Thirkettle v Jupiters Limited
[1996] IRCA 439
•29 August 1996
DECISION NO: 439/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - VALID REASON - WHETHER HARSH, UNJUST OR UNREASONABLE - REMEDY
INDUSTRIAL RELATIONS ACT 1988 , s170EA, 170DE, 170EE
STEPHEN TREVOR THIRKETTLE v JUPITERS LIMITED QI96/1023
STEVEN JOHN McGINNESS v JUPITERS LIMITED QI96/1024
KEVIN JAMES BELL v JUPITERS LIMITED QI96/1025
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 AUGUST 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 96/1023
QUEENSLAND DISTRICT REGISTRY
BETWEEN: STEPHEN TREVOR THIRKETTLE
Applicant
AND: JUPITERS LIMITED
Respondent
AND No. QI 96/1024
BETWEEN: STEVEN JOHN McGINNESS
Applicant
AND: JUPITERS LIMITED
Respondent
AND No. QI 96/1025
BETWEEN: KEVIN JAMES BELL
Applicant
AND: JUPITERS LIMITED
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 AUGUST 1996
THE COURT ORDERS THAT:
1. Kevin James Bell’s application be dismissed.
2. In the cases of Stephen Trevor Thirkettle and Steven John McGinness, the respondent reinstate them by appointing each to the position in which he was employed immediately before the said termination, or appointing him to another position on terms and conditions no less favourable than those on which he was employed immediately before his termination date.
3. In the case of Stephen Trevor Thirkettle, within 14 days the respondent pay to the applicant an amount of money equal to the wages the applicant would have earned if he had continued in the employment of the respondent from the date
of the said termination until the date of reinstatement in the position in which he was employed immediately before the said termination,
less the two weeks’ pay in lieu of notice he received.
4. In the case of Steven John McGinness, within 14 days the respondent pay to the applicant an amount of money equal to the wages the applicant would have earned if he had continued in the employment of the respondent from the date of the said termination until the date of reinstatement in the position in which he was employed immediately before the said termination, less the two weeks’ pay in lieu of notice he received, and the sum of $4,000 since earned by him.
5. Except in relation to matters specifically dealt with in these orders, the respondent treat the applicants as having been continuously employed by it between the date of termination and the date of reinstatement.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 96/1023
QUEENSLAND DISTRICT REGISTRY
BETWEEN: STEPHEN TREVOR THIRKETTLE
Applicant
AND: JUPITERS LIMITED
Respondent
AND No. QI 96/1024
BETWEEN: STEVEN JOHN McGINNESS
Applicant
AND: JUPITERS LIMITED
Respondent
AND No. QI 96/1025
BETWEEN: KEVIN JAMES BELL
Applicant
AND: JUPITERS LIMITED
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE
DATE: 29 AUGUST 1996
REASONS FOR JUDGMENT
Background
At trial, I gave leave to the applicants to amend the title of the respondent to read Jupiters Limited ACN 010 741 045.
At all material times each of the applicants was employed as a security officer by the respondent at the hotel and casino run by it at Broadbeach, Gold Coast, Queensland. The respondent there employs about 90 security officers, with between 12 and 18 officers on duty at any one time. 500,000 patrons per month pass through the Casino. About 120 of those per month are asked to leave because of their behaviour. About 10 to 15 become unco-operative, or violent, about leaving.
Each security officer has a significant responsibility. Management has to be confident about putting these officers out in contact with the public. The community has a right to expect that these officers will not use excessive force in dealing with unruly patrons.
At about 3.05 am on Sunday, 7 January 1996, an incident occurred at the casino which involved each of the applicants and ultimately led to the termination of their employment. There are a number of security and surveillance cameras in operation during the casino's opening hours. Some of these cameras captured what occurred during the subject incident. A videotape (a compilation of two tapes) was tendered in evidence. Apart from viewing it a number of times during the course of the trial, I have also viewed it on numerous occasions since.
I propose to deal separately with the cases of each of the applicants, commencing with Kevin James Bell.
Bell
Mr Bell is now aged 44. In early January this year he had been employed by the respondent for a little less than two years. At about 3 am on the date in question he and other officers were called to deal with a patron who was behaving badly in the casino.
What follows, unless otherwise indicated in Bell’s case, are my findings in respect of what I consider to be material matters. The patron was abusive, aggressive, persistent and unusually strong. With Bell on one arm, and McGinness on the other, the patron was taken off the casino floor and through a fire door. On the way out, he spat at Bell. Bell reacted by using an open hand to the patron’s face. This action on his part was not relied on by the respondent at trial. Once through the fire door, Bell struck him with two, probably three, powerful blows to the head. The patron appeared to be restrained by other security officers when struck by two of the blows.
Bell was interviewed the next morning by a Mr Illsley, the respondent's director of security, in company with a Mr Moncur, second-in-charge to Mr Illsley. Mr Illsley had already viewed the videotape capturing the eviction of the patron. Bell told Illsley and Moncur that he had earlier seen the tape when shown to him by a Mr Joslin, the then night shift manager. Bell said he knew he had done the wrong thing and the tape looked bad. The three of them reviewed the tape a few times. Bell said that when he was in the casino, escorting the man out, he felt scared because he thought the man was "on something." The man's eyes were black and his hair seemed to be sticking out.
When asked about the punches thrown by him to the head of the patron, Bell claimed that it was a reactive movement, as he thought the man was going to strike him. He said that he knew he had done the wrong thing and it went against all the things he had been told. Illsley told him that this sort of behaviour was totally against the training and philosophy of the (Security) Department. Bell agreed.
Illsley offered Bell the option of resignation. After a few minutes, Bell declined. Illsley then terminated his employment.
At trial, Bell maintained that he used his right hand to the head of the patron to defend himself. He claims that just prior to the blows he delivered, the patron tried to kick him in the groin. While I could not detect the claimed kick from numerous viewings of the tape, it must be acknowledged that the clarity of the images of the tape at that point is not particularly good.
Illsley and Moncur did not accept that Bell was acting in self-defence. I agree with them, and reject Bell’s explanations.
It was not submitted on Bell's behalf that there was any lack of procedural fairness which accompanied the termination of his employment.
Bell himself did not assert that he felt unable to deal with the situation because of a lack of training.
Bell's behaviour fell on the wrong side of what was reasonably expected of him as a security officer in the situation confronting him. The respondent had a valid reason to terminate his employment, and I am unconvinced that his termination was harsh, unjust or unreasonable.
Bell's application will be dismissed.
Thirkettle
Mr Thirkettle is now in his early 30s. Of the three applicants, his employment with the respondent has been by far of the longest duration, he having been employed by it for a little less than 10 years at termination.
A viewing of the video reveals what appeared to be two short punches to the head of another patron by Thirkettle. This patron appeared to be restrained by other security officers when Thirkettle punched him. This occurred in the vicinity of the fire door. The second patron had apparently earlier been in company with the one being dealt with by Bell and McGinness. He came through the fire door after Bell, McGinness and the first patron were through it.
Illsley interviewed Thirkettle on Monday, 8 January 1996, in the presence of Moncur. Thirkettle asked if he was in trouble. He said he had seen the videotape but would like to see it again. He claimed that when the second patron came through the fire door, he went to restrain him and gave him two open-handed hits to the head "to quiet him down." When it was pointed out to him that the hits looked more like punches than slaps, he said that his hand was open at the time. He said he realised he had done the wrong thing by striking the second patron, but insisted he would never do such a thing again if he were given another chance. Illsley told him he would consider what he had said.
The next day Illsley told Thirkettle that, having considered the circumstances, he was of the opinion that Thirkettle could not continue as a security officer. Thirkettle said he thought that was unfair, that he was being blamed for a messy put-out where two other officers had "gone over the top." He said that he had hit the second patron with an open hand because he was frightened that the man would hit him.
In evidence before me, Thirkettle maintained that he was trying to stop the second patron from attacking him. He claimed to have been acting defensively rather than aggressively in striking the second patron.
I am satisfied that there was not an element of self-defence in Thirkettle's actions. Provocation too does not arise.
The respondent had a valid reason to terminate Thirkettle's employment. There was no justification for his conduct. The second patron had not burst through the fire door. He had not to that time exhibited any of the conduct displayed by his apparent companion. Thirkettle could, and should, have dealt with him differently, perhaps by pushing him up against the wall, with the assistance of other security officers. At various times there were five in attendance.
As to whether the termination of his employment was harsh, unjust or unreasonable, I conclude that it was. After what I take to be a momentary loss of self-control on his part, he does not appear to have been involved in any further untoward conduct towards either patron. He was not guilty of violence of the magnitude displayed by Bell. Thirkettle’s length of service is of significance. The respondent did not claim that it relied on anything in his past service with it, apart from the subject incident, in its decision to terminate his employment.
Thirkettle might properly have been dealt with by a written warning, and counselling, explanation and re-training ( the latter if thought necessary) contemplated in the respondent’s Security Department Manual. He would have to expect that, if reinstated, his conduct in future would be very carefully scrutinised.
I add for completeness that neither patron involved in the subject incidents was ever heard of again. Neither appears to have complained to the police. The first patron was still behaving aggressively towards the security officers even at the very end of their engagement with him.
Thirkettle's application will be allowed. I will deal with remedy later in these reasons.
McGinness
Mr McGinness is now in his mid-30s. According to the application filed on his behalf, he had been in the employ of the respondent for only a little over a year. In evidence, he swore he had been just over two years with the respondent. He also swore that the patron with whom he dealt was as strong as any he had ever evicted. He was very unco-operative and abusive. The patron made physical threats against him and was using bad language. He thought the patron might have been affected by drugs.
The respondent particularised five actions on the part of McGinness upon which it relied. These were an elbow to the head of the first patron on two occasions, a knee to his head on two occasions, and a kick which did not connect.
On Tuesday, 9 January 1996, McGinness was interviewed by Illsley in the presence of Moncur. McGinness told them that he gave the patron a number of elbows to the head region to "quiet him." He also said that he was fearful that the patron was trying to knee him in the groin area. This occurred outside the fire door on Level 2.
While on Level 1 and the patron was on the floor, having slipped and fallen, McGinness said that he used his knee to try and restrain the patron's arm. He denied kneeing the patron in the head (Thirkettle previously having told Illsley and Moncur that McGinness kneed the patron at least twice in the head.) McGinness claimed that his kick at the patron on the roadway was a reactive impulse, as he thought the patron was going to attack him.
Illsley decided he wanted more time to think about McGinness' position, so he suspended him until 3 pm Friday, 12 January 1996. At that time, Illsley terminated his employment.
To my eye, the video reveals McGinness aggressively using his forearm on two occasions, in the region of the first patron's head. I doubt that he was then acting in self-defence. I am unable to conclude from the video that McGinness used his knee to connect with the patron's head. While Thirkettle denied in evidence having told Illsley and Moncur that that is what he saw happen, I accept that he did say that to those two. He may have been motivated by self-interest in so saying, in the sense that blaming the others for “going over the top” he might have thought suited his own cause. On the state of the evidence, I do not find that McGinness kneed the patron in the head.
The video shows quite clearly that McGinness kicked out at the patron on the roadway. I do not accept his explanation that he thought the patron was going to attack him. I think that by this time McGinness had lost his self-control after what had been a very trying time with a very difficult patron. As I have said, this patron was still wanting to take the fight up to the security officers at the very end of their engagement with him.
The respondent had a valid reason to terminate McGinness' employment. Whether that termination was harsh, unjust or unreasonable or not has occasioned me more reflection than the cases of the other two. There is the cumulative effect of his actions, an aggressive use of the forearm on two occasions and the kick which did not connect. Mr McGinness’s actions suggest to me there may be something lacking in his competence as a security officer, in the sense both of his ability to properly control someone in his charge, and control his own temperament. I wonder if he is suited to the line of work he has chosen with the respondent. However that may be, what distinguishes him from Bell, to my mind, is that his actions outside the fire door and on Level 1 can be legitimately classed as attempts to control the first patron and not the outright unacceptable assault perpetrated by the former. I have already dealt with the kick.
I am persuaded, albeit just, that his termination was harsh, unjust or unreasonable. The respondent might have dealt with McGinness in the ways I refer to in the remarks concerning Thirkettle.
Remedy
The successful applicants seek reinstatement. The respondent bears the onus of proving that reinstatement is impracticable. While it expresses concern about the signal reinstatement might send to its other security officers, I am not satisfied that reinstatement will pose unacceptable problems or embarrassments, or seriously affect harmony, within the respondent’s operations. The respondent has legitimately signalled the tough line it will take in respect of employees it regards as unacceptably carrying out their duties.
On termination Thirkettle and McGinness each received two weeks’ pay in lieu of notice. Thirkettle has been unemployed since termination while McGinness has earned about $4,000 gross.
Orders
I order that:
1. Kevin James Bell’s application be dismissed.
2. In the cases of Stephen Trevor Thirkettle and Steven John McGinness, the respondent reinstate them by appointing each to the position in which he was employed immediately before the said termination, or appointing him to another position on terms and conditions no less favourable than those on which he was employed immediately before his termination date.
3. In the case of Stephen Trevor Thirkettle, within 14 days the respondent pay to the applicant an amount of money equal to the wages the applicant would have earned if he had continued in the employment of the respondent from the date
of the said termination until the date of reinstatement in the position in which he was employed immediately before the said termination,
less the two weeks’ pay in lieu of notice he received.
4. In the case of Steven John McGinness, within 14 days the respondent pay to the applicant an amount of money equal to the wages the applicant would have earned if he had continued in the employment of the respondent from the date of the said termination until the date of reinstatement in the position in which he was employed immediately before the said termination, less the two weeks’ pay in lieu of notice he received, and the sum of $4,000 since earned by him.
5. Except in relation to matters specifically dealt with in these orders, the respondent treat the applicants as having been continuously employed by it between the date of termination and the date of reinstatement.
I certify that this and the preceding seven (7) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 29 August 1996
Counsel for the Applicants: Mr R. Jones
Solicitors for the Applicant: Goss Downey Carne
Counsel for the Respondent: Mr Traves
Solicitors for the Respondent: Feez Ruthning
Dates of hearing: 23 and 24 July 1996
Date of judgment: 29 August 1996
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