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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
[2013] FWC 7574
DECISION
E AUSTRALIA FairWork Commission
[2013] FWC 7574
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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
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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.
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(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
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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.
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(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.
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[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
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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
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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
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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.
Printed by authority of the Commonwealth Government Printer
Price code C, PR542649
1 Section 400(1).
2 Section 400(2).
