[2013] FWC 6780 Note: An appeal pursuant to s.604 (C2013/6100) was lodged against this decision - refer to Full Bench decision dated 10 October 2013 [[2013] FWC 7574] for result of appeal.]

FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.394—Unfair dismissal

Ismail Gurdil
v
The Star Pty Ltd
(U2013/8161)

VICE PRESIDENT HATCHER

SYDNEY, 11 SEPTEMBER 2013

Application for relief from unfair dismissal - valid reason - dismissal was harsh - reinstatement ordered.

Introduction

[1] The applicant, Ismail “Jim” Gurdil, was employed by The Star Pty Ltd (The Star) at its casino in Pyrmont, Sydney, for 16 years until he was dismissed on 27 March 2013. The dismissal arose out of a complaint made by a patron of the casino about Mr Gurdil’s behaviour towards him on 1 March 2013. The reason for the dismissal was described in a letter to Mr Gurdil dated 28 March 2013 in the following terms:

“Engaging in serious misconduct

[2] Mr Gurdil lodged an application for an unfair dismissal remedy in this Commission on 2 April 2013. He contends that his dismissal was unfair, and he seeks the remedy of reinstatement.

[3] The Star sought and was granted permission to be represented by counsel in the proceedings. I was satisfied that, given the factual complexity of the matter, the representation of The Star by counsel would allow the matter to be dealt with more efficiently, and I considered that this would outweigh any disadvantage that might flow from Mr Gurdil being self-represented. However, given the imbalance in representation, I considered that it would not be appropriate to hold a formal hearing in relation to the matter, and instead the matter was dealt with in a private conference under s.398 of the Fair Work Act 2009 (the Act). Nonetheless, evidence under oath or affirmation was received in the course of the conference, and cross-examination of witnesses was permitted.

[4] Notwithstanding the considerable assistance I received from counsel for The Star in the conduct of the matter, it was inevitable that difficulties would arise from Mr Gurdil being a self-represented lay person. Mr Gurdil was unable to properly test the evidence of The Star’s witnesses by way of cross-examination, although he did ask them some questions. He advanced controversial propositions that were not supported by evidence and/or had not been raised with relevant witnesses. He was required to undertake the dual role of witness and advocate without a proper understanding of the difference between evidence and submissions. The conduct of the matter by way of a conference permitted me to take a reasonably interventionist and inquisitorial role so as to ameliorate some of these difficulties, but nonetheless they remained to a significant degree. I have therefore had to take account of Mr Gurdil’s understandable difficulty in presenting his case in my assessment of the matter.

Initial matters to be considered before merits

[5] Section 396 of the Act requires me to decide four matters before I consider the merits of Mr Gurdil’s application. There was no contest between the parties about any of those matters. I find that:

Employment history

[6] Before turning to the events of 1 March 2013, it is convenient to consider Mr Gurdil’s prior employment history. His employment with The Star commenced in 1997. He served as a dealer for about the first four years of his employment, and was promoted to the position of Higher Duties Dealer (also referred to in the evidence as “Dealer/Supervisor”) in 2002. The position description 1 and other evidence indicates that a person appointed to this role may be required to undertake dealer duties, reporting to a Gaming Supervisor, or as required assume the role of a Gaming Supervisor on a higher duties basis and report to the Assistant Gaming Manager. The position description is lengthy. The Star emphasised the following aspects of the position description:

[7] In the period 1998 to 2011, The Star prepared and issued written performance reviews concerning Mr Gurdil in accordance with its practice over that period. 2 For the reviews from 1998 to 2002, the format was to appraise the employee with respect to eight areas - namely customer service, quality of work, quantity of work, knowledge, initiative, dependability, teamwork and appearance - and then to give an overall evaluation. The appraisal involved a choice in each area between five gradings of performance: outstanding, exceeds expectations, achieves expectations, needs development, and unsatisfactory (except for appearance, which only gave three choices: exceeds expectations, achieves expectations, and unsatisfactory). The format also allowed the addition of comments with respect to each area and the overall evaluation. There was also space for additional comments at the end.

[8] In terms of the overall evaluation, the gradings recorded for Mr Gurdil from 1998 to 2004 were as follows:

1998: Achieves expectations

1999: Achieves expectations

2000: Achieves expectations

2001: Achieves expectations

2002: Achieves expectations

2003: Achieves expectations

[9] From 2004 until 2010, the format was changed slightly, in that gradings for performance changed to: outstanding, exceeds expectations, successful, needs development, and unsatisfactory (except for appearance, which only gave three choices: exceeds expectations, successful, and unsatisfactory). The overall evaluation gradings recorded for Mr Gurdil for the period 2004 to 2010 were:

2004: Successful

2005: Needs development

2006: Exceeds expectations

2007: Successful

2008: Exceeds expectations

2009: Successful

2010: Successful

[10] In 2011, the format changed significantly. There were now five areas of appraisal - namely “FUN - Upbeat and Playful”, “FAST - Quick and Energetic”, “FRESH - Clean and Full Functional”, “FRIENDLY - Welcome and Helpful”, and “FOCUSED - Stay in the Moment and Deliver” 3 - and an overall evaluation. There were three grading levels: Exceptional, Consistent and Inconsistent. In the single year this format existed, Mr Gurdil was graded “Consistent”. No performance reviews were carried out in 2012 because of a restructure that was occurring.

[11] The Star pointed to a number of specific matters in the reviews which, it contended, indicated that Mr Gurdil had consistent problems in the area of customer service. The matters identified by The Star were as follows:

(1) 1998: Mr Gurdil was graded as “Needs Development” for customer service. The comment was:

(2) 2000: Mr Gurdil was again graded as “Needs Development” for customer service. The comment was:

The reviewer also made an additional comment at the end of the document:

(3) 2002: Mr Gurdil was graded “Achieves expectations for customer service”. The comment was as follows (with the part relied upon by The Star underlined):

(4) 2003: Mr Gurdil was graded “Achieves expectations for customer service”. The comment was as follows (with the part relied upon by The Star underlined):

(5) 2004: Mr Gurdil was graded “Successful” for customer service. The comment was (with the part relied upon by The Star underlined):

(6) 2009: Mr Gurdil was graded “Successful” for customer service. The comment was (with the part relied upon by The Star underlined):

[12] However, the above matters need to be considered in the context of Mr Gurdil’s entire record. The year 2000 was the last in which Mr Gurdil was graded as “Needs Development” in the area of customer service. From 2001 to 2003 he was graded as “Achieves expectations”, and from 2004 to 2009 he was graded “Successful”. In 2010 he was graded as “Exceeds Expectations”, with the comment:

[13] In the 2011 review, the issue of customer service is spread amongst a number of performance categories. The relevant comments are:

[14] Mr Gurdil was graded “Consistent” in the categories in which these comments were made. The overall evaluation comment was:

[15] The Star also pointed to a number of other incidents recorded in Mr Gurdil’s employment history. It put into evidence a number of file notes, counselling forms, disciplinary action forms, as well as extracts from the staff diary, but emphasised a limited number of those as being of significance. The first was recorded in an “Employee Counselling Form” dated 13 December 2003 which recorded the following incident:

[16] The second was recorded in a “Disciplinary Action Form” dated 4 November 2007. It records an incident with another staff member for which Mr Gurdil received verbal counselling:

When this matter was raised with Mr Gurdil in cross-examination, he denied that he had sworn at Ms Chesworth.

[17] The third was recorded in a “Disciplinary Action Form” dated 27 January 2010. It shows that Mr Gurdil received “Final Counselling” in respect of the following recorded incident:

It was recorded that this conduct “compromised” The Star’s Code of Conduct. The Star asked me to infer that the conduct described took place in the presence or earshot of the customer. It was not put to Mr Gurdil that this was the case when he was cross-examined about this matter and it is not clear from the document. In those circumstances, I am not positively satisfied that such an inference should be drawn. I also note that The Star submitted that a “Final Counselling” was the same thing as a final warning. That is not entirely clear on the face of the document. Mr Gurdil asserted that final warnings expired after 12 months. That is not apparent on the fact of the document either. In any case, subsequent events do not suggest that by 2012 it was being treated as a final warning.

[18] The fourth incident was recorded in “The Star Staff Diary” on 5 February 2012, and was the subject of a “Five F warning”:

[19] The final incident was recorded in the Staff Diary on 16 September 2012 as follows:

Mr Gurdil confirmed in his evidence that he did not swear, and I note that the record of the incident does not state any conclusion to the contrary.

[20] The overall impression which is obtained from Mr Gurdil’s employment history is that of a consistently well-performing, but not outstanding, employee. In respect of customer service, Mr Gurdil in the earlier years was not quite performing at the level required by The Star, but the performance reviews show consistent improvement in this respect, so that after the initial years of employment Mr Gurdil was meeting or exceeding expectations in this area and was generally receiving very favourable comments from his managers.

[21] The Star is correct to point out that there is a flaw in Mr Gurdil’s performance in the area of customer service which emerges from the records. This flaw is described in those of the performance reviews put into evidence in fairly consistent terms: that Mr Gurdil on occasions acted in an overly assertive and forceful manner with customers in a way which was perceived as confrontational. It is reflected in the first, fourth and fifth incidents described above (the other two incidents, whilst clearly involving unsatisfactory conduct, appear to be of a different character in that they did not on their face involve customer interactions). However, the position should not be overstated, in that this flaw manifested itself only very rarely across an employment history lasting 16 years. Even if all five incidents above are considered, they stretch over some nine years. It is reasonably clear that there were a number of years in which no fault was identified in Mr Gurdil’s customer service standards, and nothing which occurred up to and including 2011 prevented Mr Gurdil’s overall performance being assessed as meeting The Star’s expectations, successful or consistent. Nor should it be forgotten that inherent in Mr Gurdil’s role was a requirement to deal with customers who were playing games with their money at stake, and could therefore be difficult.

1 March 2013 - Evidence

Background

[22] On 1 March 2013, Mr Gurdil was rostered to supervise a double row of blackjack tables within the area of the casino known as Pit 8. Each blackjack table was semi-circular in shape, with the patrons sitting around the circular side of the table and the dealer sitting in an indented space on the other side of the table. The two rows had four tables each in them, and the dealer at each table had his or her back to a central corridor running between the two rows. At the time of the 1 March 2013 incident, it appears that only three or four tables were in operation. At one end of the corridor was a podium upon which there was a closed circuit television monitor providing vision of each game being conducted at each table. The podium also contained a telephone from which Mr Gurdil could contact the Assistant Gaming Managers, which included Mr Dat Tuan Ngo.

[23] One aspect of the game of blackjack as played at the casino requires explanation. The surface of each table has seven “boxes” in which bets can be laid. Each box contains a shaded part at the top of the box, and then the main unshaded part. The rule is that a maximum of three bets only can be placed in the shaded part of the box, and three bets only can be placed in the unshaded part. Sometimes patrons try to get around this rule by placing their chips, or having another patron place their chips, on top of another patron’s chips which have already been placed in the box. This practice is known as “piggybacking” or “combining bets”. It is discouraged because it can give rise to disputes about how much each player has bet and how much they are entitled to receive if the bet wins, but it is not considered cheating as such. 4

[24] In the event that a dispute arises with a patron in the course of a game, The Star’s Standard Operating Procedures provide for a dispute resolution procedure to deal with the situation as follows:

The CCTV

[25] The starting point for the analysis of what occurred on 1 March 2013 must necessarily be the closed circuit television (CCTV) recordings which were put into evidence by The Star. Although they are without sound, they give an objective framework of reference by which the witness evidence may be assessed. However, an important limitation concerning the CCTV recordings must be noted at the outset. There are three sets of footage. The first (Recording 1) is taken from a camera directly above the blackjack table where the incident occurred, and covers the time period from 3.46 pm to 3.50 pm. The second (Recording 2) is taken from a camera located above the podium earlier described, and covers the same period. The third (Recording 3) is taken from the same camera as the second, and covers the period 4.01 pm to 4.02 pm. Mr Gurdil contended that the footage does not cover the entirety of the interactions between himself and the patron (Patron A) who complained about him. On his application, an order for production of other relevant CCTV footage was issued. However, it could not be produced, because in accordance with The Star’s standard practice it had been disposed of back in March 2013.

[26] No witness called by The Star could give direct evidence about the basis upon which the CCTV footage which had been preserved was selected. The evidence of Mr Ngo, who was on duty in the afternoon of 1 March 2013, was that he was given instructions to “get the point where the incident happened and that’s what surveillance did”. 5 His reference to “surveillance” appears to be to the surveillance security manager, Ms Tanya Hunt.6 It was “up to them” what footage was to be saved, and he did not himself view any of the footage apart from that which was preserved. Mr Ngo appears at the time to have asked “surveillance” to search for footage concerning Mr Gurdil’s contention that Patron A had been chased by security guards after his interaction with Mr Gurdil, but the response he received was: “With so many people, surveillance could not see anything”.7

[27] The CCTV footage in evidence therefore represents somebody’s view about what footage was relevant rather than capturing the entire time period during which Patron A and Mr Gurdil were present together in Pit 8. With that limitation in mind, I will attempt to summarise what can be seen in the CCTV footage (by reference to the 24-hour clock used in that footage).

Applicant’s evidence

[28] Mr Gurdil’s version of events concerning the 1 March 2013 incident must be derived from a combination of his statement of evidence 8 and his oral evidence. In addition, his written submissions contained further statements of fact. A number of details concerning what occurred only emerged in his oral evidence, including in answers given while under cross-examination. In assessing his evidence, a number of matters must be taken into account. The first is that Mr Gurdil was, as earlier stated, self-represented, and therefore had to prepare his witness statement and submissions without the benefit of professional advice and assistance. The second is that the witness statement and the submissions, dated 26 June 2013, appear to have represented the first time that Mr Gurdil’s version of events was recorded in written form. Unlike other persons who were witnesses to the incident, The Star did not attempt to obtain a contemporaneous written statement from him as to what occurred in its investigation of the incident. The statement and the submissions therefore represent Mr Gurdil’s necessarily imperfect and incomplete recollection of the event almost four months after it happened. The third is that Mr Gurdil was cross-examined on the basis of the CCTV recordings of aspects of the incident. These had not been shown to Mr Gurdil during The Star’s investigation of the incident. Mr Gurdil first had access to them when they were served upon him as part of The Star’s evidentiary materials pursuant to the Commission’s directions, and after he had prepared his witness statement and submissions. A number of his answers in cross-examination therefore represented an attempt by him to reconcile what could be seen on the CCTV with what he had recollected in his witness statement and submissions. Consequently I consider that many of the answers he gave in cross-examination represented an attempted reconstruction of what occurred rather than a genuine recollection, with the result that much of what he said about the timing and sequence of events is confusing, inconsistent and/or simply incorrect. However, there are core elements of his evidence which I accept as truthful and correct.

[29] In his statement of evidence, Mr Gurdil described the incident commencing when he noticed that a patron was “combining bets”. Mr Gurdil stated that he:

Although this was not raised with him in cross-examination, the CCTV recordings do not appear to show Mr Gurdil moving Patron A’s chips from the layout.

[30] Mr Gurdil then described in his witness statement what happened next:

[31] In his witness statement, Mr Gurdil did not specify what constituted the “derogatory comments” or the abuse he said was directed towards him by Patron A. However, in his written submission, he said that while Patron A followed him from his work station through the casino floor, Patron A said “you’re a shit supervisor” and “you Middle Eastern people always cause trouble”.

[32] In his oral evidence in chief, Mr Gurdil described the incident as involving a dispute over the ownership of bets arising from piggybacking which he stepped in to resolve, with the result that a customer involved became abusive and aggressive. 9 There was no dispute that this customer was the person I have earlier referred to, and will continue to refer to, as “Patron A”. However, as cross-examination proceeded, Mr Gurdil made it clear that there had been an earlier interaction between himself and Patron A not caught on the CCTV, in which Mr Gurdil had detected Patron A combining bets and warned him not to do it. However, Mr Gurdil said that on this earlier occasion Patron A did not become aggressive but appeared to accept Mr Gurdil’s direction.10

[33] Mr Gurdil went on to say in his oral evidence that Patron A ignored his initial direction concerning combining bets, and that he tapped the Table as shown in the CCTV footage to convey the message that he was not allowed to continue doing this. Patron A, he said, later called out to him over the Table and began verbally abusing him. He then came over and asked for Mr Gurdil’s name and licence number, which he provided. Mr Gurdil denied that he was “aggressive, intimidating or rude as The Star claims me to be” 11, and that under “confronting circumstances, I had acted appropriately...”.12 He characterised Patron A as being defiant and acting aggressively rather than being shaken and intimidated.

[34] Mr Gurdil was shown the CCTV recordings and cross-examined upon them. At 15.47.20, Mr Gurdil agreed that he said to Patron A and Patron B:

He initially disagreed that he said this loudly. 13 However, he later conceded that he was speaking with a loud voice, and he also said “I do also speak with my hands as well”14, which in his written submissions he attributed to his European heritage. He said that Patron A said to him “You’re an arrogant man”, and was “throwing abuse at him”, but that any other abuse (that is, other than “arrogant man”) came later.15

[35] Mr Gurdil said that when he moved from the left of Ms Kim to her right to speak to Patron A further, he did this because he believed Patron A was ignoring and disobeying him, and was about to do the same thing again. 16 He said he leant over the Table to make it clear to Patron A that he was not allowed to do what he was doing, because Patron A was ignoring him, but conceded that “maybe I should have stood back”.17 He accepted that what he had done at this point might be perceived to be aggressive and did not “look right”, but he was not abusing or intimidating the patron.18 He said an argument then broke out between Patron A and Patron C next to him, in that he told her not to open a box, which she protested about.19 Patron A, he said, acted illegitimately in doing this to advantage himself. He agreed he had then spoken to Patron D, but only to explain to him that he had to hold up the game because Patron A was piggybacking.

[36] Mr Gurdil agreed that he had made a “Shush” gesture to Patron A, but said this was in response to Patron A verbally abusing him; he thought Patron A said “You’re a shit man” 20, and said later in cross-examination that the Middle Eastern comment had also been made at this time.21 His evidence was that he said to Patron A words to the effect of “Do not disrupt the game, be quiet please”, and also “stop abusing me”.22 Mr Gurdil accepted that he was leaning over the Table when he said this, but denied that he was speaking loudly or adopting an aggressive manner.23

[37] In relation to the interaction with Patron A captured in CCTV Recording 3, Mr Gurdil said that he was not speaking in a loud voice. He said that after he had provided Patron A with his details, Patron A requested to speak to a manager, but he could not remember precisely when. 24 After that request was made, and after CCTV Recording 3 ended, Mr Gurdil unsuccessfully tried to find, and then ring for, a manager.25

[38] Mr Gurdil said that he tried to call the “Pit Manager” (unnamed) by walking around to see if he was anywhere near, and then by calling him on the cordless phone on the podium, but nobody answered it. He then said he tried to call Mr Ngo, the Assistant Gaming Manager, about five minutes afterwards, but there was no answer. 26 His evidence as to the timing of these calls was confusing. He appeared to initially indicate that both calls occurred after he provided Patron A with his name and licence details (that is, after the end of CCTV Recording 3).27 However, he later said that the first call was made before he provided Patron A with his details (presumably in the gap between the CCTV recordings).28

The security guards

[39] On Mr Gurdil’s request, an order was issued requiring two security officers on duty at the casino on 1 March 2013, Sharon Young and Scott McLaren, to attend the Commission and give evidence. They were the two security officers who Mr Gurdil said he asked for assistance when Patron A followed him through the casino floor and abused him. However, neither of those officers had any recollection of any relevant event on 1 March 2013. I do not regard that lack of recollection as disproving anything about which Mr Gurdil gave evidence; as Mr McLaren said, he could not remember what happened four weeks ago let alone six months ago. 29 I will treat their evidence as neutral as to what happened on 1 March 2013.

Evidence of Duri Kim

[40] Ms Kim was, as earlier stated, the dealer on the Table during the day shift on 1 March 2013. In her statement of evidence 30, she described there being four to five patrons at the Table at about 3.30 pm who were all regulars. Ms Kim said that “an Asian lady” who was not sitting at the Table (clearly referring to Patron B) started to piggyback on other patrons’ bets so she could take advantage of a “good run”. Mr Gurdil then intervened, “leaned over the table in an aggressive manner”, and yelled at Patron B and the entire Table words to the effect of:

[41] Ms Kim said that the Asian lady took off her bets and Mr Gurdil stepped back from the Table. However, she said, Mr Gurdil shortly afterwards approached the Table and yelled aggressively at “an Asian male patron sitting at the table” (clearly Patron A), banged his hand on the table, and pointed to him with his pen while leaning over the Table. She recalled a conversation to the following effect:

[42] Ms Kim said in her witness statement that other patrons at the table began querying Mr Gurdil about his conduct, and Mr Gurdil then walked away from the Table. She described Patron A as being visibly upset, in that his eyes were watering and he was shaking. Mr Gurdil, she said, then returned to the Table, and the following conversation ensued:

[43] Mr Gurdil then stepped away from the Table, and she observed Patron A looking worried, shaking and looking panicked. Ms Kim said that Patron A got up and walked over to Mr Gurdil, who was standing by the next table. Another argument ensued to the following effect:

[44] Ms Kim said that the argument continued but she couldn’t hear at that time because she was concentrating on dealing cards. She said she heard Mr Gurdil yelling at Patron A, and she considered he was acting inappropriately. She then observed Patron A walk away from Mr Gurdil towards the entrance, and she heard Mr Gurdil yell out to him: “You are going the wrong way, not that way.” Shortly afterwards, she was asked about the incident by Mr Ngo, and she made a contemporaneous written statement about the matter later that day. This statement was annexed to her statement of evidence. 31 Its contents are broadly consistent with Ms Kim’s statement of evidence, but there are some differences of significance:

(1) It describes differently the background to the initial exchange between Mr Gurdil, Patron A and Patron B. It says that once Patron B joined the game, she opened two more boxes. This made the other patrons unhappy, and they started losing games. There was then a slight argument between her and the other patrons about how she played, and Patron A said to her “don’t open any more boxes” and took off bets aggressively. The statement then says “...at that time, patrons were going piggy bets on perfect pairs and boxes”, and at this point Mr Gurdil intervened for the first time.

(2) The statement contains no reference to Mr Gurdil yelling. However, in respect of the conversation referred to in paragraph [41] above, she said that it “went on for a few minutes”, and that “the patron and the supervisor [that is, Patron A and Mr Gurdil] raised their voice to each other”.

[45] Ms Kim made a second, more detailed statement about the incident on 22 March 2013, which was also annexed to her statement of evidence. 32 It is in this statement that Ms Kim first described Mr Gurdil as “yelling”. The statement contains some further detail which is not contained in either the contemporaneous statement of 1 March 2013 or the statement of evidence of 17 July 2013. Significantly, this includes a description of a discussion Mr Gurdil had with her on 1 March 2013 sometime after the incident:

[46] In her oral evidence (including the limited cross-examination conducted by Mr Gurdil), the following points emerged:

(1) Ms Kim had not seen the CCTV recordings prior to making her statement of evidence, or indeed at any time before she gave evidence.

(2) Having had an opportunity to view the CCTV recording during a short adjournment in the conference, Ms Kim did not want to change anything in her statement of evidence.

(3) When she referred to Mr Gurdil “yelling”, she did not mean shouting, but rather speaking with a raised voice. 33

[47] Ms Kim was taken to the statement of Mr Kornelson, but beyond recalling that that there was something said about a pit manager in the conversations between Mr Gurdil and Patron A, she did not recall the matters adverted to by Mr Kornelson. She disagreed with Mr Kornelson that Mr Gurdil had acted appropriately; in her view he had acted inappropriately. In support of this, she said that Patron A was “still shaking”, “even after, like 30 or 40 minutes of the incident”. I note at this point that the time estimate cannot be correct, since the CCTV shows Patron A leaving the Table 15 minutes or less after the exchange with Mr Gurdil began.

[48] I consider Ms Kim to have been a witness who made her best efforts to give an honest recollection as to what occurred on 1 March 2013. Her account has a high degree of consistency with what can be seen in the CCTV recordings. Where there are inconsistencies, they concern the timing and sequence of what occurred, not the substance. I generally accept her evidence, subject to the following qualifications:

(1) Ms Kim does not purport to remember the entirety of what occurred, and it is obvious from viewing the CCTV recordings that more was said between Mr Gurdil and Patron A than is recounted in her statement.

(2) With respect to that part of the encounter that can be seen in Recording 3, Ms Kim herself stated that she did not hear all that was said.

(3) Where Ms Kim stated, in respect of certain matters alleged by Mr Gurdil, that she did not recall them happening, I do not accept that her evidence to that effect demonstrated necessarily that those matters did not occur.

(4) There are, as earlier discussed, some inconsistencies between the two statements made by Ms Kim in March 2013, and between those statements and her witness statements. To the extent those inconsistencies need to be resolved, I prefer her most contemporaneous statement, being the one made on 1 March 2013.

(5) Where Ms Kim says in her witness statement that Mr Gurdil yelled at Patron A, I shall take that to mean that he spoke in a raised voice but not that he was shouting.

Statements of Thomas Vuong and Lloyd Kornelson

[49] Statements were made Mr Vuong and Mr Kornelson in the course of The Star’s investigation process on or shortly after 22 March 2013. These statements came into evidence as annexures to the witness statement of Mr Oscar Battram. 34 When I raised with counsel for The Star the question of the statements’ admissibility, it was made clear that they were sought to be admitted not only as evidence of the investigative process but also as to the truth of their contents.35 Mr Gurdil did not object to the admission of the statements even though Mr Vuong and Mr Kornelson were not made available for cross-examination. The statements were accordingly admitted on the basis sought by The Star.36

[50] Mr Vuong said in his statement that he heard “shouting” between Mr Gurdil and a player, but he did not hear what was “going on”. He said that Mr Gurdil approached him about an hour later, told him about the dispute, and said he had the player “thrown out” because he was piggybacking on perfect pairs. He also described a separate incident in which he alleged Mr Gurdil had spoken rudely to him. The Star did not rely on this separate allegation in its case.

[51] At the commencement of his statement, Mr Kornelson described a general problem at The Star both as to the amount of piggybacking which was occurring and the aggressive attitude of patrons when they were told that it was not permitted. As to the incident itself, he said he did not see or hear everything that happened. He then described what he did see and hear as follows:

[52] To the extent that in his statement Mr Kornelson specifically recalls seeing and hearing certain things, I see no reason not to accept that as evidence of what occurred. The contents of his statement were put into evidence by The Star and not contested by Mr Gurdil. Mr Vuong’s statement however adds nothing of substance to the matter except that it raises the possibility that Patron A, as well as Mr Gurdil, was speaking in a raised voice.

Evidence of Dat Tuan Ngo

[53] As earlier stated, Mr Ngo was, at 1 March 2013, an Assistant Gaming Manager and was responsible for Pit 8. At about 4.30 pm on that day, he was approached by Mr Andy Carter, another Assistant Gaming Manager together with a male patron (evidently Patron A) and said that the patron had been yelled at by a manager in Pit 8. Mr Ngo described Patron A as looking like he was “in shock”, since he was finding it hard to speak, and shaking. He said he had a conversation with him to the following effect:

[54] Mr Ngo said he then approached Ms Kim about the incident, and Ms Kim said Mr Gurdil had been “really aggressive” and “quite arrogant” towards the patron. He then asked Ms Kim to write down a statement as to what occurred, and took her upstairs to have her prepare her statement on a computer.

[55] Mr Ngo said that he then spoke to Mr Gurdil about the matter, and they had a conversation to the following effect:

[56] Mr Ngo denied in his witness statement Mr Gurdil’s assertion that he was abrupt or dismissive of him on 1 March 2013, or that he pointed at him to go away. However, when cross-examined, Mr Ngo agreed that at a time whilst he was talking to Patron A, Mr Gurdil approached him and asked whether he could assist, to which he responded that he should return to his work position. 37 He also confirmed that Mr Gurdil had told him security had chased the patron out of the casino.38

[57] In relation to Mr Gurdil’s statement that he had unsuccessfully tried to call a supervisor on 1 March 2013 in relation to Patron A, Mr Ngo said in his statement:

[58] I generally accept the evidence of Mr Ngo. Most of his evidence was not put into contest, and on the matters that were raised with him in cross-examination, Mr Ngo, in a straightforward manner, made appropriate concessions as I have noted above. His witness statement is to be read subject to those concessions. However, I note that the issue of whether Mr Gurdil had attempted to ring Mr Ngo was not properly explored with him by either party. I shall discuss this difficulty in greater detail later.

1 March 2013 - Conclusions

[59] Based on the evidence recited above and my conclusions as to the credibility of the witnesses, I make the following findings. Patron A was a regular customer of The Star. The first interaction between Mr Gurdil and Patron A occurred before the commencement of the CCTV recordings. Mr Gurdil detected Patron A engaging in piggybacking, and warned him not to do it. Patron A accepted this warning without apparent difficulty.

[60] At or about 3.46 pm (that is, when the CCTV recordings commence), Patron B began to participate in the game at the Table. Her participation (which apparently ended a run of winning bets) caused a slight argument between her and the other patrons. Patron A told her “don’t open any more boxes”, and took off his bets aggressively.

[61] Shortly afterwards, Patron B engaged in piggybacking with the apparent assistance of Patron A. Patron B then said something to Mr Gurdil, and he nodded. Patron B then pointed to Patron A and/or Box 4, and spoke to Mr Gurdil. I consider, consistent with Mr Gurdil’s evidence, that there was some sort of dispute between Patron B and Patron A. Mr Gurdil spoke in response, shaking his head and waving his right arm. Mr Gurdil had not to this point done anything inappropriate, but the CCTV recording shows Mr Gurdil’s tendency to “speak with his hands”.

[62] At 3.47 pm, Mr Gurdil, standing to the left of Ms Kim, leant slightly over the Table, pointed with three fingers towards Patron A, and said something to him. It is likely that it was at this point Mr Gurdil warned about piggybacking once again by saying: “Take off all piggyback bets. If you want to play, play fairly”. There was then a further exchange between Patron A and Patron B, and Patron B retrieved her chips from Box 4. Mr Gurdil then retreated to an upright position. Again, I do not consider that to this point Mr Gurdil had acted inappropriately. Ms Kim’s evidence was that Mr Gurdil was being aggressive and yelling at this point, but that is not apparent from the CCTV recordings.

[63] Immediately afterward, Patron A moved his chips from Box 7 to the shaded part of Box 2, in circumstances where there were already three bets there. This breached the “three bets per box” rule. This caused Mr Gurdil to intervene. I would infer that he became frustrated at this point with Patron A, having already warned twice about piggybacking. However, it was at this point that Mr Gurdil’s behaviour became intemperate. He either tapped or slapped his hand on the Table twice, leant over the Table at about a 45 degree angle, and pointed directly to Patron A. It is likely that the conversation recounted by Ms Kim, set out in paragraph [41] above, occurred at this point, and that Mr Gurdil was raising his voice considerably at this point. I note that the content of what Mr Gurdil said, as described by Ms Kim, is consistent again with Mr Gurdil’s evidence that he regarded himself as resolving a dispute between Patron A and Patron B. Mr Gurdil then retreated somewhat for a short period.

[64] This intervention by Mr Gurdil was carried out in a manner which I accept was rude and discourteous and would be perceived as aggressive and intimidating. It is clear that Mr Gurdil was defending Patron B’s right to participate in the game without Patron’s A interference. It is also reasonably apparent that Patron A, by piggybacking once, then participating with Patron B in piggybacking, and then breaching the “three bets per box” rule, was engaging in problematic behaviour. However, while Mr Gurdil was entitled to express himself firmly, he went further by speaking to Patron A in a manner which was discourteous and arrogant. Further, his body language in leaning over the Table, tapping or slapping the Table, and pointing at Patron A, was intimidating in its effect.

[65] Mr Gurdil then moved to the right of Ms Kim and spoke further to Patron A whilst leaning over the Table, pointing and gesturing. I cannot identify from the CCTV recordings or the evidence any need at all for this further intervention. The content of what was said at this point is unclear, but Mr Gurdil was clearly saying something in an over-emphatic manner. This caused Patrons C and D to become involved in Patron A’s support, and Mr Gurdil then had to engage with them. Mr Gurdil then moved away from the Table. I accept Ms Kim’s evidence that by this time Patron A had become visibly upset and was shaking.

[66] The next interaction between Mr Gurdil and Patron A occurred about two minutes later, at 3.50 pm. Taking the CCTV footage and Ms Kim’s evidence together, I find that it was initiated by Patron A saying something to the effect of “I didn’t do anything wrong”. This caused Mr Gurdil to say “Shhh” with an equivalent hand gesture, and then engage in a further dialogue with Patron A in which he leant over the Table and pointed with his pen at Patron A. Ms Kim’s evidence was that Mr Gurdil said at this point:

[67] I accept that this was said at some point during the exchange. However, it is clear from the CCTV that more was said than this, including things said by Patron A. It may be therefore that the above statement by Mr Gurdil had some context to explain it, such as the making of some insulting comment by Patron A. Be that as it may, Mr Gurdil’s conduct at this point was again aggressive and intimidating in effect, and out of proportion to anything further that had been said or done by Patron A. I accept Ms Kim’s evidence that, after the exchange ended and Mr Gurdil moved away, Patron A was shaking and looked panicked.

[68] The next exchange was initiated by Patron A leaving the Table and approaching Mr Gurdil. It is reasonably apparent that Patron A was seeking to debate with Mr Gurdil what had happened between them earlier. I accept that part of the conversation was broadly as described by Ms Kim as set out in paragraph [43] above, except that I consider that the last statement attributed to Mr Gurdil involving references to managers is likely to be a confused rendering of an offer by Mr Gurdil to involve a manager if Patron A wished. Certainly Mr Kornelson heard Mr Gurdil offer to involve a manager more than once, which I accept happened. Mr Gurdil gave evidence that Patron A himself asked to speak to a manager, and also asked for his name and licence number, which he provided by writing it down on a piece of paper. I accept that this occurred, because it is clearly depicted in the CCTV Recording 3. After this, Patron A continued to debate the issue with Mr Gurdil, and then made a dismissive gesture and walked away.

[69] It is not clear to me that Mr Gurdil conducted himself inappropriately during this exchange. He did not initiate it. His body language does not appear on the CCTV Recording to be aggressive or intimidatory. In offering to involve a manager, and providing his name and licence number as requested, he was acting appropriately. In that part of the conversation recounted by Ms Kim which I have accepted, Mr Gurdil only responded to Patron A’s request to identify what he had done that was considered wrong. Ms Kim said in her statement of evidence that Mr Gurdil was “yelling” during this exchange, but the CCTV footage tends not to support this, and Ms Kim did not say this in her contemporaneous statement of 1 March 2013, nor in her statement of 22 March 2013. I do not accept that Mr Gurdil “yelled” at this point, and I consider that it is likely that Ms Kim has conflated this with an earlier part of the incident.

[70] As Patron A walked away, I accept that Mr Gurdil called out “You are going the wrong way, not that way.” He may have been directing Patron A to where a manager might be found, although this is not clear from the evidence. Mr Gurdil himself did not recall saying this. Without understanding the context, it cannot be said that this was inappropriate behaviour.

[71] I accept Mr Gurdil’s evidence that after the CCTV footage ended, and as he was going on a break, Patron A approached him again. Mr Kornelson corroborated this, in that he recalled in his statement that the patron approached Mr Gurdil again, that Mr Gurdil offered to escort him to a supervisor, and that they left the pit at the same time. Mr Gurdil’s evidence was that Patron A followed him through the gaming room floor as he was walking to his break and verbally abused him by calling him “a shit supervisor” and saying “you Middle Eastern people always cause trouble”. I do not consider that any abuse of this nature was said by Patron A at any earlier point, since if it had it is likely that Ms Kim and/or Mr Kornelson would have heard and recalled it. This is significant, because it cannot therefore be said that any such abuse provoked Mr Gurdil’s earlier behaviour.

[72] I further accept Mr Gurdil’s evidence that he then called over two security guards, Ms Young and Mr McLaren to assist, at which point Patron A decamped the scene. He did not leave the casino though, because he subsequently complained to an assistant gaming manager, Mr Carter, who then brought the matter to the attention of Mr Ngo. Mr Gurdil saw Patron A talking to Mr Ngo when he returned from his break. He came over and asked whether he could assist, but Mr Ngo told him to return to his work position. The investigation process unfolded from that point.

[73] There remains the question of whether Mr Gurdil lied when he said at the meeting on 22 March 2013 that he had tried to call a manager in respect of the incident with Patron A on 1 March 2013. The primary matter relied upon by The Star in support of its conclusion that Mr Gurdil had lied was that the CCTV recordings did not show him making any such call. This conclusion is obviously flawed, because as earlier discussed the CCTV recordings did not capture the whole of the period during which Patron A was at the Table. In particular, Recordings 1 and 2 cease immediately after the end of the most heated exchange between Mr Gurdil and Patron A, and then Recording 3 starts about eleven minutes later. Recording 3 ends immediately after a conversation in which Patron A or Mr Gurdil or both of them made reference to getting a manager involved. An appropriate time to call a manager may have been shortly after one or both of these incidents. Mr Gurdil’s contention that he did try to call a manager cannot be demonstrated to be false on the basis of the CCTV recordings.

[74] Mr Gurdil’s evidence was that he made two calls - the first to an unnamed pit manager, and the second some minutes later to Mr Ngo 39 - but was unable to get through to either of them. Mr Ngo’s evidence was that he received no call from Mr Gurdil that day, but that is not by itself in contradiction to Mr Gurdil’s evidence, since Mr Gurdil did not say that he spoke to Mr Ngo. Mr Ngo’s evidence that he was “contactable by telephone that day” was not explored any further by either party. Mr Gurdil’s evidence was that Mr Ngo’s work station had a cordless phone40, but this was not taken up with Mr Ngo, so that I do not know for example whether Mr Ngo had the phone with him at all times or whether, like Mr Gurdil, he left it at his work station so that it would ring out if he was in another area of the casino. Therefore, Mr Ngo’s evidence in this respect again does not demonstrate that Mr Gurdil could not have tried to call a manager on 1 March 2013.

[75] There remains Mr Ngo’s evidence that on 1 March 2013, Mr Gurdil had said to him, in response to a query as to why Mr Gurdil didn’t call him to assist with Patron A, “I looked for a phone but there wasn’t one”. On its face, this statement is inconsistent with what Mr Gurdil said at the meeting on 22 March 2013, and may therefore indicate that Mr Gurdil was not telling the truth. However, Mr Gurdil denied saying this; he said that he said: “I did call you but there was no-one around to answer the phone.” 41 It is not possible for me to reach a firm conclusion about which version is correct. It seems to me to be unlikely that Mr Gurdil would say that there was no phone around when it must have been well known to both of them that there was a phone on the computer podium. It is possible that Mr Gurdil failed to express himself clearly, or that Mr Ngo misheard him or misunderstood him or failed to recollect the conversation accurately. In any event, I am not satisfied that this evidence demonstrates that Mr Gurdil lied when he said at the meeting on 22 March 2013 that he had tried to call a manager.

Investigation and dismissal procedure

[76] Mr Ngo described the steps that he together with Mr Battram took to investigate the 1 March 2013 incident, which may be summarised as follows:

(1) He checked Mr Gurdil’s “Team Track” records on The Star Staff Diary, which disclosed previous counselling and warnings.

(2) He gave notice to Mr Gurdil on 2 March 2013 that he would be investigating the incident.

(3) On 14 March 2013 he had a meeting with Mr Oscar Battram, The Star’s Human Resources Manager, to seek assistance concerning the process. Mr Battram told him to obtain the CCTV footage.

(4) On or about 16 March 2013, he requested Ms Tanya Hunt, the surveillance security manager, to arrange for him to view the CCTV footage on Pit 8 for 1 March 2013.

(5) On or about 17 March 2013, he viewed the CCTV recordings. As earlier stated, he was only shown the CCTV recordings which were placed in evidence in this proceeding. Mr Ngo said he was “appalled” by what he saw, and that Mr Gurdil behaved “like a bull on a rampage”.

(6) He and Mr Battram met with Mr Gurdil on 22 March 2013. Mr Gurdil had a support person present. Mr Gurdil was asked to describe the incident, and said that Patron A insulted him by calling him “shit manager, arrogant and saying that middle eastern people are trouble makers”. He said that he had tried to call the manager, and that Mr Kornelson and Mr Vuong were witnesses and would support his story. Mr Ngo interposed at this point to say that Mr Gurdil’s claim that he had tried to call a manager contradicted his earlier statement to him that he had looked for a phone but there was none around.

(7) The meeting was terminated on the basis that there would be further investigations and Mr Gurdil would be suspended on full pay.

(8) Statements were obtained from Mr Kornelson and Mr Vuong, and a further statement from Ms Kim, over the next few days.

(9) On 27 March 2013, Mr Ngo and Mr Battram had a further “outcome meeting” with Mr Gurdil. Mr Gurdil had a support person present. Mr Battram said that Mr Gurdil’s claims had been further investigated, that the CCTV footage did not show that he made any attempt to make a phone call, and that he had broken the Code of Conduct by acting aggressively towards a patron. He was informed that his employment was being terminated.

[77] Mr Battram’s statement of evidence concerning the investigation and dismissal procedure 42 was admitted without him being required to attend for cross-examination. He largely confirmed Mr Ngo’s account of the procedure concerning the investigation of the 1 March 2013 incident and Mr Gurdil’s dismissal, but added some detail in that respect. His evidence demonstrates that:

(1) Mr Gurdil appeared not to know the precise purpose of the 22 March 2013 meeting. Mr Battram recounted the following exchange at the commencement of that meeting:

(2) Mr Gurdil apologised at the 22 March 2013 meeting for any inappropriate conduct which occurred on 1 March 2013, saying:

(3) After the 22 March 2013 meeting, Mr Battram had Mr Ngo review the CCTV recordings to see if Mr Gurdil had tried to call a manager as he had said.

(4) The decision to dismiss Mr Gurdil was taken by Mr Battram in consultation with Ms Paula Hammond, the General Manager of Human Resources, Mr Ratu, The Star’s in-house lawyer, and Ms Heather Scheibenstock, the General Manager for Gaming.

(5) The dismissal was on the following basis:

(6) In stating the reasons for Mr Gurdil’s dismissal at the “outcome meeting” of 27 March 2013, Mr Battram made it clear that a conclusion that had been reached that Mr Gurdil had lied when he said he tried to call a supervisor, on the basis that the CCTV recordings did not show him doing this.

[78] Mr Battram annexed to his statement The Star’s Code of Conduct. 43 The Code includes the following:

[79] Mr Battram also annexed to his statement records demonstrating that Mr Gurdil had received training with respect to the Code of Conduct, including as recently as 17 August 2012. Given that Mr Gurdil did not contest anything contained in Mr Battram’s statement, I accept the evidence contained in that statement.

[80] I note that the evidence of Mr Battram and Mr Ngo, taken together, demonstrates three things with respect to the procedure leading to Mr Gurdil’s dismissal. First, he was never confronted with any specific allegation to answer concerning his conduct. He was not given notice of the purpose of the meeting of 22 March 2013, and only asked at that meeting to give his account of what happened on 1 March 2013. The second meeting of 27 March 2013 was an “outcome meeting”, which was only for the purpose of advising Mr Gurdil of the conclusions The Star had reached arising out of its investigation and its decision to dismiss him. The suspension letter of 22 March 2013 49 (wrongly dated 21 February 201350) stated that at a follow-up meeting Mr Gurdil would be “given the opportunity to respond to the reason(s) for your suspension of employment as well as any results obtained from the investigation process”. This never happened. Second, Mr Gurdil was never shown the CCTV recordings upon which the decision to dismiss him was based. Third, no alternative to dismissal as a response to Mr Gurdil’s conduct was ever considered or discussed.

Consequences of dismissal

[81] At the time of his dismissal, Mr Gurdil was working on a part-time basis, three days per week, and was earning approximately $1800.00 per fortnight. He has not been successful in finding any alternative employment since his dismissal, despite applying for a range of different jobs which he identified in his evidence. 51 He is not entitled to any unemployment benefits because his wife works full-time.

An unfair dismissal?

[82] Section 387 of the Act requires the Commission, in considering whether a dismissal was harsh, unjust or unreasonable, to take into account a number of matters specified in paragraphs (a) to (h) of the section. I will deal with each of these matters in turn below.

Paragraph 387(a)

[83] Based on the findings I have made in relation to the incident on 1 March 2013, I am satisfied that The Star had a valid reason to dismiss Mr Gurdil based on his conduct towards Patron A on that day. The Star operates in the hospitality industry. Providing patrons with an enjoyable experience is a critical part of its business. High quality customer service was an important part of Mr Gurdil’s duties. Staff at the casino will from time to time have to deal with difficult patrons, and to resolve disputes between patrons. This may occasionally require them to speak firmly, perhaps even forcefully, to patrons. However, I consider that Mr Gurdil’s conduct towards Patron A which can be seen in the CCTV recordings at about 15.47.17 to 15.48.01 and 15.50.06 to 15.50.30 goes beyond reasonable bounds in that respect. Mr Gurdil clearly over-reacted to the situation before him, and conducted himself in a manner which can fairly be characterised as rude and discourteous, and aggressive and intimidating in effect. This is to be seen not so much in what he said (although aspects of what he did say to Patron A, such as “I have problems with you”, were inappropriate) as in his body language. Bending over the Table and pointing quite closely to Patron A’s face, in particular, was behaviour that was likely to, and did, intimidate and upset Patron A. Additionally, it is apparent that Mr Gurdil’s voice was raised to a degree that was quite unnecessary.

[84] This conduct clearly breached the requirements in The Star’s Code of Conduct that “Employees should never behave in a rude or discourteous manner to a patron...” and that respect must be afforded to patrons. The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was recently discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 52 as follows:

[85] Although I do not think that Mr Gurdil’s behaviour was necessarily wilful in the sense of being consciously intended (a matter I consider later), it was certainly a patent and not insignificant breach of the Code of Conduct such as to meet the standard of constituting a valid reason for dismissal related to the employee’s conduct.

[86] Insofar as I am not satisfied that Mr Gurdil lied at the 22 March 2013 meeting when he said he had tried to call a manager, I do not consider that that matter constitutes a valid reason for Mr Gurdil’s dismissal related to his capacity or conduct.

Paragraph 387(b)

[87] Mr Gurdil was notified of the valid reason for dismissal which I have identified above at the “outcome meeting” on 27 March 2013 and in the letter sent to him identifying the reasons for his dismissal dated 28 March 2013.

Paragraph 387(c)

[88] I do not consider that Mr Gurdil was given an opportunity to respond to any reason related to his capacity or conduct. He was given an opportunity to give an account of the 1 March 2013 incident at the meeting on 22 March 2013. However, he was not notified of the purpose of that meeting in advance, he was not asked to respond to any specific allegation (such as whether he had breached the Code of Conduct), and he was never given an opportunity to view the CCTV footage upon which the decision to dismiss him was substantially based. The meeting on 27 March 2013 was merely for the purpose of advising Mr Gurdil of the outcome (dismissal), and did not involve any further opportunity being afforded to him to respond.

[89] However, I consider this factor as being neutral on the question of whether Mr Gurdil’s dismissal was harsh, unjust or unreasonable. This is because I consider that, had Mr Gurdil been given an opportunity to respond directly to any reason relating to his capacity or conduct, it is highly unlikely that he would or could have said anything additional to what he actually did say which would have made any difference to the outcome.

Paragraph 387(d)

[90] Mr Gurdil was allowed to and did have a support person present at the meetings on 22 and 27 March 2013.

Paragraph 387(e)

[91] Mr Gurdil was dismissed for serious misconduct, not for unsatisfactory performance, so this consideration is not relevant. As earlier stated, Mr Gurdil had been subject to some previous warnings or reminders about customer service issues, but I will consider this as a paragraph 387(h) matter.

Paragraph 387(f)

[92] The Star is a large business enterprise, so that I do not consider that its size would be likely to impact on the procedures followed in effecting Mr Gurdil’s dismissal.

Paragraph 387(g)

[93] The Star has dedicated human resource management specialists and expertise, so this consideration is not relevant.

Paragraph 387(h)

[94] Notwithstanding my finding that there was a valid reason for Mr Gurdil’s dismissal based upon his conduct on 1 March 2013, I have concluded on the basis of a number of other matters which I consider to be relevant that Mr Gurdil’s dismissal was harsh. The basis upon which a dismissal may be found to be harsh, unjust or unreasonable, notwithstanding a finding that there was a valid reason for dismissal based upon conduct in breach of employer policy was recently explained by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post 53 in the following terms:

(1) The acts or omissions that constitute the alleged misconduct on which the employer relied (together with the employee’s disciplinary history and any warnings, if relied upon by the employer at the time of dismissal) but otherwise considered in isolation from the broader context in which those acts or omissions occurred.

(2) The broader context in the workplace in which those acts or omissions occurred. [This may include such matters as a history of toleration or condonation of the misconduct by the employer or inconsistent treatment of other employees guilty of the same misconduct.]

(3) The personal or private circumstances of the employee that bear upon the substantive fairness of the dismissal. [This includes, matters such as length of service, the absence of any disciplinary history and the harshness of the consequences of dismissal for the employee and his or her dependents.]

[95] In this case there are four relevant matters which I consider lead to the conclusion that Mr Gurdil’s dismissal was “harsh” in both the senses discussed in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd 54, that is, “harsh in its consequences for the personal and economic situation of the employee” and “because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[96] The first and most significant matter is the length and quality of Mr Gurdil’s employment record. I have earlier analysed in detail and stated my conclusions concerning his employment history. Mr Gurdil was for 16 years a consistently well-performing employee overall, and from the year 2001 until performance reviews ended in 2011 was assessed as either meeting or exceeding expectations or successful or consistent in the area of customer service. He received many highly positive comments about the standard of his customer service. Insofar as I have identified a flaw in his approach to customer service, it was very rarely exhibited, and did not cause his customer service performance to be negatively assessed. Prior to 2012, The Star could only point to three specific incidents of concern, only two of which (at best) related to customer service and which fell years apart. There were two recorded incidents in 2012, but the limited documentation of these matters and Mr Gurdil’s evidence concerning them makes it difficult to properly assess their nature and quality. It is sufficient to note that he was “spoken to” about one of these and given a reminder about the other, which does not suggest they were given the degree of seriousness which was suggested in The Star’s submissions in this matter. I also note Mr Gurdil’s evidence that in the year before his dismissal he had been rostered 90% of the time as gaming supervisor and only 10% as a dealer 55, which tends to indicate that The Star retained confidence in him. Therefore, although Mr Gurdil cannot be said to have had a perfect employment record, he had a very good one considering the length of time he has worked at the casino. Having regard to the general tenor of the reviews of his overall work performance and his customer service standards, his behaviour on 1 March 2013 can be characterised as out of the ordinary and uncharacteristic of his usual behaviour with customers. In this connection I refer again to the comment that was made in his 2011 performance review:

[97] The second is there are some mitigating factors as to the actual incident on1 March 2013. The actual behaviour which I have found constituted a valid reason for dismissal extended over a very short period of time - approximately 70 seconds. Mr Gurdil was dealing with a difficult patron who had piggybacked or been involved in piggybacking twice, who breached the “three bets per box” rule immediately after Mr Gurdil had spoken to him and in front of him, and who was interfering in Patron B’s participation in the game by telling her not to open new boxes. I have earlier characterised Mr Gurdil’s response as aggressive and intimidating in effect, but I do not think he consciously intended to behave in that way. What we can see is a temporary loss of self-restraint, exacerbated by the use of inappropriate hand gestures by someone who characteristically “talked with his hands”.

[98] The third is that the personal and economic consequences for Mr Gurdil have been severe. He has been unemployed since his dismissal, despite genuine efforts to obtain alternative work, and is not entitled to any unemployment benefits. It is likely to be the case that, with no references for his last 16 years of employment and a dismissal for badly treating a customer on his employment record, it will be difficult for him to find future employment in the hospitality industry or indeed anywhere else.

[99] The fourth is that no consideration was given by The Star to any response to Mr Gurdil’s conduct other than dismissal. I consider that, having regard to Mr Gurdil’s 16 years of service and his positive performance reviews, fairness required that some consideration be given to alternatives, such as demotion, transfer to a different part of The Star’s operations, counselling, re-training, closer supervision, an apology to the patron and/or a final warning.

Remedy

[100] Having found that Mr Gurdil was protected from unfair dismissal, and that his dismissal was harsh, it is necessary to consider what if any remedy should be granted to him. As earlier stated, Mr Gurdil seeks the remedy of reinstatement. The Star submitted that, should the Commission find that his dismissal was unfair, it should not reinstate him because it “has no trust or confidence in Mr Gurdil’s ability or willingness to be able to comply with its Code of Conduct in the future”. In this connection, it pointed to the earlier “failures” by Mr Gurdil to comply with the Code and submitted that the events of 1 March 2013 demonstrated that he had not “changed his ways”.

[101] I have already considered Mr Gurdil’s employment record prior to 1 March 2013. Based on the conclusions I have stated I do not consider that, considered objectively, that record is such as to give rise to a lack of trust or confidence as to Mr Gurdil’s capacity to comply with The Star’s Code of Conduct. The real question is whether Mr Gurdil has demonstrated sufficient understanding that his behaviour on 1 March 2013 was inappropriate and unacceptable such as to give rise to a sufficient level of confidence that conduct of that type will not recur if he is reinstated.

[102] I was concerned that Mr Gurdil initially put to the Commission a denial that he was aggressive or intimidating and that he regarded himself as having acted appropriately under “confronting circumstances”. Mr Gurdil’s further claim, not supported by any evidence, that he was the victim of a clean-out of staff by The Star did not assist his case either. However it is in this context that I must make some allowance for the fact that Mr Gurdil was a self-represented lay person and therefore put in the difficult position of being both witness and advocate in his own case. If Mr Gurdil had been represented by a lawyer or experienced advocate, no doubt his case would have been presented more skilfully and subtly and to greater advantage.

[103] During the course of the conference, Mr Gurdil was taken by counsel for The Star in great detail through the CCTV recordings, with various aspects of what was recorded being played, stopped, and then being the subject of detailed questioning. I am satisfied that through this process, Mr Gurdil demonstrated enough self-awareness as to his conduct towards Patron A as to give rise to sufficient confidence that such conduct will not recur if he is reinstated. Mr Gurdil gave evidence or made submissions to the effect that he should not have leant over the Table when addressing Patron A but should have stood back 56, that he accepted that his behaviour could be perceived as being aggressive and did not “look right”57, that if he could go back and change what he did he would not have leaned over the Table and pointed at Patron A58, that he was not being as polite as he should have been when he leant over the Table and talked with his hands59, that he had learned not to be aggressive and be more “submissive”60, and that he recognised and admitted that what could be seen on the CCTV was significantly wrong61.

[104] I therefore consider that the appropriate remedy is an order under s.391 of the Act reinstating Mr Gurdil to the position in which he was employed immediately before the dismissal, namely as a part-time Higher Duties Dealer at The Star’s casino. I also consider it appropriate to make an order under s.391(2)(a) to maintain the continuity of Mr Gurdil’s employment. However, I do not consider it appropriate to make any order for lost pay under s.391(3). This is because Mr Gurdil must bear a substantial degree of responsibility for the financial consequences of his dismissal. It will also serve to reinforce with Mr Gurdil that his conduct on 1 March 2013 was inappropriate and must not happen again.

[105] A separate order will issue giving effect to this decision.

VICE PRESIDENT

Appearances:

Mr I. Gurdil on his own behalf.

Mr T. Saunders of counsel instructed by Mr M. Sant and Mr Z. Costi solicitors for The Star.

Hearing details:

2013.

Sydney:

6 and 9 August.

 1   Exhibit I. The position description was informally produced by The Star after the completion of the conference at my request, and marked as an exhibit although not tendered by either party. The Star requested and was granted the opportunity to be heard in relation to the contents of Exhibit 1, and provided a short written submission dated 10 September 2013.

 2   A number of the performance reviews were put into evidence by The Star. The performance reviews for 2010 and 2011 were produced by The Star during the conference at my request, and were marked Exhibit G and H respectively. After the end of the conference, The Star produced (but did not tender) the performance reviews for 1999, 2001, 2005, 2006, 2007 and 2008 in response to an email communication from my associate dated 29 August 2013. Because I considered them relevant to Mr Gurdil’s employment history, I determined to admit them into evidence and marked them Exhibit K.

 3   Referred to at p.6 of The Star’s Code of Conduct as the “Five F’s”.

 4   Exhibit F paragraphs 6-7

 5   PN 1354

 6   Exhibit D paragraph 21

 7   PN 1340-1342

 8   Exhibit 1

 9   PNs 41-46

 10   PNs 234-250

 11   PN 54

 12   PN 50

 13   PNs 307-308

 14   PN 373

 15   PNs 352-355

 16   PNs 389-390

 17   PNs 392-393

 18   PNs 648-649

 19   PNs 693-711

 20   PNs 502-505

 21   PN 739

 22   PNs 506, 516

 23   PNs 522-524

 24   PNs 834-843.

 25   PNs 844-846

 26   PNs 159-170

 27   PNs 171-176

 28   PNs 272-276

 29   PN 1113

 30   Exhibit C

 31   Exhibit C Annexure DK1

 32   Exhibit C Annexure DK2

 33   PNs 1215-1224

 34   Ex B Annexures OB9 and OB10

 35   PNs 1128-1160

 36   PNs 1161-1165

 37   PNs 1322-1334

 38   PN 1337

 39   PNs 160-176

 40   PN 89

 41   PNs 891-892

 42   Exhibit B

 43   Exhibit B Annexure OB4

 44   Ibid page 96

 45   Ibid page 98

 46   Ibid page 99

 47   Ibid page 108

 48   Ibid page 111

 49   Exhibit B Annexure OB7

 50   Exhibit B paragraph 19

 51   PNs 94-98

 52   [2013] FWCFB 6191

 53   Ibid

 54   (1995) 185 CLR 410 at 465

 55   PN 1671

 56   PN 393

 57   PNs 648-649

 58   PN 1079

 59   PNs 1681-1683

 60   PN 2282

 61   PNs 2293-2294

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