Richard Horan v North Coast Tavern Pty Ltd T/A North Shore Tavern
[2011] FWA 3035
•5 AUGUST 2011
[2011] FWA 3035 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Richard Horan
v
North Coast Tavern Pty Ltd T/A North Shore Tavern
(U2011/3108)
DEPUTY PRESIDENT HAMILTON | MELBOURNE, 5 AUGUST 2011 |
Summary dismissal without notice - breach of lawful and reasonable direction - refusal to terminate the employment of an apprentice - other conduct
[1] On 6 January 2011 Mr.Richard Horan made an application for an unfair dismissal remedy. North Coast Tavern Pty Ltd (‘the Tavern’) summarily dismissed him from his employment as a Head Chef on 31 December 2010.
[2] The case turns in part on whether or not the Tavern gave Mr.Horan a reasonable and lawful direction to terminate the employment of an apprentice who said ‘Fuck you, cunt’ to a superior, refused to redo some sandwiches, and threw them in the bin. Other alleged valid reasons for termination were that Mr.Horan did not issue a written warning to all staff in regards to behaviour and attitude in the kitchen, and went on sick leave without checking to see if arrangements in the kitchen during the December busy period were sufficient. The nature of each of these events was the subject of considerable evidence and submission.
[3] The following witnesses were called:
Margaret Elizabeth Hughes
Richard Paul Horan
Apprentice A 1
Jenifer May Scott
David William Wheldon
Craig Ralph Stephenson
[4] I have had regard to all the written submissions and witness evidence. Pursuant to s.399 the matter was heard by hearing given the decision of the parties to extensively cross examine witnesses.
[5] I might add that I am surprised that this matter was not settled during conciliation discussions.
Submissions of the Parties
[6] Mr.Horan claimed that his dismissal was unfair because:
. there was no valid reason for termination;
. and he was not afforded a fair process in his termination.
[7] He submitted that he had not been given a direction to terminate the employment of an apprentice. Even if he was it was not a reasonable and lawful direction. It was not reasonable and lawful because the Tavern put Mr.Horan into a position where he would face legal issues in relation to the termination of an apprentice who had been subjected to sexual harassment. It was alleged that the Tavern knew of the harassment, refused to properly investigate the complaint of harassment made by the apprentice, sought to terminate her after she made a complaint, and then terminated Mr.Horan 2.
[8] The Tavern submitted that Mr.Horan had:
. breached two reasonable and lawful directions: to dismiss Apprentice A because of her language and conduct on 11 December, and to warn all kitchen staff in writing about appropriate language and conduct;
. also gone on sick leave without checking to see if the kitchen was organised for his absence 3.
[9] He was notified of the reason for termination in an email of 31 December 2010 terminating his employment 4. He was given the opportunity to respond at a meeting held on 29 December 2010, and given the opportunity to provide a written response, and was given an extension of time in which to make his response. The response was made by email5. The employer denies that he was refused a request to be represented during the meeting of 29 December 20106.
The Events Leading to the Termination of the Employment of Mr.Horan
[10] On 19 December 2010 Mr.Craig Stephenson, the General Manager, sent an email 7 to Mr.Horan (Head Chef) and to Mr.Slack (Manager) which included the statement:
‘The manner in which [Apprentice A] behaved on that day [11 December 2010] is totally unacceptable and in my opinion warranted instant dismissal, on the grounds that her behaviour and actions was grossly unacceptable and did not want to follow the directions given to her [sic] the head chef on duty. [Apprentice A] is to be advised that her behaviour and actions has warranted her dismissal on the grounds of serious misconduct. She needs to be issued with a termination notice on those grounds.
All other staff members are to be issued a written warning in regards to behaviour and attitude in the kitchen, they must be professional at all times and if they choose to perform otherwise then will be terminated on the spot. I won’t tolerate this type of incident or behaviour again, the responsibility lies on YOU Richard the Head Chef to bring them into line.
....
Out of all this it is clear that the two highest paid employees apart from the Tavern manager need to spend more time in the kitchen to keep control as this has clearly gone by the way side. I am of the opinion that due to the lack of supervision these events have been allowed to happen and the only way to gain control back is for you to TAKE THE CONTROL.
....
Please feel free to respond to my comments.’
[11] Mr.Horan did respond. He sent an email to Mr.Stephenson in which he stated that Sous Chef B should be terminated because of his conduct, and other matters 8.
[12] On 28 December 2010 Mr.Stephenson sent an email to Mr.Horan in which he made a number of comments. He said that Mr.Horan attended the Tavern on 20 December 2010, wrote a response to Mr.Stephenson’s email of 19 December, provided a sick leave certificate to Kelly the Duty Manager, and then left the premises. Mr.Stephenson said that 9:
‘You then proceeded to leave the premises without any consultation with the Sous Chef to advise him that you would not be in the for the following week, you made no attempt to change the rosters, no instructions or consultation was given to any person in the kitchen thus causing great disruption and interruption to the running of the business.
We feel that your negligence to the business that night has clearly exhibited your inability to maintain control within the kitchen, to have the time to actually enter the business and type up a response and then to completely and utterly ignore any responsibility you have as Head Chef and to make NO attempt to organise the kitchen for the following week clearly indicates your position and commitment to the business is of serious concerns.
Your actions that Monday night have left myself and the Directors without the confidence of you holding your position within the business, you made no attempt to consult, change, advise any person in the kitchen which led to us to be very unprepared and short staffed, shortage of food due to know (sic) orders being placed.
If you were able to travel to the Tavern and then complete an email then you should have been able to re-organise the kitchen to run and operate effectively during the week you were off but you deliberately left the premises without attempting to make any changes what so ever knowing full well that this course of action would result in all sorts of problems in the kitchen.
We will be seeking a response to the above at tomorrow’s meeting and if we feel this to be unsatisfactory I will be moving to terminate your employment effective immediately.’
[13] A meeting was held on 29 December 2010 between Mr.Horan, Mr.Stephenson, Mr.Slack and the Directors of the Tavern.
[14] On 30 December 2010 Mr.Horan provided a further written response to questions raised with him at the 29 December 2010 meeting. Mr.Horan claimed that the email of 19 December did not direct him to terminate the employment of Apprentice A and stated that he was reluctant to do so because it would condone the actions of Sous Chef B. He said that he had not had time to write any written warnings because he was working in the kitchen, dealing with private personal issues, and all staff had previously been warned to some degree. He said that he did not contact managers on his entry to the Tavern on 20 December because he had a medical certificate that he was unfit for work, and other matters 10.
[15] On 31 December 2010 Mr.Stephenson sent Mr.Horan an email in which he terminated Mr.Horan’s employment on the grounds of refusing to terminate the employment of Apprentice A, not issuing warnings to all staff, and for entering the Tavern on 20 December 2010 without any communication with any person in the kitchen. This was summary dismissal.
The Incident of 11 December
[16] Two issues arise:
. did the Tavern direct Mr.Horan to terminate the employment of Apprentice A?
. was this alleged direction a lawful and reasonable direction?
[17] I will deal with those issues in turn.
Was there a direction to terminate Apprentice A’s employment?
[18] The alleged direction to terminate the employment of Apprentice A was contained in an email sent on 19 December by Mr.Stephenson to Mr.Horan and to Mr.Slack. Mr.Horan gave evidence that he understood that the direction in the email to terminate the employment of Apprentice A was a direction to him, not to Mr.Slack 11. Mr.Horan understood that it was a direction which was not invalidated by the invitation to respond contained in the email12. I agree with that interpretation of the email. Termination of employment was within the scope of his duties as head of the kitchen. This was a direction to terminate the employment of Apprentice A.
Was the Tavern’s direction to Mr.Horan to terminate the employment of Apprentice A a reasonable and lawful direction?
[19] On 11 December 2010 Apprentice A said ‘Fuck You Cunt’ to her superior, Sous Chef B, when told about the unsatisfactory state of some sandwiches. She threw the plate into the bin and smashed it. She admitted saying ‘Fuck you cunt’ to Sous Chef B 13. On one interpretation this conduct could lead to summary dismissal because of the offensive nature of the language used, the physical conduct including smashing a plate and throwing sandwiches in the bin, and because of the refusal to follow a reasonable and lawful work direction. However, there are allegedly mitigating circumstances, namely allegations that Apprentice A was harassed by Sous Chef B.
[20] Mr.Stephenson directed Mr.Horan to take statements from the employees who had been present in the kitchen when the incident occurred. Mr.Horan obtained witness statements from Sous Chef B, Mr.Chris Slack, Mr.Craig Parr, G.Weaver, and Ms Jenifer Scott 14. Mr.Stephenson said that he interviewed Sous Chef B, Mr.Weaver, Ms.Scott and Mr.Bamber15. Mr.Stephenson also spoke to Mr.Horan, Sous Chef B, Mr.Slack, these being senior staff, at a meeting on 15 December 2010. These were reasonable actions to take in order to investigate what had happened. I note that Mr.Horan was central to the investigation process that he now claims was fundamentally flawed.
[21] Once this was done an assessment of the evidence had to be made. It is well recognised that this can be difficult process. As Dixon J said in Briginshaw v. Briginshaw 16:
‘The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty ... [A]t common law ... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been provided to the reasonable satisfaction of the tribunal. In such matters, ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony or indirect references. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgement if the question was whether some act had been done involving grave moral delinquency .... [emphasis added]
...
When in a civil proceeding a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other Civil issues ... But, consistently with this opinion, weight is to be given to the presumption of innocence and exactness of proof is expected ...’
[22] What was the evidence that had to be assessed? There is firstly an allegation that Sous Chef B essentially confessed that the allegations made by Apprentice A, or some or many of them, were true and correct, and that knowing this the Tavern for undisclosed reasons of its own nevertheless went ahead and sacked Apprentice A while leaving Sous Chef B in his job. This is a serious allegation.
[23] Did Sous Chef B admit to Apprentice A’s allegations or some of them? Mr.Horan said that Sous Chef B made a number of admissions at the meeting with him and Mr.Stephenson on 15 December 2010, including that he had harassed Apprentice A ‘on an ongoing basis’ but that it was ‘just banter’, that he had called Apprentice A a disgusting and salacious term, and other matters. Mr.Stephenson denied that Sous Chef B made these admissions 17. According to Mr.Stephenson, Sous Chef B only told the meeting that everyone would muck around in the kitchen, which included ‘personal jokes with each other. Jibing each other and general banter between all the staff in there.’ Sous Chef B demonstrated the ‘turkey noise’ that he had engaged in18. The applicant referred in his correspondence19 to admissions made by Sous Chef B at the meeting, but the correspondence of Mr.Stephenson appears to indicate a different view of events, in which any alleged admission by Sous Chef B is not important20. It does show a difference of view between Mr.Horan and Mr.Stephenson. In any event I had the opportunity of observing the witnesses giving evidence, and I prefer the evidence given by Mr.Stephenson on this point. With respect I did not find Mr.Horan a convincing witness. Some of his evidence was not credible, and I found it overall difficult to place great reliance on it unless it was verified by other witnesses or material.
[24] What was the overall evidence on the incident of 11 December and alleged harassment of Apprentice A?
[25] Only some of the witnesses that Mr.Horan gained witness statements from, and that Mr.Stephenson spoke to, gave evidence before me. Apprentice A gave evidence that she was sexually harassed by Sous Chef B, and claimed that a number of salacious and offensive comments were made to her by him 21. These allegations were first made in a letter handed by her to Mr.Horan and others on 14 December 201022. She did not report this alleged harassment to Mr.Horan, Mr.Slack, Mr.Stephenson, or anyone else in management before this. The claims of sexual harassment were first made after she was told to leave the workplace for telling the acting head chef to ‘fuck off, cunt’23. She agreed that there were jibes going backwards and forwards between people in the kitchen24. She made an application for unfair dismissal, but withdrew it when the Tavern offered her the job back25. Ms.Jenifer Scott26 claimed that she witnessed some of these incidents of alleged sexual harassment. Ms.Scott agreed that Apprentice A also repeated comments of a sexual nature on occasion in the kitchen27. I might add that her evidence was taken by telephone, which made it more difficult for me to assess. She was not subject to the vigorous cross examination that other witnesses were.
[26] Mr.Horan, the applicant in this matter, was concerned enough about the conduct of Apprentice A to specifically raise the possibility of the termination of her employment because of that conduct. He wrote in an incident report on 15 December:
‘What further action required
Head Chef - Need to look closer at [Apprentice A’s] involvement need to listen to Sous Chef’s story of events. Recommend Sous Chef’s employment be terminated immediately. Dependant on [Apprentice A’s] input to events she should be terminated.’ 28 [emphasis added]
[27] When he wrote this he had read Apprentice A’s letter of complaint and was therefore already aware of her claims that she had been subjected to harassment by Sous Chef B 29. Later he appeared to change his mind or form the view that she should not be dismissed because of Sous Chef B’s conduct30. His allegedly contemporaneous diary notes made about Sous Chef B on 11 August, 13 August, and 24 September31 do not specifically record sexual harassment. They refer to ‘mucking around in kitchen with staff. Teases staff losing respect from apprentices’, and similar matters. There was not in other words a history of sexual harassment made known to Mr.Horan32 or others in management. It would be odd for Mr.Horan to believe all of Apprentice A’s allegations in her letter of 14 December, and still on 15 December raise the strong possibility of her being terminated in his formal incident report. Again, if there was sexual harassment this was not noticed at the time by Mr.Horan, although he worked presumably many hours with Apprentice A and Sous Chef B.
[28] Mr.Stephenson said that he was unaware of the ‘turkey noise’ gestures or what the turkey noise meant 33. There was nothing before him in the witness statements to lead him to regard it as meaning something other than an offensive turkey noise, although there was different evidence before me.34 The statement of Mr.Slack35 refers to a request by Apprentice A in a ‘jovial mode’ that Sous Chef B stop making a ‘turkey noise at her’. Mr.Slack claims that he ‘instantly told [Sous Chef B] to stop this. There was no need for any further involvement from me in this matter’. A ‘jovial mode’ suggests that Apprentice A was not demonstrating obvious personal distress, and is consistent with a description of the conduct as ‘mucking around’. Again, he did not notice any sexual harassment, although the kitchen was placed so that he could presumably hear much of what was said36. It is also surprising that someone did not notice the sexual harassment and report it to Mr.Stephenson. Mr.Stephenson said:
‘I found that there was no evidence after the event, or prior to that particular day, that substantiated any type of intervention from myself. It was never directed to me by any other person in the hotel that there was any of that type of behaviour going on and there was - I found it very odd that all of this had surfaced after this event had actually unfolded.’ 37
[29] I also note that Mr.Stephenson agreed with some four propositions put in one question, a confusing question which appeared to have led to a confused answer rather than a considered concession that the investigation process was fundamentally flawed 38.
[30] Sous Chef B did not admit that he engaged in sexual harassment, except to the extent of saying that everybody ‘would muck around and carry on’ and that ‘there has been gregarious sledging from all people except Jenny. There have been loads of sexual connotation and questions ...’ and went on to detail the nature of the salacious sexual comments. He said that Apprentice A showed ‘contempt and disrespect’ for him, but had a ‘friendly relationship’ with Mr.Horan, and alleged that she did not work appropriately. He said that ‘All the jovial jest has generally been encouraged by her in her conversations with myself and other members of staff. She has never once asked me or to my knowledge any of the other staff for this information to be confidential’ 39. Sous Chef B’s statement shows evidence of inappropriate language and conduct in the kitchen, although it does not constitute a specific admission by Sous Chef B that he engaged in such inappropriate conduct40. Rather the statement is made that in the kitchen people have made a number of comments of a sexual nature, and suggests that Apprentice A participated in what was considered by all to be something in the nature of a mutual exchange between members of the kitchen staff. It would be logical for Mr.Stephenson on reading this to immediately direct Mr.Horan to ensure that the bad language and conduct did not continue to occur in the kitchen but immediately ceased. Mr.Stephenson accordingly directed Mr.Horan to issue warnings.
[31] Sous Chef B did not give evidence. I was asked by the applicant to draw a negative inference from the failure of the Tavern to call him, namely that his evidence would not have assisted its case 41: Jones v. Dunkel42. The Tavern explained that Sous Chef B had left their employment voluntarily, and that is the reason why he was not called43. In the circumstances this is an acceptable explanation for their failure to call him44. I have also had regard to Sous Chef B’s witness statement because it was part of the evidentiary matrix that led the Tavern to act as it did.
[32] The statement of Mr.Parr refers to Apprentice A asking Sous Chef B ‘Do you think you could stop saying that stuff about me?’, and records him hearing a smash, seeing a smashed plate, and then hearing Sous Chef B asking Apprentice A to leave. The witness statement of Mr.Weaver simply refers to Apprentice A’s refusal to perform duties and smashing the plate. The witness statement of Ms.Scott refers to Ms.Scott being called in to work after Apprentice A went home. It records her as having a conversation with Apprentice A in which Apprentice A said ‘she couldn’t take the teasing and sexual jokes any more about how she contracted staph. She said before she ‘lost it’ she had approached Chris and asked him to stop the teasing. He just said ‘fk off’. I had heard [Sous Chef B] teasing her with her and [Sous Chef B] all the time I didn’t know the full extent but [Apprentice A] had said several times she only wanted to work with me or Chef.’
[33] There were two versions of events. One was that there was for some time a mutual exchange of inappropriate language and innuendo which was apparently considered by some, including Mr.Horan and Sous Chef B, to be general ‘mucking around’. Another version was that this included harassment of Apprentice A which contributed to her behaviour on 11 December and mitigated it. This second version only became known to the Tavern’s management after 11 December. There was no history of sexual harassment allegations brought to the attention of management. Mr.Horan and some others had not noticed this specific sexual harassment as it allegedly occurred.
[34] On either version of events Mr.Horan failed to control the behaviour of the kitchen staff he was supervising.
Statutory Provisions
[35] Mr.Horan submitted that:
‘he had serious and valid concerns regarding terminating a sexual harassment complainant when no real investigation had been undertaken in relation to the complaint, as he relayed to Mr.Stephenson in his response email on 20 December 2010 45.’
[36] However, there are some difficulties with this submission. The sexual harassment complaint begins quite appropriately with an explanation by Apprentice A of her conduct on 11 December. She explains it in part by reference to the alleged conduct of Sous Chef B. The complaint and the incident of 11 December were not separate matters. Mr.Horan was central to the investigation that he now claims was inadequate or non-existent. He obtained witness statements from employees who might know something about the circumstances of the 11 December incident, namely those who worked in the kitchen, and those circumstances would include provocation arising from harassment. They are dated 15 December, after the complaint was made by Apprentice A on 14 December. Mr.Horan and others also spoke to employees.
[37] I also note that the Applicant’s Outline of Submissions 46 refer to a number of other statutory prohibitions which are allegedly relevant.
[38] On the evidence before me nothing occurred which would appropriately lead Mr.Horan to refuse to comply with the direction he was given by management. I am for example unable to find any link between Apprentice A’s termination and the complaint that she lodged: VM v. MP, KP, K t/as P, and DS 47.
[39] The Tavern also submitted that:
‘The logical extension of the Applicant’s submission is that any manager may refuse to comply with a direction to terminate an employee on the basis that they may have some personal liability. This would render the performance management of employees completely ineffective.’ 48
[40] Issues of performance management are sometimes the subject of considerable argument and disagreement between employer and employee, and then later between different managers. I do not understand the applicant to be putting a submission that would contemplate the ready ability of managers to defy directions because they take a different view of the evidence, or prefer witness A over witness B when the employer takes the reverse view. If that is the submission being put then it quite naturally would have a wide application in reducing the ability of employers to issue reasonable and lawful directions.
Was the Tavern’s direction to Mr.Horan a lawful and reasonable direction?
[41] The Tavern concluded that Apprentice A had behaved inappropriately towards Sous Chef B on 11 December 49. It also concluded that it was unable to substantiate the complaints of harassment made by Apprentice A against Sous Chef B. It concluded that Apprentice A should have her employment terminated on the grounds of serious misconduct50. I had the opportunity to observe the witnesses giving evidence. On the material before me I am unable to find that the Tavern’s direction to Mr.Horan to terminate the employment of Apprentice A was other than reasonable and lawful. The conclusions reached by the Tavern were open on the evidence.
Valid Reason - Section 387(a)
[42] The term ‘valid reason’ was considered by Northrop J in Selvachandran v. Petron Plastics Pty Ltd 51 , in relation to s.170DE of the Industrial Relations Act 1988. He said:
“Section 170DE(1) refers to a `valid reason, or valid reasons’, but the Act does not give a meaning to those phrases or the adjective `valid’. A reference to dictionaries shows that the word `valid’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is” `2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.’ In the Macquarie Dictionary the relevant meaning is `sound, just or well founded; a valid reason.’
In its context in s 170DE(1), the adjective `valid’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. the provisions must `be applied in a practical, commonsense way to ensure that’ the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of a s170DC.”
It is well established that breach of a lawful and reasonable direction made by an employer is a valid reason for termination of employment. The issue of whether or not the employer direction need only be lawful 52, or whether it need be both lawful and reasonable, has been specifically addressed by regulation 1.07. For present purposes there is no doubt that it must be both lawful and reasonable. The issue of what is a lawful and reasonable instruction of the employer has been considered on many occasions by this tribunal and its predecessors and by the courts, although not in the context of this particular regulation. In R v Darling Island Stevedoring and Lighterage Co. Limited; Ex parte Halliday & Sullivan53 Dixon J said:
“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. ... But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument… governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service (Bouzourou v. Ottoman Bank [(1930) A.C. 271, at pp. 275-277]; Ottoman Bank v. Chakarian [(1930) A.C. 277, at pp. 282, 283]).”
[43] The Full Bench commented in Woolworths Ltd v. Brown 54thatDixon J ought not be taken as using the expression “within the scope of a contract of service” to refer merely to the terms of the contract. Rather, the expression encompasses all matters connected with the job performed by an employee pursuant to his or her contact of employment, and any of its incidents. If a policy is rationally related to the business of the employer a direction to observe the policy will typically be within the scope of the contract of employment. The Woolworths Ltd matter concerned an employer dress policy, and in particular directions that an eyebrow ring not be worn55. The Bench examined the authorities at some length.
[44] The Tavern also referred me to Darvell v. Australia Post 56. In Darvell another Full Bench considered the issue of the repeated refusal of a post office employee to work as directed. It upheld the dismissal of an application for an unfair dismissal remedy made by that employee. There are many similar tribunal decisions. These decisions are relevant to the application of regulation 1.07(3)(c)57. That regulation provides:
‘1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.’
... [underlining added]
[45] Firstly, the Tavern submits that on 19 December Mr.Horan was directed to terminate the employment of Apprentice A and refused to do so. I have found that it was a reasonable and lawful direction. Mr.Horan did not comply with it. This is a valid reason for termination of employment.
[46] Secondly, on 19 December 2010 Mr.Horan was also instructed by Mr.Stephenson to issue a ‘written warning in regards to behaviour and attitude in the kitchen, they must be professional at all times and if they choose to perform otherwise then will be terminated on the spot. I won’t tolerate this type of incident or behaviour again, the responsibility lies on YOU Richard the Head Chef to bring them into line 58.’
[47] Mr.Horan claimed that he sat the staff down and gave them an oral warning not to fool or muck around, but did not give them a written warning 59. In his response on 30 December he said that he had little or no time to issue written warnings because he was working in the kitchen, dealing with private personal issues and all staff had been previously warned to varying degrees about misbehaving in the kitchen60.
[48] In my view the 19 December direction was both reasonable and lawful. Mr.Horan was the Head Chef. He was responsible for the conduct of employees in the kitchen. There were allegations of problems in the kitchen regarding appropriate behaviour and language. He had lost control of the kitchen, as Mr.Stephenson said to him, even on Mr.Horan’s own version of events. Mr.Stephenson wanted strong measures to be taken to ensure that nothing occurred which was inappropriate. The direction he gave would protect employees against the sort of conduct that Apprentice A alleged, and that Mr.Horan said he was concerned about. Some of the conduct and language that had been alleged could appropriately lead to summary dismissal without notice, and a warning could therefore be issued to all employees about such conduct. Mr.Stephenson’s directions were reasonable, even desirable. Mr.Horan should have made it a priority to issue such warnings. He claims that he found time to sit the staff down and talk to them and a written warning would not have taken much more time. Mr.Horan as the Head Chef should have complied with the direction he was given, but he did not. This is also a valid reason for termination of employment.
[49] Thirdly, another way of considering the matter is that on any version of events Mr.Horan failed to control the behaviour of kitchen staff he was in charge of. When the situation came to their notice with the incident of 11 December, higher levels of management had then to involve themselves. This they did by requiring the issuing of warnings to all staff, and the termination of the employment of an apprentice who had used abusive language towards her superior. Mr.Horan did not cooperate when management took these steps. These were serious matters. This failure in the performance of his duties is also a valid reason for termination of Mr.Horan’s employment.
[50] These first two or three valid reasons are part of a pattern of conduct which developed, which was one of lack of commitment to the Tavern and its decision making. The Tavern had already become concerned about a lack of commitment to the Tavern in Mr.Horan’s work. Mr.Wheldon gave evidence that he was very worried about the performance of the kitchen between December and January and about the commitment of Mr.Horan to the business 61. Mr.Stephenson gave similar evidence, stating that Mr.Horan’s performance started to decline62. Mr.Horan gave different evidence, and claimed for example that he was diligent and on time63. With the qualification that they are mistaken in attributing the decline in performance to a breakdown in Mr.Horan’s personal relationship, I accept the evidence of Mr.Wheldon and Mr.Stephenson. I accept that Mr.Horan had become less committed to his work and to the Tavern, and this is consistent with his rejection of the management decisions which are the subject of these proceedings.
[51] Fourthly, Mr.Horan left the premises on 20 December 2010 rather than checking on the kitchen to see if arrangements would be satisfactory during his absence on sick leave. He provided the sick leave certificate to the employer on leaving the Tavern, after he had written a detailed email responding to questions asked of him 64. Mr.Horan made a special effort to come in to work to compose the email, which is to his credit65.
This was a period which was approaching the busiest in the year 66 according to Mr.Stephenson and to Mr.Wheldon67, although Mr.Horan claimed that it was no busier than other holiday periods such as Easter68. I prefer the evidence of Mr.Stephenson and Mr.Wheldon on this point. I accept that the period was a busy one in which the business was accordingly under greater pressure than usual, which would suggest a greater effort than usual on the part of the person in charge of the kitchen was appropriate. He was able to attend work, to work there for a time, and did so even if it was on a rostered day off. I have not been given any real reason to consider that it would not have been possible for him to also attend the kitchen, however briefly, before he handed in his sick leave certificate and then absented himself. The act of working clearly indicates that notwithstanding the certificate he was able to work to some extent.
[52] A person in a management position with supervisory and organisational responsibilities for the kitchen has the responsibility to ensure that the kitchen is properly looked after and arrangements made during an absence. It is true that Sous Chef B was present as the person in charge of the kitchen when Mr.Horan was absent. However, Mr.Horan had such doubts about Sous Chef B that he recommended that his employment be terminated. Even if Sous Chef B was present Mr.Horan should have been able to briefly attend the kitchen. However, the fact that he had a sick leave certificate, even if he did not immediately hand it in until he had completed his work, and was on a rostered day off mitigates this substantially, and at most it is a weak reason for termination which by itself would not justify termination in the circumstances. It is not necessary to my decision given the other valid reasons for termination.
Notified of that reason - Section 387(b)
[53] Mr.Horan was notified of the three valid reasons for termination of his employment at the meeting held on 29 December 2010. This is indicated by his email of 30 December 2010 69, in which he addresses each of the three valid reasons as a response to ‘the questions raised by you at the meeting’, and in other correspondence.
An opportunity to respond - Section 387(c)
[54] Mr.Horan was given an opportunity to respond at a meeting on 29 December 2010, and by correspondence the next day. He took advantage of these opportunities to put his case.
Unreasonable refusal to allow him to have a support person - Section 387(d)
[55] Mr.Stephenson gave evidence that Mr.Horan did not ask to be represented until the end of the meeting 70. Mr.Wheldon gave evidence that Mr.Horan asked to consult his union at the end of the meeting71. Mr.Horan gave evidence that he asked for representation at an earlier part of the meeting72. I had the opportunity of observing witnesses giving evidence, and I prefer the evidence of Mr.Stephenson and Mr.Wheldon. Mr.Horan was not refused the opportunity to have a support person present.
Unsatisfactory performance - Section 387(e)
[56] Termination was on the grounds of misconduct, not unsatisfactory performance.
Size of business - Section 387(f)
[57] The business is of a size that should mean that it follows appropriate procedures.
Other matters
[58] I have taken all submissions and material put into account, including the adverse effects on Mr.Horan of the termination 73.
Conclusion
[59] The termination of Mr.Horan’s employment was a summary dismissal without notice. In my view Mr.Horan engaged in serious misconduct within the meaning of regulation 1.07 of the Fair Work Regulations. The termination of Mr.Horan’s employment was not harsh, unjust or unreasonable. He was afforded a fair go all round. An order dismissing the application is published with my decision, PR510794.
DEPUTY PRESIDENT
Appearances:
Ms A Heffernan and Mr J Spreckley of United Voice for the Applicant.
Mr B Cooper of Livingstones Australiafor the Respondent.
Hearing details:
2011
Brisbane
12 May
1 The name of the apprentice has not been used in this decision, in order to preserve her privacy. The name is clearly identified in evidence. I see no reason why she should be publicly identified unless she chooses to be.
2 PN142-143; Applicant’s Closing Submissions, 25 May 2011, paragraph 14
3 PN1145-179
4 Exhibit H3, Attachment RH9
5 Exhibit H3, Attachment RH8
6 Exhibit N1, paragraphs 45-76
7 Exhibit N3,Attachment CS2
8 Exhibit H3, Attachment RH6
9 Exhibit H3, Attachment RH7
10 Exhibit H3, Attachment RH8
11 PN440
12 PN437-440, PN445
13 Exhibit H6, paragraphs 24-30; Exhibit N3, paragraph 35; PN855-876
14 Exhibit N3, paragraph 33, Attachment CS1; PN852-868.
15 PN1460-1461
16 (1938) 60 CLR 336 at 362-363
17 Exhibit H3, paragraphs 32-38; Exhibit N3, paragraphs 31-32
18 PN1443-1448
19 Exhibit H3, Attachment RH6
20 Exhibit H3, Attachment RH7
21 Exhibit H6, paragraphs 7-30; Exhibit N3, paragraph 35; PN855-876
22 Exhibit H3, attachment RH2
23 PN921-939
24 PN920
25 PN948
26 Exhibit H7, paragraphs 10-12
27 PN1339
28 Exhibit H3, Attachment RH3
29 PN482
30 PN470; PN487-501
31 Exhibit H5
32 PN340
33 PN1446-1448
34 PN411; PN951-955
35 Exhibit N3, Attachment CS1, page 2
36 PN881
37 PN1507
38 PN1487
39 Exhibit N3, paragraphs 29-35
40 PN88; Exhibit N3, Attachment CS1
41 Applicant’s Closing Submissions, paragraphs 26-28
42 (1959) 101 CLR 298
43 Respondent’s Final Submissions, paragraph 39
44 Cross on Evidence, Sixth Australian edition, paragraphs 1215-1220, Butterworths 2000
45 Applicant’s Closing Submissions, paragraph 11; Exhibit H3, Attachment RH6
46 Exhibit H2, paragraph 49(c)-(g)
47 [2009] QADT 1 at 99
48 Respondent’s Closing Submissions, paragraph 69; Applicant’s Reply Submissions paragraph 27
49 Exhibit N3, paragraph 35
50 Exhibit N3, paragraph 35; Attachment CS2; Exhibit N2, paragraph 23
51 (1995) 62 IR 371 at 373
52 See for example Adami v. Maison De Luxe (1924) 35 CLR 143
53 (1938) 60 CLR 601 at 621
54 (2005) 145 IR 285 at 293-297
55 (2005) 145 IR 285 at 293-297
56 [2009] FWA 1406, Hamilton DP, 2 March 2010, [2010] FWAFB 4082, Full Bench
57 See s.12 of the Act
58 Exhibit N3, Attachment CS2
59 PN477-478
60 Exhibit H3, Attachment RH8
61 Exhibit N2, paragraph 15; PN1023
62 Exhibit N3, paragraph 10-20
63 Exhibit H3, paragraph 7
64 PN525; Exhibit H3, paragraphs 57-66
65 PN1571
66 PN1578
67 PN1300
68 PN316
69 Exhibit H3, Attachment RH8
70 Exhibit N3, paragraph 45
71 Exhibit N2, paragraph 41
72 Exhibit H3, paragraphs 76-80
73 Applicant’s Closing Submissions, 25 May 2011, paragraphs 84-92
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