Gurdil, Ismail v The Star (Casino) - [2013] FWC 6780

1

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

On 1 March 2013, you engaged in serious misconduct by breaching The Star’s 
Employee Code of Conduct. Specifically, on 1 March 2013, you verbally abused a 
patron and lied to avoid the incident.

Outcome

Your behaviour is in breach of The Star Employee Code of Conduct which states that:

“The Star expects you to:
Show respect, trust and care for the company, your colleagues and our customers

Your behaviour has caused reputational damage to The Star.

In addition this is not an isolated incident. You have been spoken to both formally and 
informally about your behaviours and conduct as well as being reminded of the Code 
of Conduct in the past.

All employees of The Star are expected [to] comply with the Code of Conduct. Your 
behaviour is a serious breach of our Code of Conduct and your contract of 

[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.]

DECISION


E AUSTRALIA FairWork Commission




 

https://www.fwc.gov.au/documents/decisionssigned/html/2013FWC7574.htm


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employment with us. Accordingly, your employment has been terminated with effect 
27 March 2013.”

[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:

(a) Mr Gurdil’s application was made within the period required by s.394(2);

(b) Mr Gurdil was a person protected from unfair dismissal;

(c) The Star was not a “small business employer” as defined in s.23 of the Act, so 
that the Small Business Fair Dismissal Code was inapplicable; and

(d) Mr Gurdil’s dismissal was not a case of genuine redundancy.

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 








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position description1 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:

(1) The “Position Purpose” of a dealer/supervisor is to “[p]rovide world class 
customer service whilst ensuring the efficient and accurate operations of the 
designated table game/s in your areas of responsibility.

(2) The following “Key Responsibilities & Accountabilities” apply to both dealers 
and supervisors:

(a) “Clearly demonstrate to customers and team members a commitment to 
service excellence through the effective implementation and delivery of 
the 5F-behaviours at all times”;

(b) “Develop and maintain relationships with customers to achieve 
established service standards and repeat business”;

(c) “Demonstrate the 5F behaviours and Star Values”.

(3) The following “Key Responsibilities and Accountabilities” are applicable to 
the supervisor role:

(a) “Manage operational problems within relevant area of responsibility 
and escalate complex problems to Assistant Gaming Manager”;

(b) “Investigate customer service queries and concerns with diplomacy and 
tact and provide appropriate response in line with established SOPs 
including escalation of issues as required”; and

(c) “Demonstrate the 5F behaviours and Star Values.”

[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.

                                               
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.








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[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:

“Jim is generally agreeable and pleasant, however he can at times be 
short with patrons and this can be interpreted as rudeness. Keeping 
personal feelings under control will help [him] improve in this area”.

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

“Jim needs to develop a more consistent style of customer service. At 
times Jim appears to be short with customers. This is not always 

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








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conducive to keeping guests satisfied. He has demonstrated that he has 
the ability to deliver customer service in a consistent fashion.”

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

“Jim, you must make a concerted effort to improve your customer 
service and teamwork as discussed with your community leaders. This 
is a requirement if you are to progress to the next level (G/Sup).”

(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):

“Jim is quick to greet his patrons and offer assistance where necessary; 
he tailors his approach and level of interaction to each individual. He 
demonstrates a high level of awareness of his responsibilities and 
creates a positive image of himself and Star City. Jim displays 
positive mannerisms and is generally able to accurately walk the fine 
line between customer and business needs; he always aims for the 
right balance attempting to satisfy both. Occasionally Jim has 
demonstrated a forceful and assertive character, although not 
aggressive, it is important to keep in mind how this may be seen or 
interpreted by others.”

(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):

“Jim’s internal and external customer service is generally at a high 
standard. He has a good rapport with regular patrons, ensures 
customer expectations are met by anticipating their needs and attempts 
to assist wherever possible. However Jim needs to consistently 
manage difficult situations by remaining impartial at all times, 
particularly as his manner can occasionally be interpreted as 
confrontational. Customer feedback form received in February 2003 
from a patron praising Jim’s customer service.”

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

“Jim achieves a friendly and welcoming atmosphere on his tables. He 
does this by greeting players, making eye contact and acknowledging 
their transactions. Jim has developed good working relationships with 
the players and they look forward to him dealing. On a few occasions 
Jim has become agitated with particular players and this has resulted 
in Jim using a confrontational manner and harsh tone with patrons.
WFMS comments 30/05/03, 08/11/03, 14/12/03, 2/04/04 for 
behaviour related incidents.”








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

“Jim generally interacts well with both internal and external customers, 
creating an atmosphere that is both comfortable and enjoyable. Jim at 
times must be aware that external patrons do not have the same 
knowledge of Star City’s rules and procedures as himself and must 
become more patient and understanding in explaining these to our 
customers in a subdued tone and manner so he won’t be taken the 
wrong way.”

[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:

“Jim demonstrates a friendly, courteous and professional atmosphere when dealing with 
players and co-workers. He constantly seeks ways to serve his patrons by identifying 
their needs and making them feel welcome. He exhibits cordial relationships with his 
peers and supervisors.”

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

“Jim provides a quality service to internal and external customers that is friendly yet 
understated. He is happy to act on customer needs and through his example, 
encourages staff to maintain a positive and professional image.

Jim displays a calm demeanour during conflict resolution and stressful situations in his 
role as a Higher Duties Gaming Supervisor. Jim understands the respect of patrons 
needs, responding quickly and decisively while seeking to resolve their issues within 
the rules and regulations.”

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

“Jim’s contributions have been greatly appreciated with his commitment and consistent 
efforts that he has produced through this appraisal period. Thank you for your efforts 
during this year Jim - Well Done.”

[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:

“Jim asked a patron seated on box 8 to pick up some used score cards from the floor, 
which the man had supposedly pushed to the floor. The patron replied forcefully that 
this wasn’t his job. Jim replied that he wasn’t going to be spoken to in this manner. Jim 








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inflamed the situation by displaying a aggressive manner. Jim’s initial request was 
unreasonable of a patron, and his reaction to the patron’s discontent was 
unprofessional. Jims actions are in breach of Star City’s Code of Conduct 1.18 ‘Rude 
or discourteous behaviour to a patron, colleague or manager’.”

[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:

“Before midday on 04/11/07, Jim gave Dealer, Deborah Chesworth, a break in Pit 15. 
When Deb returned to the Pit, Jim made it clear to her that he was unhappy, claiming 
in front of players and other staff that she was late. Later, Deb approached Jim in the 
Canteen to discuss the matter further where Jim reiterated his belief that she had been 
tardy. In the course of this exchange, Jims manner was hostile and aggressive and 
included swearing at Deb. Deb responded very poorly by throwing the cup of water 
she was drinking into Jims face before walking away. This behaviour within the 
business environment is unacceptable and in breach of The Star City Code of 
Conduct.”

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:

“On 26th January 2010 at 16:45 EM0514 Jim Gurdil called his supervisor over John 
Ostenfeld and pointed at the lady on box 3 and said ‘this thing is piggybacking’ John 
astounded asked sorry? Jim then repeated ‘this thing is piggybacking’. Calling a patron 
a thing will not be tolerated see below.”

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”:

“ENTRY: On 4/02/12 @ 18:49 whilst dealing roulette on 08-02, Jim displayed poor 
customer service, he indicated no more bets in an incorrect manner & flicked chips off 
the layout towards customers that he deemed were late, he also responded badly when 
customers complained about his actions towards them.








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ACTION TAKEN: Upon reviewing the footage it was clear that Jim had acted poorly. 
He was taken off the table shown the footage & spoken to about his actions. It was 
enforced that he is to deal to rules & procedures whilst maintaining a positive and 
professional attitude at all times regardless of how annoying players can be. He was 
somewhat apologetic.”

When this incident was raised with Mr Gurdil in cross-examination, he said the problem arose 
because the customer wanted to place a bet after he had called “no more bets”. He accepted 
that he should have been more “submissive” in dealing with the customer, but pointed out that 
if he had allowed the customer to lay his bet, he would have been in the wrong if the 
customer’s number had come up.

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

“At 12.30 whilst dealing on 04.01 Jim had words with a player on the table. 
Subsequently the patron made a complaint about Jim and what he said. Jim denied that 
he swore. Jim was reminded about his customer service.”

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








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[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:

“28. Dispute Resolution

1. In the event a patron makes a complaint, the dealer will notify a gaming 
supervisor who is to determine the basis of grievance and the validity of the complaint.

2. The gaming supervisor will attempt to resolve the complaint/dispute/error 
whilst observing all rules, internal controls and departmental policies and procedures.

3. Where available the gaming supervisor will consult the PitCam system to 
assist in resolution of the dispute or error. Where the PitCam system is not available or 
cannot assist to resolve the dispute the casino supervisor will contact Surveillance 
Department for assistance.

4. The gaming supervisor, using all resources available to him/her, will resolve 
the dispute and notify the patron of the outcome.

5. Should the investigation and resolution of the dispute take more than 5 minutes 
or if the patron is not accepting of the gaming supervisors ruling, the gaming 
supervisor will contact the Assistant Gaming Manager (AGM) to enable the AGM to 
investigate the matter.

6. If the casino supervisor believes that an illegal activity may have occurred 
he/she will inform the Surveillance Department immediately.

                                               
4 Exhibit F paragraphs 6-7








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7. In any dispute arising out of the playing of the games, the decision of the 
casino supervisor is final. Where the patron is not satisfied with the decision of the 
casino supervisor the patron is to be advised of their right to lodge a complaint with 
and ILGA Inspector.”

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). 

15.46.11 Recordings 1 and 2 commence. There is a man with grey hair and a 
grey shirt sitting at the bottom left-hand table (the Table) as seen in Tape 2 (Patron A). 
He is the second patron from the left at the Table. Mr Gurdil is standing nearby the 
Table. The dealer is Ms Duri Kim, who gave evidence at the hearing. The dealer at the 
table to the right in Recording 2 is Mr Tommy Vuong, who made a statement 

                                               
5 PN 1354
6 Exhibit D paragraph 21
7 PN 1340-1342








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concerning the incident. The dealer at the table above in Recording 2 is Mr Lloyd 
Kornelson, who also made a statement.

15.46.26 A female patron with black hair and a pale pink shirt (Patron B), who 
had not been sitting at the Table, walks up to the Table and begins to participate in the 
game from a standing position.

15.46.44 Patron B places some chips near the betting box immediately in front of 
Patron A (Box 4). Patron A picks up the chips and places them on top of one of three 
bets that is already in the shaded area of Box 4. Mr Gurdil and The Star agree that this 
constituted piggybacking. Mr Gurdil is observing the game when this happens.

15.46.50 Patron B appears to initiate an exchange with Mr Gurdil, and he 
appears to nod and say something back.

15.46.53 Patron B points to Patron A and/or Box 4, and says something to Mr 
Gurdil. She then leans forward and moves her chips from the shaded area of Box 4 to 
the main area of Box 4. As she does this, Mr Gurdil begins to speak, and in doing 
initially shakes his head and then waves his right arm. It is not clear to whom he is 
speaking.

15:47:00 Mr Gurdil slightly leans over the Table to the left of Duri Kim and 
points with three fingers extended in the direction of Patron A, and appears to say 
something to him. There then appears to be an exchange between Patron A and Patron 
B, and Patron B leans over and retrieves her chips from Box 4. Mr Gurdil retreats back 
to an upright position.

15.47.17 Patron A moves his chips from Box 7 to the shaded area of Box 2. 
There are three bets in the shaded area of Box 2 already, albeit one is not properly 
placed in the box. In doing this, Mr Gurdil and The Star agree, Patron A breached the 
“three bets per box” rule. Mr Gurdil intervenes, he taps or perhaps slaps his hand on 
the table twice, leans over the table beside Ms Kim at close to a 45 degree angle, 
points his index finger at Patron A and says something to him. He then retreats 
somewhat while Ms Kim removes Patron A’s chip from Box 2, and puts the other 
three bets neatly in Box 2. 

15.47.23 Mr Gurdil then moves around the back of Ms Kim from her left side to 
her right side. He proceeds to lean over the table to bring himself closer to Patron A, 
and points with his right hand to Patron A. He also points at the table and then 
gestures with his right hand. It is evident that he is saying something forcefully to 
Patron A. This continues for about 25 seconds, and he later points again at the boxes 
on the Table. It appears from his hand gestures that Patron A said something in 
response during this period.

15.47.49 Patron A says something to the female patron to his left (Patron C), and 
then she and the male patron to her left (Patron D) say something to Mr Gurdil. He 
responds, still leaning over the table and pointing at the Table in vicinity to Box 4.








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15.48.02 Mr Gurdil retreats and stands upright, but still speaking to Patron D and 
perhaps Patron C. Shortly afterwards, Patron A gestures towards Mr Gurdil and says 
something. Mr Gurdil moves away from the Table.

15.48.10 Mr Gurdil moves to the Table to the left of Ms Kim, leans over slightly 
and speaks to Patron D. They both use hand gestures. Mr Gurdil then retreats from the 
Table again and slowly walks backwards down the corridor towards another table.

15.48.20 Patron A speaks to Patron C, at one point putting his hands out on the 
table (the gesture suggests that he may have been saying something to the effect of 
“what did I do wrong?”).

15.49.25 Mr Gurdil walks to the podium and looks at the screen there for about 
20 seconds.

15.49.48 Mr Gurdil has a conversation with a patron at Mr Vuong’s table for 
about 15 seconds. The conversation is clearly non-hostile, but Mr Gurdil gestures 
emphatically with his hands during it.

15:50:06 Mr Gurdil slowly walks backwards down the corridor. Patron A looks 
in the direction of Mr Gurdil, but it is unclear whether Patron A says anything to him. 
Mr Gurdil turns to him, points and puts his fingers to his lips in a “be quiet” gesture. 
Patron A says something to him and gestures. Mr Gurdil moves closer to the right of 
Ms Kim, points to Patron A with his pen in his right hand, leans over the Table at 
about 45 degrees, and clearly speaks forcefully to him. Patron A speaks back and 
makes some gestures. He appears to become heated and points to Mr Gurdil. Mr 
Gurdil retreats back, still speaking and pointing. The entire exchange lasts about 25 
seconds.

15.50.39 Recordings 1 and 2 end.

16.01.44 Recording 3 begins. Patron A is still seated at the Table, and Mr Gurdil 
is standing near another table.

16.01.50 Patron A gets up from his seat and walks towards Mr Gurdil. As he 
does so he points towards Mr Gurdil and says something which gets his attention. Mr 
Gurdil then walks towards Patron A and a conversation commences. This occurs in the 
space between the Table and Mr Kornelson’s table. Patron A makes some gestures, 
and then Mr Gurdil speaks and gestures as well with his right hand. The conversation 
takes about 20 seconds.

16.02.12 Mr Gurdil walks to the podium and obtains a piece of paper, and then 
walks back towards Patron A. He places the paper on Mr Kornelson’s table and writes 
something on it. He then tears a strip from the paper and gives it to Patron A. There is 
a further conversation between them, which primarily involves Patron A speaking and 
gesturing. The conversation ends with Patron A making a dismissive gesture and 
walking away out of the screen. Mr Gurdil appears to watch him for a short while, 
then turns away.

16.02.52 Recording 3 ends.








[2013] FWC 6780

13

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 evidence8 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:

“... stepped in to inform the patron that he cannot combine bets and stopped him from 
doing it further, by moving the chips from the layout. The customer became aggressive 
and began to make derogatory remarks towards me. To diffuse [sic] the situation I 
walked away from the Table to call a Pit Manager. There was no immediate Pit 
Manager available for me.”

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:

“The patron approached me some minutes later, demanding to speak to a Pit Manager. 
There was still no available Pit Manager to be seen, so I tried to call a Pit Manager via 
the casino phone to which there was no response.

                                               
8 Exhibit 1








[2013] FWC 6780

14

I was then due to go on my break, as I left my work station, the aggressive patron 
followed me and was still very abusive towards me. At Pit 6, I had to flag two security 
officers for help. At this point the patron ran for the exit as security approached.”

[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:

“Take off all piggyback bets. If you want to play, play fairly”. 

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, 

                                               
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 








[2013] FWC 6780

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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

                                               
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








[2013] FWC 6780

16

[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 evidence30, 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:

“Take off all piggyback bets. If you want to play, play fairly”.

[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:

Gurdil: If you want to play, play fairly.
Patron A: I didn’t do anything wrong, why are you angry at me?
Gurdil: You always do things like that.
Patron A: What did I do? I didn’t do anything wrong. Why are you saying I am in 

trouble? I don’t have any problems here?
Gurdil: There are no problems on this table. I have problems with you. I have 

been supervising this game and seeing how you have played. You 
always tell people don’t open the box. She is here to play the game and 
not be interrupted by you.

Patron A: Why are you angry at me? You are an arrogant man.

[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:

Patron A: I didn’t do anything wrong.
Gurdil: Shhh [tells him to be quiet by blowing his finger]. If you keep on doing 

it, you are in trouble. I will call security to take you off the table.

                                               
29 PN 1113
30 Exhibit C








[2013] FWC 6780

17

[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:

Patron A: I didn’t do anything wrong, why are you so angry at me?
Gurdil: You keep telling people don’t play like that, or don’t open more boxes.
Patron A: That’s not me. You are talking about the wrong people. I always come 

here to play.
Gurdil: I have supervised here for seven years. I have been watching how you 

play. All managers know. I can bring any managers here.

[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:

“And after I came back from my break, he came and said “Did you see how old [sic] the 
old guy was to me? Did he threaten you as well as he did to me? He is always like 
that”. The supervisor later claimed that the patron was verbally insulting him by using 
words such as “you middle eastern guy”, but I did not hear of any of that [sic].”

                                               
31 Exhibit C Annexure DK1
32 Exhibit C Annexure DK2








[2013] FWC 6780

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[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

                                               
33 PNs 1215-1224








[2013] FWC 6780

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[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:

“WHAT HAPPENED:

I was dealing black jack and I heard a patron at the table beside me become quite 
vocal. I can’t recall if the dealer called the Supervisor over or if the Supervisor heard 
what was happening and came over to the table and the[n] spoke with the patron. The 
patron was debating something with the Supervisor, later found out this was about 
piggy back betting. I heard the Supervisor ask the patron if he wished to speak to a Pitt 
Boss, (I can’t remember the exact term used, Pitt Boss, Manager, Gaming Manger but 
the gist of it was someone higher up), and the patron immediately calmed down and 
dropped the issue.

The patron then bought this up a few more times as the game was being continued, 
along with subsequent rounds of the game. Each time the Supervisor appeared to 
explain what the policy on the issue was and then I heard him ask if the patron wanted 
to talk to someone higher up regarding the issue. Each time the patron said he did not 
and dropped the issue. The patron eventually left the table but came back a little while 
later, can’t remember the exact time. At this stage I heard the Supervisor again offer to 
get someone higher up involved and the patron dropped the issue. A little while later 
the Patron came back again. I heard the Supervisor offer to escort the patron to speak 
to someone higher up and I am not sure what happened after that as the Supervisor 
was going on a break and let the pit and the same time as the patron but I am not sure 
if they actually did go together or if the Patron again declined to speak with someone 
higher up.

                                               
34 Ex B Annexures OB9 and OB10
35 PNs 1128-1160
36 PNs 1161-1165








[2013] FWC 6780

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From what I could see, and I was not at the table involved so I am missing a lot of 
detail. It appeared as though the Supervisor acted appropriately doing everything 
within his power to resolve the issue and offering the patron the option of escalating 
the issue. But the patron did not want the issue escalated in any way shape or form.”

[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:

“Me: What happened at pit 8?

P: One of the managers was yelling at me and was angry saying that I was going 
to get in troubles.

Me: Why did he yell at you?

IG: I don’t know I didn’t do anything wrong. I don’t know why he was angry at me. 
I asked to see his manager but he said that he didn’t know who was in charge 
and he pointed me to the fish tanks where there was no manager.

Me: I will look into it.”

[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:

“Me: Jim, I received a complaint from a male patron that you were yelling at him 
and acting aggressively. What happened?

IG: There was a patron and he was piggybacking. We were talking and he was 
yelling at me.

Me: Why didn’t you call me? It is procedure to call when there is trouble with a 
patron.








[2013] FWC 6780

21

IG: I looked for a phone but there wasn’t one.

Me: I am going to have a look into this further.”

[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:

“I did not receive any call from Mr Gurdil on 1 March 2013. I was contactable by 
telephone on that day and received calls from other people, but I did not receive a call 
from Mr Gurdil.”

[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”.

                                               
37 PNs 1322-1334
38 PN 1337








[2013] FWC 6780

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[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:

“If you keep on doing it, you are in trouble. I will call security to take you off the 
table”.








[2013] FWC 6780

23

[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.








[2013] FWC 6780

24

[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 Ngo39 - 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.

                                               
39 PNs 160-176
40 PN 89
41 PNs 891-892








[2013] FWC 6780

25

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.








[2013] FWC 6780

26

[77] Mr Battram’s statement of evidence concerning the investigation and dismissal 
procedure42 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:

Battram: Mr Gurdil, we just want to start by asking you some 
questions. First, have you been given 24 hours’ notice of 
this meeting?

Gurdil: Yes, but I don’t know why.

The subsequent dialogue showed however that Mr Gurdil understood that it 
had something to do with what occurred on 1 March 2013.

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

It is not my intention to be rude, if I have been I am sorry. If I can take 
it back, I will.

(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:

“... we made the joint decision to terminate Mr Gurdil’s employment 
with notice on the basis that his conduct towards the patron was 
inappropriate, he hadn’t reported the incident but had told us that he 
had tried to call and his history of similar behaviour. We considered 
Mr Gurdil’s conduct to be a breach of The Star’s Code of Conduct. I 
viewed Mr Gurdil’s conduct as being particularly serious in the 
context of The Star’s business, the success of which depends upon 
patrons being treated with respect and having a positive experience.”

(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.

                                               
42 Exhibit B








[2013] FWC 6780

27

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

(1) “It is the responsibility of all employees to familiarise themselves with the Code. 
Compliance with the Code and The Star’s policies and procedures is a condition 
of employment. Non-compliance is treated as a serious breach that can result in 
disciplinary action which may include termination of employment.”44

(2) “Treatment of colleagues and personal conduct - Employees should never 
behave in a rude or discourteous manner; use indecent, offensive or abusive 
language; become involved in fighting, assault or threaten to do so.”45

(3) “Employees must respect each other and customers and shareholders.”46

(4) “How we act towards each other and the manner in which we conduct ourselves 
is an important part of maintaining our reputation and integrity.
Employees should never behave in a rude or discourteous manner to a patron, 
colleague, supervisor or manager or use indecent, offensive or abusive 
language.”47

(5) “Employees who breach any policy or procedure, including this Code, should 
expect to be subject to disciplinary action. Disciplinary action may include 
transfer to a different department, demotion or termination of employment.”48

[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 201349 (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 

                                               
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








[2013] FWC 6780

28

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 Post52 as follows:

“[35] ... as indicated by Northrop J in Selvachandran, “valid reason” is assessed from 
the perspective of the employer and by reference to the acts or omissions that 
constitute the alleged misconduct, on which the employer relied, considered in 
isolation from the broader context in which they occurred. It is the reason of the 

                                               
51 PNs 94-98
52 [2013] FWCFB 6191








[2013] FWC 6780

29

employer, assessed from the perspective of the employer that must be a “valid reason” 
where “valid” has its ordinary meaning of “sound, defensible or well founded”. As 
Northrop J noted, the requirement for a “valid reason” should not impose a severe 
barrier to the right of an employer to dismiss an employee”. 

[36] A failure to comply with a lawful and reasonable policy is a breach of the 
fundamental term of the contract of employment that obliges employees to comply 
with the lawful and reasonable directions of the employer. In this way, a substantial 
and wilful breach of a policy will often, if not usually, constitute a “valid reason” for 
dismissal.”

[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)








[2013] FWC 6780

30

[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 Post53 in the following terms:

“[41] Nevertheless, it remains a bedrock principle in unfair dismissal jurisprudence of 
the Commission that a dismissal may be “harsh, unjust or unreasonable” 
notwithstanding the existence of a “valid reason” for the dismissal”: Australian Meat 
Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; J Boag & Son Brewing Pty Ltd v John 
Button [2010] FWAFB 4022; Windsor Smith v Liu [1998] Print Q3462; Caspanello v 
Telstra Corporation Limited [2002] AIRC 1171; King v Freshmore (Vic) Pty Ltd
[2000] Print S4213; Dahlstrom v Wagstaff Cranbourne Pty Ltd [2000] Print T1001; 
Erskine v Chalmers Industries Pty Ltd [2001] PR902746 citing Allied Express 
Transport Pty Ltd (1998) 81 IR 410 at 413; Qantas Airways Limited v Cornwall (1998) 
82 IR 102 at 109; ALH Group Pty Ltd T/A the Royal Exchange Hotel v Mulhall [2002] 
PR919205. That principle reflects the approach of the High Court in Victoria v 
Commonwealth and is consequence of the reality that in any given case there may be 
“relevant matters” that do not bear upon whether there was a “valid reason” for the 
dismissal but do bear upon whether the dismissal was “harsh, unjust or unreasonable”. 

[42] Broadly speaking, circumstances bearing upon whether a dismissal for 
misconduct is harsh, unjust or unreasonable fall into three broad categories: 

(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 

                                               
53 Ibid






http://www.fwc.gov.au/alldocuments/PR919205.htm
http://www.fwc.gov.au/alldocuments/PR902746.htm
http://www.fwc.gov.au/alldocuments/PR919842.htm
http://www.fwc.gov.au/decisionssigned/html/2010fwafb4022.htm


[2013] FWC 6780

31

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.]

[43] The determination of whether there was a “valid reason” proceeds by reference to 
the matters in category (1) and occurs before there is a consideration of what Northrop 
J described as “substantive fairness” from the perspective of the employee. Matters in 
categories (2) and (3) are then properly brought to account in the overall consideration 
of the whether the dismissal was “harsh, unjust or unreasonable” notwithstanding the 
existence of a “valid reason”. 
...
[47] In Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 41 IR 452 Sheppard and 
Heerey JJ observed (at p 460): 

“Employers can promulgate polices and give directions to employees as they 
see fit, but they cannot exclude the possibility that instant dismissal of an 
individual employee for non-compliance may, in the particular circumstances 
of an individual case, be harsh, unjust and unreasonable.”

[48] Thus, a finding that an employee has failed to comply with policies and 
procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The 
Commission has consistently applied the proposition that instant dismissal of an 
employee for non-compliance with his or her employer’s policies may, in the 
particular circumstances of an individual case, be harsh, unjust and unreasonable: 
Kangan Batman TAFE v Hart [2005] PR958003, Ross VP, Kaufman SDP and Foggo 
C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross 
VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 
217 (Jupiters) at [12]-[13].”

[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 Ltd54, 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 

                                               
54 (1995) 185 CLR 410 at 465






http://www.fwc.gov.au/alldocuments/PR958003.htm


[2013] FWC 6780

32

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 dealer55, 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:

“Jim displays a calm demeanour during conflict resolution and stressful situations in his 
role as a Higher Duties Gaming Supervisor. Jim understands the respect of patrons 
needs, responding quickly and decisively while seeking to resolve their issues within 
the rules and regulations.”

[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

                                               
55 PN 1671








[2013] FWC 6780

33

[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 back56, 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. 

                                               
56 PN 393
57 PNs 648-649
58 PN 1079
59 PNs 1681-1683
60 PN 2282
61 PNs 2293-2294








[2013] FWC 6780

34

[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.

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Price code G, PR541548


WORK COMMISSION -- AUSTRALIA THE SEAL OF FA

Cases cited by this decision: