Simon Wotton v SkyCity Adelaide Pty Ltd T/A Adelaide Casino

[2013] FWC 6954

[2013] FWC 6954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Wotton
v
SkyCity Adelaide Pty Ltd T/A Adelaide Casino
(U2013/9658)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 12 SEPTEMBER 2013

Application for unfair dismissal remedy - termination at the initiative of the employer - resignation - demotion - harsh, unjust or unreasonable - remedy.

[1] On 20 May 2013 Mr Wotton lodged a claim pursuant to s.394 of the Fair Work Act 2009 (the FW Act). In that claim, he asserts that the termination of his employment by SkyCity Adelaide Pty Ltd T/A Adelaide Casino (Adelaide Casino), was unfair. When Mr Wotton’s application was unable to be settled through the Fair Work Commission (FWC) conciliation process, the application was referred to me for determination.

[2] The matter was the subject of a determinative conference convened on 20 August 2013 and 4 September 2013, in Adelaide. Mr Wotton was represented by Ms Kerin as agent and Adelaide Casino was represented by its Human Resources Manager, Mr Tannock.

[3] The parties agreed that none of the initial matters specified in s.396 of the FW Act had application in these circumstances. However, the parties disagree about whether the termination of Mr Wotton’s employment was at the initiative of the employer. I have initially addressed this issue.

[4] The background to Mr Wotton’s application is that he worked as a full-time weekly hire Valet Attendant from 20 June 2011. His duties involved valet parking Casino client’s vehicles. Mr Wotton’s employment was governed by the SkyCity Adelaide Casino/United Voice Enterprise Agreement 2011 (the Agreement). Over a two-year period Mr Wotton was involved in nine separate motor vehicle incidents. The cause and the extent to which Mr Wotton was responsible for all of these incidents are matters in dispute as is the cost and significance of the accidents. Mr Wotton was given various verbal warnings and three written warnings. The basis for these warnings is disputed, as is the manner in which various of the warnings were formally provided to him.

[5] After an accident on 21 April 2013 Mr Wotton was given formal notice on 2 May 2013 of a disciplinary meeting proposed for 3 May 2013. This meeting was rescheduled to 7 May 2013, at Mr Wotton’s request. At this meeting, Mr Wotton had Ms Kerin present as a support person. This meeting discussed Mr Wotton’s accident record, including his most recent accident. Mr Wotton was advised that his accident record was not acceptable. 1 Following discussions about Mr Wotton’s accident record, the meeting was suspended briefly. On its resumption, Mr Wotton was advised that he could not continue to work as a Valet Attendant. He was offered a casual position in the Adelaide Casino Food and Beverage Department.2 Mr Wotton was advised that this alternative position attracted the same hourly rate plus a 25% casual loading and would enable him to maintain an income until he could source alternative employment.

[6] Mr Pratt advised Mr Wotton that, if he did not accept the casual employment offer, his employment would be terminated. 3 Mr Wotton requested time to consider his position. The Adelaide Casino personnel and Mr Wotton agreed to meet again when he was next scheduled to work, on 10 May 2013. Mr Wotton then returned to work. Later that same afternoon he was advised that he was not permitted to park cars.

[7] On 10 May 2013 Mr Wotton advised that he was medically unfit for work until 17 May 2013. 4 The meeting with him was rearranged for 28 May 2013. On 16 May 2013 Mr Wotton forwarded to the Adelaide Casino a letter of resignation.5 In this letter he detailed his concerns relative to what he asserted was inadequate training and the detrimental effects of parking policies. He expressed concern about the stress caused by the Adelaide Casino refusal to allow him to park cars after the meeting on 7 May 2013. Mr Wotton’s letter advised that his resignation took effect immediately but that he sought payment in lieu of notice.

[8] On 17 May 2013 the Adelaide Casino wrote back to Mr Wotton 6 and acknowledged his letter of the previous day. This advice indicated that his resignation would not be processed for some three days and invited him to contact the Adelaide Casino’s Human Resources Officer, Ms Quaziz to discuss the matters raised in his resignation. Mr Wotton’s request for payment of notice was refused.

[9] Mr Wotton visited the Casino on 18 May 2013 and found that his locker had been emptied out.

[10] Mr Wotton did not seek to review his resignation advice. Payments to him ceased on 16 May 2013.

The Submissions

[11] Mr Wotton’s position is that his employment was terminated at the initiative of the employer in that the alternative employment offer put to him on 7 May 2013 was such that it had left him with no real option other than to accept a substantially lesser employment offer, or to be dismissed. Additionally, Mr Wotton asserts that this termination was substantially and procedurally unfair. He asserts that his accident record did not warrant dismissal and that the Adelaide Casino did not consistently apply its policies and procedures in counselling and then dismissing him.

[12] The Adelaide Casino position is that Mr Wotton elected to resign and was not forced to do so. In the alternative, the Adelaide Casino argues that Mr Wotton’s dismissal reflected a valid reason and occurred in a procedurally fair manner.

The Evidence

[13] Mr Wotton gave evidence about his employment and accident history with the Casino. His evidence went to his concerns that he had not been treated with procedural fairness in terms of the consideration of the various accident circumstances and the comparable situations which applied to other employees.

[14] Ms Grotto worked as a Valet Attendant at the Adelaide Casino for approximately 18 months from July 2010. Her evidence went to her own accident record, the Adelaide Casino’s approach to valet car accidents and the application of its policies and procedures.

[15] Mr Pratt is the Adelaide Casino Valet Manager. His evidence went to the Adelaide Casino valet training and procedures and to Mr Wotton’s record as an employee. In this respect, Mr Pratt detailed the steps taken to investigate and follow up each accident involving Mr Wotton. Mr Pratt’s evidence went to the disciplinary actions taken by the Adelaide Casino and to the discussions he had with Mr Wotton which culminated in the 7 May 2013 meeting.

[16] Mr Krawczyk is the Support Operations Manager for the Casino. Mr Pratt reports to him. His evidence went to his knowledge of the incidents involving Mr Wotton, and his participation in a meeting with Mr Pratt and Mr Wotton on 1 February 2013 where Mr Wotton was advised of the Adelaide Casino’s concerns about his performance and the possibility of termination of employment. Mr Krawczyk was not present at the 7 May 2013 meeting.

[17] Ms Quaziz is a Human Resources Officer with the Adelaide Casino. Her evidence went to her involvement in arranging, and in attending the meeting with Mr Wotton on 7 May 2013. Her evidence included a detailed recollection of that meeting. It also went to her letter of response to Mr Wotton’s resignation of 16 May 2013.

Findings

Was Mr Wotton dismissed?

[18] Section 385 states:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[19] Section 386 states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[20] Mr Wotton’s evidence was consistent with that of Mr Pratt and Ms Quaziz in that, on 7 May 2013 he was advised that the alternative to his acceptance of the casual employment offer was termination of his employment. Mr Wotton’s evidence was that after that meeting, he had spoken with the Cafe Manager who had indicated that most of the shifts would be three or four hours duration, but that the shift duration could not be guaranteed. 7

[21] Ms Quaziz’s evidence about the meeting on 7 May 2013 confirmed that the casual nature of the Cafe work was recognised but that it was made clear to Mr Wotton that the alternative was termination of employment. 8

[22] As a full-time valet attendant, Mr Wotton earned a base hourly rate of $18.43. This amount was increased by regular shift penalty payments. Notwithstanding the 25% casual loading and the possible application of shift penalty payments in the food and beverage area, I consider that the estimated 20 hours per week casual cafe work offered to Mr Wotton represented a significant reduction in his remuneration. Additionally, because it was casual work only, it involved substantial uncertainty in terms of income opportunities.

[23] Mr Wotton did not accept the alternative employment offer. The Adelaide Casino invitation of 17 May 2013 (to discuss the matters raised in Mr Wotton’s resignation letter), may have led to changes in the offer to Mr Wotton, but, of itself, this letter did not alter the offer of casual work with diminished hours as the only alternative to termination of employment. Further, and notwithstanding this letter, Mr Wotton went to his work locker on the following day to find that it had been cleared consistent with the conclusion of his employment.

[24] The choice put to Mr Wotton was, either accept casual employment or, be dismissed. In O’Meara Stanley Works, 9 a Full Bench of the Commission as it then was, considered the concept of termination at the initiative of the employer in the following terms:

“[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd 11 (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

(references removed)

[25] The Adelaide Casino’s actions were clearly intended to bring Mr Wotton’s employment as a valet attendant to an end. In these circumstances, Mr Wotton was entitled to decline to accept the alternative casual position offered to him. He did that by resigning, but I consider that resignation was made in circumstances where he had no reasonable alternative action available to him.

[26] In terms of s.386, Mr Wotton faced demotion with a significant reduction in remuneration and elected not to remain employed with the Adelaide Casino on that basis. The offer of alternative casual employment reflected what was probably a well intended approach adopted by the Adelaide Casino on 7 May 2013 but nevertheless Mr Wotton was forced to resign or accept that lesser employment offer. Consequently, I have concluded that Mr Wotton was dismissed.

Was Mr Wotton unfairly dismissed?

[27] Before considering this issue, I have outlined my conclusions about a number of disputed matters.

[28] I have concluded that the termination of Mr Wotton’s employment occurred because of his continuing involvement in a series of accidents which primarily involved cars belonging to clients of the Adelaide Casino. In considering these accidents, I have had particular regard to the three accidents which involved substantial direct costs and to the accident on 19 April 2012 when Mr Wotton was attempting to drive a Casino vehicle into a car park through an exit gate. I have concluded that these matters represented substantive errors of judgement. I have taken into account that at least one of these accidents occurred in hot weather and that Mr Wotton may have been overdue for a break from work.

[29] I am satisfied that the Adelaide Casino’s concerns about Mr Wotton’s vehicle accidents related to both its standing with clients to whom it offered the valet car parking service and the direct cost of the accidents themselves. I have noted that, of the nine accidents, two were not taken into account in terms of disciplinary action. Further, that the damage to the Casino’s reputation is difficult to directly cost.

[30] Mr Wotton was offered additional training at the meeting with Mr Pratt and Mr Krawczyk on 1 February 2013. He declined that offer and identified the issue as one of a concentration problem. That meeting was significant in that he had the opportunity to raise his concerns about the effects of the Adelaide Casino’s car parking policies or other factors, relative to his work performance. I am not satisfied that Mr Wotton availed himself of that opportunity.

[31] At the disciplinary meeting on 7 May 2013, Mr Wotton raised training, policy and equity concerns. 10 I am not satisfied that Mr Wotton has provided a logical reason why he did not raise these concerns earlier.

[32] Mr Wotton argued that the Casino’s practices accepted damage to clients’ cars. In this respect, I am not satisfied that the Adelaide Casino had a practice of disregarding accidents, although I acknowledge the evidence of Ms Grotto and that of Mr Pratt indicates that minor marks on vehicles have been polished out when this is possible.

[33] I have concluded that the Adelaide Casino did not give Mr Wotton 24 hours notice of various disciplinary meetings as is specified in its disciplinary policy. Mr Wotton may have agreed to this. Mr Wotton was given at least three written warnings and a number of verbal warnings. I am satisfied that the third warning dated 1 February 2013 and referenced in the meeting of that same date, but not then given to Mr Wotton until 2 May 2013, made the tenuous state of his continued employment clear. That warning related to an accident that occurred on 4 January 2013. Mr Pratt explained that the delay in the provision of this final warning reflected an oversight.

[34] Section 387 states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[35] I have considered each of these factors in order to reach a conclusion about whether Mr Wotton was unfairly dismissed.

Valid Reason

[36] I have adopted the general concept of a valid reason, as it was set out by Northrop J in Selvechandron v Petersen Plastics Pty Ltd 11.

[37] Mr Wotton’s frequency and record of accidents represented a significant direct cost to the Adelaide Casino. More importantly, I am satisfied that this record was inconsistent with the objective of the valet parking function 12 and the relationship which the Casino sought to maintain with its clients. I am satisfied that, even discounting the two accidents when Mr Wotton was not at fault, and the circumstances of all of the remaining accidents, his driving record was such that it represented a valid reason for the termination of his employment. I am not satisfied that the Adelaide Casino singled Mr Wotton out for unfair attention or that it treated him in a manner inherently different to that of other employees. In simple terms, Mr Wotton’s driving record was so inconsistent with the purpose and the function of the valet parking service that it represented a valid reason for terminating the employment relationship.

Notification of the Reason

[38] At the meeting on 7 May 2013 with Mr Pratt and Ms Quaziz, Mr Wotton was clearly advised that he could no longer work as a valet attendant because of his continuing accident record. That no formal written advice to this effect was provided to him is understandable given the Casino proposal that he take up casual work in the Cafe. I am satisfied that Mr Wotton was clearly aware that his accident record was the reason why he could no longer be a valet attendant. Indeed, Mr Wotton’s own evidence was that, because of his accident record, he did not expect to keep his job when he attended the meeting on 7 May 2013. 13

Opportunity to Respond

[39] I am satisfied that Mr Wotton was given an opportunity to respond to the proposition that his employment could be terminated. That opportunity was extended to him in the meeting on 7 May 2013 before Mr Pratt and Ms Quaziz took time out to decide on the disciplinary action appropriate to Mr Wotton. 14

Unreasonable refusal to allow a support person

[40] Ms Kerin attended the 7 May 2013 meeting as Mr Wotton’s support person. The meeting was rescheduled to facilitate Mr Wotton in this respect.

Warnings about unsatisfactory performance

[41] Mr Wotton was given a number of warnings over the duration of his employment. Whilst some of these related to timekeeping issues, there is no dispute that the only reason for the termination of his employment as a valet attendant related to his accident record, and that he was otherwise well regarded.

[42] Mr Wotton’s Performance Management record 15 indicates that he was given a formal verbal warning and three written warnings relative to accidents. That Performance Management record does not, however, record the final warning foreshadowed at the 1 February 2013 meeting, which was not ultimately given to Mr Wotton until 2 May 2013, at the same time that he was asked to meet about the accident that prompted his dismissal.

[43] I have considered that delay, together with other delays in the implementation of disciplinary action (for example, the first written warning followed an accident on 8 April 2012 but was given to Mr Wotton after a further accident on 19 April 2012 which was then dealt with separately) lessened the significance attached to accidents and the importance of the final warning given to Mr Wotton. Further, in the case of that final warning, it reflected a procedural unfairness in that Mr Wotton was given the formal warning after he had had a further accident which both pre-empted the likely penalty, and deprived him of the opportunity to have due regard to that formal final warning advice in the course of his duties.

The Adelaide Casino’s size - relative to procedures followed

[44] The Adelaide Casino is a significant employer. The evidence before me indicates that it has sophisticated disciplinary policies and procedures.

[45] As I have already noted, I am not satisfied that these procedures were comprehensively applied in Mr Wotton’s circumstances. This is particularly the case with respect to the warning process which followed accidents.

Absence of Human Resource Management Expertise

[46] The Adelaide Casino has specialist human resource management personnel who were involved in the disciplinary process applied to Mr Wotton.

Other matters considered relevant

[47] I have concluded that the termination of Mr Wotton’s employment was at the initiative of the Casino. Mr Wotton did not accept the alternative employment position offered to him. In his letter of 16 May 2013 he requested payment in lieu of notice. That request was refused in Ms Quaziz’s response of 17 May 2013. 16 The absence of notice or payment in lieu thereof means that the dismissal should be regarded as a dismissal without notice.

[48] The Agreement refers to a dismissal without notice in the following terms:

“24.2 The provisions of this Clause will not affect the right of the employer to dismiss team members without notice of serious or wilful neglect of duty, refusing to obey any reasonable instruction, wilful or serious misconduct, or other lawful basis of summary dismissal, in which case the team member will be paid up to the time of dismissal only and will not be entitled to any notice of termination.”

[49] I have taken into account the definitions of serious misconduct set out in the Casino’s Disciplinary Policy and Regulation 1.07 of the Fair Work Regulations.

[50] On the evidence before me, I am not satisfied that Mr Wotton’s accident history represented wilful or deliberate conduct. Further, I am not satisfied that it represented a serious or imminent risk to health and safety or to the reputation, viability or profitability of the Casino such that termination without notice was warranted.

[51] Three factors are relevant in this respect. Firstly, the Casino’s repeated delays in acting to implement disciplinary action following an accident suggest that matters of this nature are not generally regarded as giving rise to possible termination of employment on a summary basis. Secondly, Mr Wotton’s last accident occurred some 15 days before the termination interview on 7 May 2013. Again, that is inconsistent with behaviour warranting termination without notice. Finally, after that interview, Mr Wotton was allowed to return to valet parking work until a further instruction was issued later that day. Individually, and collectively, these facts are inconsistent with behaviour of a character which warranted dismissal without notice.

[52] I consider the Casino’s refusal to make any payment to Mr Wotton in lieu of notice to be inherently harsh and unfair.

[53] I have reviewed Mr Wotton’s personal circumstances in terms of the effect of the dismissal on him. I am not satisfied that this is relevant to the fairness of the dismissal given the limited duration of his employment and the warnings and offers of assistance given to him over that time.

Conclusion - Harsh, Unjust or Unreasonable

[54] In Byrne and Frew v Australian Airlines Ltd 17, McHugh and Gummow JJ observed:

“128. .... It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[55] The termination of Mr Wotton’s employment was harsh in that it occurred without notice or payment in lieu of notice. I do not consider it to be unjust in that I am satisfied that Mr Wotton’s accident record provided a valid reason for the dismissal. I do consider it to be unreasonable in that the warning process, particularly the final warning formally given to Mr Wotton on 2 May 2013 was both inconsistent with the purpose of the warning and was excessively delayed in a manner inconsistent with the commitment in the Casino’s Disciplinary policy to a substantively and procedurally fair approach.

[56] Accordingly, I have concluded that the termination of Mr Wotton’s employment was unfair.

Remedy

[57] Section 390 provides that, in these circumstances, a remedy may be ordered. I am initially required to consider reinstatement.

[58] Neither Mr Wotton nor the Casino have proposed reinstatement as a viable remedy in the circumstances. I am satisfied that returning Mr Wotton to the valet function would not be appropriate and that suitable alternative employment opportunities have not been identified.

[59] Section 392 provides that, in these circumstances, an amount of compensation may be granted. In the circumstances of the termination of Mr Wotton’s employment I consider this to be appropriate. Section 392 requires that, in determining an amount of compensation I must take into account all the circumstances of the matter, including a range of specifically identified factors.

[60] In these respects I am satisfied that the amount being contemplated will not affect the viability of the Adelaide Casino business.

[61] Mr Wotton was employed by the Casino for just under two years. I do not consider this to be a long time that warrants particular recognition in terms of the amount being considered.

[62] Had Mr Wotton not been dismissed, I have concluded that the duration of his employment would have been relatively short and that his accident record would indicate that he would have a further accident within eight weeks of 7 May 2013, which would likely have prompted the termination of his employment.

[63] I have noted Mr Wotton’s evidence of his substantial attempts to gain alternative employment and am satisfied that he has genuinely attempted to mitigate his losses in this regard. I have not discounted the amount being contemplated to reflect Mr Wotton’s refusal to take the casual food and beverage work offered to him by the Casino. Mr Wotton has detailed his reasons for not accepting that alternative position and these reasons appear to me, to be reasonable.

[64] Mr Wotton’s evidence was that since the termination of his employment he has earned approximately $3000. I have taken this into account.

[65] In terms of other relevant issues, I have noted that, had Mr Wotton been paid an amount in lieu of notice under the Agreement, this would have amounted to 2 weeks pay.

[66] I have applied the general approach set out in Sprigg v Paul’s Licensed Festival Supermarkets 18 with the exception that I do not consider that any reduction for contingencies is appropriate in these circumstances. On this basis, I have concluded that an amount of four weeks ordinary time pay is appropriate.

[67] An Order [PR541768] to this effect will be issued.

Appearances:

N Kerin representing the Applicant.

C Tannock representing the Respondent.

Hearing details:

2013.

Adelaide:

August 20

September 4.

 1   Exhibit C2, paras 102-128 and Exhibit C6, para 9

 2   Exhibit C2, para 123

 3   Exhibit C6, para 9

 4   Exhibit C2, paras 130-135

 5   Ibid, DP25

 6   Exhibit C6, KQ1

 7   Exhibit W2, para 44

 8   Exhibit C6, para 9

 9   PR973462

 10   Exhibit C6, para 9

 11 (1995) 62 IR 371 at 373

 12   See the evidence of Mr Pratt, Exhibit C2, paras 5 and 6

 13   Transcript, 20 August 2013, 11.53am

 14   Exhibit C6 (Ms Quaziz’s notes of meeting), para 9

 15   Exhibit C2, DP21

 16   Exhibit C6, KQ1

 17 [1995] HCA 24

 18   AIRC, Print R0235, (24 December 1998)

Printed by authority of the Commonwealth Government Printer

<Price code C, PR541767>