DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Gillmore
v
South Oakleigh Club
(U2017/1177)

Application for relief from unfair dismissal – applicant unfairly dismissed – remedy – compensation ordered.

[1] Mr Andrew Gillmore commenced employment with the South Oakleigh Club (the Club) on 16 July 2012 as a Duty Manager. His employment was terminated on 16 January 2017. Mr Gillmore has made an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal.

[2] At the commencement of proceedings I granted permission for Mr Gillmore to be represented by a paid agent, having found that he would be unable to represent himself effectively. I then granted permission on application of the South Oakleigh Club (Club) for it be represented by a paid agent having found that it would be unfair not to allow it to be so represented.

The reason for dismissal

[3] On 29 December 2017 Mr Gillmore was suspended from his employment with the Club by Mr Peter Frost, the General Manager.

[4] On 10 January 2017 Mr Gillmore was provided with a number of allegations against him in writing and asked to respond to them. The allegations were:

1. That on 17 December 2016 he had advised patrons the Club had no money;

2. That on or around 29 December 2016 he had disclosed to a member of the Club (Dave) confidential employment details in relation to Mr Robbie Doyle, the Operations Manager;

3. He had openly spoken negatively and disrespectfully about Mr Doyle and Mr Frost;

4. He had disregarded an instruction from Mr Frost regarding staff not leaving the venue alone; 1

5. He engaged in open conversation of a sexual nature in relation to teenage girls in Thailand with Club member Dave every few shifts in December 2016;

6. He engaged in aggressive and unprofessional behaviour toward Head Chef Mr Abhay Bhasin on 10 December 2016.

[5] Mr Gillmore provided a written response to the allegations on 12 January 2017. In providing the response Mr Gillmore requested a copy of the company policy which he was said to have breached.

[6] On 13 January 2017, and following a meeting between Mr Gillmore, Mr Frost and a representative from Performance HR, Mr Gillmore was presented with a letter marked “without prejudice save as to costs.” 2

[7] The offer contained in the letter was rejected by Mr Gillmore. A counter offer by him was rejected by the Club.

[8] On 20 January 2017 Mr Gillmore received a letter which stated that:

1. The Club accepted his decision to reject its offer;

2. The Club had conducted a further formal investigation and considered the breach of the Sexual Harassment/Bullying prevention policy as serious misconduct;

3. His behaviour amounted to a breach of the company policy on standards of conduct; confidentiality as per the South Oakleigh Induction Manual; and the implied duties in relation to confidential information;

4. Because his employment was terminated for serious misconduct he would not be provided with notice.

The evidence

Andrew Gillmore

[9] Mr Andrew Gillmore gave evidence that Mr Frost commenced working for the Club in September 2016 and Mr Doyle commenced about a month later. He said that Mr Doyle told him that he and Mr Frost had worked together in Queensland, at the Coogee Hotel in NSW and then at the Caulfield RSL.

[10] Mr Gillmore said that it is common knowledge amongst patrons of the Club that the Club was in financial trouble. This was advised to members at an Extraordinary General Meeting of the Club on 20 November 2016. In any event, he says that he did not inform “two female patrons” on 17 December 2016 that the Club had no money as set out in the allegations. He says however that he did advise Elisabeth (the wife of the person who ran Karaoke at the Club each week) that whether she and her husband would be able to continue with the Karaoke in the New Year was dependant on the sale of the car park and renovations to the Club.

[11] Mr Gillmore denies that he ever told patrons of the Club about Mr Doyle’s employment contract. In particular Mr Gillmore said that he did not see “Dave, Mick or Darren” on 29 December 2016 when it is said he passed on this information.

[12] Mr Gillmore said that he has not spoken disrespectfully of Mr Frost or Mr Doyle.

[13] Mr Gillmore gave evidence that the issue of disregarding a lawful direction had been dealt with previously and this was acknowledged in the letter from the Club of 10 January 2017. He denied that he received a verbal warning about the incident.

[14] Mr Gillmore denied that he had ever engaged in conversations of a sexual nature about girls in Thailand. Further, his evidence is that Mr Dave McCreery (“Dave” referred to above), who he is said to have had these conversations with, has never engaged in such discussion with him. Mr Gillmore suggested that people overhearing the conversation might have been confused because Mr McCreery did have a girlfriend who lived in Thailand who he supported financially and he and Mr McCreery had talked of holidaying in Thailand.

[15] Mr Gillmore said that he had not screamed and laughed at the Chef. Rather, he said that the Chef had forgotten to prepare dessert for a function and he spoke to the Chef about his forgetfulness. He said the Chef responded by telling him to shut his mouth and he told the Chef not to speak to him like that.

Peter Frost

[16] Mr Peter Frost is the General Manager of the Club. He took over this position on 12 September 2016.

[17] Mr Frost said that on 1 December 2016 both he and Mr Doyle spoke to Mr Gillmore about his management style and its impact on the team. 3 He said that this resulted in a verbal warning being given to Mr Gillmore.

[18] Mr Frost said that on 5 December 2016 he became aware, through Mr Doyle, that several staff members were complaining about Mr Gillmore’s behaviour. He said that Mr Doyle was asked to meet with each person about their complaints.

[19] On 21 December 2016 Mr Frost said that he was contacted by Elisabeth, the wife of the Karaoke operator. She said, in an email to Mr Frost, that “[w]e have had way too many issues and complaints regarding Andrew [Gillmore] it has actually become extremely uncomfortable. His last comment to two of our lady patrons was “the venue has no money” which in my opinion no one needs to know.” 4 Mr Frost gave evidence that this was the only information he received that Mr Gillmore was disclosing the financial state of the Club to patrons.

[20] Mr Frost denied that it was common knowledge that the Club was struggling financially although agreed that 37 members attended the Extraordinary General Meeting on 20 December 2016 where this was discussed. Further, he said that he had advised those members who did not attend the meeting of the financial stress of the Club and that a decision had been taken to sell the car park.

[21] Mr Frost gave evidence that Mr Gillmore was aware that Mr Doyle had his petrol costs reimbursed through petty cash as he was, at times, responsible for reconciling the petty cash. Mr Frost said however that on 29 December 2016 he received a written complaint from Mr Doyle that Mr Gillmore had been speaking to patrons about these arrangements.

[22] As a result of these matters Mr Frost stood Mr Gillmore down pending a full investigation.

[23] Mr Frost said that, following this, he was approached by a young female staff member who told him that she “recalled an occasion on Friday 13 December 2016” when she had been “uncomfortable in the presence of a conversation between Mr Gillmore and member Mr David McCreery” 5. Mr Frost said that the staff member told him that parts of the conversation were about a “recent trip to Thailand resulting sexual activities and sending money”6 to Thailand. Mr Frost said he considered the conversation posed a risk to the employee’s health and constituted sexual harassment.

[24] Mr Frost agreed that, on looking at the relevant roster, 13 December 2016 was a Tuesday and that Mr Gillmore and the employee in question had not both been rostered to work either that day or on Friday 16 December 2016. 7

[25] Mr Frost subsequently suspended the Club membership of Mr McCreery but did not speak to him about any of the incidents he might have been involved in as he did not consider Mr McCreery would be able to assist.

[26] Following the suspension of Mr Gillmore, Mr Frost and Ms Gillian Stratham (of Performance HR) conducted an investigation. They met with a number of staff members.

[27] Mr Gillmore was provided with a letter of allegations dated 5 January 2017 and a meeting was held with him on 9 January 2017. Further particulars in relation to the allegations were provided to him on 10 January 2017.

[28] Mr Gillmore responded to the allegations in writing on 12 January 2017. Mr Frost gave evidence that “based on his response, it was clear to me he was being dishonest in his responses and with my knowledge of the witness statements, I found the allegations were confirmed.” 8

[29] Mr Frost said he put forward an “amicable cessation” proposal to Mr Gillmore which “would save the Club from the cost of both formally documenting the investigation to prove the serious misconduct and defending a likely unfair dismissal claim…” 9 The offer was not accepted by Mr Gillmore and he was subsequently dismissed for serious misconduct without notice.

Robbie Doyle

[30] Mr Robbie Doyle gave evidence that he commenced as Operations Manager on 14 November 2016. Mr Gillmore reported to him.

[31] He said that a couple of weeks into his employment he started to receive complaints about Mr Gillmore’s behaviour and conduct and that “[s]everal employees indicated their intention to resign or asked to be rostered on shifts when [Mr Gillmore] was not working.” 10 He said he spoke to the staff and asked them to put their complaints in writing. On about 5 December 2016 he received three written complaints about Mr Gillmore and over the following days met with the employees concerned. One of the employees in question did not want any further action taken with respect to her complaint. He then met with Mr Frost and briefed him on the complaints at which point they agreed they needed some expert HR advice.

[32] Mr Doyle said that on 1 December 2016 he and Mr Frost had met with Mr Gillmore and spoken to him about his management style and the effect of this on staff. Mr Doyle said he gave Mr Gillmore a verbal warning and offered him guidance and support .

[33] Mr Doyle gave evidence that on 29 December 2016 he was told by member Mr Darren Landorf that Mr Gillmore had shared with him and Mr McCreery confidential information about Mr Doyle’s fuel card/petrol reimbursement. Mr Doyle said that a few days later another member told him the same thing.

[34] On 29 December 2016 Mr Doyle put a written complaint to Mr Frost regarding Mr Gillmore’s “inappropriate behaviour and conduct.” This complaint included that Mr Gillmore constantly undermined changes in procedure that Mr Doyle was trying to put in place for the effective running of the Club.

[35] Mr Doyle agreed that it was common knowledge amongst patrons of the Club that the Club was in financial trouble.

Darren Landorf

[36] Mr Darren Landorf is a Club member. He said he was at the Club on the afternoon of 29 December 2016 and was party to a conversation where Mr McCreery said that Mr Gillmore told him that Mr Doyle was provided with a fuel card.

[37] Mr Landorf said that he had been at the Club that day for a couple of hours drinking before the Club closed at about 4.00pm because of storm damage. He said that he, Mr McCreery and one other person (Brendan McCarthy) were present at the Club drinking. He had a conversation with McCreery but was not taking a lot of notice after that until told the Club was closing.

Gianni Mercuri

[38] Mr Gianni Mercuri is a Bar and Gaming Attendant at the Club. He has held that position since 30 December 2015.

[39] Mr Mercuri said that Mr Gillmore was a bully and whilst he had raised his concerns about Mr Gillmore to previous General Managers nothing had been done about it.

[40] Mr Mercuri said that on Grand Final day 2016 he was rostered to work from 2.00 pm until 7.00 pm and had approval from Mr Doyle to leave on time but when he confirmed this with Mr Gillmore he “flipped out”, became aggressive and said “that isn’t how it works.” 11 Mr Mercuri later agreed in his evidence that Mr Doyle was not employed by the Club at the time of Grand Final so could not have given approval for him to leave on time.

[41] Mr Mercuri said that on another occasion Mr Gillmore berated him unreasonably for counting his till to ensure it balanced mid-way through his shift.

[42] Mr Mercuri said that he “often” heard Mr Gillmore speaking disrespectfully of the General Manager and Operations Manager and that this occurred on most shifts. He said that as soon as the General Manager or Operations Manager left, Mr Gillmore would change their decisions. On one occasion he said a direction had been given that two people had to stay back at night but that Mr Gillmore made Mr Mercuri and another staff member leave so that Mr Gillmore was the only person left, saying “I don’t care what you have been told.” On another occasion Mr Gillmore stopped Mr Mercuri using a music box (speaker) to listen to music while he was moving tables in a back room even though Mr Doyle had given him permission to use it. Mr Mercuri agreed that Mr Gillmore was his supervisor on shift but thought Mr Gillmore should have known that it had been cleared by Mr Doyle.

[43] Mr Mercuri gave evidence that if he said he had permission from Mr Doyle to do certain things then Mr Gillmore should accept that this was the case without question.

[44] Mr Mercuri gave evidence that whenever Mr Gillmore was working and Mr McCreery was present “there was always inappropriate conversations.” He said that they were usually about girls in Thailand and, while he only heard the tail end of the story, it was clear to him that “they were speaking about paying for sexual favours.” Mr Mercuri said that the conversations between Mr Gillmore and Mr McCreery were about inappropriate matters of a sexual nature that made a few staff members feel uncomfortable over time. He said that he heard them talk of what they had done during their trips to Thailand but he did not like hearing about such things at work.

[45] Mr Mercuri said however that he had not heard Mr Gillmore and Mr McCreery talk specifically about paying for sexual favours as they would only really talk about it once he had walked away and once he got near they would stop.

[46] Mr Mercuri said that on one shift he heard Mr Gillmore say to another staff member that the Club needed to hire more girls as girls bring guys in. 12 He said he found such an attitude (that guys would only come in for the girls and not the service) degrading to women.

[47] Mr Mercuri said that Mr Gillmore spoke inappropriately about staff members and women in particular.

[48] Mr Mercuri said he made a few verbal complaints to Mr Doyle about Mr Gillmore and also put a complaint about a number of matters in writing to Mr Doyle on 5 December 2016. 13 He said that he and Mr Wescombe sat down and spoke to Mr Doyle before he put his complaint in writing. He said he heard a bit of what Mr Wescombe had to say but it was mainly about the incident when he and Mr Wescombe had been sent home leaving Mr Gillmore alone in the Club contrary to an instruction that had been given (although Mr Mercuri agreed that this incident actually occurred on about 30 November 2016).

[49] Mr Mercuri said he prepared his written statement at home, Mr Wescombe was not with him, and he did not share the approach he would take with Mr Wescombe. He said it is not surprising that there might be some similarities in expression between his and Mr Wescombe’s complaints because they talked about the issues at work and he probably told Mr Wescombe of the feelings he was going to write about.

[50] Mr Mercuri said he used the expression “Green tea xr60 immune system boost review” in the subject line of the email complaint because “that was a drink that [Mr Doyle] was having so we weren’t sure who was going to see the computer so we wanted to make sure only Robbie would open it so it was…a drink that Robbie had so we were sure he’d see it and be the only one that would open it.”

[51] The opening line of Mr Mercuri’s complaint was “I am writing to inform you of Andrew’s recent and ongoing antics towards myself and other staff members.” His email complaint was sent on Monday 5 December 2016 at 3:25 pm.

[52] Mr Mercuri said that the complaint was a broad statement of how he was feeling so it did not complain about specific matters although some specific matters were covered.

[53] Mr Mercuri agreed that, in preparation of his witness statement he sat in a room with Mr Frost and Ms Latham. He was asked some specific questions by them which he responded to.

Luke Wescombe

[54] Mr Luke Wescombe gave evidence that he had worked at the Club as a Bar and Gaming Attendant since August 2015.

[55] Mr Wescombe said that “[e]very second or third shift since January 2016 Andrew [Gillmore] engaged in conversations with a patron (David McCreery) and on other occasions with others I did not recognise, regarding what I consider to be a revolting topic which is how easy and cheap it is to go to Thailand and “score cheap sex” with underage teenage women.” 14 He said it was a regular and consistent topic of conversation. He said the conversations were at times heard by him and others.

[56] Mr Wescombe said that a female staff member spoke to him about these conversations but she was too embarrassed to raise the matter with senior management.

[57] Mr Wescombe says that after a year of hearing the conversations he complained to Mr Doyle about this and other matters. He said that he discussed a number of matters with Mr Doyle who suggested he put them in writing. Mr Wescombe said he could not recall if anyone else was in the meeting he had with Mr Doyle. He put his complaint in writing 15 on 5 December 2016.

[58] Mr Wescombe said he did not talk to Mr Mercuri before he put in his written complaint. He wrote it while at home and did not talk to Mr Mercuri regarding the content. As to the inclusion in the subject line of “Green tea xr60 immune system boost review” Mr Wescombe said he used that because it would have some meaning to Mr Doyle. He said that the complaint was more about the attitude of Mr Gillmore as opposed to the specifics of any particular incident.

[59] The opening line of Mr Wescombe complaint was “I am writing to inform you of Andrew’s recent and ongoing antics not towards only myself but other staff members as well.” His email was sent on Monday 5 December 2016 at 3:25 pm.

Mr Abhay Bhasin

[60] Mr Abhay Bhasin is employed at the Club as Head Chef. He had held this position since 12 April 2016.

[61] Mr Bhasin said that Mr Gillmore would often come into the kitchen and try to tell him what to do. He told Mr Gillmore that this was not his role at which point he said Mr Gillmore would start yelling at him. These disagreements were often about rosters and who, of the two of them, was responsible for the roster for kitchen staff.

[62] He said that on 10 December 2016 an error was made with respect to desserts for a function. He said that the second page of the running sheet was not provided to him so he was not aware that dessert had been requested for the function. He said he and the function manager resolved the issue with desserts being brought from the local supermarket. At the time however he said that each time he walked through the bar between the kitchen and function room Mr Gillmore started “screaming and laughing at me saying “‘no desserts chef, no desserts chef!’” 16 and that he repeated this over and over. Mr Bhasin said he felt that everyone was staring at him and tried to respond but ended up saying “Andrew, shut up you are embarrassing yourself in front of all the customers.”17

Mr Leslie Downard

[63] Mr Leslie Downard is employed by the Club as a Duty Manager/Supervisor. He has held this position since August 2004. His is the equivalent position to Mr Gillmore.

[64] He said that on 30 December 2016 he was advised by Mr Frost that Mr Gillmore had been stood down. Mr Frost did not tell him why. Mr Downard volunteered to Mr Frost that on 29 December 2016 Mick, his housemate, had told him that Mr McCreery had said that Mr Doyle was having his petrol paid for by the Club and that Mr Gillmore had told Mr McCreery this fact.

[65] Mr Downard said that Mr Gillmore denigrated the capabilities of Mr Frost and Mr Doyle and often told him in December 2016 that “they are going to run this place into the ground.” 18

[66] Mr Downard said that he overheard Mr Gillmore discussing with Mr McCreery Asian girls and their upcoming trip. He says he chose to ignore these conversations.
[67] Mr Downard said he was provided with the Club’s Induction Manual in 2012.

The witnesses and findings

[68] I found most of the evidence before me far from compelling. In particular much of the evidence given by witnesses for the Respondent was self-serving, inconsistent, non-specific, based on hearsay and in some cases just not believable.

[69] Mr Mercuri and Mr Wescombe were both quietly spoken and sincere in giving their evidence. However, it beggars belief that, after having both been in a meeting with Mr Doyle and agreeing to put their complaints in writing, they each individually and without prompting used an obscure reference in the subject line of “Green tea xr60 immune system boost review”; used essentially the same opening sentence of “I am writing to inform you of Andrew’s recent and ongoing antics towards myself and other staff members” (save for a variation so slight to make no substantive difference); and sent their email complaints at exactly the same time on the same day (Monday 5 December 2016 at 3:25 pm). No satisfactory explanation was given that might explain this quite extraordinary coincidence. The unexplained coincidence raises sufficient doubt as to the reliability of this evidence.

[70] Given both Mr Mercuri and Mr Wescombe met with Mr Doyle together (I reject Mr Wescombe’s evidence that he met with Mr Doyle alone) I have concluded that they all participate in the conversation together and that there was some collusion between them as to the content and sending of the emails. There is no other explanation for the similarity in emails.

[71] Further, Mr Mercuri’s evidence was confused (he claimed Mr Doyle gave him permission to finish on time on Grand Final day when Mr Doyle was clearly not employed by the Club at that time) and of a general nature or contradictory such that it is either not reliable or adds little to the case. For example Mr Mercuri said that Mr Gillmore and Mr McCreery only talked about paying for sex in Thailand after staff had moved away from them so it is difficult to know how he could have heard such a conversation. When pressed Mr Mercuri agreed he had not heard the two of them talking about paying for sex. Mr Wescombe, in his evidence, provided no specific detail and Mr Gillmore specifically denied he had engaged in such conversations.

[72] Having said this however, I accept that Mr Mercuri and Mr Wescombe did, from time to time have difficulty with Mr Gillmore.

[73] Given the unreliability of the evidence of Mr Mercuri and Mr Wescombe, where there is some dispute as to their evidence and that of Mr Gillmore I must accept the evidence of Mr Gillmore. I do however accept that at a very general level Mr Mercuri and Mr Wescombe may have overheard Mr Gillmore having discussion with Mr McCreery that they found distasteful, but I do not accept that, on the balance of probabilities, they heard Mr Gillmore discuss paying for sex or having sex with underage girls in Thailand.

[74] I am satisfied that Mr Gillmore spent time talking to Mr McCreery. They talked of travelling to Thailand together and this occurred in circumstances where they could reasonably expect to be overheard by staff or patrons of the Club. Mr Gillmore’s evidence is that Mr McCreery had a girlfriend in Thailand to whom he sent money. This evidence was not contradicted and therefore must be accepted. It is conceivable that the conversations overheard by staff about paying for sex in Thailand – if indeed this is what they heard – was based on snippets of conversations they overheard between Mr Gillmore and Mr McCreery about Mr McCreery sending money to his girlfriend in Thailand. It is not possible, given the paucity of reliable evidence on the question to draw any other conclusion and I decline to do so.

[75] I do accept the evidence of Mr Bhasin. He was quietly spoken but firm in his evidence as to the conflicts he had with Mr Gillmore. He did not seek to exaggerate in his evidence and spoke only of factual matters. Whilst I accept that, when asked to speak as loudly as Mr Gillmore was said to have spoken to him on 10 December 2016 (when the desserts were missed) he spoke quite softly this does not detract from what Mr Gillmore was said to have said to him, the mocking tone used, how often he said it and how this embarrassed Mr Bhasin. I am also satisfied that Mr Gillmore and Mr Bhasin had disagreements as to who was responsible for determining the rosters in the kitchen.

[76] I have not given weight to the hearsay evidence with respect to who said what with respect to paying for Mr Doyle’s petrol. I have not had regard to what Mr Downard’s housemate told him Mr Gillmore had said to Mr McCreery or what Mr Landorf said Mr McCreery said to him. None of this is evidence that Mr Gillmore told Mr McCreery anything about the petrol payments or any other aspect of Mr Doyle’s employment arrangements.

[77] To the extent that payment of Mr Doyle’s petrol costs may have been discussed there is no evidence of any other aspect of Mr Doyle’s contractual arrangements with the Club being discussed by anyone, let alone Mr Gillmore.

[78] Mr Gillmore was an experienced Club Duty Manager. I accept that he had views on how the Club should be run. In the circumstances of the Club not having had stable general manager for some time I expect that he considered himself the de facto manager and that this equilibrium was upset when Mr Frost was appointed. I accept as well that Mr  Gillmore was not pleased when Mr Frost, in effect, brought his own team along with him (of Mr Doyle as Operations Manager and Ms Chrissie Reynolds as Gaming Supervisor/Manager – both positions that had not existed at the Club before). It is reasonable that this created some resentment in Mr Gillmore. I accept that he may have been, at times difficult to work with, particularly after these changes.

[79] Mr Frost seems to have acted on what others had told him with little investigation himself. Certainly no evidence of any investigation he said occurred was given to the Commission. He appears to have been prepared to accept second or third hand accounts of what Mr Gillmore did or did not do. This is particularly the case of what Mr Gillmore was alleged to have told Mr McCreery. Mr Frost did not consider that talking to Mr McCreery would be of any value but there was no one else who could give him an account of what Mr Gillmore may or may not have said. Further, his reliance on the email of Elisabeth as to what Mr Gillmore may have said to two “lady patrons” to found an allegation and finding that he was talking to patrons generally of the parlous state of the Club’s finances is not reliable. Particularly in circumstances where, this was discussed at an Exceptional General Meeting, and where Mr Doyle agreed it was generally known. This raises doubt as to soundness of the finding and the overall approach taken by Mr Frost to the entire matter.

[80] I accept the evidence of Mr Doyle with respect to Mr Gillmore’s reaction to changes in procedure he sought to introduce. There is no reason for him this. I am satisfied that Mr Doyle sought to assist Mr Gillmore in how he worked with staff. Further, I am satisfied that Mr Gillmore did disregard changes in operations that Mr Doyle sought to make. For some reason the complaint of Mr Doyle apparently sent to Mr Frost on 29 December 2016 was not provided to the Commission. I have no evidence before me as to its contents so accord evidence of it no weight.

[81] I also accept that Mr Doyle was frustrated by what he saw as Mr Gillmore’s misconduct. This however does not provide me with the evidence necessary to conclude that the conduct occurred.

Was Gillmore unfairly dismissed?

[82] I am satisfied that Mr Gillmore is protected from unfair dismissal. He has completed the minimum employment period and an enterprise agreement applies.

[83] Further, I am satisfied that his application was made within the statutory time period, the Small Business Fair Dismissal Code is not relevant and his dismissal was not a redundancy.

[84] The matter to determine, in deciding if he was unfairly dismissed, therefore is if his dismissal was harsh, unjust or unreasonable.

[85] Section 387 of the FW Act states:

387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[86] I have considered each of these matters.

Section 387(a) - a valid reason for dismissal

[87] Of the reasons for dismissal put to Mr Gillmore in the letter of 20 January 2017:

● I am satisfied that the incident with respect to Mr Bhasin did occur; and

● I am satisfied that Mr Gillmore spoke to patrons of the Club about the financial situation of the club but that this was in circumstances where the financial situation was widely known.

[88] On the evidence before me I am not satisfied, on the balance of probabilities, that Mr Gillmore:

● Disclosed Mr Doyle’s confidential contractual arrangements, in particular the payment of his petrol costs to Club patrons;

● Spoke disrespectfully of the General Manager and Operations Manager to staff or members of the Club; and

● Engaged in open conversations of a sexual nature relating to underage girls in Thailand.

[89] Of the conduct that I did find occurred I am not satisfied that it provides a valid reason for dismissal.

[90] A valid reason is one that is “sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason.” 19 On any objective analysis the conduct I have found occurred does not provide a valid reason for dismissal. It may have warranted further counselling of Mr Gillmore but not dismissal.

[91] That the Club had a number of instances of misconduct that it considered had occurred to justify dismissal is not a reason to find that a valid reason exists. It is the responsibility of the Commission to determine, on the evidence before it, if the conduct complained of occurred. In this instance I am not satisfied that all of the conduct complained of did occur. On an objective consideration of that conduct there is no “sound, defensible or well founded” reason for the dismissal in such circumstances.

Section 387(b) – whether the person was notified of the reason

[92] Given that no valid reasons was found for dismissal I do not need to find if Mr  Gillmore was advised of the valid reason for his dismissal.

Section 387(c) - whether the person was given an opportunity to respond

[93] I note that the Club did put its allegations to Mr Gillmore and provide him with an opportunity to respond. It did not however, and it should have, detailed the policies it relied on that it claimed Mr Gillmore had breached. It is not enough to say that he should have known. If the Club was going to rely on evidence it had gathered in reaching its conclusions it should also have detailed that evidence to Mr Gillmore so he could respond prior to reaching any conclusions.

[94] To not advise Mr Gillmore in some terms of the evidence it had the Club did deny him procedural fairness.

Section 387(d) - unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[95] There was no refusal to allow a support person.

Section 387(e) - warnings of unsatisfactory performance

[96] The dismissal did not relate to performance.

Sections 387 (f) & (g) - The degree to which the size of employer and the lack of access to human resources expertise would impact on the procedure to effect termination

[97] The Club is not a large employer – it had 22 employees at the time of the dismissal. I note however that it did engage the assistance of a Human Resources Consultancy firm when it considered the matter to be serious.

[98] I consider that the Club took appropriate steps to ensure that it did provide procedural fairness to Mr Gillmore. Whilst I have some criticism of that process I am satisfied that these are generally attributable to the lack of established policies and procedures in the business. To this extent I do consider that the size of the Club did have some effect on the process undertaken, despite the assistance of professional HR services.

Section 387 (h) – any other matters

[99] No other matters were raised.

Conclusion

[100] Given that I found no valid reason for dismissal I am satisfied that the dismissal was harsh, unjust or unreasonable and that Mr Gillmore has been unfairly dismissed.

Remedy

[101] Mr Gillmore seeks reinstatement to his position as Duty Manager at the Club. The Club opposes this and submits that the relationship has irreparably broken down.

[102] Section 390 of the FW Act states:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

[103] Whilst I have some sympathy for the position of Mr Gillmore and his desire to return to work at the Club I am satisfied that this is inappropriate in circumstances where he no longer has the support of the General Manager or the Operations Manager and where a number of employees (from a small staff group) have given evidence against him.

[104] This is a relatively small workplace (approximately 22 employees) where all employees need to work in a cooperative and trusting manner. Some of the matters that caused friction between Mr Gillmore and Mr Doyle went to appropriate procedures where Mr Gillmore, on his own admission, disagreed with operational changes Mr Doyle sought to make in his role. Mr Gillmore reported to Mr Doyle. An unwillingness to take direction and accept changes implemented by Mr Doyle is not conducive to an appropriate working relationship.

[105] I recognise that there is no valid reason for the dismissal of Mr Gillmore but, even so, I do not consider reinstatement to be appropriate.

[106] For this reason I will consider compensation.

[107] Section 392 of the Act states:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.

[108] Mr Gillmore had worked for the Club since July 2012 as Duty Manager. He left his previous position to take on the role. Until the arrival of Mr Frost and Mr Doyle there had been no issues with his employment. Further, there was no indication that he intended to leave.

[109] For these reasons I am satisfied that Mr Gillmore would have remained employed at the Club for at least a further two years.

[110] At the time Mr Gillmore’s employment was terminated he was earning $1,054.53 per week plus superannuation. For the two year period I consider he would have remained employed he would have earned ($1,054.53 per week x 104 weeks=) $109,671.12 plus superannuation.

[111] Mr Gillmore has earned, at the time of hearing, $14,360.27 plus superannuation. His lost earnings therefore are $95,310.85 plus superannuation. Whilst it may be that Mr Gillmore has earned more income since that date, given my findings as to the length of his employment and the short period between the hearing and the issue of my order I have not considered earnings between the date of hearing and the making of the order.

[112] I have reduced this amount by 20% for contingencies. I do this primarily because the Club is known to have had some financial difficulties and this may have repercussions in future staffing levels, hours of work and so on.

[113] I am satisfied that Mr Gillmore has taken steps to mitigate his loss. I have therefore not reduced the amount of compensation ordered in this respect.

[114] I am therefore satisfied that Mr’ Gillmore’s lost remuneration is $76,248.68 plus superannuation.

[115] I have not reduced this amount for misconduct. Given my findings above there are no grounds to do so. The conduct with the Chef is not such to warrant any reduction. It was inappropriate for a Manager but not such to warrant a reduction in compensation.

[116] The compensation cap for Mr Gillmore is ($1,054.53 per week x 26 weeks=) $27,417.78 plus superannuation. My estimate of lost earnings exceeds this amount.

[117] I will therefore order that the Club pay to Mr Gillmore an amount of $27,417.78 plus superannuation in compensation for his unfair dismissal.

[118] No submissions were made that any order of compensation would affect the viability of the business.

[119] No submission has been made with respect to any schedule of payments. However, should the Club have some reason as to why it cannot pay the amount ordered by the due date it may make application to vary the order with respect to a payment schedule.

[120] I shall therefore issue an order with this decision that the Club pay to Mr Gillmore an amount of $27,417.78 plus superannuation. The amount is to be paid within 21 days of the making of the order.

COMMISSIONER

Appearances:

G. Dircks for Mr Gillmore.

G. Stratham for South Oakleigh Club.

Hearing details:

2017.

Melbourne:

June 19.

 1   It was accepted that this matter had been resolved prior to the letter of allegations being issued.

 2   Both parties sought to table the letter as evidence in the proceedings. On this basis any claim to prejudice is waived.

 3   Exhibit R4, paragraph 4.

 4   Exhibit A6.

 5   Exhibit R2, paragraph 15.

 6   Exhibit R2, paragraph 15.

 7   Exhibit A7.

 8   Exhibit R2, paragraph 28.

 9   Exhibit R2, paragraph 30.

 10   Exhibit R4, paragraph 3.

 11   Exhibit R5, paragraph 4.

 12   Exhibit R5, paragraph 11.

 13   Exhibit A9.

 14   Exhibit R7, paragraph 3.

 15   Exhibit A10.

 16   Exhibit R8, paragraph 7.

 17   Exhibit R8, paragraph 7.

 18   Exhibit R9, paragraph 4.

 19   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

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