr Harris said he ordinarily worked Wednesday to Sunday. He said the reason he did not go back to work the following day (being a Thursday) was due to stress, not that he had been terminated. He said he thought it was likely Mr Linskey was having a “moment” and that it would blow over. He said that a concern was there, but he didn’t have a termination letter.
[49] I am also inclined to accept Mr Linskey’s evidence that a termination letter was also prepared and on the table at the meeting on 26 August. Mr Harris maintained this was not the case and that he in fact had asked for a termination letter which he did not receive. It may well be that given the stressful nature of the conversation, and the fact of Mr Harris having no warning of Mr Linskey’s intention to ask him to resign that Mr Harris simply does not recall a termination letter being discussed or being on the table. It seems clear enough Mr Linskey was trying to convince Mr Harris to resign rather than be terminated. It is more likely that because of Mr Harris’ refusal to resign that he did “storm out” as Mr Linskey claimed after being asked to give his keys to another person, leaving the termination letter on the table. I note the termination letter is dated 25 August, which was the day before the meeting on 26 August.
Termination letter 2 September 2020
[50] Mr Harris submitted from Friday 28 August 2020 until Thursday 10 September he sent emails and text messages to Mr Linskey requesting a reason as to why he was asked to resign and also requesting a termination letter, pay and entitlements. Mr Harris said he received no response from Mr Linskey other than to be informed that his commission entitlements would not be honoured.
[51] Mr Harris said he received a termination email on 2 September with a Termination Letter, which had been backdated to 25 August 2020.
[52] Mr Harris submitted he was advised by his peak industry body to return to work as he had not been dismissed nor had he received a termination letter. He submitted that upon returning to work on Wednesday 2 September 2020, he was berated by his reporting Manager, Mr Mellsop. Mr Harris submitted that he felt very anxious and upset and decided to leave the premises.
4 September 2020
[53] Mr Harris submitted that on Friday 4 September, he received his final pay slip. Mr Harris submitted the amount was under what it should have been, however it is noted this is not an issue that will be dealt with in this decision.
9 September 2020
[54] Mr Harris submitted on 9 September 2020 he received a text message from Mr Linskey requesting a one on one meeting. Mr Harris said he declined the meeting.
[55] Mr Harris submitted he had exceeded every performance standard, was rated highly in a performance review three weeks prior to being dismissed and had no history of underperformance or poor conduct, and no warnings.
Post-employment allegations against Mr Harris
[56] Ms Horne said since then (the dismissal of Mr Harris) she has received text messages and phone calls of harassment. She said she asked Mr Harris to stop and he didn’t. Ms Horne said Mr Harris even went as far as contacting her husband with messages of false allegations which affected her home and family.
Employment Contract
[57] In relation to clause 20.1(h) of his employment contract, Mr Harris submitted that even if the allegations were true, it did not affect his performance. Mr Linskey seemed to indicate that the clause should not be read conjunctively. It was enough that Mr Harris abused drugs on the premises.
[58] Mr Harris said that it is well known that everyone at the Respondent smokes marijuana, even though he did not. There was no specific evidence to support this general claim.
HARSH, UNJUST OR UNREASONABLE
[59] In considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable, the Commission must take into account a number of factors set out below.
(a) Valid Reason
[60] The termination of Mr Harris’ employment was related to his conduct, not his capacity. The reason must be “sound, defensible or well founded”, rather than “capricious, fanciful, spiteful or prejudiced” 1. The onus is on the Respondent to establish that the alleged conduct occurred.
[61] I have found on balance that Mr Harris offered a number of persons, including two employees of the Respondent marijuana on 8 August at a private function at the Respondent’s premises, and that he also admitted to Ms Condor that he went to his car “all the time” to smoke marijuana. I have also found Mr Harris admitted to Mr Linskey using marijuana including at work to manage his stress and anxiety at their meeting on 26 August.
[62] From Mr Linskey’s evidence it is apparent that the reason relied upon by the employer was that Mr Harris was using illegal drugs during work hours and on company premises, and this was based on Mr Harris’ admission to Mr Linskey. Given I have accepted that Mr Harris made this admission in the meeting on 26 August I am also satisfied the allegation has been made out. The question becomes, is this a valid reason for dismissal?
[63] The Respondent sought to rely on clause 20(h) of Mr Harris’ contract of employment which provides as follows:
“20 Termination of Employment
20.1 The Employer may terminate your employment without lieu of notice for any of the following reasons, if you:
…………..
“(h) abuse alcohol or drugs whilst on the Employer’s premises, or just prior to commencing work on the premises, which adversely affects your ability to carry out your duties…”
[64] The language in clause 20.1(h) on its face is intended to be read such that it would be a breach of clause 20.1(h) were Mr Harris to abuse alcohol or drugs, and for that abuse to adversely affect his ability to carry out his duties as an apprentice golf professional. The Respondent did not lead any evidence to establish that Mr Harris’ ability to carry out his duties was adversely affected by his admission that he used marijuana. On that basis I cannot be satisfied that the Respondent is entitled to rely on clause 20.1(h).
[65] The question then turns to whether the use of marijuana of itself while on an employer’s premises and at work is a valid reason for dismissal. In Queensland, cannabis is an illegal drug in accordance with Schedule 2 of the Drugs Misuse Regulation 1987.
[66] It is an offence to possess illegal cannabis and to possess items used for taking drugs such as a bong. It is also an offence to supply illegal drugs, including giving them to someone else. Unlawful conduct undertaken on the employer’s time, and on the employer’s premises could provide a valid reason for termination. Mr Harris’ contract of employment included the following at clause 5:
“5.2 You also have general duties to:
………………..
(b) at all times act faithfully, honestly and diligently
(c) ensure you are performing solely work-related activities in work time
(d) ……………..
(e) act in the Employer’s best interests at all times.”
[67] Given Mr Harris’ admission to Mr Linskey that he engaged in unlawful conduct at work and on the employer’s premises I am satisfied Mr Linskey was in breach of his duties as an employee including the general duties under his contract of employment as set out above. On that basis I am satisfied that the Respondent had a valid reason for termination.
(b) Whether the Person was notified of the Reason
[68] I am satisfied that Mr Linskey communicated to Mr Harris in as many words on 26 August that because of his admission that he used marijuana at work to deal with stress and anxiety, he offered Mr Harris the option to resign or alternatively he would be dismissed. Mr Harris refused to resign, and he was subsequently dismissed.
(c) Opportunity to Respond
[69] Mr Harris was not given a proper opportunity to explain his conduct because it was apparent from Mr Linskey’s own evidence, once Mr Harris had admitted using marijuana while at work to manage his stress and anxiety that was the end of the matter and Mr Harris could either resign or be terminated. For Mr Linskey it was clear his mind was closed to any alternative possibility from that point on. It is also the case that Mr Harris was given no warning about what would be discussed at the meeting on 26 August.
[70] Mr Harris was given no opportunity to respond before he was dismissed to the specific matters raised in the evidence of Ms Horne, Mr Rogers or Ms Condor during the determinative conference which tells against the dismissal being fair.
(d) Any unreasonable refusal to allow a support person to be present
[71] Whilst there was limited capacity for Mr Harris to have made a request for a support person given he had no warning about what would be discussed at the meeting on 26 August he did not ask for a support person to be present and on that basis section 387(d) is not relevant.
(e) Prior warnings about unsatisfactory performance
[72] As it was clear the termination was related to conduct and not performance section 387(e) is not relevant.
(f) and (g) Impact of size of employer and absence of dedicated human resources specialist
[73] Whilst the employer was not a small business as defined in the Fair Work Act 2009, as it had 24 employees it could not be said to be a large employer and did not have a dedicated human resources specialist. Mr Linskey managed the termination and it is apparent he did interview all relevant persons before the meeting on 26 August. I am satisfied the size of the employer and the absence of a human resources specialist impacted on procedures followed by the Respondent.
(h) Any Other Matters
[74] Mr Linskey never sought to expressly rely on the specific events of 8 August as the reason for dismissal prior to the dismissal, and it appears that Mr Rogers and Ms Condor’s allegations concerning Mr Harris were not before the Respondent at the time of termination. On that basis I will deal with them as part of consideration under section 387(h).
[75] Given my findings that Mr Harris, an employee of the Respondent, offered an illegal drug on the premises of the Respondent to a number of persons at a private function held on the Respondent’s premises within the earshot of Ms Condor, an employee of the Respondent who was working at the time, and he also offered an illegal drug to two other employees of the Respondent on the same date in separate conversations, these are matters that existed at the time of the dismissal, and should be considered, even if the Respondent was unaware of those facts and did not rely on them at the time of dismissal.
[76] The reason for the termination need not be that which was given by the employer. It can be any reason underpinned by the evidence provided to the Commission. This was evidence provide to the Commission in the course of the determinative conference.
[77] It appears from the evidence that the conduct on 8 August was conduct that probably occurred outside Mr Harris’ specific work hours although Mr Harris’ work hours were not clearly established. His contract of employment provides at clause 8.1 that the business’ normal span of hours of operation are set out in the Schedule to the contract at item 7. Item 7 provides those hours are from 5.30am to 12.30am Monday to Sunday.
[78] Clause 8.2 of Mr Harris’ contract provides he will be required to work 38 hours per week plus any additional hours which are reasonably necessary to fulfil the requirements of his duties, or as reasonably required by the employer. Mr Harris indicated he ordinarily worked his 38 hours Wednesday to Sunday.
[79] 8 August was a Saturday so would have been a working day for Mr Harris. The specific incidents on 8 August appeared to have occurred in the evening at the Respondent’s premises inside the Respondent’s operating hours as provided in Mr Harris’ contract, however probably outside the 38 paid hours a trainee golf professional would be working. Because the conduct probably occurred outside Mr Harris’ work hours, it is necessary for the conduct to have a relevant connection to the employment relationship.
[80] In Rose v Telstra it was found that the out of hours conduct:
• ‘must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer; or
• The conduct damages the employer’s interests; or
• The conduct is incompatible with the employee’s duty as an employee.’
[81] Mr Harris offered an illegal drug to a number persons whilst on the employer’s premises, including two other employees of the Respondent (who both declined his offer). I am satisfied that Mr Harris’ conduct viewed objectively is likely to cause serious damage to the relationship between the employee and employer. Mr Harris was a trainee golf professional. In that role he would be associated by members and other employees as part of, and representative of the Respondent while at the Respondent premises.
[82] Mr Harris by his actions invited other persons whilst on the Respondent’s premises, including other employees of the Respondent, to engage in unlawful conduct. He would have been working on the premises for the Respondent earlier that day. He engaged in this conduct at his place of work. This occurred on two separate occasions in two different locations on the Respondent’s premises on 8 August, once when drinking with Mr Rogers inside the Respondent’s Club when the bar was open, and also in the Respondent’s carpark.
[83] I am satisfied that the conduct given its location is likely to cause serious damage to his relationship with his employer given he not only engaged in unlawful conduct himself while at his place of work (although probably not during working hours) but he also invited other employees of the Respondent to engage in unlawful conduct whilst on the employer’s premises, which was also their place of work. Given all of that, it is hardly surprising that the Respondent would lose trust and confidence in Mr Harris given his position of trainee golf professional would be so closely associated with the Respondent itself, and his actions would therefore have seriously damaged the relationship.
[84] I am also satisfied that Mr Harris’ offer to fellow employees to engage in unlawful conduct at the Respondent’s premises was also incompatible with his duty as an employee, and his general duties under his contract of employment.
[85] Mr Harris’ contact of employment at clause 5, already referred to above included the following:
“5.2 You also have general duties to:
………………..
(b) at all times act faithfully, honestly and diligently
(c) ensure you are performing solely work-related activities in work time
(d) exhibit a professional and courteous attitude when dealing with the Employer, its customers, employees, suppliers and other members of the public and
(e) act in the Employer’s best interests at all times.”
[86] Given Mr Harris invited fellow employees to engage in illegal conduct whilst on the Respondent’s premises including inside the Respondent’s Club this conduct is neither faithful, professional or in the Respondent’s best interests.
[87] Whilst the impact of Mr Harris’ termination would have been considerable, his tenure as a trainee golf professional at the Respondent was not lengthy, at around 10 months. He gave evidence that he has recently obtained other employment at another golf club.
[88] I have also taken into account a medical certificate that Mr Harris provided that set out that Mr Harris had been suffering from a medical condition which the certificate stated was related to his termination of employment. There was no other medical evidence called other than the provision of this medical certificate.
CONCLUSION
[89] I have considered all of the factors I am required to consider under section 387. I have been satisfied that whilst there were procedural flaws in the manner in which the termination was effected, given that the employer had a valid reason for termination and further information came to light after the termination that also weighs against a conclusion that the dismissal was unfair, I am satisfied that the dismissal was not harsh, unjust or unreasonable.
[90] On that basis the application is dismissed.
COMMISSIONER
Appearances:
Mr R. Harris appearing on his own behalf
Mr T. Linskey appearing for the Respondent
Hearing details:
2021,
Brisbane:
January 11
Printed by authority of the Commonwealth Government Printer
<PR726132>
1 Selvachandran v Peteron Plastics [1995] IRCA 333.
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