DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emmanuel Montes
v
The Star Casino
(U2019/9523)

Application for an unfair dismissal remedy – serious misconduct – application dismissed.

[1] Mr Emmanuel Montes alleges that he had been unfairly dismissed by The Star Casino (The Star) where was employed for a period of approximately 9 months. He was summarily dismissed on 23 August 2019 on the grounds of serious misconduct. He has made an application pursuant to s.394 of the Fair Work Act 2009 and now seeks reinstatement to his former position.

[2] The application was heard in Sydney on 4 December 2019. At the hearing, Mr Montes was self-represented and The Star was represented with permission by Mr M Dunn.

[3] For the reasons set out below, I have decided that Mr Montes was not unfairly dismissed and will dismiss his application.

Background

[4] Mr Montes commenced employment with The Star in December 2018 as a Food and Beverage (F&B) Server in its Sovereign Dining Room. He had previously been employed in another restaurant located within The Star.

[5] By letter dated 21 August 2019, Mr Montes was asked to attend a meeting the following day with Ms Christy Navaratnalage (VIP F&B Manager) and Ms Matina Stevis (Employee Relations Advisor). The purpose of the meeting was said to be “to discuss the alleged serious breach of The Star’s Equal Employment Opportunity policy, The Star Entertainment Group’s Code of Conduct, The Star’s Misconduct and Disciplinary Policy, The Star Values and The Star Qualities” 1. The letter set out two allegations as follows:

“•  Allegedly acting inappropriately and unprofessionally towards another team member in Sovereign Dining on 16 August 2019, by hitting them on their backside with a serving tray [Complaint 1]; and

•  Your actions and behaviours towards a Duty Manager in Sovereign Dining on 20 July 2019. [Complaint 2]” 2

[6] Mr Montes replied to the letter by email the same day. Arising from his email correspondence, a further letter was issued to Mr Montes informing that he was placed on Special Paid Leave pending an investigation into allegations against him, which now included a new allegation of:

“•  Wilfully and deliberately exhibiting, inappropriate, unprofessional and unacceptable behaviour towards a Leader, following being issued a Notice of Meeting on 21 August 2019” [Complaint 3].

[7] The meeting subsequently took place on 23 August 2019 with Ms Stevis and Ms Navaratnalage. Mr Montes was taken to each of the allegations made against him and was given the opportunity to respond those matters.

[8] Mr Montes was advised of his dismissal at the end of the meeting and was provided with a letter confirming his dismissal. A more detailed letter of termination dated 28 August 2019 was provided to Mr Montes which set out the allegations and the findings leading to his dismissal.

[9] Mr Montes was found to have had displayed inappropriate and unprofessional behaviour and had breached The Star’s policies and Code of Conduct. In dismissing Mr Montes, The Star also relied on a written warning issued in December 2018 relating to his inappropriate behaviour towards another staff member who had since resigned from The Star [the Written Warning].

[10] Mr Montes gave oral evidence in these proceedings. In addition, he provided a number of documents which contained both evidence and submissions. Mr Dunn helpfully collated all the material filed by Mr Montes into one bundle in chronological order, which became an exhibit in the proceedings 3. In deciding this application, I have given careful consideration to all of the material provided by Mr Montes.

[11] The following persons provided witness statements and were called to give evidence in support of The Star’s case:

•  Ms Sara Baasanjargal (F&B Server);

•  Ms Victoria Farr (Assistant VIP F&B Manager); and

•  Ms Christy Navaratnalage (VIP F&B Manager)

[12] A statement made by Ms Stevis was also admitted into evidence. She was not required for cross examination.

The events leading to Mr Montes’ dismissal

Complaint 1 – 16 August 2019

[13] On 16 August 2019 Ms Baasanjargal made a complaint about the conduct of Mr Montes arising from an incident at the workplace. She provided a statement to her manager which reads:

“This evening during dinner service (approximately 20:30-21:00) by the dish washing area B.O.H. in the hallway leading to PDR. During a conversation with Emmanuel [Montes] I corrected him for miss pronouncing my name and asked him if he liked it if I started calling him Emma (In a joking tone) he then smacked me on the backside with his serving tray as he walked past me. I believe such behaviour is very inappropriate and unwelcoming. I felt very offended by his action. Later, I approached him and informed him that his actions were extremely rude and disrespectful, however, his response was ‘Come on, I'm only joking’, but I did not find this funny or appropriate.”

[14] During the meeting on 23 August 2019, Mr Montes referred to ‘tapping’ Ms Baasanjargal as ‘an act of comradery’. Mr Montes said that in the preceding weeks they had “built a comradery about their names” when Ms Baasanjargal kept telling him that he had pronounced her name incorrectly. She then started calling him ‘Emma’. Mr Montes explained that during the incident on 16 August he had an empty tray in his hand when Ms Baasanjargal started calling out ‘Emma Emma Emma’ and he ‘just hit her on the bum’ as an afterthought. Mr Montes said that he felt he had a close relationship with Ms Baasanjargal, and he could not accept that she could be offended by his actions. He stated that: “she should have understood this in the spirit of comradery. It is inexplicable to me that it was inappropriate.” 4

[15] In cross examination, Mr Montes said that this complaint had no merit, and that Ms Baasanjargal “makes out that the entire situation that might have justified that action as harmless action – she attempts to conceal that by making out that the whole process that went on for two months is condensed in a period lasting less than two minutes … She lies.” 5

Complaint 2 - 20 July 2019

[16] This complaint was made by an Assistant F&B Manager, Ms Victoria Farr, who commenced employment with The Star on 20 June 2019. On 20 July 2019, she was rostered as Manager on Duty in the Sovereign Dining Room when she met with Mr Montes who made comments about her appearance which made her uncomfortable. She reported this to her then manager, Mr R Uppada. She described the incident as follows:

“On a walk through in the PDR Emmanuel Montes stopped me to ask what role I had previously been in. I wasn't sure what he meant, and he went on to say that there was a NZ TV show that featured a very attractive woman how had very attractive attributes. I tried to end the discussion by walking away but he continued to say how attractive I was and that he wouldn't want to be anywhere but underneath me nor get on the wrong side of me and that it was a compliment of many people think about that TV star/Character.” 6

[17] Mr Uppada later conducted a meeting with Mr Montes and Ms Farr about the incident. Mr Montes was reminded of The Star Code of Conduct and that The Star took all sexually related comments or behaviour seriously. Mr Montes acknowledged that he attended this meeting, saying: “Yes, she summonsed me at the end of the shift to let me know that she thought my behaviour was inappropriate.” 7

[18] In relation to this complaint, Mr Montes said:

“I am usually rostered evenings but one morning at lunch I saw her entering PRG (Private Gaming Room) and I approached her to make myself known and I said you reminded me of a NZ television star that was successful in the 90s, but I couldn’t recall the name of The star. What I could recall was that she became a gay icon for the lesbian community and in fact if you read anything about this movie star it will be mentioned she is an icon and she was really very attractive, and Victoria [Farr] looked like the TV Star, similar attributes. I said this to her that she was attractive like the TV Star. And anyway, I worked in rural pubs and country NSW and I am not offended but she thought it was inappropriate.”

[19] In cross examination, Mr Montes explained the interaction in the following terms:

“I wasn't joking with Victoria Farr.  There were no jokes there.  There was an introduction, a personal self-introduction and a reference to physical likeness because that's what people do very often when they meet someone for the first time that they've never seen before.  They might say, 'You look like so and so.'  That was the substance of the - should I have controlled that as well, somehow?  Should I have had some sort of prediction that this was going to blow up into what it did?  A molehill, sir, turned into a mountain.” 8

[20] Mr Montes subsequently described Ms Farr’s complaint as ‘inexplicable’. 9 

[21] Notwithstanding his evidence that he attended the meeting on 20 July and was told by Ms Farr that his behaviour was inappropriate, Mr Montes maintained that no formal complaint was made for the incident. He said that he “didn’t understand why she required an apology” and “she was going on about nothing”. 10

Complaint 3 – 21 August 2019

[22] Complaint 3 arose from comments made by Mr Montes in his response to the Notice of Meeting request issued by Ms Navaratnalage on 21 August 2019. His email correspondence sent to Ms Navaratnalage on 21 August 2019 was said to have exhibited inappropriate, unprofessional and unacceptable behaviour towards the manager. The email written by Mr Montes reads, in part:

“Thank you Dear Sir for your several attempts to contact me regarding this unfortunate episode (‘inappropriate and unprofessional behaviour’)

As you know I will be defending this claim, and am eager and keen to put this defamation to rest.

What you may not know (the reason why you were unable to contact me on several attempts) is that I have been extremely busy with the legal-medical situation regarding my spouse, who suffered a heart attack in December of 2016, and that I am liaising and commuting on an almost daily basis with groups such as NDIS (the National Disability Insurance Scheme), advocacy groups, and the aged care residency at which she has been forced to stay (NH Aged Care Residency: ‘New Horizons’)

The staff at Sovereign Dining Room is fully aware of this situation, and indeed I am frequently queried about its progress.

Today, following an important meeting …, I am happy to inform everybody that the NDIS has agreed to fully fund Robyn's return home, my beloved, and that I will be informing "Human Resources" at The Star of these new, changed circumstances, at last (as discussed with the assistant manager Daniel Galleano, last month.)

Please be aware that before joining SOVEREIGN DINING ROOM, at THE STAR, I was employed at BLACK'S BY EZZARD (later become BLACK'S BAR AND GRILL, when The Star absorbed its business), and that none of these issues ever arose over a period of two year's employment, when I took care of such VIP clients … Not to mention many others.

Photios offered a personal recommendation to … went so far as to offer me a job as private butler in his Whollarah Mansion.

Please take it easy with Me at tomorrow's hearing, I have been carrying a superhuman effort for two and a half years. Otherwise I will raise HELL for THE STAR. Please keep in mind that I'm not just fighting for my reputation, I am fighting for my wife's life. My word reveals a tendency to become law over the years.

And I'm certainly not going to let the claim of some imaginary whinger stand in the way of that fight!

The complainant's claim is frivolous and has no merit. Sarah either set me up or she set herself up, but she set somebody up. Why she did that is inexplicable to myself, but I can explain it to you, and anyone who cares to hear it.

Oh, and another reason why you should take it easy on Me tomorrow is because tomorrow is my birthday (the 22nd of August), and I have been working with You and for You, for Three Years. What the Fuck! What a way to say Thank You!” 11

[23] Mr Montes said that he used the strong language because he was angry about the frivolous claims made against him. Mr Montes said that his wife had suffered a heart attack and resided in a nursing home. He just obtained the approval of the NDIS to fund her return home and he was concerned that those claims would jeopardise his plans for his wife.

[24] Mr Montes said that “the swear word was not aimed at Ms Navaratnalage.  It was just a general expression of amazement, as it is usually recognised when you use the term ‘WTF’.”  12

Written Warning – December 2018

[25] The Written Warning issued to Mr Montes was as a result of a complaint made against him by Ms Dragana Vujasinovic, a former F&B Server working with Mr Montes. The nature of the complaint related to text messages sent by Mr Montes to Ms Vajasinovic between 9 and 10 December 2018. Ms Vujasinovic, in her written complaint, said she received a number of text messages from Mr Montes that she found to be creepy, unwanted, disgusting and inappropriate. She resigned later in December 2018.

[26] Following a meeting on 21 December 2018 with Mr Montes, the complaint was found to be substantiated, resulting in The Star issuing the Written Warning. As a part of the Writtne Warning, Mr Montes was reminded he must comply with The Star’s policies including the Code of Conduct, The Star Values, and The Star Qualities, and that he must ensure that all interactions with other people at work were respectful, courteous and considerate at all times. The Written Warning also indicated that future instances of a failure to adhere to these policies may result in further disciplinary action including the termination of his employment.

Mr Montes’ Dismissal

[27] The termination letter dated 28 August 2019 outlined the three Complaints and summarised Mr Montes’ responses to each. In terms of the findings made by The Star, it found on the balance of probabilities that the following was substantiated:

•  That you did act extremely inappropriately and unprofessionally towards another Team Member in the Sovereign Dining on 16 August 2019, by tapping them on their backside with a serving tray. This behaviour resulted in the Team Member feeling offended, and was unwelcomed, unreciprocated and unprofessional constituting an act of sexual harassment; and

•  That your actions and response towards an incident where you allegedly acted inappropriately and unprofessional towards a Duty Manager in Sovereign Dining on 20 July 2019 was insincere. You did not show remorse in your apology by stating to the effect of “I don’t know what I am apologising for”; and

•  That you did wilfully and deliberately exhibit, inappropriate, unprofessional and unacceptable behaviour toward a Leader via email, following being issued a Notice of Meeting on 21 August 2019; and

•  You made threatening statements including but not limited to “I will raise HELL for THE STAR” and “I’m certainly not going to let some imaginary whinger stand in the way of that fight”. In addition, you used explicit and profound language towards a Leader.

[28] As such, Mr Montes was found to be in breach of the following policies:

The Star Entertainment Group Equal Employment Opportunity Policy

Sexual harassment is any verbal, written or physical behaviour of a sexual nature that is unwelcome and uninvited where a reasonable person need only anticipate the possibility that the subject of the harassment would be offended, humiliated or intimated.

It is Star’s policy that harassment, bullying and discrimination will not be tolerated under any circumstances;

The Star Entertainment Group Code of Conduct

4.2 We Are Diverse

Our employees demonstrate diversity by:

•  behaving in a manner that is inclusive and welcoming

•  respecting the diverse cultural, social and religious beliefs and backgrounds of the community, our guests and our fellow SGR employees

•  speaking out when actions or behaviours of guests or fellow SGR employees are offensive, abusive or disrespectful

•  complying with relevant SGR policies including policies relating to equal employment opportunity, discrimination, harassment and workplace bullying

4.5 We are Professional

Our employees are professional when they:

•  work within the requirements of their employment contract and follow all lawful and reasonable directives that are within their capability and training

•  are polite and respectful in their dealings with other people - including guests, suppliers, fellow employees and regulatory authorities

•  work consistently within SGR service standards, policies and procedures

•  conduct themselves in a manner which is fair and inclusive.

The Star Entertainment Group Misconduct and Discipline Policy

Serious misconduct is wilful or deliberate behaviour by a team member that is inconsistent with the continuation of the contract of employment, and/or conduct that causes imminent and serious risk to either the health and safety of other persons or to the reputation, viability or profitability of The Star.

Star Qualities

Bring It (Be your Best Self); Knowing and using your strengths to light up people’s days, showing pride in everything you do, and Contributing to your team, property, city and company. We understand that being our best self means we create a positive environment, which ripples out and builds pride within the team.

Star Values

Welcoming - We deliver thrilling and memorable personal experiences that attract new guest to our properties every day. A good host is full of warmth, honesty and loyalty. Hosting is about how you make someone feel.

True Teamwork - Our service culture starts from within - how we treat each other, how we embrace our diversity and contribute to and include one another. We know we are at our best when we work together with a shared objective to make a difference for each and every guest every time.

[29] In coming to a decision to dismiss Mr Montes, The Star took account of the following:

•  Mr Montes’ responses to the Complaints;

•  The relevant policies set out above;

•  The Written Warning; and

•  That Mr Montes had undertaken retraining on appropriate behaviour and conduct in the workplace, including The Star’s Code of Conduct and related policies, after the Written Warning was issued.

[30] The Star also took account of Mr Montes’ failure to recognise the inappropriateness of his conduct in coming to the decision to dismiss him.

Mr Montes’ submissions

[31] Mr Montes filed a number of documents which included both evidence and submissions. I will not repeat in full all of the submissions made by Mr Montes, however I have taken into account all of the matters raised by him.

[32] By way of summary, Mr Montes argued that the claims made against him were frivolous and without substance.

[33] In relation to Complaint 1, Mr Montes submitted that the act of tapping Ms Baasanjargal lightly with a tray was not an act of unnecessary familiarity but one of existing familiarity and, therefore, he was “innocent of that charge”. He further submitted that tapping her on the bottom was not inappropriate in the context of the jokes that had taken place between them over the previous two months.

[34] In relation to Complaints 1 and 2, Mr Montes referred to alleged inconsistencies and contradictions in the two complainants’ evidence. He said: “I do not confess to any guilt in regard to those two incidents.” He also submitted that “the reaction of these two individuals is unwarranted and unreasonable.  They make it worse by actually going out on a limb.  Particularly Ms Victoria Farr, she really goes out on a limb to make me out to be some kind of decrepit individual, which I'm not.” 13

[35] In respect to his conduct after he received the Written Warning, Mr Montes said that “You would have to be asking me to live in an unbearable burden of paranoia if every step I took and everything I did I had to refer back to that warning.  It is completely unreasonable.” 14

[36] Mr Montes, in his written submissions, said that the three incidents giving rise to the complaints were each unique, but what they shared in common was “processes of entrapment where consent is granted, then withdrawn, or trust elicited, then denied, giving rise to three different situations in which one individual (complainants 1 and 2) gain power over another (the applicant) through a reversal of attitude both unexpected and unforeseeable ...” 15

[37] He also argued that The Star failed to consider his mitigating circumstances in reaching its decision to terminate his employment, and that he was the victim of a harshly applied Zero Tolerance policy.

The Star’s submissions

[38] The Star submitted that the dismissal was not harsh, unjust or unreasonable for the following reasons:

•  On three occasions within an approximate nine month period, Mr Montes had been the subject of formal complaints being lodged by other employees of The Star because of his inappropriate behaviour.

•  Mr Montes persistently sought to justify his actions on the basis of the ‘culture’ from which he comes, that he was engaging in ‘comradery’ or was engaging in a ‘long running joke’ without displaying any empathy or consideration for the three victims of his behaviour.

•  The Star has made considerable efforts to educate Mr Montes to assist him to change his behaviour.

•  The Star has in place various policies concerning harassment and workplace bullying, of which Mr Montes was aware.

[39] The Star submitted that it did not apply a zero tolerance approach to his behaviour. Had this been the case, it would have dismissed him within his probation period when the first complaint was made. Instead, the Written Warning was issued and he was provided with retraining regarding The Star’s policies.

[40] In response to Mr Montes’s submission that the three incidents were unique and therefore not related, The Star submitted that while they may be unique in the sense that one involved a text message, one involved talking and the third involved physical contact, they all involved inappropriate conduct and not taking into account the feelings of other employees. 

[41] The Star also relied on Mr Montes’ inability to comprehend that the complainants could be offended by his conduct and his lack of contrition as in part justifying its decision to dismiss him.

Consideration

Protection from Unfair Dismissal

[42] There is no dispute and I am satisfied that Mr Montes is a person protected from unfair dismissal by virtue of s.382 of the Act.

[43] I will now consider if the dismissal of Mr Montes was unfair within the meaning of the Act.

Was the dismissal unfair?

[44] A dismissal is unfair if the Commission is satisfied on the evidence before it that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[45] There is no dispute that Mr Montes was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[46] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[47] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd¹⁶ as follows:

‘... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.’

[48] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.¹⁷

Valid reason - s.387(a)

[49] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded”¹⁸ and should not be “capricious, fanciful, spiteful or prejudiced.”¹⁹ However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.²⁰

[50] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.²¹ The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination.²²

[51] There is no mandate for giving the ‘valid reason’ criterion any greater emphasis or weight than any of the other criteria in s 387. It is well settled that the statutory requirement to ‘have regard to’ or ‘take into account’ requires the Commission to give the matter(s) weight as a fundamental element in the decision making process. Even if it is found that there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was harsh, unjust or unreasonable.

[52]  The significance of breaches of employer policies in the context of a consideration of whether there was a valid reason for dismissal was discussed by the Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post as follows 23:  

“[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 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.”

[53] Mr Montes was dismissed after The Star formed the view that his conduct was in breach of a number of its policies regarding appropriate workplace conduct. He contended that there was no valid reason for his dismissal. For the reasons set out below, I am satisfied that there was a valid reason for Mr Montes’ dismissal, in that he engaged in inappropriate conduct and this conduct justified his dismissal.

[54] Mr Montes had received the Written Warning in December 2018 and had been re-trained in April and June 2019 on The Star’s standards relating to appropriate workplace conduct. The standards were reiterated again to Mr Montes during the meeting with Ms Farr and Mr Uppada on 20 July 2019. I am therefore satisfied that the standards of conduct he was required to adhere to were apparent to him. Notwithstanding this, he again engaged in inappropriate conduct with a female staff member on 16 August 2019. It was this incident (ie. Complaint 1) that was the most serious of the complaints in my view. Mr Montes did not deny his actions, but strenuously refused to accept that his behavior of ‘tapping a female colleague on the bottom with a serving tray’ was inappropriate, and he refused to apologise to Ms Baasanjargal. Whether or not he felt a degree of comradery with Ms Baasanjargal, the physical contact he engaged in was highly inappropriate and amounted to sexual harassment, and was in breach of The Star’s policies in this regard. The suggestion by Mr Montes that Ms Baasanjargal’s complaint was frivolous and had no merit demonstrates his complete lack of understanding and/or disregard for appropriate standards of conduct in the workplace.

[55] It is also of significance that the three complainants, each one of whom has no apparent connection or acquaintance with the other, lodged separate complaints against Mr Montes within his nine month period of employment. The Star has a duty of care to ensure that its workplace is free from harassment and inappropriate conduct. Mr Montes clearly demonstrated that he was unable or unwilling to comply with The Star’s policies in this regard.

[56] While The Star may have a zero tolerance policy, it cannot be said that it was applied in this case. Mr Montes had the benefit of the Written Warning which described the type of conduct that was unacceptable in the workplace. As The Star submitted, he could have been dismissed within his probation period, but instead he was issued with the Written Warning and provided with further training. He ignored the Written Warning and continued to engage in unacceptable conduct. His comment that it would be asking him “to live in an unbearable burden of paranoia if every step I took and everything I did I had to refer back to that warning….it is completely unreasonable”, highlights his unwillingness to take on board the standards of conduct that he was required to adhere to.

[57] Mr Montes’ conduct indicates that he does not either understand or support The Star’s policies on appropriate workplace conduct. He was bound to comply with these policies but didn’t. Given his conduct, combined with his lack of remorse, I am satisfied that there was a valid reason to dismiss him.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[58] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,²⁴ in explicit terms²⁵ and in plain and clear terms.²⁶ In Crozier v Palazzo Corporation Pty Ltd²⁷ a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”28

[59] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. Such requirement will be satisfied where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern. 29 This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.³⁰

[60] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Montes before his dismissal was effected.

[61] Mr Montes agreed that he was notified of a reason for his dismissal and that he had the opportunity to respond to that reason. To this end, he said: “the form was followed. I’ve agreed with that, the form was followed, yes. There’s no technical faults. It’s the content that I dispute”. He subsequently stated that the dismissal was ‘technically flawless’. 31

[62] On the evidence before me, I am satisfied that Mr Montes was notified of the reason for his dismissal and was given an opportunity to respond to the reason.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[63] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[64] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”32

[65] Mr Montes confirmed in his evidence in chief that he was not refused a support person. 33

Warnings regarding unsatisfactory performance - s.387(e)

[66] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant to the present circumstances.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[67] The Star is a relatively large employer with dedicated human resource management expertise.

[68] I am satisfied that the size of The Star and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal, and this consideration is neutral.

Other relevant matters - s.387(h)

[69] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[70] I have taken into consideration Mr Montes’ personal circumstances involving his wife returning home after being in a nursing home for a lengthy period. This may provide some explanation as to his response to the Notice of Meeting (Complaint 3), but it does not in any way explain his inappropriate conduct in respect of the remaining complaints made against him.

[71] Mr Montes also submitted that it would be difficult for him to find employment that met the needs of his wife, as he needed to be able to get home within a short time.  To this end he said that the system of care that was in place for her stopped at 10 pm, and while she could be trusted to remain by herself for short periods of time, she could not be unattended for too long because she had lost her dexterity and was subject to possible accidents. I have taken this into consideration in deciding this matter.

[72] I do not consider there are other relevant matters that have not already been considered.

Conclusion

[73] In relation to each of the Complaints, Mr Montes’ conduct was unacceptable. The conduct standards in the workplace were known to him. He had received a warning about his conduct only a few weeks after he commenced employment. At the time of his dismissal, and during the hearing, he demonstrated absolutely no understanding that his conduct was not appropriate in a workplace.

[74] Having considered each of the matters specified in s.387 of the Act and for the reasons set out above, I am satisfied that the dismissal of Mr Montes was not unfair. Accordingly, the application is dismissed.

DEPUTY PRESIDENT

Appearances:
E Montes, on his own behalf.
M Dunn, for The Star Casino.

Hearing details:
2019.
Sydney:
December 4.

Printed by authority of the Commonwealth Government Printer

<PR716840>

 1   Attachment CN-02 to Exhibit 5.

 2   Ibid.

 3   Exhibit 1.

 4   See Attachment CN-06 to Exhibit 5.

 5   Transcript PN301.

 6   See Attachment VF-01 to Exhibit 4.

 7   Transcript PN274.

 8   Transcript PN205.

 9   Transcript PN259.

 10   Transcript PN281.

 11   See Attachment CN-03 to Exhibit 5.

 12   Transcript PN758.

 13   Transcript PN359.

 14   Transcript PN349.

 15   Exhibit 1.

16 (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

17 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

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

19 Ibid.

20 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

21 Edwards v Justice Giudice [1999] FCA 1836, [7].

22 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 23   [2013] FWCFB 6191

24 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

25 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

26 Previsic v Australian Quarantine Inspection Services Print Q3730.

27 (2000) 98 IR 137.

28 Ibid at 151.

 29   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

30 RMIT v Asher (2010) 194 IR 1, 14-15.

 31   Transcript PN51-63.

32 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 33   Transcript PN54.