Shields v Carlton United Breweries (NSW) Pty Ltd

[1998] IRCA 28

GENERAL DISTRIBUTION

INDUSTRIAL  RELATIONS  COURT  OF  AUSTRALIA

TERMINATION OF EMPLOYMENT - alleged unlawful termination of employment - SUMMARY DISMISSAL - VALID REASON - not satisfied valid reason for termination of employment established by employer - ABUSE OF ALCOHOL – unlimited supply of alcohol provided by employer at sales conference on Island Resort- CONDUCT AND PERFORMANCE - OPPORTUNITY TO RESPOND - No opportunity given to respond to allegation of misconduct or to make representations about future conduct- EVIDENCE - Evidence Act 1995 - application granted to cross examine witness during Examination in Chief - Direction to witness under section 128 to answer questions regarding his role in the incident - former employee objected to answering question on basis of possible self incrimination – question not pressed after objection taken - PRACTICE AND PROCEDURE - Certificate pursuant s.128(b) to be issued to witness - REINSTATEMENT – PRINCIPAL REMEDY REINSTATEMENT – NOT IMPRACTICAL to reinstate the applicant if agrees to attend counselling program

Workplace Relations Act (Cth) 1996 (formerly known as Industrial Relations Act 1988) ss 170DB, 170 DE(1), 170DC
Evidence Act (Cth) 1995 s.38(1) (a),s.38(1)(b) s.128(6)
Occupational Health & Safety Act, 1983 (NSW) ss.15, 19
Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371
Gibson v Bostik Pty Ltd (1995) 60 IR 1
Perrin v Des Taylor Pty Ltd (1994) 58 IR 254 at 256-7
Liddell v Lembke (1994) t/a Cheryls Unisex Salon,  56 IR 447
Nicholson v Heaven & Earth Galleries Pty Ltd (1994) 1 IRCR 199
McGeehan v Hazelton Air Services Pty Ltd (1997) (McIlwaine JR, decision number 118/97)
Garside v Hazelton Air Services Pty Ltd (1997) (McIlwaine JR, decision number 119/97)
Sophie Caroline Lethern v Beresfield Pty Limited t/a Titan Ford Brookvale (1995) (McIlwaine JR, decision number 542/95)
Allied Express Transport Pty Ltd v Michelle Anderson (1997) CLS 1997 FED 796

McLean v Tedman & Anor (1984) 56 ALR 359 at 364

ERIC CLARENCE SHIELDS  V  CARLTON UNITED BREWERIES (NSW) PTY LTD
NI 1438/96

MCILWAINE JR
SYDNEY

12 AUGUST 1998

IN THE INDUSTRIAL RELATIONS

COURT OF AUSTRALIA

NI 1438  of   1996

NEW SOUTH WALES DISTRICT REGISTRY

BETWEEN:

ERIC CLARENCE SHIELDS
APPLICANT

AND:

CARLTON UNITED BREWERIES (NSW) PTY LTD
RESPONDENT

JUDICIAL
 REGISTRAR:

MCILWAINE

DATE OF ORDER:

12 AUGUST 1998

WHERE MADE:

SYDNEY

MINUTES  OF  INTERIM  ORDERS

THE COURT DECLARES THAT:

1. The applicant was an employee of the respondent from 1 August 1988 to 5 February 1996.

1. The applicant was seconded by the respondent to work for Guinness Australia Pty Ltd from May 1995 to 2 February 1996.

1. The Respondent has contravened Section 170 DC of the Act.

1. The respondent has contravened Section 170 DE(1) of the Act in that it did not have a valid reason for the termination of the employment of the Applicant on 5 February 1996.

1. Subject to a written agreement being given to the respondent and a copy being filed in the court, within 7 days of today, by the applicant, undertaking to satisfactorily attend a recognised educational and counselling program on Alcohol and Drug addiction over a period of one year nominated by his Employer (including the

monitoring of his Alcohol and Drug Usage if required by the program), it is not impractical to reinstate the applicant to the position he formerly held with the Respondent.

1. The period between the date of termination and the date of his reinstatement be treated as continuous employment of the applicant by the respondent for all purposes.

1. The respondent pay to the applicant the remuneration lost by the employee because of the termination from 5 February 1996 to the date of signing of the agreement within twenty-one days of the date of receiving the signed agreement referred to in paragraph 5 from the applicant.

THE COURT ORDERS THAT:

1. The respondent re-appoint the applicant to the position he formerly held with the respondent prior to his secondment on terms and conditions no less favourable than those on which he was employed on 1 February 1996.

1. The respondent pay to the applicant the remuneration lost by him because of his termination within twenty-one days of the date of receiving the signed agreement referred to in paragraph 5 from the applicant.

THE COURT DIRECTS THAT:

1. The applicant is to provide the respondent with details of his income from paid employment including the amounts earnt as a part time Disc Jockey within 7 days to enable the calculation of “lost remuneration”.  The respondent is to have the benefit of the 4 weeks salary paid to the applicant in lieu of Notice.

1. Upon application being made to the District Registrar of the NSW Registry Mr Nicholls is to have the benefit of a certificate issued pursuant to s. 128(6) of the Evidence Act, 1995. That part of his testimony which may be covered by the certificate is contained in pages 24 to 55 inclusive of the transcript of the proceedings conducted by videolink on 1 November 1996.

1. Liberty to Mr Nicholls or either of the parties to apply as to the extent of coverage of the certificate ordered in paragraph 11.

1. In the circumstances, I am directing counsel for the applicant to bring forward for consideration by the court, draft orders in accordance with these minutes.  Those orders should be filed with the court by 4.00 pm 19 August 1998.  It will preferable if they can be agreed with counsel for the respondent, if they cannot be agreed then I shall provide a time commencing in the week beginning 24 August 1998 to hear and finalise the orders in this matter.

1. In the event that the parties are unable to agree on the amount to be paid or other proposed orders by 4 pm on 19 August 1998, they have liberty to apply to the court to relist the matter at an earlier date.

Kate Benson

Legal Assistant to
Judicial Registrar McILwaine

IN THE INDUSTRIAL RELATIONS

COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NI 1438/96  

BETWEEN:	ERIC CLARENCE SHIELDS APPLICANT
AND:	CARLTON & UNITED BREWERIES (NSW) PTY LTD RESPONDENT

JUDICIAL

REGISTRAR:

MCILWAINE

DATE:

12 AUGUST 1998

PLACE:

SYDNEY

REASONS FOR JUDGMENT

APPLICATION

This is an application by Eric Clarence Shields claiming unlawful termination of his employment under Division 3 Part VIA of the Industrial Relations Act 1988,(“ the Act”), now known as the Workplace Relations Act 1996, against his former employer, Carlton & United Breweries (NSW) Pty Ltd.

The applicant, was 43 years of age, at the time of his dismissal and in his claim records the work performed for his employer as “sales representative”.  The applicant started work with the respondent on 1 August 1998 and completed his employment on 5 February 1996.

The remedy sought by the applicant in his application is reinstatement.  The application was received by the Australian Industrial Commission.  There is no claim by the respondent that written notice was given to the applicant.  The court has a

certificate issued by Deputy President Drake of the Australian Industrial Relations Commission at Sydney dated 23 April, 1996 in the following terms:

In accordance with subsection 170ED(1) of the Industrial Relations Act 1988, the Commission hereby certifies:

(i)        that it has been unable to settle this matter by conciliation, within a reasonable period; and

(ii)      that the parties in this matter, having been invited to elect to have the matter dealt with by consent arbitration, have not so elected.

There was no objection to the certificate made by either party.  In addition, no issue was raised during the hearing as to the timing of the lodgment of the application.  I therefore find the matter is properly before the Court.

At the outset , I make it clear that nothing I say in these reasons should be taken to mean that I hold any view of the conduct of the applicant on the evening of Thursday 1 February 1996 and morning 2 February 1996 which can in any way be seen as condoning supporting, approving or encouraging his behaviour as admitted by him in his evidence to the court.

BACKGROUND

The respondent, “Carlton & United Breweries (NSW) Pty Ltd”, which I will refer to in future as “Carlton United”, is a major brewing company operating in New South Wales and elsewhere.  It is not in dispute that the applicant commenced his duties with Carlton United on 1 August 1988, and he was terminated from his employment at the initiative of his employer on 5 February 1996.  The job of the applicant was to market the liquor supplied by the respondent and its associated companies, complete the sales and then to oversee and assist where possible the delivering of the product. The respondent had an arrangement with Guinness Australia Pty Ltd (“Guinness Australia”), whereby it effectively leased experienced sales personnel from Carlton United to complement the workforce of Guinness Australia.  The normal period of secondment was a minimum of two years.  In May 1995 the applicant had been seconded to Guinness Australia as part of that arrangement.  The applicant, immediately prior to his dismissal, was still working on secondment in a similar sales capacity with Guinness Australia, the suppliers of a stout of Irish origins.

EVIDENCE OF THE APPLICANT

The applicant was first employed by Carlton United Brewery in August 1988 as an Area Manager.  In this position he was calling for 5½ years on bottle shops and licensed premises and the rest of the time on hotels, clubs and bottle shops.  The applicant during the course of his employment with Carlton United, also worked as a casual Disc Jockey.  His employer was aware of this employment and his previous experience in this field.

Prior to working at Carlton United, he was employed as a sales manager for a Poker Machine Company and he was licensed by the Liquor Administration Board of New South Wales for that purpose.

The applicant was seconded from the respondent to work for “Guinness Australia” in May 1995.  He had been to two sales conferences with Guinness.  He said: “I joined Guinness and went straight to the first sales conference at Radisson and the next one was at Club Med”.  Before his transfer to Guinness Australia, he had attended many similar conferences  with Carlton United.  Asked to amplify his statement he replied:

“Well, over a period of 8½ years we were required to attend conferences, whether it be Melbourne, Coffs Harbour, Pelican Shores Resort, Jamberoo, a resort down at Jamberoo, many - when I first started at the company I was given the job on a Friday and over the weekend - on the Monday I had to appear at my first conference at Wyong.  So, yes, I have been to many sales conferences with Carlton United Breweries.”

At Carlton United in 1988 he was given a normal familiarisation.  He was shown around the different departments such as accounts, sales distribution, transportation, even to the Clydesdale Pavilion at the then showgrounds.  The applicant denied being given any instruction on company policies.  In particular he maintained he was not given any instruction on company policy in relation to the consumption of company products, that is alcohol.  Asked to describe what he did, the applicant replied:

“Well, basically it was - a lot of it was public relations because over a period of many years you become very close to a lot of the customers you called on.  My job was to get taps on, like if Carlton bought out a new beer I had to try and get a Tooheys tap off which was our opposition to put one of ours on, or extend the range of beers in the different outlets.  Say, Carlton Cold come out and I'd have to make sure that that went into different outlets and so forth.

How would you go about that?‑‑‑Well, I'd approach the licensee or the owner of the - of the outlet and, you know, make it known to him that we have the new product; I'd show him the advertising, my detail to him what Carlton had in place to back up the product and - and then ask him if I could position our product in his store, the new product in his store.

Now, in terms of public relations with those clients, did you undertake any other kinds of activities?‑‑‑On many, many occasions I was required to go to different social events, whether it be harness racing which we were sponsors of, whether it was cricket which we were sponsors of, golf events which we organised and in some cases I even organised them myself, many, many times to the football.  Being the Area Manager in the Parramatta area on some occasions I even had to go to the football on a Friday, Saturday and Sunday when Parramatta, Balmain and Canterbury were sharing Parramatta Oval, so many, many times my work involved extreme hours of entertaining the customers, yes.

Now, in the course of entertaining customers at these sporting events, was it just a question of going and sitting and watching the game or, you know, what was involved?‑‑‑The responsibility of the Area Managers was obviously to make sure that the comfort and - and - of our guests and to make sure that they were entertained for the day which included obviously hospitality which Carlton arranged.

What kind of hospitality?‑‑‑Food and obviously beverages.

And were they company product beverages?‑‑‑No.  As opposed to Tooheys that just stock their own company products, Carlton had a policy and I believe that it was correct, that customers that enjoyed our hospitality could basically have whatever they want, whether it was wines, spirits or soft drinks, whatever they cared to have.

And as the host as such of these social events with clients, did you partake in the hospitality provided?‑‑‑Many times.

And that included drinking alcohol?‑‑‑Yes, it certainly did.

Now, in the course of these social events, who would actually participate?‑‑‑Well, everyone that was invited guests to the hospitality that Carlton was providing, whether it be boxes, private boxes, as a say golfing events or football, whatever the particular function was we provided hospitality and food and beverages for all of our invited guests.

How many other CUB employees would be at those events?‑‑‑On many occasions it was myself but normally we try to have two.  In the case of the private boxes which was mainly - which was Carlton's main hospitality way of looking after people, because they had them at all venues right around Sydney, we had approximately 20 people to each box and we tried to have two reps there on most occasions to look after them.”

A regional sales manager was his immediate supervisor. After five and a half years of his employment Carlton United joined its off licence section with the hotels and clubs division and all representatives were required to call on bottle shops, hotels and clubs in their respective areas.  At that time he came under the supervision of Mr David Hastie.

The applicant maintained that he did not receive any complaints about his work except for standard complaints from the trade regarding products, transportation or non-deliveries.  In the beginning of 1995 and prior to his transfer to Guinness Australia he was given a letter about poor work performance.  The letter was from Mr Reg Turner who was the New South Wales North West Sales Manager and the immediate supervisor of Mr David Hastie.  Asked to describe what happened when the letter was handed over to him he replied:

“Physically he stood over me, pointing at me, swearing at me and threatening me.

When you say that he was threatening you what did he threaten you?

That I should get the Sydney Morning Herald, that I should hand in my keys, I wouldn't be getting a transfer to any other team because nobody wanted me, my days at Carlton were numbered and as far as he is concerned he's had enough of me and everyone else had had enough of me.  I was completely taken by surprise, having thought that when I went into the brewery that day it was the first day back from holidays and I was going in - I was led to believe I was going in to hear what had happened while I was on holidays and to get briefed and instead I copped this barrage of abuse and harassment.  I was just - I was in shock, I walked out of that meeting crying, I have to say in all honestly.  Well, a lump in my throat at least.”

The applicant denied that:  "Previous instances of a similar nature were raised with him on 12 October 1994.”  He also denied that:

“Previous instances of poor performance and or conduct were raised formally with you on 25 August 1994, 8 June 1994, 25 May 1994, 21 February 1994, 7 January 1994, 29 November 1993 and 2 April 1993.”

(See paragraph 5 Exhibit 5.)

A review meeting was held at 9.00 am on 1 February 1995 with Mr Murray Waters chairing the meeting, Mr Phil Stowe, his new Regional Supervisor, Mr David Hastie and the applicant.  The applicant described that review meeting on 1 February 1995:

“I walked into the meeting, I'd prepared documents such as awards, such as references, because I was very concerned at what this meeting was about.  This - over a six weeks period I had a chance to get a file together as to my performance.  During that time as well I had also put a lot of time in answering the complaints in this summary of counselling report and I also put a tape recorder on the table when I walked in and pressed "record" and I asked Murray Waters if due to the way that I'd been spoken to at previous meetings, would it be okay for me to tape this particular meeting and he refused.”

And what else happened in that meeting?‑‑‑They sat down and they went through the files that - that I'd given - I'd given them each detailed files, four files that they could read.  I might add that I'd rung Phil Stowe the day before that meeting and told him that I was coming in tomorrow with these documents and there are going to be a couple of people embarrassed and I wasn't going to be one of them.

No, please, what happened at the meeting?‑‑‑Okay.  At the meeting they read them and then they said that my business - all of a sudden everything had changed, my business plans had improved, customers were saying how much my work had improved, how much that Carlton was happy with the work I was doing and that was it.

And was there any plan put in place for future monitoring?‑‑‑No - yes, Phil - Phil Stowe - it was mentioned in the meeting that Phil Stowe would go out in the tray with me which he did a couple of times and a very good relationship, not a problem as far as I could see.

The applicant described his relationship with Mr David Hastie as:

“He'd call me nicknames at meetings; never anyone present when he was abusing me and belittling me; just a general downgrading of spirit and no support or enthusiasm or - just a very bad relationship, very bad.”

The applicant explained that the awards were those he had personally received over an 8½ year period at Carlton United:

“Nominated for a liquor stores representative of the year and that was commendation from John Ryan the regional director; and a personal award which I received from Dallas Haynes for achieved of excellence in sales; monthly awards for rep for the month for being the number one representative at Carlton, New South Wales sales force; letters of commendation being part of the best sales team in Australia from Reg Turner.  Those types of awards.”

In contrast to Mr David Hastie, the applicant said about Mr Dallas Hughes:

“he had a very good relationship, quite personal, I'd been out on the trade with Dallas.  We'd had numerous talks; I'd been in his office a couple of times; we discussed personal things; we joked together.  I would say very good.”

He was informed whilst calling at the Blacktown Inn Hotel that he was to be transferred to “Guinness Australia.”  Subsequently at a meeting with Mr Murray Waters the applicant asked why he was being transferred to Guinness and he was told he thought it was best for him and he continued:

"Well, I - what happens if I don't want to go to Guinness?" and he said, "If you don't" he said, "you're gone."

A couple of days later he started at Guinness Australia.  When he arrived at the Guinness office at Neutral Bay he was introduced to Mr Geoffrey Plews the Managing Director and then Mr Richard Darling his new supervisor.  The applicant denied being given any information about company policies, generally.  He further testified about the use of alcohol in the business.

“What information were you given, if any, in relation to company policy on alcohol consumption?‑‑‑None, none.”

“Were you given any reading material at that time as to company policies on alcohol consumption?‑‑‑No.

In the 12 month or so period that you were at Guinness were you at any time given any reading material on alcohol consumption?‑‑‑No.

Now, can I ask you when you were at Carlton United, in that 8½ years before you transferred to Guinness, what was your usual practice in relation to drinking alcohol in the work environment?‑‑‑It was generally accepted in your position, that if you had to have a drink with a licensee, especially if a club or a hotel, that you would do so in the course of building a relationship with that particular customer.
Were you given any guidance as to exercising your discretion in that matter?‑‑‑No.
Did you in fact drink or consume alcohol within the work environment?‑‑‑Many times.
When you attended staff conventions and conferences did you consume alcohol during those periods?‑‑‑Many times.
As to your observations at those conferences, were you the only employee consuming alcohol in that environment?‑‑‑Definitely not.
When you went to Guinness did your practice of drinking in the work environment change?‑‑‑No, it did not, but the brand of beer certainly did.
You gave evidence earlier that you attended two staff conferences when you were at Guinness?‑‑‑Yes.

Did that include the conference at Lindeman Island?‑‑‑Yes, it did.

Where was the other?‑‑‑The other was at the Radisson Hotel on the beach at Manly.
In the course of the conference at the Radisson Hotel did you consume alcohol in that time?‑‑‑Yes.

Did you stay on premises?‑‑‑Different premises.  At one - one evening we went to a function at the Riverview Hotel which was one of my outlets at Balmain.  Another time we went to the Woolloomooloo Bay Hotel.  Yes, we did go to different outlets to consume alcohol and have a function, yes.

I am satisfied that the written material which is now available from Guinness Australia on abuse of alcohol was not brought specifically to his attention. This may have been an oversight caused by the timing of his arrival.

As part of the training aspect of the conference at the Radisson Hotel at Manly, there was to be a social function including dinner at the Woolloomooloo Hotel.  At this hotel the applicant drank about four glasses of the “Guinness” which was in trays when they arrived, before they sat down to dinner.  Then he had different wines and more Guinness over a dinner of three hours duration.  It was also arranged that they were to attend other hotels after the dinner to familiarise everybody with other Guinness outlets.  The applicant asked Jodie Matthews for a Cabcharge so he could go back to the hotel.  The applicant reported:

“Jodie chastised me at the actual venue, at the Woolloomooloo Bay and the next day Richard Darling spoke to me and said that he'd been asked by Jeff Plews to reprimand me for not attending the hotels that night after we'd finished at the Woolloomooloo Bay Hotel”.

Mr Frize in his evidence expressed his disappointment that the applicant did not continue on with the nights activities on this occasion as they were to visit one of his outlets.

The last Carlton United appraisal on the applicant was done by David Hastie at the Kent Brewery in Sydney.  Present at the appraisal meeting was Richard Darling, David Hastie and the applicant.  The applicant refused to sign the appraisal (Exhibit 7).  It was agreed he would go away with Richard Darling and they would prepare a constructive response to the appraisal.  He and Richard Darling sat down during the Guinness conference at the Radisson Hotel and prepared the response.  In September 1995 the applicant wrote to Mr M. Dallas Haynes the then General Manager Sales – New South Wales complaining about his treatment by Mr David Hastie.  Mr Haynes replied in a memorandum dated 11 September 1995:

“Eric
I have read through the documents and memorandum that you presented to me on Friday 8^th September 1995 and returned them through Murray Waters.

I propose to take no action and prefer to close the matter for the present time, and in doing so allow you to get on with your current responsibilities with Guinness.  I suggest that you focus your attention on the future as matters in the past will do you, or anyone else, “no good”.  I am not impressed with super sensitivity or rumours on “bagging” (from you or others, both inside or outside this Company).  I am also in no need of testimonials regarding your character or performance from selected customers.

If you wish to enjoy your career with this Company you will conform to policy, follow your immediate supervisor’s direction – NOT go your own way or be rebellious and critical of your colleagues and customers.  I am very respectful of enthusiastic, loyal and committed people who are eager to support their team and Carlton.  Whatever you may think you experienced in the past is, as far as I am concerned, over.  I suggest you take a similar position.”

The applicant along with a number of Guinness employees attended a sales conference on Lindeman Island in late January, 1996.  On arrival at the island he and the others at the conference were given a laminated staff card which entitled each individual to obtain Guinness free of any charge or limitation of supply at any of the bars on Lindeman Island.  Complimentary Guinness was also included in the fridges in their rooms.
On Tuesday, 30 January at 2.30 pm the conference commenced with the first session, being entitled “Introduction and Conference Objectives”.  The applicant described this session as:

“just a talk from the different Guinness managers.  An introduction by Geoff Plews welcoming everyone there, such as the New Zealand manager, Mark O'Brien who was new, that was his first actual day with Guinness and - and Paul, from Victoria.

…………….

When people first join Guinness at the conferences they were required to stand up on a chair and let everyone know what it was that they did and also to tell a story which no-one else had heard before.”

The applicant maintained that in the course of that conference he did not receive any written documents about the consumption of alcohol.  He also denied that there was any information provided to delegates as to what was and was not appropriate behaviour whilst at the conference.  The members of the conference all met for dinner at the buffet restaurant at the same time every night and then had drinks at the bar although no social functions were organised.  During the course of these meals wine was provided in carafes.  Similarly at lunch in the course of the conference on the Tuesday and Wednesday, they could also have had Guinness from the bar if they wished or from the stock in the fridge in their rooms.  The applicant says he drank fruit juice at the Lunch Breaks.

When they finished the conference each day he would meet other delegates and have a couple of drinks, usually Guinnesses, before dinner.  He drank wine and beer during the dinners.  He was unable to recall the quantity of drinks he consumed.  After dinner on the Tuesday he adjourned to the bar and drank with other representatives and later on they went to the disco which was open every night.  These drinking activities were repeated on the Wednesday night after the conference.  After the dinner on the Wednesday night he again met other delegates at the bar and had a couple of Guinnesses.  The applicant says he went back to his room to watch one of the in-house movies which were showing on the island.  Asked to describe the shout on each of these nights he responded:

“Well, in - in the shouting sequence we didn't have to pay any money so we had the card so we'd just take it in turns each going to get half a dozen Guinnesses for the different delegates who were in our shout with, yes     “

On the Thursday night there was a gala dinner with pre-dinner drinks beforehand.  The applicant arrived at those drinks around about 6.30 pm.  He says that he did not drink in between the time of the conference concluding and the pre-dinner drinks commencing with his arrival at the function area.  During this period he went back to his room, showered and changed to get ready and put a hat on for the Mad Hatter's cocktail party.  This was referred to in the conference agenda as:  “7.30 pm Gala Dinner at Nichollsons Restaurant – Presentation of Prizes.  Fancy headress (bring along something to wear on your head! – Prize for the Perfect Head.”  The agenda was typed by Ms Matthews.  The Macquarie dictionary gives over 43 meanings for its definition of the word “head”.  Relevantly these include:  “collar, froth or foam, as that formed on beer when poured,” or “colloquially” a person who used drugs regularly, especially marijuana and LSD.  Ms Matthews agreed the use of the phrase “Perfect Head” could also have a sexual connotation, she suggested it related to the pouring of the product into a glass.

Upon arrival the applicant first drank a Bourbon and Coke.  During a conversation which lasted quite a while with Dallas Haynes they were drinking double Bourbon and Cokes together.  At least three of these were consumed.  It should not be forgotten that a single bourbon and coke is the equivalent of one standard drink.  It is now an accepted guideline in NSW that a male person needs to restrict himself to drinking no more than three standard drinks in the first hour to have any chance of staying below the prescribed content of alcohol in the blood which the parliament has determined as the level at which it is an offence to drive a Motor Vehicle.  Having consumed 7 standard drinks in so short a period the senses of the applicant had to be impaired.  Mr Haynes was unlikely to have been much less impaired.

The applicant says he said to Dallas Haynes:

“that I would appreciate if he - if he kept his lieutenants off me that - that they didn't harass me any more.

Yes, and what did he say?‑‑‑And he said to me, he said, well I didn't have to worry about that obviously now that I was with Guinness and to get on with my job”.

After this conversation with Mr Haynes, they went straight from there to the gala dinner at the restaurant.  The applicant described the situation at the dinner:

“there's a lot of fun - the atmosphere was very uplifting.  We were all in a very good mood.  Everyone was joking”.  During the course of the dinner they consumed anything that was there.  There was everything, wines, bourbon, Guinness.  We had Baileys at the end”.

The applicant denied an allegation that during the course of the dinner he went to the toilet with Mr Tony Nicholls and urinated in a hand basin.  After the dinner he went to the bar where the karaoke was in progress with the other Guinness delegates.  Asked to explain what happened at the karaoke he replied:

“A lot of the guests at the island were participating in the karaoke and I said to Tony, "Well, get up and have a sing" - Tony Nicholls, "Well, get up and have a sing".  He says, "I'm in, I'm with you" and we got up and sang "Twist and Shout"; killed them.

……………

And killed them ‑ ‑ ‑?‑‑‑Yes, the place went nuts and ‑ ‑ ‑ 

Please, what do you mean by that, please?‑‑‑Well, everyone was cheering and Dallas come up to my bar and he said, "That was fantastic" and I said to him, "That's what I've been trying to tell you for the last couple of years" and we had a joke and drink.

........ ....

What did you drink?‑‑‑Guinness.  At those bars we were using out tickets to drink Guinness.

Yes, and then what happened?‑‑‑Then all the Guinness representatives - when I say all, there would have been about 15 of us and - including Geoff Plews and Jody Matthews and Kate Suttie, we all got up as a group and sang, "If you're going to San Francisco be sure to wear flowers in your hair".  At the end of that I then yelled out, "Three cheers to the Guinness" and the whole ensemble gave three cheers for Guinness Australia.

During this period the Guinness free drink system was still operating and the applicant admitted having three or four Guinnesses.  He agreed that this was a large amount of alcohol, and described his state of inebriation as:

“I was very happy and very merry.”

………………………..

Were you drunk?‑‑‑I would say that would be a fair description of my – yes.”

At this stage of his evidence a ‘voir dire’ was conducted on the question as to whether an audio visual tape should be admitted into evidence.  This interruption was necessary as the court had to be relocated to the Law Courts Building for this purpose as such equipment was no longer available in the former Industrial Court premises.  After the video had been viewed the applicant continued his evidence.

After about an hour at the Karaoke the applicant went to the disco with the other Guinness personnel.  Asked to explain what happened in the Disco he replied:

“The mood was very jovial but when we - we got there, especially after singing karaoke and so forth, the music that was being played was modern techno style music, which is that dance sort of modern beat music and a lot of the Guinness people there weren't exactly sixteen years of age and we took exception to the music that was being played”.

The applicant said he approached Mr Haynes to speak to the Disc Jockey (“DJ”) to see if he could get up and do a show for the people that were there.  Mr Haynes advised him:

"No mate, he doesn't want to let you on."

The applicant says he went up as did other Guinness representatives such as Tony Nicolls and Bob Beattie from Melbourne and spoke to the DJ.  The applicant said he asked him if he had any other type of music besides the techno music and he was told that he didn’t.  The applicant says the following exchange took place.

“Yes?‑‑‑And he said, "No, I haven't."  And I said, "Would you mind if I had a go?" and he said I - no, he said, "I don't want anyone behind the booth here because they're worried about damage to the equipment."

Yes and what did you say?‑‑‑Well, that was the basis of the conversation, I mean he ‑ ‑ ‑ 

Did you say anything else?‑‑‑No.

What did you do when he said that?‑‑‑I walked away”.

The applicant continued drinking throughout the night, he denied using abusive language including four letter words but admitted that he whistled and yelled at the DJ from time to time as he was quite intoxicated.  He also conceded that he had used the expression that “he was the worst DJ in 27 countries”.  He acknowledged that it was a compact area with the bar and the area occupied by the DJ within hearing distance.  He admitted that this conduct continued from time to time over a few hours.  During this period he continued drinking with other Guinness personnel and consumed quite a lot of alcohol.  He maintained he was spending more time with Tony Nicholls who was very drunk.  This is in itself an interesting observation by the applicant.

During the course of the evening he says he was not approached by any management personnnel from the company as to his behaviour.  He was not in the company of Mr Plews who was talking to some of the office girls most of the night.  He denied speaking with him.  The Disco finished after 3 am with Tony Nicholls and the applicant the only guests still present.  He described the situation:

I was standing at the bar talking with Tony and drinking and the barman, Johnno, said, "That's it fellows, we've got to close up" and I observed the DJ who was packing away his gear at the time as well, so there was actually four of us there at that time of closing.

What did you do?‑‑‑I left through the - the glass doors, the entrance.  When I went the barman, Johnno, closed the doors behind him and actually locked the DJ in so Johnno had actually left when Tony and I were there and Tony started banging on the doors, threatening the DJ, yelling through the crack in the middle of the door and yelling obscenities at him.

…………….

Yes, I am asking you what you can recall he said?‑‑‑"Come out here you effing C, I'm going to effing kill you.  If I get my hands on you I'll effing strangle you and kill you" and so forth and so on.  I was - I was standing away from the door because I'd walked through the door first.  I was standing about five minutes away where I was sitting on - like they had those smooth rock type surfaces outside, away from the pavers - paving area, I was sitting there and I observed all this.  I observed the DJ came to the door and he motioned to open the door to have a go at Tony because he was obviously scared.  I - I'd seen ‑ ‑ ‑ 

Well, just stick to what you saw?‑‑‑Okay.  And he motioned: open the door, which only incited Tony even more and he started banging on the door and threatening on him - threatening him.  I got up - I got up - well, I got to my feet and I went over to Tony and put my arm around his neck and I said, "Mate, you're having a shocker.  Let's get out of here", you know, "before we get into trouble."

Now, can I ask you this.  You have given evidence that over the period of this event on the Thursday, you had consumed a fairly large amount of alcohol?‑‑‑Yes, about ten hours straight.

You are still able to recall those events?‑‑‑Actually, without - without word or lie, I - I do remember things.  I've been in the entertainment industry for many years.  I have had the odd drink in my time and yes, I do remember things very, very well when I'm intoxicated.  I - yes, I do, I do recall it vividly.

Thank you.  Now, after you put your arm around Mr Nicholls' neck and suggested you move away, what happened then, what did you do then?‑‑‑Well, he was laughing, I pulled him away.  We were both very drunk.  We walked down the stairs to go back to my room and we're falling all over the place and Tony, at one stage, fell up against the - it's like a grass wall which ran along the road to - near our accommodation and he dropped his pants ‑ ‑ ‑ 

Yes?‑‑‑And he pulled - he let his pants down and pulled out his penis and fondled it.

MS RUDLAND:   Yes?‑‑‑And I said - once again I said, "Come on, let's get back - let's get back to the room.  We decided to have a - to go for a swim.  Rob Phyllis was in the room at the time in a dead sleep ‑ ‑ 

The applicant said he was standing there getting undressed, ready to go swimming when Tony Nicholls jumped onto Rob Phillis, and scared the living daylights out of him:

“It was quite funny at the time and Rob woke up and he didn't know where he was and yelling, "Get off me" - because Tony had him in like a bear hug in - with the blankets around him, so Rob couldn't move and Rob got up and he got really upset and carried on.  It was - as I said, to us it was quite funny and ‑ ‑ ‑ “

Both of them left and went to the swimming pool dressed in their underpants with towels wrapped around them.  They had walked down to the pool along a long stairway which led down to the pool area.  They passed a female staff member at the reception.  As might be expected at 4.00 am there were no island staff members or other resident guests in the swimming pool.  However there were at least four Guinness personnel present being:  Jody Mitchell, Kate Suttie, Mark O’Brien and John Frize together with an Adelaide Representative whose name the applicant could not remember.  According to the applicant Mr John Frize was sitting quietly on the other side of the pool talking so he was well away from the applicant.  The applicant says he sat up on a retaining wall.  Only his own words can best describe what happened next:

“And were you still wearing your underpants?‑‑‑At that time, yes, I was - I sat on this lion ornament and I was trying to take - take them off - I had no trouble taking the towel off, I took the towel off, that flopped down and I was trying to take my underpants off while trying to sit on this lion ornament and everyone was laughing at me.

When you say everyone was laughing at you, who in particular did you observe to be laughing at you?‑‑‑I - I couldn't - at that stage I couldn't just determine who was laughing and who wasn't, it was just a vocal form of laughter coming from the Guinness people that were there.

Yes, and did you actually get your underpants off?‑‑‑Yes, eventually I did.  Very difficult on top of that lion but yes, eventually I did and I - I walked down the stairs and jumped in the pool”.

And what did you do in the pool?‑‑‑Just swam around and - and mainly spoke to John Frize, sat next to John and spoke to him.

Did anybody say anything to you?‑‑‑No.

Can you recall any conversation that took place while you were in the swimming pool?‑‑‑No, just general conversation about how good the night was and the atmosphere was very jovial and very happy.

And how long were you in the swimming pool?‑‑‑I can't say for sure off hand, it would have been half an hour or so.

And then what did you do?‑‑‑Tony and I went back upstairs.  On walking past ‑ ‑ ‑

Can I just stop you.  When you got out of the swimming pool you were still naked, is that correct?‑‑‑Yes, that's correct.

Yes, and then you went walking up to ‑ ‑ ‑?‑‑‑Well, I grabbed my towel and wrapped my towel around me and I - I went back upstairs to my room with Tony.  Upon walking up the stairs there was a shop in the middle layer of stairs just below where the office area was and they had two small concrete type ornaments outside of that and Tony went to pick up one of those to gesture to throw it at the window of the shop and I once again said: "Mate, you're having a shocker", grabbed it off him and put it down.  We walked past the reception area, we had our towels around us at all times.  Once again I still didn't see the DJ, if he was there he was hiding from us.  I then passed the reception area, walked out on the road to go back to our accommodation and we run into Cadelle Buzz before we got to our room.

Yes, and ‑ ‑ ‑?‑‑‑And Cadelle was - just spoke briefly with us about ‑ ‑ ‑ 

And what did he say, can you recall?‑‑‑No, I don't, that was just insignificant.  He mainly spoke to Tony because I was still walking back to the room.

Yes, and then what happened?‑‑‑And then Tony run after me, we got back to the room, I gave him a Fosters Light Ice t-shirt - no, I take that back.  When we got back to the room Tony wanted to get back to his room to get some clothes and I didn't know where his room was but we walked down there which was only about 20 yards away in the next adjacent block and I was staying there waiting to - to go in with him because we were going to surprise his - his flatmate or his Guinness mate that he was sharing a room with, who was his supervisor from Queensland, and Tony was banging on the wall pretty loudly.  I was sitting back on the rail and a woman in the next door - it was in the door, like a little - where the rooms are sort of right next to one another, she opened the door and saw us standing there naked, smiled and closed the door.

Yes, and then what happened?‑‑‑Well, Tony couldn't get into his room.

Yes, and so what then happened?‑‑‑Well, we went back to my room, I then gave him a Fosters Light Ice t-shirt and I went to bed and he left, and that was my involvement on that evening.”

Now, can you recall when you awoke that day?‑‑‑I woke in the afternoon, I went to ‑ ‑ ‑ 

As might be expected after drinking such a large amount of alcohol the applicant did not wake until three in the afternoon. At that time he received a message from Mr Tony Nicholls which stated:

“The shit has hit the fan, call the legend.”When he arrived at the pool most of the Guinness people were laughing, joking and talking about the events of the previous night.

Mr Nicholls said to him:

"Mate, like, you know, the shit's hit the fan, like, the management's going off their brain and they've spoken to me about it".  The applicant says that basically we just discussed the night before and different representatives from Guinness were having a “jive” at the two of them.

These included:  Bob Beattie, Rob Phyllis, and John Frize.  The applicant maintained that everybody was laughing and thought it was funny, as it was a good natured conference.  He maintained it wasn't anything offensive.

The applicant says that Mr Rick Chapman the Marketing Manager for Guinness Australia, addressed them before dinner on Friday saying that Mr Geoff Plews was extremely angry, and thought that the behaviour was abominable.  It was suggested that none of the representatives go up to the disco that evening and that for the rest of their time on the Island, they behave themselves.  The applicant maintains that Mr Rick Chapman played tennis with him at 7 o'clock on the Saturday morning and did not discuss the incident.

The applicant left Lindeman Island on the Saturday on the way over in the shuttle boat he had a conversation with Mr Nicholls about the events on Thursday evening.  Asked to recall what was said he replied:

“Tony was very, very concerned about losing his job.  I was actually still in a jovial mood about the incident because I obviously didn't think that my involvement was going to warrant - I mean, a slap over the knuckles but I didn't think it would come down to what happened, and I said, I joked with Tony about, you know: "You've done the crime, do the time" and he - he asked me, he said in no uncertain terms, he said: "Mate can you ‑ ‑ ‑ 

No, I want you to say what you can recall him saying?‑‑‑He asked me if I could say that I was drunk, that drunk that I didn't see or hear what had happened outside the disco that evening with the DJ and I said: "As long as my head isn't on the line, I would say that".

Now, when you went from Lindeman Island to Hamilton Island and caught a plane to Sydney from Hamilton; is that right?‑‑‑That's correct.

Now, did you have any conversation with anyone from management?‑‑‑Yes, I did, John Frize.  As we were walking towards the plane I put my arm around him - because John and - John and I had been mates at Carlton for a long time and I said, "I think I'm going to need a bit of assistance in this."  He didn't say anything to me but when we got back to Sydney I was taking my bags off the conveyor belt and John Frize and Rick Chapman approached at the airport on Saturday morning and said: Mate, Guinness doesn't want you any more, you're out.  And I said, "Well, what do I do now?"  And he said, "Well, you'll have to get in touch with Dallas."  And that was it, hop in a taxi and went home.”

The applicant says he did not attempt to speak with Mr Geoff Plews as he had gone to his a place in the country and he was told by Kate Suttie he was upset by the whole incident and didn't want to speak to anyone.  The applicant then rang Dallas Haynes on Monday morning and said:

"Dallas, have you heard the news?"  And he said, "Yes, I have."  I said, "Well, what do you want me to do?"  And he said, "Meet me in there at 10 o'clock this morning."

After arriving at the brewery, at quarter to 10.00 am he was kept waiting until approximately twenty minutes to 12.00 (noon) when both Dallas and Alvin Freeman escorted him into an office.  The applicant described this interview which he says lasted about one half hour as follows:

“as soon as we walked into that office the first thing I said to Alvin was, "Am I going to have a chance to explain before this goes down?"

Now, you say that you asked if you were going to be given the opportunity to explain, what happened then?‑‑‑Alvin said, "Yes, you will", and we sat down and I told him exactly the events as I've just described them to you and he didn't seem to take any notice of what I was saying.  He had a pen and paper in his hand, Dallas was observing and Alvin just put questions to me that he wanted to know answers to.

Can you recall those questions?‑‑‑Yes, based on the sequence of events.  "Did you bang on the wall and threaten the DJ?"  "Were you at the door banging on when the woman opened the door?"  "Were you naked in front of staff at the reception?"  "Did you go skinny-dipping?"  And I answered either yes or no to the different questions that he put to me.

In relation to the telephone conversation that you had with Mr Haynes and he asked you to come in, did he give any indication that your job may be on the line?‑‑‑No, none whatsoever.

And at the beginning of the meeting between Mr Haynes, Mr Freeman and yourself, did either gentlemen indicate to you that if your answers were not satisfactory your job may be on the line?‑‑‑No, they did not.

Now, you say that Mr Freeman asked you questions and you gave answers, what happened then?‑‑‑Well, Mr Freeman said to me:

"We don't care to accept your explanation of - of happened - of the events that happened, we care to accept the documents that we have", of which I wasn't allowed to see, "And you're terminated as of this point."

Mr Freeman also gave him a cabcharge docket.  Thereafter he was escorted to his car which he unlocked for Mr Murray Waters who also saw him to the front gate.

With a letter dated 13 February 1996 the applicant was paid a cheque for $7,335.63 representing his final entitlements as at 5 February, 1996.  The details are:

GROSS	TAX	NETT
Annual Leave	$1,657.07	$741.00	$916.06
February Salary	$  532.14	$177.47	$354.67
4 weeks pay in lieu	$3,725.00	$1,173.37	$2,551.63
Long Service Leave	$5,646.81	$2,033.54	$3,613.27
Less Advance	$  (100.00)
TOTAL	$11,561.01	$4,125.38	$7,335.63

Since his termination from Carlton United on 5 February 1996, he had no other employment apart from his engagement at Wentworthville Leagues Club where he had been for 4½ years.  The hours normally worked by the applicant at the Leagues Club were Friday evenings starting at 9 and finishing at 1.30 whilst on the Saturday evenings he started at 10 and finished at 2.30 pm.  In this position he earnt $600.00 per week.  The applicant applied for a number of other positions for which he was unsuccessful.  The applicant maintained he still wanted reinstatement to his position with Carlton United Brewery.  For the reason that: “I love the company.”

This case was conducted differently from other cases as the applicant had the benefit in these proceedings of listening to all the other witnesses before giving his evidence.  He agreed with Mr Benson during his cross-examination that there were a number of areas in which he was in conflict with other witnesses. He agreed with the assertion made by Mr Benson that he expected to be believed on the basis of his honesty.  It was forcefully put to him that his version of the event differs to that of Mr Nicholls regarding the incident and their conversations.  He agreed that he thought he would get a slap over the knuckles.  The following exchange occurred:

“And you say Mr Nicholls was a bit more concerned and he made this overture to you try dissuade you to say, if you were asked anything about his actions outside the DJ, then you would say you did not see him?‑‑‑Correct.  No, he said to me not to say anything, to say that I was drunk and that I didn't hear or see what was happening and I said I would do that as long as my head wasn't on the chopping block.”

He asked you, on the evidence you gave a bit earlier was: Can you say you did not see me acting against the DJ outside the disco?‑‑‑That's correct - no, he - he said to me to say that I was drunk and that I couldn't see or hear what he was saying and I told him that as long as my head on the chopping block - wasn't on the chopping block that I would help him in that regard.

Yes, in other words, you were prepared to lie to the company in its investigation if there was one for the purposes of Mr Nicholls?‑‑‑He was my friend and, yes, I was prepared to do that.

So, the situation is, is it not, that in regard to your veracity, if there is a reason why you see that you should lie to your advantage then you will do so?‑‑‑Could you please explain that a bit?

If you see some advantage in lying and you will not get caught out, you are prepared to do so?‑‑‑I would say that would be furtherest from the truth based on my lifestyle, I wouldn't lie at all.”

Under cross examination the applicant admitted coming under the supervision of David Hastie about 1993.  He denied that from early on in their working relationship Mr Hastie counselled him about various matters including about complaints he had received about the applicant.  The applicant maintained the complaints weren't necessarily about him but were about the service they were getting from Carlton United.  He amplified this saying:

“The customers felt that I couldn't help them because of my position that I had at Carlton, pure and simple.  I didn't have the authority to help them in matters that were important to them.”

He was then asked about a specific complaint early in 1993 from Mr Jim Poulos from the El Rancho Hotel about his attitude and service.  He was also asked about a number of other complaints.  These questions were objected to on the ground of relevance and that no evidence of these complaints had been given by Mr Hastie.  The questions were allowed on the basis of an assurance by counsel that they were relevant.  The applicant complained about the way Mr David Hastie carried out his supervision of him:

“David Hastie left on my - one of my reports one day a small little piece of yellow paper that had one strike on it.  It then had: two more strikes and you're out.  I took great offence to that, I stuck it on the wall in front of my desk where everyone could see it and David came down and ripped it off the wall.  He was very concerned about it.  Yes, he discussed a weekly report with me by sticking a small piece of paper on that report which highly offended me.”

The applicant alleged that Mr David Hastie was not good at discussing issues of concern with the representatives.  Mr Hastie apparently put little bits of paper on his weekly reports from time to time.  The applicant took the view they were flippant remarks which didn't deserve any acknowledgment.  Asked about an annual staff appraisal in mid 1993 completed by Mr Hastie he made it clear that he didn’t accept the views of the author Mr Hastie although he signed the appraisal.  Some of the comments which the applicant disputed the accuracy of include:

“Eric needs to pay more attention to listening skills and stick to company systems and procedures instead of doing his own thing.”

“Eric is very outspoken and outsiders get the wrong impression.  Has good working rapport with most, needs to be more of a team member.”

The applicant did not accept those assessments by Mr Hastie and maintained that he didn't have those shortcomings.  Asked about another complaint which resulted in him being barred from the North Carlingford Cellars outlet he responded:

“There was a transfer of representatives.  I believe that Neil Harvey was - was put in to take over that particular outlet.  David had known Peter Robinson for a number of years before I took over that outlet and Peter preferred to deal direct with David and I was relieved of that outlet.”

In August 1994 the applicant says a complaint from Mr Bill Gerard, the owner of East Toongabbie Cellars was dealt with:

“I took Dallas Haynes out on the field trip to East Toongabbie Cellars where he met the owner and the licensee continued to ring up Dallas whenever he had a complaint.  In the end Dallas refused to take his calls, didn't want to speak to him, Dallas didn't want to speak to him.”

He was asked about other appraisals and the response was similar.  He pointed out that they did not see Senior Managers comments as part of the normal review process.  The applicant denied meeting with his supervisors on 23 December 1994.  The applicant agreed that he was under no illusion from the meeting held on 30 January 1995 if there were any further instances of poor work performance or conduct without reasonable explanation it would result in his termination:

“I can assure you when I left that meeting with David and Reg I was absolutely shellshocked.  I was devastated.”

VIDEO EVIDENCE & VOIR DIRE

During the evidence of the applicant the court was adjourned to allow the showing of a videotape in the Law Courts building as this facility was no longer available in the Industrial Court premises.

A video recording was tendered in evidence on behalf of the applicant.  The film shows a date of 18th January 1996 at 13.22 hours.   This is obviously a reproduction as the original video was taken at a conference held by Carlton United at Opal Cove Resort at Coffs Harbour in 1991.  There was no dispute that the conference took place.

Before accepting the video into evidence questions were allowed of the applicant as to the method of production.  This examination revealed that the applicant acted as the main camera man assisted by Mark Hosford and possibly a couple of other sales representatives were involved in the filming side.  The concentration of the filming was on the actual performances of the people at the Karaoke rather than a recording of the entire event.

The applicant testified that the court saw an extract from the film that was made in July 1991.  An unedited version was marked for identification and made available to the respondent.  The applicant admitted editing the film when these proceedings started.  He gave the edited version to Ms Rudland counsel for the applicant.

On the basis of this evidence Mr Benson counsel for the respondent objected to the film being shown on the basis:

“that it does not represent a continuous record of what was occurring and therefore will present a distorted picture of the events of that evening.  It is not an accurate record of the events and is therefore prejudicial in its possible selection to my client”.

He also objected on the grounds of relevance to the court viewing the tape.  That objection was not allowed as it was necessary to see the film to determine its relevance.  Mr Benson later withdrew his general objection suggesting that the court should give the film little weight.

The video was allowed into evidence as it was considered relevant to establishing a pattern of behaviour on behalf of the employer and employee at a similar function.  The introductory titles and graphics including the specific reference to Mr Plews were excluded from the evidence as they are a reflection of the opinions of the applicant and not a recording of the conference.

During the presentation the following persons were identified: 
(a)       The applicant wearing a moustache and a striped shirt.

(b)Mr Plews on a few occasions including with his hands above his head holding and waving a handkerchief aloft.

(c)Two female sales representatives amongst a large number of male sales representatives performing a number of karaoke type songs.

EVIDENCE OF DISC JOCKEY

The evidence of the twenty one year old “Disc Jockey” (“DJ”)was to the effect that it was his first night on the job as a DJ and he was not aware of the provision made for security assistance on the island.  It is regrettable that he did not make a complaint earlier than he did as these events may not have taken place if the supply of liquor to the applicant and Mr Tony Nicholls had been cut off at this time.  Part of his evidence was to some degree in favour of the applicant.  He was inclined to agree under cross examination that it was the younger person, (Mr Tony Nicholls), who became more aggressive after they left the disco.  In some of his written material he expressed a reservation about the severity of the punishment given as a result of the incident to the applicant. He did not resile from his view that the two men walked passed the reception areas carrying their clothes while otherwise naked.  This accords with the description given by Mr Tony Nicholls of events after they fell in the gutter but is at odds with other evidence that they were seen with towels.  I am satisfied that whilst the events of the night were distressing for the young man it is unlikely that he suffered any long term harm.  On the other hand it was an introduction to the kind of activity that some times occurs in his chosen profession as a lighting engineer in the entertainment industry where alcohol is usually being consumed.

EVIDENCE OF SECRETARY TO THE GENERAL MANAGER OF GUINNESS AUSTRALIA

The twenty four old secretary to the General Manager Jodie Leigh Matthews testified that she had started at Guinness Australia Proprietary Ltd in May 1993 after completing a secretarial course at Williams business College and a Diploma of Architectural drafting at North Sydney TAFE.  Ms Matthews also acted as secretary to Mr Frize, National Key Accounts Manager and Mr Rick Chapman Marketing Manager.  Her evidence was given in low almost hushed tones.  Initially she was concerned by the sarcastic way in which the applicant spoke to Mr Haynes at the start of the dinner.

When she arrived at the disco she witnessed the disc jockey pointing his finger at the applicant and Tony Nicholls and looking unhappy.  Ms Matthews got up and walked over to the two of them and told them to calm down. The applicant told her to “fuck off” which left her both surprised and offended.  Sometime during the night Mr Plews had left saying goodnight to her and telling her “Be Good.”  When the disco ended she left with four others and went to the room occupied by John Bawden and Paul Ursich.  Also present was Kate Suttie, John Frize and Mark O’Brien, according to Ms Matthews they stayed in the room for about 10 minutes drinking and then went to their respective rooms to get changed into swimming costumes and went to the pool.  Under cross examination she admits that they went to the room to have a drink and she was carrying a broken carton of beer with approximately 12 cans in it and some glasses.  This asportation of alcohol after normal trading hours had ceased may have constituted an offence in some jurisdictions.

About half an hour later she saw the applicant with a towel in front of his groin and no other clothes near the pool area.  The applicant was straddling the lion Ms Matthews maintained she heard Mr Frize say to the applicant along the lines of:  “guys , there are girls present.  Put your clothes on.”  Mr Nicholls denies that this was said.  Ms Matthews says she swam away so as not to see them.  Under cross examination she agreed that the others present were intoxicated but not to the extent of the applicant.  Ms Matthews conceded that other persons were laughing at the applicant and Mr Tony Nicholls.  Her last sighting was of them with towels wrapped around them walking away with their clothes in hand.  The next day the applicant told her she was a pain in the arse for telling him what to do.  Ms Matthews prefaced her evidence about the amount of alcohol she had consumed on the evening with the use of the word “approximately.”  She admitted  to consuming:  “two gin and tonics at the cocktail party and I had approximately two wines at the dinner and during the rest of the evening approximately three bourbon and cokes.”  Her evidence about the amount of alcohol taken by her on this evening is, on the balance of probabilities, severely underestimated.

The total loyalty which was shown by her to the General Manager and her employer generally is to be commended.  Nevertheless it may have affected her objectivity in giving her evidence.  Ms Matthews could not remember whether it was 15 or 20 cases of Guinness that had been ordered for the consumption of delegates at the conference.

EVIDENCE  OF  NATIONAL  KEY  ACCOUNTS  MANAGER  OF  GUINNESS AUSTRALIA

The evidence of Mr John Stanley Frize, National Key Accounts Manager, did not wholly confirm the evidence of Ms Matthews it differed in terms of the amount of time spent in the room occupied by Mr Bawden and the amount of alcohol consumed there.  He did maintain that he told the applicant to put some clothes on.  His reaction to what was said and the language used by the applicant, as might be expected, was more tolerant:  ”I know he was a little agitated, but I mean it was the way it was”.  He confirmed that the applicant was naked in the pool area although when leaving and arriving he had a towel or other clothing draped in front of him.  He admitted that according to the amount of alcohol that he and others had consumed they would all be very close to the high range of the scale used to determine the level of the prescribed content of alcohol in the blood for drink driving offences.  His ironic observation to counsel for the applicant,  “They were not naked though,” was not made without a sense of humour on his part.

He had worked with the applicant previously and respected his achievement in terms of sales and the industry generally.  He admitted that the applicant “could easily rub people up the wrong way.”  Having observed the applicant over two days giving evidence this statement is an accurate observation.  His evidence as to what was said in their conversation at the airport on their return to Sydney accords with that of the applicant.

EVIDENCE OF NATIONAL MARKETING MANAGER OF GUINNESS AUSTRALIA

The National Marketing Manager Mr Richard Kenneth Chapman had commenced with Guinness Australia on 1 August 1994 and had a professional relationship with the applicant since he joined the company.  At the Conference Gala Dinner the applicant was presented by him with the “Mother Theresa” award and he was given a book because of his “shy retiring nature”:  ”How To Win Friends and Influence People”.  He went on to describe the applicant as  ”a very aggressive blunt sort of character and so I guess the award was if you like an ironic twist on that”.  He could only recall the name of one other award that he presented.  He saw nothing out of order at the dinner and disclosed the amount of alcohol he estimated that he consumed at the function as being one or possibly two glasses of Guinness at the pre-dinner drinks and three glasses of red over dinner with another one or two glasses of Guinness afterwards.  He can only recollect a conversation with the applicant at the disco which was about the disc jockey.  He felt the applicant was very aggressive about the disc jockey but he managed to calm him down by steering the discussion towards the applicant’s own skill in this profession.   As the conference had ended Mr Chapman had arranged a round of 18 holes of golf commencing at 9.30 am or 10.00 am on the Friday so he left the Disco before the others.  It was not until his return at lunch time that he heard the rumours:  “I hear a couple of your guys were playing up and running around the place naked last night”.

He went to see the manager of the resort as the two senior personnel Mr Plews and Mr. Haynes had left earlier that morning for Sydney.  As he could not see the manager he asked Mr Frize about the rumours who said :  “Yes Tony and Eric running around naked”  He gave other details of his investigation of the incident and his discussions with Mr Plews on the issue.  He played tennis with the applicant at 7.00 am on Saturday 2 February 1996 and did not mention the incident to him.  His evidence confirmed there were no more untoward incidents on the Friday or Saturday.  There was no evidence that the laminated drinking pass was withdrawn or any other limitations placed on the access to alcohol by the applicant or Mr Nicholls during this period.

Because of the way his evidence was given and his lack of detailed recall about essential activities in which he was involved, such as the presentation of awards it is likely that, he too has grossly underestimated his intake of alcohol on the evening.  He confirmed the account of the applicant and Mr Frize about their conversations at Sydney Airport.

EVIDENCE  OF  FORMER  NEW  SOUTH  WALES  SALES  AND  MARKETING  MANAGER  OF  RESPONDENT

Mr Sydney Dallas Herman Haynes known as Dallas Haynes gave evidence of being a long standing employee of Carlton United  for 16 years, until he retired on 31 January 1997.  He had held a number of senior positions with Carlton United including from November 1991 as its General Manager of Sales & Marketing.  He described the applicant as being responsible to his Area Manager who then reported through the State Sales Managers  to Mr Haynes.  Prior to the transfer of the applicant to Guinness Australia he had not directly supervised the applicant although he had completed a day in the trade with him.  He received reports in a Global way as to how all the sales representatives were performing as against budget sales figures.  The applicant had a “dotted line” responsibility to Mr Haynes after he went to Guinness Australia, and Mr Haynes signed his expenses and read his reports.  He recalled there were two notices given to Mr Shields, one by Mr David Hastie, and the other by Mr Reg Turner, and that this was part of the normal procedure.  Mr Shields was transferred to Guinness Australia as part of a restructure.  Mr Haynes could not say that there was anything wrong with his relationship with the applicant at any time.  Asked to explain the general policy of Carton United towards employees consuming alcohol, he replied:

“Well, generally, it’s part of our business to consume alcohol if we choose to, we don’t have to, but when we go out to visit a customer in the trade, a hotelier, who asks us to have a drink, we consider it prudent of us to have a drink with him; that might be one or two middies.  Since the advent of light beer, it’s been light beer.  I am totally unaware of any excess drinking by any of my staff.”

He was invited, by Mr Geoffrey Plews, to attend the Guinness conference on Lindeman Island as an observer.  There were other Carlton United staff there who reported to him on a similar basis as did the applicant.  On Tuesday 30 January 1996 he attended the opening session and was asked along with others to stand up and say who they were, what they did and make a comment.  He could not recall any specific comment about the applicant.

At the Thursday Pre-dinner drinks, he had one alcoholic drink.  At that stage his relationship with the applicant was quite good.  Although they were drinking together for some time, he can only recall the applicant saying:  “I could drink you under the table”  and he replied:  “I don’t think you could, but we’re not going to.”  He later conceded he might have had 2 or 3 bourbons & coke, and 2 glasses of wine at dinner.  He went with them to the disco and only stayed about 20 minutes as he was over 60 and he had to get up early in the morning to leave the island.  He witnessed nothing untoward while at the disco.

On Saturday afternoon he telephoned Mr Plews at his request who told him about the “problem”.  He received a telephone call from Mr Shields,on the Monday morning and he told him:  “Come into the office.”  He had again spoken to Mr Plews and Mr Freeman on the Monday morning.  He had also discussed it with Mr Ryan, Regional Director of NSW, who had a meeting with him and told Mr Freeman in his presence:  “If you believe these circumstances to be correct, then you dismiss him”.  At an interview between Mr Freeman, the applicant and himself the accusations of his conduct as he had received then were made to the applicant, some of which he denied.  Mr Freeman and Mr Haynes did not accept the denial of the applicant and he could not recall if he apologised for his conduct.

During his cross examination he was asked to comment on the letter he received from the applicant, he replied:  “He was not concerned with breakdown between staff and supervisors as it was a matter for the supervisor to deal with”.  In his view the Company frowns on excessive use of alcohol, but he agreed there was usually some alcohol at functions but Carlton United expected everyone to be disciplined.  There was no alcohol served at the Carlton United conferences he had held at the Kent Brewery.

He conceded he knew the applicant to be a good Disc Jockey and had congratulated him on his performance at the Karaoke.  He could not deny he had approached the Disc Jockey and asked him if the applicant could perform. He could not tell if people were affected by drink as most were good natured and having a good time. During his evidence he often retreated into the “don’t recall” style of answer.  His evidence about the amount of alcohol he drank at the gala dinner was most unsatisfactory and unreliable.

In response to the allegation that he had said during his speech that the one thing that he wished to do before he retired was to get rid of the applicant he maintained that although he could not recollect making that statement, he would not deny it.  He agreed, that things were said in jest in his speech.

Mr Haynes was asked about a luncheon at the Governor Bourke Hotel at Parramatta, he readily admitted to being present on the occasion and to having consumed, in his words, “half a bottle of wine”. He was then asked by counsel for the applicant, under cross-examination, as to whether he had driven a company vehicle after the event. At this stage, I intervened in the process and asked that Mr Haynes leave the room. I explained to counsel that if this line of questioning were to continue, then Mr Haynes should be given an explanation of his right under Section 128, Evidence Act 1995 (Cth) not to answer any question which might tend to incriminate himself.

On the return of Mr Haynes to the court room, the provisions of Section 128 Evidence Act, 1995 (Cth) were explained to him and he was asked if he wished the opportunity of discussing the matter with Mr Benson. He agreed to that course of action and a short adjournment was granted for this purpose. On his return to the court, counsel for the respondent again asked a similar question, Mr Haynes objected to answering the question on the grounds that he may be incriminated. Given that Mr Haynes has now left the employ of the respondent, Counsel for the applicant in a very proper way did not request that Mr Haynes be directed to answer the question. Had the question been pressed it is likely I would have found that there were reasonable grounds for the objection. It is also unlikely that I would have found that the interests of justice required a direction be given to Mr Haynes to answer the question.

EVIDENCE  OF  FORMER  SECONDED  EMPLOYEE  OF  RESPONDENT
Mr Anthony Charles Nicholls a former employee of the respondent, who at the time of the incident was also seconded to Guinness Australia, gave his evidence in person in Brisbane.  In order to conserve costs for the parties this evidence was taken by video link.  Mr Benson, Counsel for the Respondent, was also present in Brisbane while Ms Rudland, Counsel for the Applicant, was located in Sydney.  The typed transcript contains an apology:

“Due to the poor quality of the video link sound we must apologise for the amount of indistincts that we have had to include through the transcript.”

At times, Ms Rudland, counsel for the applicant could neither see nor hear what was being said by the witness.  On occasions she could not be heard by counsel for the respondent, the witness or myself.

Early in his evidence I gained the impression that he was not being frank with the court and suggested that as he was now in employment he had no cause to be reluctant in giving his evidence. An application under s.38(1)(a) of the Evidence Act which was made by counsel for the applicant during his Examination-in-Chief was initially refused by me. Later on in his testimony I formed the view, after his use of the expression “unfair dismissal jazz” that he was not making a genuine attempt to give evidence. A renewed application was subsequently granted.

His testimony included the following allegations against the applicant:

(a).During the course of the dinner on the Thursday evening both urinated in the wash basins in either the male or female toilets he was unsure as to which.

(b)Both of them banging on the door of the Disco in turn whilst the other keeled over in laughter.

(c)“Both laughing and holding the ends of our penises to stop ourselves wetting ourselves.”

(d)       He pretended to have sex with the statue of the lion by the pool.

(e)       He talked about his penis and the size of it and how he knew how to use it.

Other evidence from him included admitting:

1. To being “quite drunk”.

2. That whilst he was banging on the door the DJ came to the door.

3. He remembered the applicant saying:  “we have given him enough – as he’s laughing: let’s get going.”

4. That the applicant had lead him away with his arms around him.

5. That they fell down in the gutter and had a “deep and meaningful conversation and then took their clothes off.”

6. Jumping on a sleeping Rob Phillis, who was sharing a room with the applicant.

7. Talking to a female staff member at reception while naked.

8. Being told by Cadell Bass to go to bed.

9. That on Monday 5 February 1996 he was told by representatives of the respondent through Guinness Australia that “he had to go because the applicant had to go.”

   Mr Nicholls denies:

1. taking towels with them from the room of the applicant.

2. that Mr Frize spoke to them at the pool.

He was cross examined about a telephone conversation he had with the applicant after the proceedings had commenced:

“In relation to the telephone conversation that you spoke about earlier, you in fact told Mr Shields at that time that you did not want to go against the company in court because you wanted to return to the liquor industry, is that not correct?  Yeah, I may have said words to that effect and you’d be right in saying the liquor industry.

Now, in the course of that conversation Mr Shields in fact said to you that if you came to Sydney to give evidence on his behalf he would cover your expenses in doing so?---My recollection is that he encouraged me to write something on paper to back him up in some sort of way and if he was to have a win of sorts he’d cut me in.

What exactly did he say?---I can only say words to the effect.

Yes?---I can’t say it exactly.

Say words to the effect?---Words to the effect so I’ll repeat myself.  He encouraged me to put my versions down on paper backing him up in some sort of way with the incentive being he’d give me a slice of whatever he was to get.  I wasn’t interested in doing that cause I’ve taken my medicine.  I’ve done the wrong thing and I’ve been accountable for what I’ve done.

I put it to you that in fact Mr Shields did not make that offer to you, what he offered to do was pay your expenses to come to Sydney to give evidence?---No, that’s not right.

........ ..
Ms Rudland:  Sorry, if you can go back, yes?---Yeah, he definitely offered me a slice and to go along with that he probably did offer the expenses also, but most definitely offered me a slice and I imagine expenses would have come along with that.

And I put it to you that in relation to offering you a slice, that is not true?---Mrs Rudland, I swore on the Bible and I’m being absolutely truthful.”

During part of their drunken escapade there was apparently some effort made at modesty by both the applicant and Mr Nicholls as there is evidence from other witnesses that the two of them had towels when they were at the pool.  The evidence of Mr Nicholls should be given little weight.  After his resignation he had been assisted by officers of the respondent to obtain other employment.  He displayed a large element of self interest and self preservation while giving his testimony.

The amount of alcohol which he consumed and its effect on his recollection of events must also be taken into account.  Given his age it is unlikely that he has, not yet, developed the tolerance towards the use of alcohol that some of the more longstanding employees in the industry have demonstrated during their evidence.

DIRECTION UNDER S. 128 EVIDENCE ACT 1995

During the evidence of Mr Nicholls and after his objection I directed under s.128 Evidence Act, 1995, that he answer questions from Ms Rudland, Counsel for the Applicant. It was important to the case for the applicant to obtain proper testimony from Mr Nicholls. This direction was given as I was satisfied that it was in the interests of justice that he be directed to answer. Mr Nicholls is entitled to the protection afforded by the section and he may apply to the registry of the court for a certificate to be issued. That part of his testimony which may be covered by the certificate is contained in pages 24 to 45 inclusive of the transcript of the proceedings heard in November 1996. Consideration has been given to the non-publication of his name in these reasons but there is no justification for that course to have been taken.

1. He was not aware of staff appraisals of the applicant undertaken by Mr Hastie in 1995.

He recalled attending a luncheon at a restaurant called St Elmo's in August ’94 and confirmed that it was a lingerie hotel, which he believed to be owned by one of the major customers of the respondent.  It is a hotel with a restaurant attachment as part of the facilities.  In re-examination he explained to Mr Benson Counsel for the respondent:

“ Just dealing with that restaurant, what was the purpose of the luncheon being there?‑‑‑That was a luncheon held by the metropolitan sales team and if I recall we may have handed out either incentives in an envelop or end of financial year congratulatory - I can't exactly recall what the motivation or incentive was at the time.

Are you aware why that venue was selected?‑‑‑Yes.  I understand in discussions with Mr Hastie that the venue was offered to us by a gentleman, Mr Theo Feros, who was owner of that establishment, as well as seven other major hotels and liquor outlets in New South Wales.

Was that a customer in relation to each of those outlets?‑‑‑Yes.  We have a practice of endeavouring to support customers by holding our functions and sales meeting at their venues around the metropolitan area.”

He concluded his evidence on what was the criteria for an effective salesperson:

“Alcohol sales?‑‑‑The criteria relate to a range of things like distribution, volume against last year's sales, budget, the quality of display that is available in the customer's stores, the relationship that is built with customers to continue to provide better selling opportunities, etcetera.

Yes.  Well, different sales industries have different criteria.  Generally, do you say that at all - you gave me some statistic that Mr Shields was in the bottom third of the team, or was that only in one particular year?‑‑‑No.  In 1992/93 he was in the bottom third.  In 1993/94 - - -

Sorry, 1992 to '93?‑‑‑No.  In 1993 until 1994, that is our fiscal year, and in 1994 through to March '95 he was virtually at the bottom of the sales teams results.

Wait a minute.  1992 to '93 you say he was - - -?‑‑‑No.  From July '94 - sorry, July '93 through until June '94, that is our fiscal year, his results were perhaps in the bottom third - - -

I see?‑‑‑ - - - in terms of his volumes against last year's sales for those customers.  In 1994, from July through until March 1995 his sales were perhaps in the bottom two or three of the 20 metropolitan supervisors that you might compare him with.  I again repeat, that is one criteria for measurement.”

The advice given to Mr Turner by the Industrial Relations Manager that he did not have the necessary detail to effect a termination of the applicant on performance issues in December 1994 was sound.  This was compounded by the conflicting messages being given to the applicant and by the failure to investigate his complaints about the method of supervision used by Mr Hastie.

EVIDENCE OF DIRECTOR AND VICE PRESIDENT (SALES) OF RESPONDENT

Mr John Thomas Ryan a Director and Vice President, Sales (Australia) for Carlton United Limited and of its subsidiary, Carlton United Breweries (NSW) Pty Limited testified that he had been in the brewing industry for 44 years, of which he was with Tooheys Limited for approximately 38 years with the last five years as the chief executive of the latter company.

On 1 July 1996 he was appointed to his present position and he maintained that it would be fair to say he had an extensive knowledge of both the sales and marketing of beer products in Australia.  He had been responsible for New South Wales since he joined the company about four years ago.  About 400 staff answered to him nationally with about 200 in New South Wales.  He had known the applicant only since he had joined the company except that he recalled:“Eric had had to be spoken to a couple of times about his behaviour.”

Asked to describe his involvement on 5 February 1996 he replied:

“Well, that was a Monday morning and the then state sales manager, Dallas Haynes - who retired a few weeks ago, he reached 65 and retired - came to my office and said there had been a problem at Lindeman Island involving one of our people.  I asked him what it was about.  He said that there had been a disturbance a couple of nights prior to this Monday morning, two or three nights before; perhaps a Thursday night, a Friday night or something like that, and that Eric Shields was involved.  He inferred that Eric had been naked moving through the resort.  He was knocking on doors trying to wake someone.  The management of the resort of complained.  A disc jockey had complained and Guinness personnel had complained.  I asked him if we were able to substantiate these statements.  He said he would do that.  I asked him to get Alvin Freeman, who was the personnel manager, involved.  They came back to my office.  They had a letter, as I recall it, from the resort, perhaps the disc jockey.  They had more information from Guinness.  I read the letter and it became obvious to me that someone else was involved. 

The other person was identified as a representative from our Queensland branch.  I then rang the Queensland manager and asked him if he was aware of this.  This had been brought to his attention and he was also looking at it and would call me back.  Some little while later, Dallas Haynes and Alvin briefed me on the basis that they were satisfied that these allegations were accurate and I spoke again to our Queensland manager who said that - I can't remember - Nicholls, had confirmed that and that Nicholls was in fact very ashamed of his behaviour and had tendered his resignation.  I spoke again with Dallas and Alvin, asked them to go through the appropriate procedure and if substantially the allegations were found to be correct, then we had no alternative but to separate.”

He strongly maintained that it would be totally impractical to reinstate the applicant:

“Firstly Mr Shields at the time was working with Guinness Australia and the Managing Director of Guinness Australia has told me that under no circumstances will he have Eric Shields back.  Apart from that, one has to have confidence in our sales representatives, our area managers.  To a large extent, our team is working alone.  They have supervision, but it is not constant.  They can go for days without supervision.  One has to have absolute confidence in their behaviour.  In this circumstance, this occurred on the premises of one of our customers.  So we have a situation where one of our area managers, in the premises of one of our customers, has behaved in a most unacceptable manner.  Under those circumstances, our company could not possibly consider reinstatement.”

Asked to comment about the video he testified:

“Yes, I saw the video about a week ago and my understanding is, and I've asked, that function took place in a private room within the - I mean, it was a private party.  There weren't any outsiders there.  It seemed to me, as I understand it, that these people were having a fairly good time.  They had been divided into teams during the day for a team-building exercise, a fairly long day as I understand it, and then were invited to dinner.  As part of the evening, those teams were then asked to perform a karaoke.  That's - do you know what that is?

Well, please tell us in your words?‑‑‑It's reading - well, it's performing a song reading from a video screen, as I understand it.  I haven't done it actually.  I've seen it.  They were doing this in teams.  I wasn't there, but I understand that to be the case.  Some did it better than others.  None of them should apply for jobs in the entertainment world, because they weren't real good.” 

Under cross examination by Ms Rudland Counsel for the Applicant he was asked:

“Now, you say nothing there overly concerned you.  Did you see that part of the video where a member of the organisation had his trousers off?‑‑‑Yes, I did.”

He agreed that there were male and female staff present.  Subsequently he was asked about an award to the applicant:

“Yes?‑‑‑He and 15 others were nominated on that particular - I was there at the function when the nominations of a lot of sales reps in New South Wales were read out and I wrote to all of my company's sales reps, there were 16 in all, to congratulate them because I take the very strong view that if people deserve a pat on the back they get it.  That always gives me the opportunity then, if I have to discipline anyone, to do it because I'm seen as being fair-handed.

When you say he was one of 16 - but that was not every sales rep in New South Wales, was it, that was nominated?‑‑‑No, no.  There were - the Liquor Stores Association nominated quite a few from all sorts of companies, not only our own, but 16 of our own people received nominations.

Asked about the company policy on drinking alcohol at these events, he replied:

“Well, staff generally are expected to behaviour responsibly when drinking alcohol.  I mean, that's - there's an example to be set and under no circumstances does our company encourage drinking in excess at any time by anyone.

What do you do to stop people drinking from excess in that situation?‑‑‑Well, I would expect that someone would have a word to them, but I repeat they are adults and there are not too many instances of it.  I cannot recall very many, in all my career.

Now, can I ask you this:  if somebody is given a - no, I will withdraw that.  Is it your understanding that people at these staff conventions have free access to company products?‑‑‑Well, at those sort of functions, yes.  I mean, if you are saying to me "do they have to pay," the answer is "no."

They have unlimited access really, do they not?‑‑‑Look, the answer to that question is probably "yes," but they are expected to act responsibly.  I mean, if you say "unlimited access," they are not expected to sit down and drink to excess all night and - no, they are just not expected to do that.

People do do that, do they not, at these events?‑‑‑Obviously someone did.

Are you saying that Mr Shields in your knowledge, in 44 years in the industry, is the only person that you are aware of that drank to excess on one night?‑‑‑No, I couldn't say that.  The industry is very large.  It encompasses consumers, retailers and employees.

Is Mr Shields the only staff member who has been under your control in the industry who has consumed a large amount of alcohol - - -?‑‑‑No.”

While he agreed that the applicant was not the only staff member who has consumed a large amount of alcohol. He maintained that “he was the only one that has stripped naked and walked through the premises.”

As he was not with the respondent at the time he was not aware:  “if any disciplinary action was taken against the person who danced in his underpants at Coffs Harbour.”
He had not noticed in the video the two gentlemen that took off their shirts and were dancing bare-chested.  He was asked about the policy of the company towards:  “a lingerie restaurant is one in which the persons, usually women, waiting the tables are dressed in see-through lingerie and basically nothing else?‑‑‑ and whether this was an acceptable means of staff motivation.  He replied:  “I haven’t been to one.”He conceded that if it was a customer of the respondent then they would have to be called on.  He did not see it as being unacceptable behaviour at the Coffs Harbour conference to have one of the only two female representatives at the conference sitting on the lap of a man who was obviously inebriated.  These responses and the general attitude of Mr Ryan appears to exhibit on his part:  an appproval of sexual harassment as an implied condition of work for women.   See discussion of the issue of sexual harassment at work by Associate Professor Kim Lane Scheppele in her article “Just the Facts, Ma’am:  Sexualized Violence, Evidentiary Habits, and The Revision of Truth” 37NYLSLR 125, 140-141 and 149-150.

He agreed that he had directed Mr Freeman and Mr Haynes to dismiss the applicant if they found the circumstances to be as alleged in the reports which they had received.  He also conceded that the law in NSW was now:

“There are indeed;  very recent applications of the law on the basis of not serving anyone who is intoxicated.

Yes.  The penalty is what, $2000 fine?‑‑‑I don't know, but it's a fine.

A substantial penalty, yes?‑‑‑Yes.
Who does that apply to?  It applies not only to the publican.  It applies to the bar person?‑‑‑Yes.  Yes, it does.”

WRITTEN SUBMISSIONS

At the conclusion of the hearings a programme of written submissions was agreed between Counsel.  The initial submission of the Respondent was filed on 21 April 1997.  This was responded to by the applicant on 14 May 1997 with the final reply by the Respondent being filed on 26 May 1997.  I do not propose to analyse the submissions in detail as each approach was effective in putting the case in support of the respective and differing interests of the parties.  For example:-

1. The initial submission on behalf of the respondent at 3.7:  “It is relevant to note that Mr Turner by late 1994, had come to the point where he believed he would be required to dismiss the applicant.  However the intervention of Christmas persuaded Mr Turner to not do so (TP36-3.3.97).”  This submission overlooks the advice given by the Industrial Relations Department to the effect that there were insufficient grounds available to achieve that result.  This is supported by the fact that no reliable details of his sales results were produced in a reliable statistical form or otherwise during the hearing.

1. This can also be contrasted with the reply on behalf of the applicant at:-

2. The two men left the applicant’s room to go Mr Nicholls room.  It would appear Mr Nicholls did not have a key and they commenced banging on the door to awake his room-mate.  This attracted the attention of a woman guest in an adjoining room who came to see what was going on and, on seeing the two men who were semi-naked, shut her door.”
   This submission overlooks the evidence of the applicant which was:  “she opened the door and saw us standing there naked smiled and closed the door.”  Despite these differences I found the submissions to be quite helpful and acknowledged the contribution made by counsel in this respect.

ALCOHOL, INDUSTRY & OCCUPATIONAL HEALTH & SAFETY

In McGeehan v Hazleton Airlines (McILwaine JR decision number 118/97) and Garside v Hazleton Airlines (McILWaine JR decision number 119/97) I discussed a number of issues arising out of the admitted consumption of alcohol by two pilots more than eight hours before a scheduled commuter flight.  These issues are summarised under the following headings:  The Shout, Expert Report, Consumption of Alchohol and Public Safety, Alcohol and Aircrew and Alcohol and Civil Aviation.  Those observations record the change in the attitude of the community towards drink driving and the responsible use of alcohol and need not be repeated here.

The introduction of random breath testing throughout Australia was justified on the basis that at certain levels of alcohol in the blood the driver could not perform the usually simple task of driving a motor vehicle without the likelihood being increased of driving it improperly or having an accident.  Easy to read guides have been published specifying the number of standards drinks a person may consume during a period of time which will keep them to a level at which it is not an offence to drive.  These guidelines have been adopted by the community and are used as a means of self discipline when consuming alcohol.  It is also an objective standard which can be used by the Court to assess the degree of “drunkeness”.  To some extent it lessens the need for the court to rely on subjective factors.  This case is notable for the removal of these safeguards.  There was no likelihood during the evening that anyone might have to drive in this location.  There was an unlimited supply of alcohol provided by Guinness Australia for which payment was not required.

It is an objective standard which can be simply calculated if related to a standard drink.  The evidence from Mr Plews is that a can of Guinness is 1.74 times the standard drink.  If a male drinks three Guinness cans in an hour it is likely that the level of blood alcohol in the blood will be such that it is a criminal offence if a car is driven in NSW.  Given the general bonding and reduction in self-discipline experienced by all at the gala dinner and its aftermath, this objective standard was exceeded.

It is arguable that the way in which alcohol was supplied in this instance would be in breach of the general duty of the employer to take action to prevent injury to his employee (See McLean v Tedman & Anor (1984) 56 ALR 359 at 364). It is relevant to note that the supply of alcohol was maintained even when the bar service ceased. Moreover had these events occurred in New South Wales then they may be subject to the provisions of the Occupational Health and Safety Act, 1983:

(a)Section 15  (Employers to ensure the health, safety and welfare of their employees).

(b)Section 18 (Manufacturer, suppliers etc to ensure health and safety as regards plant and substances for use at work.)

(c)Section 19 (Employees at work to take care of others and to co-operate with employer).

Such provisions do have an effect on the everyday operations of the people (both employer and employee) working in this industry.  This issue was not raised directly in these proceedings.  Therefore it is not necessary to examine the matter further, except to note that it is possible that there may have been similar or more stringent provisions in the applicable state jurisdiction where the conference was held.

The evidence in this case makes it clear that in the past there has not been sufficient attention paid to the risks associated with the so called “need” for employees to sample the product, which they are selling, in the company of their “consumers, retailers and employees.”  However there is sufficient written material available to the respondent warning of the dangers of supplying alcohol at office or work related social events or company sponsored functions.  See for example articles such as:  Alcohol liability in Canada and Australia Tort Law Review 4(3) November 1996: 188-241; Holiday Cheer you can be held liable if your employee drives in a drunken state after the company party.  Entrepreneur 24 p.80-2 December 1996; Liquor Liability:  Last Call!  Sales and Marketing Management V145 p62-7 December 1993.”  I hesitate to say it was completely irresponsible conduct as there is confirmation in the evidence of the applicant that he was given, even if reluctantly, a cabcharge docket to enable him to return to the Radisson Hotel at Manly by taxi rather than carrying on having “a bit of fun.”

In a hypocritical way the senior management and a number of witnesses sought to avoid any responsibility for the contribution they made by their own indulgence on that night together, with the unrestricted provision of alcohol to those persons (including the applicant), who were present on that evening.

CREDIT  OF  MAIN  WITNESSES

Between the applicant and Mr Nicholls I prefer the evidence of the applicant.  It must be said that their recollections would have been severely affected by their consumption of alcohol.  Both of them were prepared to fudge the truth when their own self interest was at stake.  An accurate assessment of their conduct on the night can only be made when there is evidence from a Third Party who was not involved.  There is the evidence of Mr Chapman that the applicant calmed down when his own skills were discussed.  It is for this reason that I have accepted the evidence of the Disc Jockey that Mr Nicholls became more aggressive as the night wore on.  I accept that it was the applicant who removed Mr Nicholls from the door to the disco area.  In view of his eight or nine years of actual participation in the industry the applicant is likely to have developed a higher degree of tolerance to alcohol.  There is no previous complaint made about the conduct of the applicant at either of the Manly or Coffs Harbour Conferences where similar amounts of alcohol were available.  It would seem that the age of Mr Nicholls is relevant and tells against him in terms of likely aggressiveness.  This is demonstrated by his lapses into the vernacular when giving his evidence.

In considering the evidence of all the witnesses who were present on the evening with the exception of Mr Clingan and possibly Mr Frize I am convinced that their evidence was not frank in many instances.  This was particularly noticeable by the attempt to minimise their own contribution to the bonding which was taking place.  In response to the remarks about the credit of the applicant made on behalf of the respondent, counsel for the applicant stated:  “further when the respondents own witnesses have been shown to be less than frank, when it suited their interests he can hardly be held out as less than credible than they are on such a basis.”
Whilst these remarks are understandable, I have carefully considered the discussion on lack of truthfulness by Wilcox J in Allied Express Transport Pty Ltd v Michelle Anderson (1997) CLS 1997 FED 796, in particular his observation that:  “the application of that passage to this case means I should choose that version of any disputed primary facts that is least favourable to the party that bears the onus of proof; in this case Allied.”  In determining the issues in this case I have applied this principle.

WAS THERE A VALID REASON FOR TERMINATION

There was no issue between the parties that the Respondent had not terminated the employment of the applicant at its initiative.

Under the provisions of the Act, the respondent carries the burden of showing that at termination it had a valid reason or reasons for bringing the employment to an end summarily.  In his decision in Selvachandran v Peteron Plastics Pty Ltd (1996) 62 IR 371, Northrop J describes the meaning of this phrase in the following way:

“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 s170DE(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 Bostik Pty Ltd (1995) 60 IR 1, when considering the construction and application of s170DC.”

In considering whether there was a valid reason for termination connected with the employees capacity or conduct of the applicant I have taken into account the following factors:-

1. There was no evidence of any long term disruption to the arrangement between Carlton United and Guinness Australia about the secondment of employees.  There is some evidence that there was concern expressed about the inappropriateness of the conduct of the applicant and his initial appointment.

2. The conduct of the applicant, inappropriate as it was, occurred after the business section of the conference had been successfully completed consequently there was no disruption to the purpose or objectives of the conference. 

3. The contribution made by Guinness Australia to the intoxication of the applicant by the continued supply of its product and other alcoholic beverages in copious amounts.

4. The failure of management at any level to exercise any appropriate supervision by removing access to further alcohol at any stage of the conference.

5. There was no evidence of any financial damage or harm done to the reputation of Guinness Australia.

6. It is probable that there was annoyance disturbance and embarrassment caused to at least one female guest of the island resort who was not part of the Guinness’ Australia group.  There was no evidence from the management of Lindeman Island that the resort suffered any other damage, apart from embarassment by the actions of the applicant.  On the contrary the resort management appears to have accepted the apologies given individually and by the management of Guinness Australia.

7. A similar situation as in paragraph 6 prevails with the Disc Jockey and it appears he has accepted the apology of the applicant.

8. The fact that the applicant was a person singled out for receipt of one of the “humorous” awards presented at the function.  It is likely that similar hurtful remarks may have been made, albeit in jest, by some of the other speakers.

9. The long period of employment with the respondent by the applicant where conduct of a similar nature had not occurred despite the attendance by him at a number of functions, where alcohol was freely available.

10. The failure of the company to consider as an alternative placing him in a suitable drug and alcohol program.

1. The applicant had already been appropriately disciplined by having his secondment with Guinness Australia terminated and his transfer back to Carlton United.

1. The discrepancy in treatment between Mr Nicholls who was allowed to resign and that of the applicant.

Generally the respondent is required to prove that at 5 February 1996 it had a valid reason for the termination of the applicant on the basis of his conduct.  Having regard to those circumstances the decision of the respondent to terminate his services was not “sound, defensible or well-founded”.  There appears to me to be an element of “spite” or capriciousness in the decision.  The evidence in this case leads me to the conclusion that there was not well founded or just grounds for the decision to terminate the employment of the applicant.  There was not a valid reason to terminate the employment of the applicant.

REINSTATEMENT IMPRACTICABLE

I am satisfied that I have only a limited discretion not to reinstate the applicant where it has been found that there is no valid reason for termination of his employment. (See decision of Liddell v Lemke t/a Cheryls Unisex Salon ( Full Court decision by Wilcox CJ, Keely & Gray JJ dated 15 December 1994, IR 56 page 447).  Nevertheless I am obliged by Section 170EE (1) to take into account all the circumstances of the case. 

In view of the findings which I have made earlier in these reasons reinstatement appears to be required. There is no evidence that there is any previous incident of a similar nature in the case of the applicant.  I have taken into account the evidence of Messrs Hastie and Turner about their attempts to discipline the applicant.  However both of these men are no longer in their former positions.  The applicant will start under fresh supervision.

During his evidence the applicant agreed that he would undertake a suitable educational and rehabilitation program regarding the use of Drugs and Alcohol.  It seems to me that the applicant may need to have a better understanding of the rate of metabolism of alcohol in his blood.

In my view, Section 170EE (1) allows me to take account of the legitimate concerns of the respondent and the public interest in the future responsible use of alcohol by the applicant against the possibility, however remote, that there might be a repeat performance by him.

There is a need on behalf of the respondent and the public interest, that I impose a condition precedent to a finding that it is not impracticable to reinstate the applicant.   Such a condition will ensure that the company is able to take practical steps towards achieving greater certainty about the alcohol intake of the applicant. It will also restore the confidence of the respondent in the capacity of the applicant to conduct himself more appropriately in the future.

In the cases of McGeehan and Garside (referred to previously), it was made a precondition of a finding that it is not impracticable to reinstate the Applicant that they agree to the monitoring of their usage of alcohol over a period of twelve months. It was expected that such monitoring be to the level and of the same standard and nature as that required of a “Special Category Driver” or by the Rail Safety Act 1993 (NSW). In addition, they were to sign a written consent addressed to the respondent that if required by their Chief Pilot they consented to the random monitoring of their drug and alcohol intake upon reporting for any period of duty or during such duty. Their agreement was to include consent to breath analysis and to the supply of blood or urine samples if required. The monitoring program was to last for 12 months from the date of signing of the consent. The position of the applicant in this industry is different. Each day he is obliged to travel the roads of his territory and is subject to the possibility of regular random Breath Tests. Thus there is not the same need to subject his employer to the expense and inconvenience of such a monitoring program unless it forms part of the counselling program.

I will arrange to list the matter before me in the event that either counsel wish to put forward any practical difficulties about this issue.  For example, if there can be an agreement between the parties as to the rehabilitation program and the form of monitoring, then that can be incorporated into my orders.  In the absence of agreement, the applicant may sign a general consent to undertake the programme specified by the respondent and serve it on the respondent and file it in court.  The applicant is not obliged to agree to this condition.  If for any reason he does not accept the condition then there will be a finding that it is impracticable to reinstate him.

SECTION 170DC: EMPLOYEE OPPORTUNITY TO RESPOND
With the exception of the interview at which Mr Darling was present there was no opportunity given to the applicant to be assisted by another person when defending himself.(See Schedule 11 of the Act – Paragraph 9 of Recommendation No. 166)  It appears to me that the procedural aspects of the various interviews conducted by the respondent were deficient.

The instruction to Mr Freeman is clearly set out in his evidence, and that of Mr Haynes.  It is confirmed by Mr Ryan that he instructed him “if substantially the allegations were found to be correct, then we had no alternative but to separate “.In this matter Mr Freeman followed the instruction of Mr Ryan to the letter.  These instructions were such as to not allow him to comply fully with the provisions of Section 170DC.

Experience has shown that the dismissal of an employee from his employment is not an easy or welcome task.  The angry response of the applicant to being told that he would be terminated was to be expected given that he had no earlier warning of this prospect.  Had Mr Freeman gone on to ask him if he wished him to make any representations to Mr Ryan on his behalf about his decision or adjourned the meeting to enable the applicant to obtain assistance then it is likely that there would have been no contravention of the legislation.

In Perrin v Des Taylor Pty Limited (1994) 58 IR 254 at 256-7, Moore J said the following about the purpose of section 170DC:

“Its purpose is at least twofold.  It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee’s capacity.  In the present case, the applicant may have been able to show that the complaints about slow delivery parts had no factual foundation or that there was an explanation for their slow delivery that did not relate to any want of effort on his behalf.

A second purpose of s170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment.  They may be extenuating personal circumstances or they may involve undertakings about future conduct.”

There is no evidence that there was an opportunity given to the Applicant to respond in line with the second purpose of the legislation as outlined by Moore J.  I am satisfied that there is a contravention of section 170DC.  Despite the fact that there was an interview between the applicant, Mr Haynes and Mr Freeman the evidence is clear that the applicant was simply told that he was to be terminated.  The company has breached section 170DC of the Act, in that it should have given the applicant the opportunity of making representations based on a number of factors including those which I have set out earlier in these reasons.  In addition he may have wished to give “undertakings about future conduct” to “Carlton United”.  After considering the report of Mr Freeman and any representations the applicant wished to make, the company would then have been in a position to dismiss him without contravening the section.

In those circumstances I propose to make a finding against the respondent that there was a contravention of Section 170DC.

COMPENSATION

Ordinarily an order for the payment of remuneration lost by the employee commences from the date of termination however in this case it should take into account the four weeks payment in lieu.  The applicant is to disclose to the respondent all income earned (excluding social security payments) from 5 February 1996 to date.  Carlton United is to pay only the difference between the remuneration which he lost, less any paid employment during the period.

Should the applicant decide that he does not wish  to sign the agreement, to attend the counselling programme, then the matter will be relisted on a date convenient to the parties to provide assistance to the Court on the question of compensation, if any, payable in such  circumstances.  For the assistance of the parties in this case I set out a preliminary view on this issue.  In Nicholson v Heaven & Earth Galleries Pty Ltd (1994) 1 IRCR 199, Wilcox CJ, suggested it may be appropriate to make an assessment of the period of time in which the applicant might continue in his employment, before his termination was able to be properly completed. In that case Wilcox CJ found that the particular applicant was not suited to the type of work he had done. This is not the case here. This applicant had demonstrated, even with all his faults, that he could promote the interests of his employer against its competitors in the hard, tough and sometimes physically demanding industry by selling its brand to the detriment of its industrial rivals.

In Sophie Caroline Lethern v Beresfield Pty Ltd trading as Titan Ford Brookvale (unreported IRCA decision dated 3 October, 1995 No.542/95 McILwaine JR), a similar situation arose where there was some dispute as to the number of the sales to be completed.  In that case I said:

“It is essential for sales managers to put clearly to the sales persons under their control the results which they want the representatives to achieve and that failure to achieve those results will mean dismissal.  Preferably, but not essentially, this should be done in writing.  I am not satisfied on the evidence before me that either was properly done in this case.”

I think that a period of a further three month to four months may have been sufficient to enable him to demonstrate his capabilities in achieving the desired level of sales and rectifying the other performance issues.  An alternative would be shortly after the figures for the then current financial year were available.

The  following  interim  orders  are  proposed:

1. The applicant was an employee of the respondent from 1 August 1988 to 5 February 1996.

1. The applicant was seconded by the respondent to work for Guinness Australia Pty Ltd from May 1995 to 2 February 1996.

1. The Respondent has contravened Section 170 DC of the Act.

1. The respondent has contravened Section 170 DE(1) of the Act in that it did not have a valid reason for the termination of the employment of the Applicant on 5 February 1996.

1. Subject to a written agreement being given to the respondent and a copy being filed in the court, within 7 days of today, by the applicant, undertaking to satisfactorily attend a recognised educational and counselling program on Alcohol and Drug addiction over a period of one year nominated by his Employer (including the monitoring of his Alcohol and Drug Usage if required by the program), it is not impractical to reinstate the applicant to the position he formerly held with the Respondent.

1. The period between the date of termination and the date of his reinstatement be treated as continuous employment of the applicant by the respondent for all purposes.

1. The respondent pay to the applicant the remuneration lost by the employee because of the termination from 5 February 1996 to the date of signing of the agreement within twenty-one days of the date of receiving the signed agreement referred to in paragraph 5 from the applicant.

THE COURT ORDERS THAT:

1. The respondent re-appoint the applicant to the position he formerly held with the respondent prior to his secondment on terms and conditions no less favourable than those on which he was employed on 1 February 1996.

1. The respondent pay to the applicant the remuneration lost by him because of his termination within twenty-one days of the date of receiving the signed agreement referred to in paragraph 5 from the applicant.

THE COURT DIRECTS THAT:

1. The applicant is to provide the respondent with details of his income from paid employment including the amounts earnt as a part time Disc Jockey within 7 days to enable the calculation of “lost remuneration”.  The respondent is to have the benefit of the 4 weeks salary paid to the applicant in lieu of Notice.

1. Upon application being made to the District Registrar of the NSW Registry Mr Nicholls is to have the benefit of a certificate issued pursuant to s. 128(6) of the Evidence Act, 1995. That part of his testimony which may be covered by the certificate is contained in pages 24 to 55 inclusive of the transcript of the proceedings conducted by videolink on 1 November 1996.

1. Liberty to Mr Nicholls or either of the parties to apply as to the extent of coverage of the certificate ordered in paragraph 11.

1. In the circumstances, I am directing counsel for the applicant to bring forward for consideration by the court, draft orders in accordance with these minutes.  Those orders should be filed with the court by 4.00 pm 19 August 1998.  It will preferable if they can be agreed with counsel for the respondent, if they cannot be agreed then I shall provide a time commencing in the week beginning 24 August 1998 to hear and finalise the orders in this matter.

1. In the event that the parties are unable to agree on the amount to be paid or other proposed orders by 4 pm on 19 August 1998, they have liberty to apply to the court to relist the matter at an earlier date.

There will be judgment and orders accordingly.

I certify that this and the preceding 62 pages
Is a true copy of the reasons for the decision of
Judicial Registrar McIlwaine.

Associate:       Kate Benson

Dated:             21 August 1998

APPEARANCES

Counsel for the Applicant:  Ms Rudland

Solicitors for the Applicant:  Mr L N Riches

Taylor and Scott

Counsel for the Respondent  Mr S.B. Benson

Solicitors for the Respondent:  Mr Michael Callanan
  Tillyard & Callanan Solicitors

Dates of hearing:  13 & 14 August 1996
1 November 1996
17, 18 &19 February and
3 March 1997