The Star Pty Ltd v Mr Ismail Gurdil

[2013] FWC 7574

[2013] FWC 7574

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

The Star Pty Ltd
v
Mr Ismail Gurdil
(C2013/6100)

SENIOR DEPUTY PRESIDENT HARRISON SYDNEY, 10 OCTOBER 2013

Appeal against decision [2013] FWC 6780 of Vice President Hatcher at Sydney on 11 September 2013 in matter number U2013/8161, order made reinstating employee, application for a stay of order refused.

[1] This decision concerns an application for a stay of an order made by Vice President Hatcher reinstating Mr Gurdil in employment with The Star Pty Ltd (the Appellant or The Star). I have previously announced that no stay order would be issued. These are my reasons for that decision.

[2] The Appellant, being a person aggrieved by a decision and order of the Vice President, has filed an appeal under s.604 of the Fair Work Act 2009 (the Act). Permission to appeal is required.  In the case of appeals about unfair dismissals, as this is, permission to appeal will only be granted if the Commission considers it is the public interest to do so. 1 Also, in these types of appeals, to the extent there is alleged to have been an error of fact then the Appellant needs to establish that it was a significant error of fact.2

[3] The approach to be taken to determining if a stay order should be made is to consider whether there is a sufficiently arguable case, with some reasonable prospect of success, that permission to appeal would be granted and that the appeal would succeed, and whether the balance of convenience favours the making of a stay order.

[4] I note in this matter that no ground of appeal alleges jurisdictional error. No ground alleges any failure to consider each of the relevant statutory provisions which are to be taken into account when considering whether a dismissal is harsh, unjust or unreasonable. The grounds challenge discretionary findings made about the harshness of the dismissal and the reinstatement of Mr Gurdil. One ground raises what is submitted to be significant errors of fact. In the stay hearing three aspects of the grounds were addressed. These asserted error in the Vice President’s failure to be satisfied Mr Gurdil had lied in a meeting held on 22 March 2013, in finding Mr Gurdil’s dismissal was harsh and in deciding reinstatement was appropriate.

[5] Permission to appear for the Appellant was granted to Mr Saunders. He had appeared for The Star below. In accordance with s.596 of the Act I formed the view the hearing would be dealt with more efficiently if he also represented the Appellant as its counsel before me. Mr Gurdil represented himself as he had done before the Vice President.

[6] I now refer to the Vice President’s reasons for decision. As a general observation the reasons address in detail the evidence before him and the numerous rulings he was required to make. The disadvantage Mr Gurdil was at being unrepresented is noted and reasons given why the application was dealt with by conference under s.389 of the Act. I should record that my summary does not reflect the amount of evidence lead before the Vice President and the necessity for him to have considered the many technicalities associated with the gaming activities undertaken by the Appellant, the role and obligations of its dealers and supervisors and the practices of its patrons, particularly those participating in the game of blackjack. I will now refer to the reasons for decision in more detail than is generally the case with decisions concerning stay orders. I do so as the summary will then allow me to deal in fairly brief terms with the matters raised in the stay hearing.

(i) Mr Gurdil had been employed by the Appellant since 1997. He had initially been a Dealer but was subsequently promoted to the position of Higher Duties Dealer. From time to time he assumed the position of Gaming Supervisor on a higher duties basis.

(ii) Performance reviews of Mr Gurdil during the period 1998 to 2011 were discussed in detail. Overwhelmingly, they reflected Mr Gurdil’s performance having been assessed as either achieving or exceeding the Appellant’s expectations. A small number of entries were given significant weight by the Appellant and the Vice President considered each of them. In these, the person making an assessment had observed, for example, that Mr Gurdil needed development. One particular issue that was noted is that he had a manner which could be interpreted as aggressive or confrontational. These comments had to be seen in the context of the most recent gradings given in 2010 and 2011 which commented upon his friendly, courteous and professional manner and his calm demeanour.

(iii) The Appellant had relied on five notes from Mr Gurdil’s personnel file. Each was addressed by the Vice President with his noting they were spread over a period of nine years and in numerous years there was no note that could be categorised as a fault. They also had to be read in the context of Mr Gurdil’s overall performance assessment having been marked as successful or consistent.

(iv) An incident which took place on 1 March 2013 is referred to in detail. It was the reason which ultimately led to Mr Gurdil’s dismissal. On that day, he was rostered to supervise a number of blackjack tables. A Mr Ngo, who was an Assistant Gaming Manager, was also rostered on that day. In the area in which Mr Gurdil was working there were CCTV monitors (as was the case throughout the Appellant’s premises). Also in the area was what was described as a podium with a telephone from which Mr Gurdil could contact the Assistant Gaming Managers.

(v) The Vice President referred to the standard operating procedures for dealing with any disputes that arose with a patron. He also referred to a number of the irregular practices in which patrons would involve themselves. On 1 March 2013, it was the activities of a patron engaging in such irregular activities which had brought about a reaction by Mr Gurdil.

(vi) CCTV footage was produced by the Appellant. It was incomplete with several minutes missing which Mr Gurdil said would have supported his version of events. He had sought the production of the whole footage of the events on 1 March 2013 but was advised it had been disposed of. That which was produced contained footage consistent with the Appellant’s case and omitted footage that could have assisted Mr Gurdil in relation to his version of the events. No witness called by The Star gave direct evidence about why part only of the footage had been retained.

(vii) The Vice President summarised what could be seen from the footage that was before him. He went into considerable detail in doing so. He describes the actions of a number of patrons, and Patron A and Mr Gurdil in particular. There was no sound associated with the footage but it reflected a number of exchanges between Mr Gurdil and Patron A and gestures made by each of them. For example, it showed Mr Gurdil putting his finger to his lips in a “be quiet” gesture, pointing to the patron with a pen in his right hand and leaning in towards him and speaking to him and Patron A speaking back to Mr Gurdil and making hand gestures. It showed Patron A getting up from his seat and walking towards Mr Gurdil when a further conversation occurred between the two. Mr Gurdil then wrote something on a piece of paper and gave it to Patron A (it was his name and identification number as he was required to provide upon request). The patron then made a dismissive gesture towards Mr Gurdil and walked away.

(viii) Mr Gurdil’s version of what had occurred is then referred to. In short, he had seen Patron A doing the wrong thing and he, Mr Gurdil, had told him to stop. He said the patron had abused him. Importantly, Mr Gurdil had said he had tried to call the Pit Manager at the time and noted no person was nearby and then called on a phone on the podium and no one had answered. He had tried to call Mr Ngo but there was no answer. The Vice President said there had been some inconsistencies in Mr Gurdil’s cross-examination but found that the core elements of his evidence were truthful and correct.

(ix) The evidence of Mr Ngo is referred to. He was called in to speak to Patron A who complained about the actions of Mr Gurdil. Mr Ngo said he had asked Mr Gurdil why he hadn’t called him in relation to the exchange with the patron and that Mr Gurdil had said he had looked for a phone but there wasn’t one. The Vice President said he generally accepted the evidence of Mr Ngo but observed that the issue of whether Mr Gurdil had attempted to ring Mr Ngo was not properly explored by either party. He described this as a difficulty and returned to it later in his reasons.

(x) The Vice President reached a number of conclusions in relation to the activities on 1 March 2013 and it is sufficient for me to note that he described Mr Gurdil’s behaviour as intemperate and his intervention carried out in a manner which he accepted was rude and discourteous and would be perceived as aggressive and intimidating. He identified the problematic behaviour of Patron A. He accepted Mr Gurdil’s evidence that he called security guards to assist at which point the patron left the area.

(xi) On 2 March 2013 Mr Ngo advised Mr Gurdil there would be an investigation into what had occurred the previous day. On 22 March 2013 there was a meeting attended by Mr Gurdil and his support person, Mr Ngo, Mr Battram, the Appellant’s Human Resources Manager and a Supervisor.

(xii) The Vice President returned to the issue of whether Mr Gurdil had lied in the meeting of 22 March 2013. The Star had said that he had lied when said that on 1 March 2013 he had tried to call a manager. About this, The Star relied heavily on the CCTV recordings it had retained to assert they did not show Mr Gurdil making any such call. The Vice President observed that conclusion was flawed because the CCTV footage did not capture the whole of the period during which the relevant incident had occurred. Mr Gurdil had insisted he had attempted to make a call and the Vice President was not satisfied that assertion was erroneous on the basis of the selective CCTV recordings. He again referred to the evidence of Mr Ngo who had said that when, on 1 March 2013 he had queried Mr Gurdil why he had not called him, Mr Gurdil had said that he had looked for a phone but there wasn’t one. He also noted that Mr Gurdil had said he had called Mr Ngo and no one had answered the phone. The Vice President had difficulty in reaching a firm conclusion about which version was correct and gave his reasons for that being so. He concluded that he was not satisfied that the evidence demonstrated Mr Gurdil had lied in the meeting of 22 March when he said he had tried to call a manager.

(xiii) The steps taken by The Star to investigate the events of 1 March 2013 are referred to in detail as is the evidence of the Appellant why it decided to dismiss Mr Gurdil. The Vice President found that the Appellant had not provided him with any specific allegations to answer concerning his conduct, had taken no statement from him, that he was given no notice of the purpose of the meeting on 22 March and no opportunity to view the CCTV footage. The second meeting held on 27 March was solely for the purpose of advising Mr Gurdil of his dismissal.

(xiv) Each of the requirements of s.387 of the Act was next considered. The Vice President found that The Star had a valid reason to dismiss Mr Gurdil based on his conduct towards Patron A on 1 March 2013. He found that the conduct had breached the Code of Conduct requiring employees to never behave in a rude or discourteous manner to a patron. He said he was not satisfied Mr Gurdil had lied at the 22 March 2013 meeting when he said he tried to call a manager. Accordingly, he did not consider that that matter constituted a valid reason for the dismissal. The findings made which I have referred to in the previous paragraph were then referred to in the context of s.387(c).

(xv) The Vice President concluded that the dismissal of Mr Gurdil was harsh. He took into account the length and quality of his employment record, mitigating factors in relation to the incident on 1 March 2013, personal and economic consequences of the dismissal, and that no consideration had been given by The Star to take any action other than dismissing Mr Gurdil. In respect of each of these considerations he gave reasons for why he had taken them into account.

(xvi) The remedy appropriate to grant was next considered. Reasons were given as to why the Vice President decided to reinstate Mr Gurdil. In doing so, he addressed the submissions of The Star as to why it did not wish Mr Gurdil to be reinstated as it had no trust or confidence in his capacity to comply with the Code of Conduct. The Vice President found that Mr Gurdil had demonstrated enough self-awareness about his conduct so that there should be sufficient confidence such conduct would not re-occur. The Vice President said that he did not consider it appropriate to make any order for wages which were lost in the intervening period. He commented that this was because Mr Gurdil should bear a substantial degree of responsibility for the financial consequences of his dismissal. Not ordering lost wages would serve to reinforce upon Mr Gurdil that his conduct on 1 March 2013 was inappropriate and must not happen again.

[7] I will first refer to the Appellant’s submission that the Vice President made a significant error of fact in not being satisfied that Mr Gurdil had lied in the meeting of 22 March 2013.

[8] It was submitted that the error lay in the failure of the Vice President to expressly refer to a note which had been made by Mr Ngo into a document called “The Star Staff Diary.” The note is dated 1 March 2013 at 6.04 pm. I note it has the word “EDITED” on it and I am unsure about the significance of any editing of the content of the note. The content suggests that it was created by entries made on more than one occasion. It records that at 4.30 pm a patron had come to see Mr Ngo and had complained about an incident with Mr Gurdil. It notes that Mr Ngo spoke to Mr Gurdil and asked him why he had not called him. It records that Mr Gurdil had said there was no phone around. The note records that there was one on the computer podium. The note also attributes a comment to Mr Gurdil that he was going on a break. It records that after further investigation at no point had Mr Gurdil called Mr Ngo to assist.

[9] The Vice President’s reasons for decision indicate he was well aware of the issue about whether Mr Gurdil had tried to call Mr Ngo and what he had said about that in the interview of 22 March 2013. He referred to this issue numerous times in his reasons for decision. It is clear he considered both versions of the evidence and determined he could not reach a firm conclusion. He identified why it was unlikely Mr Gurdil would have said there was no phone around knowing well there was one on the podium. In this context it is also to be noted that The Star had failed to retain footage that Mr Gurdil said would have supported his version. It was open to the Vice President to have found Mr Ngo had misheard comments Mr Gurdil had made or misinterpreted them and that is so despite the content of the entry into the staff diary. The Vice President had the advantage of hearing the evidence of both men. His findings about what was said on 1 March 2013, and in the meeting of 22 March 2013, were open to him on the evidence. I was not persuaded that the absence of an express reference to the note in the staff diary amounted to an arguable case of appealable error. In the alternative, even if I had been persuaded it was then, read in the context of the reasons given about the various considerations the Vice President did take into account before reaching his conclusion, it did not constitute a significant error of fact.

[10] I can deal with the remaining grounds briefly. They each challenge a finding made in the exercise of a discretionary decision. The first matter concerns the finding that Mr Gurdil’s dismissal was harsh. In this respect the Appellant submitted that the findings made by the Vice President concerning procedural fairness reflect error. I have earlier recorded that he had found that Mr Gurdil had been given no advance notice of the purpose of the meeting of 22 March 2013 and not asked to respond to any specific allegations such as, for example, that he had breached the Code of Conduct. I was taken to several extracts from transcript by the Appellant to support its submission that there was no doubt Mr Gurdil was aware of the allegations that were against him. I was not persuaded that any part of the transcript I was taken to reflected error in the Vice President’s finding in this respect. True it was that Mr Gurdil was told there would be a meeting on 22 March 2013 but none of the transcript establishes that he was given advance notice of the purpose of the meeting. It was also accepted that at no stage did The Star put to Mr Gurdil the specific allegation it relied on in relation to a breach of the Code of Conduct. It submits that it was not obliged to do so. But that is not the issue I am considering. I am not persuaded any arguable case of error is reflected in the finding of the Vice President that Mr Gurdil had not been asked to respond to any specific allegations.

[11] The Appellant also challenged the findings about why the dismissal was harsh. Four matters were relied upon by the Vice President which had led him to this conclusion. I have earlier referred to those matters. In each case reasons were given for taking them into account. The Appellant took me to numerous extracts from transcript which it submitted had not been given adequate weight. I was not persuaded by these submissions. They constitute a plea that the evidence the Appellant highlights should have been given determinative weight rather than be weighed together with all of the evidence relevant to the considerations taken into account. The Vice President properly took into account all of the evidence and each of the findings made by him in relation to why the dismissal of Mr Gurdil was harsh was reasonably open to him.

[12] I should refer to two aspects of these submissions. One criticises the Vice President’s consideration that a mitigating factor was the short period of time in which the encounter occurred - about 70 seconds. However, that is the time of the footage of the actions of Mr Gurdil that the Vice President found constituted a valid reason. He said so at paragraph [83] of his decision. The rest of the footage did not. Accordingly, his finding about the short period of time in which the encounter occurred as being a mitigating factor does not reflect any arguable error.

[13] The other aspect I should refer to is the Vice President’s comment that there was no evidence that The Star considered any penalty other than dismissal. The Appellant said it had not been put on notice that finding may be made. In my opinion, if it had considered any other penalty it would be reasonably expected that it would lead that evidence. It was in its interest to do so. The Vice President was entitled to make the observation he did about this matter.

[14] Finally, a challenge was made to the order for reinstatement. I was taken to numerous extracts from the evidence of Mr Gurdil in particular indicating that it was not appropriate to have made a finding that he had learned his lesson and was an appropriate employee to be reinstated. It was open to the Vice President, having heard the evidence of Mr Gurdil and that of The Star’s witnesses, to make findings as he did in relation to the considerations about there being no trust and confidence. In that respect he gave consideration to the employment record of Mr Gurdil. In this context it was also relevant to take into account the significant period of time Mr Gurdil had worked in the position of Gaming Supervisor on a higher duties basis. It is also to be noted that to emphasise the finding that Mr Gurdil had learned from this incident, and that it was not to reoccur, the Vice President denied Mr Gurdil of any remedy for lost wages. Each of those findings was reasonably open to the Vice President and I am not satisfied an arguable case to the contrary was made out.

[15] Having considered all of the submissions made at the stay hearing I was not persuaded the Appellant had a sufficiently arguable case which would warrant a finding that it was in the public interest to grant permission to appeal. No issues of general importance or application to unfair dismissal matters are enlivened by this appeal. It largely relates to an incident which occurred on a day and what was or was not said by two men in particular on that day and later in an interview. The appeal does not raise questions of general importance about an employer’s entitlement to have a code of conduct and ensure it is observed. In this regard the Vice President acknowledged The Star’s code and found it had not been observed and that was a consideration in his finding there was a valid reason to dismiss Mr Gurdil. Further, for the reasons I have given, I was not persuaded the merits of the appeal were sufficiently arguable that the appeal had a reasonable prospect of success.

[16] It light of my decision about whether an arguable case had been established I need say little about the balance of convenience. The balance did not weigh in favour of the stay being granted. In the circumstances of this matter Mr Gurdil should be at liberty to return to work in accordance with the order for reinstatement. I acknowledge the offer made by the Appellant that if granted the stay order, then monies that would be likely to have been earned by Mr Gurdil, had he returned to work, would be placed into an interest bearing account. Had I been persuaded an arguable case had been made out in respect to the public interest and the merit of the appeal that offer would have been an important consideration to where the balance of convenience may lie.

[17] For these reasons I declined to make the stay order sought by the Appellant.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr T Saunders of counsel and Mr Z Costi, solicitor for The Star.

Mr I Gurdil on his own behalf.

Hearing details:

2013.

Sydney.

24 September.

 1   Section 400(1).

 2   Section 400(2).

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