PR960646
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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.170CE application for relief in respect of termination of employment

Paul Brown

and

Aristocrat Technologies Australia Pty Ltd
(U2005/1266)

COMMISSIONER CARGILL

SYDNEY, 27 JULY 2005

Termination of employment

DECISION

[1] This decision arises from an application by Mr P. Brown (the applicant) pursuant to section 170CE of the Workplace Relations Act 1996 (the Act) for relief in respect of the termination of his employment by Aristocrat Technologies Australia Pty Ltd (the respondent). The application was filed in the Commission on 10 January 2005 and proceeded to a conference before a conciliator. The matter remained unresolved and on 18 March 2005 a certificate under section 170CF(2) was issued by Senior Deputy President Acton. A notice of election to proceed to arbitration to determine whether the termination was harsh, unjust or unreasonable was lodged by the applicant’s representative on the same date.

[2] Directions were issued for the filing and exchange of outlines of submissions, witness statements and documentary material. The matter was heard in Sydney on 20, 21 and 22 June and 5 July 2005. The applicant was represented by Mr Penning, solicitor and the respondent by Ms Flynn, solicitor. Both representatives appeared by leave.

[3] The following witnesses gave evidence on behalf of the applicant:

Mr P. Brown Applicant. His witness statement was marked Exhibit Applicant 4 and his witness statement in reply Exhibit Applicant 5. His evidence is at Transcript PN 62-728.

Mr M. Cartwright Organiser with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) at the relevant time. His witness statement was marked Exhibit Applicant 6 and his statement in reply Exhibit Applicant 7. His evidence is at Transcript PN 798-1085.

Mr L. Ruka Employee of the respondent and AMWU Delegate. His witness statement was marked Exhibit Applicant 8 and his statement in reply Exhibit Applicant 9. His evidence is at Transcript PN 1091-1398.

Mr B. Wilkinson Employee of the respondent and AMWU Delegate. His witness statement was marked Exhibit Applicant 10 and his statement in reply Exhibit Applicant 11. His evidence is at Transcript PN 1417-1633.

Mr Z. Sipura At the relevant time an employee of the respondent and AMWU Delegate. His witness statement was marked Exhibit Applicant 12 and his evidence is at Transcript PN 1654-2296.

[4] The following witnesses gave evidence on behalf of the respondent:

Mr I. Timmis Group General Manager, Business and Strategic Development with the respondent. His witness statement was marked Exhibit Respondent 7 and his evidence is at Transcript PN 2390-2659. Mr Timmis gave his evidence via a video link.

Mr G. Dennis Human Resources Manager with the respondent. His witness statement was marked Exhibit Respondent 9 and his evidence is at Transcript PN 2715-3213.

Mr J. De Oliveira Employee of the respondent. His witness statement was marked Exhibit Respondent 10 and his evidence is at Transcript PN 3244-3817.

Ms J. Wright Employee of the respondent. Her witness statement was marked Exhibit Respondent 11 and her evidence is at Transcript PN 3880-4096.

Mr J. Cole Employee of the respondent and the applicant’s direct supervisor. His witness statement was marked Exhibit Respondent 12 and his evidence is at Transcript PN 4113-4379.

Mr G. Wheatley Employee of the respondent. His witness statement was marked Exhibit Respondent 13 and his evidence is at Transcript PN 4382-4708.

Mr A. Beese Australian Integration Manager with the respondent. His witness statement was marked Exhibit Respondent 14 and his evidence is at Transcript PN 4715-4927.

Mr H. Gumulia Employee of the respondent. His witness statement was marked Exhibit Respondent 16 and his evidence is at Transcript PN 5043-5186. Mr Gumulia gave his evidence via an interpreter.

Mr D. Williams Compliance Officer with the respondent. His witness statement was marked Exhibit Respondent 17 and his evidence is at Transcript PN 5190-5477.

[5] There was extensive evidence and much material provided in this case. Whilst I may not specifically refer to each and every issue, in reaching my conclusion I have had regard to all relevant materials and evidence before me.

FACTS AND EVIDENCE

[6] The applicant commenced employment with the respondent on 26 August 1993. He was employed as an electroplater, manufacturing poker machines at the respondent’s premises in Rosebery, a suburb of Sydney. The applicant was a member of the Workplace Consultative Committee and an AMWU delegate on the Enterprise Agreement Committee. His evidence was that during the time of his employment with the respondent he was not subject to any written warnings or disciplinary proceedings.

[7] In March 2004 the respondent decided to undertake a factory consolidation project. This resulted in a voluntary redundancy process at the Rosebery site. In response to a general invitation to employees, the applicant submitted an expression of interest in accepting voluntary redundancy. This was dated 30 June 2004 and is Attachment C to Exhibit Respondent 9. In a letter to the applicant dated 28 July 2004, the respondent confirmed its acceptance of the applicant’s request. The correspondence noted that, until there was further confirmation in writing, the applicant’s employment was to continue and the application for redundancy would not be further processed. This correspondence is Annexure B to Exhibit Applicant 4.

[8] As it transpired, the majority of the redundancies associated with the factory consolidated project at Rosebery were finalised by 27 May 2005.

[9] The respondent organises and fully funds a Christmas party for its employees. Prior to the 2004 function, meetings were held with union delegates and with employees about the respondent’s expectations as to responsible drinking and behaviour at the party. The applicant’s evidence was that he attended at least one of the meetings with delegates and at least one of those held with employees. He also testified that, in the meetings, employees were told that the respondent’s policies and procedures would apply at the party. The applicant confirmed that this was reinforced on the invitations to the party. Examples of the invitation are Attachment B to Exhibit Respondent 17 and Annexure C to Exhibit Applicant 4.

[10] The applicant’s evidence was that, as an AMWU delegate and member of the Consultative Committee, he was required to be familiar with the respondent’s policies and procedures. He acknowledged that he had received the 1997 Code of Conduct Handbook and had agreed to read its contents, Exhibit Respondent 2. The applicant was also “pretty sure” that he had seen the October 2004 Code of Conduct, Exhibit Respondent 3. Furthermore the applicant testified that he “presumed” that he had previously seen the respondent’s policy “Alcohol, Drugs And The Workplace”, Exhibit Respondent 5. In any event he agreed that he knew all about it, Transcript PN 254.

[11] Mr Dennis arranged for posters about behaviour during the Christmas season and at the party to be displayed on notice boards around the Rosebery premises. These are at Attachment D to Exhibit Respondent 9. The more detailed one entitled “Safety Alert ‘Tis The Season” is also Exhibit Respondent 6. The applicant’s evidence was that he hadn’t seen this poster before.

[12] The Christmas party was held on 10 December 2004 commencing at 6pm. It was held at Dockside, the Balcony Level, Cockle Bay Wharf at Darling Harbour. The applicant arrived at the function at approximately 5.45pm. His evidence was that he had not consumed any alcohol prior to attending the party. He had eaten earlier in the day. There was some difference in the evidence as to whether or not there was an AMWU function held on the same evening. Nothing in this decision turns on this as I accept that, even if such an event did take place, the applicant did not attend.

[13] There were security guards present at the party. They collected invitations and checked employees’ security passes. Food was available at the party. Although there were some differences in the evidence as to the exact nature of the food, it appears that there was a buffet table with meats and salads as well as finger food which was taken around on trays by waiters and waitresses. Beer, wine, soft drinks and water were provided. Some of this was placed on tables and some served by waiters and waitresses from trays. The beer was in open bottles, the wine poured into glasses.

[14] The applicant’s evidence was that he drank beer and vaguely remembers drinking a little bit of red wine towards the end of the party. His estimate was that he had about 12 beers but did acknowledge that it could have been 15. He didn’t drink any soft drink or water at the party. The applicant’s evidence was that he was in control, was quite a seasoned drinker and had a lot of finger food to eat during the evening. There was a band at the function and the applicant danced.

[15] Mr Sipura’s evidence was that, on at least two occasions whilst the applicant was dancing, he observed Mr Gumulia pulling out a small clear bottle and tipping a few drops of liquid into the applicant’s wine glass. Under cross-examination he conceded that he was unsure whether it was a wine glass or a bottle of beer. Mr Sipura’s evidence was that Mr De Oliveira was encouraging Mr Gumulia in these actions. He also saw Mr De Oliveira grab the bottle at one point and pour some liquid into the applicant’s drink. Mr Sipura also gave evidence that he saw Mr Gumulia tip some of the liquid into his own drink.

[16] Mr Gumulia denies bringing any small bottle to the party and further denies pouring anything into or spiking anyone’s drink at the function. Mr De Oliveira’s evidence is that he didn’t see Mr Gumulia with any small bottle, neither did he observe Mr Gumulia pour anything into anyone’s drink. Mr De Oliveira denies putting any liquid into anyone’s drinks and further denies encouraging Mr Gumulia to do such a thing.

[17] Mr Wheatley’s evidence was that he brought his own alcohol to the party as he dislikes beer and wine. He brought two bottles of vodka each approximately 375 mls. Mr Wheatley’s evidence was that he mixed the vodka with soft drinks from the bar. He also poured vodka into other people’s soft drinks but only with their knowledge and consent. He did this four times. Mr Wheatley denied putting any vodka into the applicant’s drink. Mr Wheatley testified that he saw another employee with some bourbon.

[18] There were some differences in the evidence as to the finishing time of the party. It appears that the band stopped playing at approximately 10pm. The applicant’s testimony was that he “blacked out” at about that time although I note that in paragraph 11 of Exhibit Applicant 4 he states that he recalls events until approximately 10.15pm.

[19] Shortly after the band finished playing a group of employees including Mr Sipura, Mr Gumulia and Mr De Oliviera went to Star City Casino which is on the opposite side of Darling Harbour. The evidence of all three witnesses differed in many respects including the sharing of umbrellas, the specific area of the Casino in which they placed bets and whether Mr Gumulia lost money and was distressed or upset. I do not intend to provide details about this evidence as it does not go to the events which directly relate to the applicant but rather to matters of credit which I shall deal with in my conclusions.

[20] Mr Wheatley’s evidence was that he was one of the last people to leave the function which was at about 10.30pm. He gave evidence that he observed that the applicant was still in the function room at this time. Mr Wheatley went down the escalator and spoke to a group of people including Mr Cole. Mr Cole’s evidence was that he looked up and saw the applicant urinating over the side of the balcony onto the lower level. He pointed this out to Mr Wheatley who ran up the escalator. Mr Wheatley’s evidence was that he was disgusted with the applicant’s behaviour and yelled at him and slapped him across the back of the head. He now realises he should not have hit him. The applicant testified that he could vaguely remember Mr Wheatley yelling at him and slapping him on the back of the head. He felt no pain.

[21] Mr Wheatly and the applicant proceeded down the escalator. Mr Wheatley’s evidence is that when they reached the bottom there were some men from the restaurant beneath the balcony who expressed their anger at the applicant urinating over them, their “dates” and their food. The host of the restaurant threatened to call the police. Mr Wheatley’s evidence is that he then suggested that the applicant should pay for the meals. The applicant eventually agreed and his credit card was given to the restaurant. The applicant’s evidence was that he did not know if he had signed the credit card receipt. The signature on it was not his. Ms Wright’s evidence was that the applicant did sign the receipt. The receipt is Annexure F to Exhibit Applicant 4. Ms Wright testified that she could see the diners in the restaurant but could not hear what they were saying. She apologised to the restaurant host for the applicant’s actions.

[22] Ms Wright’s evidence is that she and another employee, Mr Smith, helped the applicant to walk down the small flight of stairs to the main pathway. She thought the applicant was drunk and needed steadying. An argument broke out between Mr Wheatley, Mr Smith and the applicant. Mr Wheatley and Mr Smith pushed and shoved each other and Mr Smith fell over. Mr Wheatley slapped the applicant on the back of his head and again expressed disgust at his behaviour.

[23] The applicant, Mr Cole and Mr Smith proceeded along the pathway towards the Imax Theatre. At Ms Wright’s request Mr Wheatley stayed with her to avoid any further confrontation. Some time later, after Ms Wright left to join friends, Mr Wheatley walked along the pathway towards Central Station. He encountered the applicant, Mr Smith and Mr Cole at the back of the Imax Theatre. Mr Wheatley’s evidence is that there was further pushing and shoving between Mr Smith and himself, Mr Smith punched him on the nose and he punched Mr Smith in the stomach. Mr Cole testified that he didn’t observe any physical altercation as he was walking in front of the others. When he turned around both Mr Smith and the applicant were sitting or lying on the grass or garden.

[24] Police officers arrived and it appears statements were taken from some of the persons. Mr Wheatley’s evidence is that the police called an ambulance for the applicant who was taken to hospital. The applicant’s evidence is that he recalls being picked up by the ambulance. He then recalls waking up in hospital with a severe headache unlike any he had experienced before. The clinical record from the hospital is Annexure D to Exhibit Applicant 4. Amongst other things it records that the presenting problem was intoxication, the patient claimed that he had 15 beers, went behind the Imax cinema to urinate, sat down and fell asleep. The applicant went home by taxi.

[25] The applicant’s evidence is that on 11 December 2004, after discovering the credit card receipt in his pocket, he phoned and then visited the restaurant at Darling Harbour. He was told that it was alleged that he had urinated over the balcony at around 10.30pm. The applicant apologised to the restaurant representative who accepted the apology, said someone had paid the bill and considered the matter closed.

[26] On 13 December 2004 Mr Dennis was made aware of the allegation about the applicant’s urination. His evidence is that he informed Mr Wilkinson and Mr Ruka that he would need to speak to the applicant and investigate the incident. Mr Wilkinson phoned the applicant who then attended the workplace at approximately 10am and waited until 3.25pm when he clocked on. He worked on afternoon shift. His evidence is that he felt ill and went home at 4pm. Mr Dennis’ evidence is that he was unaware that the applicant had been at the Human Resources area that day. The applicant’s evidence is that he spoke to Mr Dennis whilst at the premises that day.

[27] On 14 December 2004 the applicant attended his doctor and obtained a medical certificate which states that the applicant was being treated for “stress related generalised anxiety disorder” and was unfit for normal duties until 20 December 2004, inclusive. This was received by Mr Dennis on 16 December. The certificate is Attachment E to Exhibit Respondent 9.

[28] Also on 14 December, Mr Dennis phoned the applicant at home and told him that he was stood down on full pay pending an investigation into his actions at the party.

[29] On 13 or 14 December Mr Sipura had a conversation with the AMWU head delegate, Mr Phillips, wherein he was told about the applicant’s actions on 10 December. Mr Sipura’s evidence was that he then informed Mr Phillips of what he had seen at the function and asked whether he should speak to “HR” about it. Mr Phillips told him to wait until he, Mr Phillips, had spoken to Mr Cartwright.

[30] On 16 December there was an AMWU District meeting at which the applicant, Mr Cartwright, Mr Sipura, Mr Wilkinson and Mr Ruka were present, as well as delegates from a number of other businesses.

[31] Following the meeting there was some discussion among the respondent’s delegates and Mr Cartwright about the incident involving the applicant. Mr Sipura mentioned what he had seen. Mr Cartwright phoned Mr Dennis and informed him that there were allegations about drink spiking having taken place at the party. Mr Dennis prepared a memo about the issue including names and addresses of persons who might be witnesses or have been involved. This is Attachment C to Exhibit Respondent 17.

[32] Also on or around 16 December 2004 Mr Dennis obtained statements from Ms Wright, a Ms O’Brien, Mr Cole and Mr Wheatley about events at the Christmas Party. These statements are Attachments K, L, M and N to Exhibit Respondent 9. Mr Wheatley was also spoken to about his behaviour.

[33] On 17 December Mr Dennis and Mr Williams attended the City Central Local Area Command and spoke to a police detective about the drink spiking allegations. A copy of the memo referred to in paragraph 31 was given to the police. Also on 17 December Mr Wheatley received a formal written warning about his “physical intervention” on the night of the Christmas party. This is at Attachment P to Exhibit Respondent 9. It appears that another employee, Mr Macey, also received a formal written warning about his behaviour at the party, Document 7 in Exhibit Applicant 13.

[34] On 20 December 2004 Mr Dennis interviewed Mr Smith about events at the party. Mr Dennis typed up what Mr Smith said at the meeting however Mr Smith would not sign the document. The document is Attachment O to Exhibit Respondent 9.

[35] On 21 December Mr Dennis phoned both Mr Cartwright and the applicant to schedule a meeting for 2pm that day to discuss the applicant’s actions. The meeting was attended by the applicant, Mr Cartwright, Mr Wilkinson, Mr Ruka, Mr Dennis, Mr Beese and another company representative, Mr Geoghegan. At the commencement of the meeting Mr Dennis informed the applicant about the purpose of the meeting, that he would be able to provide an explanation for his conduct and that if the company was not satisfied with his explanation his employment could be terminated. The applicant confirmed this in his testimony although I note that some, though not all, of the other witnesses who were called on behalf of the applicant denied that such a possibility had been raised.

[36] Mr Dennis’ evidence is that he did not provide the applicant with a copy of the statements referred to in paragraph 32 above however he told him a summary of what they said.

[37] The applicant expressed sorrow and remorse for his actions and said that he wanted to “fall on his sword”. The applicant’s evidence was that he said he couldn’t provide an explanation for his behaviour as he could not recall the incident. He testified that he said that he had heard there were rumours that his drink had been spiked. The applicant also testified that, in response to a question from Mr Dennis as to whether he thought his drink was spiked, he answered “yes”. He then testified that, although he couldn’t recall his exact words, he knew “for sure” he didn’t say “no”.

[38] The testimony of Mr Ruka, Mr Wilkinson and Mr Cartwright generally supports the applicant’s testimony on this point. On the other hand, the evidence of Mr Dennis and Mr Beese is that the applicant said “no” he didn’t think his drink had been spiked. Mr Dennis made handwritten notes during the meeting and these are at Attachment F to Exhibit Respondent 9.

[39] There was a break in the meeting during which the company representatives left and Mr Dennis phoned Mr Timmis. There had been previous discussions between them about the issues. Mr Dennis reported what had been said at the meeting with the applicant and various options were discussed. Mr Timmis then spoke to the respondent’s Chief Executive Officer, Mr Oneile, and recommended that the applicant be dismissed without notice. Mr Timmis’ evidence is that Mr Oneile agreed. Mr Timmis then spoke again to Mr Dennis and informed him of the decision.

[40] The respondent’s representatives returned to the meeting room with the applicant and his representatives and Mr Dennis informed the applicant of the decision to terminate his employment. Further discussion between Mr Cartwright and Mr Dennis took place. The details of this discussion are disputed. A letter of termination was sent to the applicant. This was dated 23 December 2004. The document was not tendered during proceedings but was an attachment to the notice of employer’s appearance and is on the Commission file.

[41] At the time of dismissal the applicant was paid his outstanding annual leave entitlements but did not receive any notice, severance or long service leave payments. There was some debate about the amount that would have been payable had the applicant been made redundant. Whilst I do not make any finding on this it appears to be somewhere between $25,000 and $30,000 although I note that the submissions on behalf of the applicant refer to a figure of $38,000.

[42] There was further correspondence and discussions between Mr Cartwright and Mr Dennis following the applicant’s dismissal. The correspondence is at Attachments H and I to Exhibit Respondent 9. The terms of the discussions are disputed.

[43] Mr Williams’ evidence is that between 17 December 2004 and 2 March 2005 he had “many” telephone conversations with City Central Police. He was informed that he should wait until they had finalised the matter. On 2 March 2005 he was informed that the police were not going to pursue the issue. Mr Williams then conducted an investigation into the allegations of drink spiking at the Christmas party.

[44] Mr Williams interviewed all but one of the people whose names were on the list referred to in paragraphs 31 and 33 above, Attachment C to Exhibit Respondent 17. He attempted to contact the other alleged witness who had since left the respondent’s employment, Attachment G to Exhibit Respondent 17. Mr Williams also had a statement by a Ms Mikus-Symes who had attended the Christmas party and who believed that her drink may have been spiked, Attachment E to Exhibit Respondent 17. He did not interview Ms Mikus-Symes. Mr Williams testified that there was no benefit in interviewing her as she had clearly stated that she had not seen anyone putting anything in her drinks. He needed eyewitnesses to any alleged spiking.

[45] The applicant’s evidence is that since his dismissal his main source of income has been from the sale of some shares in the company. He is presently employed through a labour hire company to work as a casual in a range of businesses. The applicant testified that he had received work “on and off” through this means. A schedule of the applicant’s earnings since the dismissal is Exhibit Applicant 16. The applicant also received $300 for helping friends with some painting.

[46] The applicant seeks reinstatement. He testified that he has found it difficult to obtain work. Although he is aware that the respondent does not do electroplating any more, the applicant testified that he would be willing to accept any position with the company. The applicant has received a number of personal references which are at Attachments G, H, I and J to Exhibit Applicant 4. His evidence was that since the dismissal he has suffered from anxiety and insomnia.

SUBMISSIONS ON BEHALF OF THE APPLICANT

[47] A written outline of submissions on behalf of the applicant was provided prior to the hearing. This was marked Exhibit Applicant 1. Final written submissions were also tendered and marked Exhibit Applicant 17. Mr Penning also made additional oral submissions. These oral submissions were based upon the written submissions with additional references to the evidence and responses to the respondent’s written submissions. I have had regard to the oral submissions but do not intend to summarise them here.

[48] The submissions outline the applicant’s version of the facts surrounding the dismissal. It is submitted that, as the applicant was summarily dismissed for serious misconduct, the respondent bears the relevant onus. The decision of Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 @ 84 is relied upon. It is noted that the applicant was not provided with written detailed allegations prior to the termination nor was he given a written reason for dismissal.

[49] It is submitted that the respondent also bears the onus of establishing a relevant connection between the applicant’s alleged conduct and the employment relationship such as to justify summary dismissal. A decision of the Western Australian Industrial Appeal Court in Civil Service Association of Western Australia Inc v Director General of Department for Community Development [2002] WASCA 241 is referred to.

[50] The provisions of section 170CG(3) are addressed. It is submitted that there was no valid reason for the termination because the respondent had not concluded its investigation into the drink spiking allegation until after the applicant was dismissed. Furthermore, the decision maker, Mr Timmis, authorised the termination on the assumption that the allegation had already been fully investigated. The decision of King v Freshmore (Vic) Pty Ltd [Print S4213] (King) is referred to.

[51] It is submitted that the alleged misconduct did not have a relevant connection with the applicant’s employment: Hussein v Westpac Banking Corporation (1995) 59 IR 103. It is only in exceptional circumstances that an employer has a right of supervision over private activities of employees. Here the conduct was out of hours, in a public place after the conclusion of the Christmas function: Applicant v Respondent [Print P9973] (Applicant) and Byrne and Frew v Australian Airlines (1995) 61 IR 32 (Byrne and Frew). Reference is also made to the decision of Roach v Qantas Airways Limited [PR912545] (Roach). It is submitted that the latter decision is distinguishable from this matter as it involved exceptional circumstances and a strong and relevant employment connection.

[52] The submissions also refer to the decisions of McManus v Scott-Charlton (1996) 140 ALR 625 and Rose v Telstra Corporation Limited [Print Q9292] (Rose). It is submitted that there has been no evidence of any complaint or claim against the respondent or any threat to its licence as a result of the applicant’s actions.

[53] The reason for the applicant’s dismissal was not a valid one and was not “sound, defensible or well founded”; Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 (Selvachandran). It is submitted that the respondent did not take into account the real possibility that the applicant’s conduct was the result of his drink having been spiked. This conduct was totally out of character and not remembered by the applicant.

[54] It is submitted that the respondent’s reliance upon any police investigation is flawed as there is no evidence that the police had commenced or even intended to carry out any such investigation: Document 15 of Exhibit Applicant 13. Furthermore it is submitted that, in any event, the respondent was not prevented from carrying out its own investigation especially where the issue had a significant bearing on the decision to dismiss the applicant. There has been no compelling explanation or legal authority produced to justify the respondent’s failure to investigate prior to the applicant’s dismissal.

[55] It is submitted that I should accept the evidence of the applicant as to his response to Mr Dennis’ question about drink spiking during the interview on 21 December 2004. It is noted that his evidence is corroborated by Mr Cartwright, Mr Ruka and Mr Wilkinson.

[56] The respondent’s investigation into the drink spiking allegations did not commence until March 2005 and concluded in April 2005. Mr Timmis’ evidence was that he made the decision to dismiss the applicant based on a belief that the allegations had already been fully investigated and that those who had made the allegations had been interviewed. This premise was false.

[57] The respondent had been made aware of the spiking allegations from as early as 14 December 2004. In light of this information and no plausible explanation for a failure to investigate the allegations prior to the applicant’s termination, it cannot be said that the dismissal was “sound, defensible or well founded” and hence was not for a valid reason.

[58] It is conceded that the applicant was notified, in part, of the reason for termination in the letter of 23 December 2004. However, it is noted that there is no reference to the drink spiking allegations or to the extent to which the respondent had taken this possibility into account. The letter does not refer to the applicant having been the victim of an assault by Mr Wheatley, nor does it acknowledge the applicant’s remorse for his actions.

[59] It is submitted that the applicant had not been given a chance to respond to the allegations against him. The applicant had not been told prior to the meeting on 21 December 2004 that a possible consequence of the meeting was that his employment could be terminated. The respondent did not inform the applicant of the relevant facts it would consider in deciding any disciplinary action it might take, neither was the applicant told of the process that would be followed or the nature of the meeting on 21 December.

[60] The applicant was not provided with an adequate opportunity to deal with the allegations against him. He was not able to raise additional information or offer an alternative explanation. Because the respondent had not conducted an investigation into all of the circumstances, including the drink spiking allegations, prior to the termination, the process was flawed and unfair and the applicant was denied a proper opportunity to respond.

[61] The applicant had not been warned that his conduct might jeopardise his employment. It is noted that the applicant had an unblemished record during his period of employment.

[62] It is submitted that the respondent is a large and substantial company and there is no evidence that would justify acceptance of lesser procedures. The decision of Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 is referred to.

[63] Similarly it is noted that the respondent has access to an expert human resources department. It is submitted that it would be difficult to imagine a respondent more capable of meeting the standards suggested by the legislation.

[64] A number of submissions are made under the twin headings of “Section 170CG(3)(e) - other matters” and “Was the termination, harsh, unjust or unreasonable in all the circumstances”. Reference is made to the Full Bench decision of Windsor Smith v Liu and others [Print Q3462] (Windsor Smith) especially to a passage at page 8 of the decision as to the principal question to be determined in matters of this kind.

[65] It is noted that a dismissal can be for a valid reason but still harsh, unjust or unreasonable. In this regard reference is made to Byrne and Frew at page 72. It is submitted that, on this authority, each element of the phrase “harsh, unjust or unreasonable” should be considered separately. Further it is submitted that, in this case, the dismissal attracts a remedy because it was “harsh”, “unjust” or “unreasonable” or a combination of all three elements.

[66] In relation to the question of whether the dismissal was harsh, reliance is placed upon the decisions of Australia Meat Holdings v McLauchlan [Print Q1625] (McLauchlan) and Rossi v Australian Air Express Pty Limited [PR915493]. It is noted that the applicant had over 11 years service with the respondent and that the effect of the termination upon him has been particularly harsh. Reference is made to his earnings since the date of dismissal. It is submitted that in view of his age, 53 years old, his prospects of re-employment in a comparable position are extremely low.

[67] It is also submitted that unreasonable and unnecessary additional hardship has been caused to the applicant by the termination occurring just prior to him becoming eligible for a redundancy payment. In view of his length of service and absence of prior warnings the termination was harsh, unjust and unreasonable especially in light of its impact on the applicant in economic and personal terms. The decision of Dahlstrom v Wagstaff Cranbourne Pty Ltd [Print T1001] is referred to.

[68] It is submitted that there is evidence that the conduct of other employees on the night of the Christmas function could also be characterised as constituting serious misconduct and yet their employment was not terminated. Reference is made to Mr Wheatley’s admission of bringing vodka to the function and assaulting both the applicant and Mr Smith. It is suggested that Mr Wheatley may have also been involved in forging the applicant’s signature on the credit card receipt. It is noted that Mr Wheatley received a “gentle” warning letter without an investigation into the incident.

[69] It is submitted that the applicant’s dismissal is harsh in light of the disproportionate treatment of those employees compared with the applicant. Further, in view of the applicant’s length of service and exemplary record, the termination was disproportionate to the alleged misconduct and consequently, harsh. It would have been more appropriate for the applicant to have received a warning.

[70] Reference is made to the test of an “unjust” termination set out in McLauchlan. It is submitted that mere misconduct is not a valid ground for dismissal. Even a criminal conviction may not be sufficient to warrant termination, there needs to be a relevant connection with the employment relationship: Rose. If I reject the submission as to the influence of the drink spiking on the applicant’s conduct it is submitted that the conduct lacked the required connection with his employment such as to justify dismissal.

[71] It is submitted that the respondent breached its statutory duty arising out of the occupational health and safety legislation and the responsible service of alcohol requirements under the liquor and registered clubs legislation. The respondent provided alcohol and it was served in a way that exposed employees to the risk of having their drinks spiked. The respondent cannot terminate the applicant’s employment for his conduct but, at the same time, not take responsibility for ensuring his health, safety and welfare.

[72] The test of “unreasonable” in McLauchlan is referred to. It is submitted that the applicant’s dismissal is unreasonable because the conclusions drawn and assumptions made by the respondent could not reasonably have been drawn or made on the material before it at the time. The spiking of the applicant’s drink was most likely a substantial cause of his alleged conduct. The respondent could not have reasonably concluded otherwise. Reliance is placed on the decisions of Byrne and Frew, McLauchlan and Kerry v Ansett Australia Limited [Print Q6686].

[73] It is submitted that there were a number of mitigating factors which should have caused a reasonable employer to decide not to dismiss. These include the applicant’s length of service and prior employment record, his contrition and remorse as well as the fact that his drink may have been spiked. It is also noted that the applicant paid for the meals of the diners affected by his conduct.

[74] A number of submissions are made on remedy. In relation to section 170CH(2) it is submitted: there is no evidence that the respondent would be economically disadvantaged by the order of a remedy; the applicant had over 11 years exemplary service, had demonstrated dedication and loyalty to the company and had a reasonable expectation of a large redundancy package or an expectation of continued employment; it would be appropriate to find that, had the applicant not received a redundancy payout, he would have remained in the respondent’s employment until retirement; there is evidence of the applicant’s attempts to mitigate his loss; and, compensation would be a less effective remedy than reinstatement.

[75] In relation to section 170CH(3) it is strongly submitted that reinstatement is the appropriate remedy. In view of the applicant’s age and skills it is unlikely he will find comparable employment again. There is no evidence of a breakdown in the employment relationship nor was the termination related to conduct at the workplace. The maximum amount of compensation that could be awarded is less than the redundancy payment he would have received and less than he has lost since the termination. Continuity of service is also sought.

[76] In the alternative, it is submitted that the applicant should receive the maximum compensation: Sprigg v Paul’s Licensed Supermarket (1999) 88 IE 21 (Sprigg).

[77] The applicant’s list of authorities also included Scrubby v Mattiuzzo (1999) NTSC 110.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[78] A written outline of submissions on behalf of the respondent was provided prior to the hearing. This was marked Exhibit Respondent 8. Final written submissions were also tendered and marked Exhibit Respondent 15. Ms Flynn also made additional oral submissions.

[79] The respondent’s version of the facts surrounding the applicant’s dismissal are set out. The respondent then addresses the factors to be considered under section 170CG(3). Whilst noting the comments in Windsor Smith that valid reason is no longer the critical question, it is submitted that it is still a relevant question. It is submitted that there was a valid reason for the applicant’s dismissal. The applicant did not drink or act responsibly at the function.

[80] The respondent’s expectations in this regard had been made clear to employees, including the applicant, prior to the event by way of briefing sessions, posters and on the invitations. As the Christmas party was fully funded by the respondent and attended only by employees it was reasonable for the respondent to apply its policies and procedures and to attempt to regulate employees’ conduct at the function.

[81] It is submitted that the evidence supports a conclusion that the respondent had reasonable grounds to believe that the applicant had drunk to excess and urinated from the balcony and was therefore guilty of misconduct. Furthermore, facts and evidence which have arisen during the proceedings are also relevant for consideration: King.

[82] The respondent submits that there is a relevant connection between the applicant’s conduct and his employment: the party was paid for by the respondent; delegates, including the applicant, had been told they were to set an example; and, employees had been told policies and procedures were to apply at the party. The applicant’s conduct also amounted to a failure by him to observe a lawful and reasonable direction that he drink and behave in a responsible manner. This failure amounts to serious misconduct: Miller v University of New South Wales [PR910187].

[83] It is submitted that, even if I accept that the applicant’s conduct was “out of hours”, there was still a valid dismissal: Rose and Applicant. The applicant’s conduct was serious and incompatible with his duties as an employee. The conduct occurred in a public place and fell far below normal expectations. It is submitted that the applicant’s conduct was such that it comes within the “exceptional circumstances” referred to in Applicant. Reference is also made to observations in Roach.

[84] The applicant was aware that the respondent’s policies and procedures were to apply at the Christmas party and was on notice that inappropriate behaviour at the function could lead to dismissal. It is submitted that the applicant failed to drink in moderation contrary to the respondent’s policy set out in Exhibit Respondent 5. Furthermore his urination behaviour was not in accordance with the respondent’s, or general community, expectations. It is submitted that, given the evidence of Mr Wheatley and Mr Cole, there can be no doubt that the applicant did urinate over the balcony.

[85] The respondent submits that the applicant’s behaviour was not due to drink spiking. The evidence of Mr De Oliveira and Mr Gumulia should be preferred to that of Mr Sipura. It is submitted that the applicant did not allege, prior to the termination, that his drink had been spiked. In this regard the evidence of Mr Dennis and Mr Breese should be preferred to that of the applicant and his witnesses.

[86] It is submitted that, if the applicant had believed that his drink had been spiked, it would be reasonable to expect that he would have raised the allegation himself prior to discussion with other employees. Even on a balance of probabilities there is no substance in the spiking allegation and, as such, no justification for the applicant’s conduct.

[87] The respondent submits that its investigations into the applicant’s conduct were reasonable. It obtained statements from Mr Wheatley, Mr Cole and Ms Wright. Mr Dennis also spoke to Mr Smith. The respondent also referred the spiking allegation to the police.

[88] It is submitted that the applicant admitted in cross examination that he knew that his employment was at risk of being terminated as a result of his urination. Similarly, there can be no doubt that, by the conclusion of the meeting on 21 December 2004, the applicant knew the reason for his dismissal. He was also provided with written reasons.

[89] It is submitted that, in all of the circumstances, the applicant was provided with procedural fairness and a fair hearing prior to his dismissal. In the meeting of 21 December he was informed of the allegations about his behaviour following the party and given a sufficient opportunity to respond to these in the presence of his union representatives.

[90] The respondent submits that section 170CG(3)(d) is not relevant in this matter. It submits that the process followed by the respondent which led to the applicant’s dismissal was appropriate having regard to its size. It also submitted that the process was fair and reasonable. The applicant’s submission about predetermined procedure is rejected.

[91] A number of submissions are made in relation to “other matters”. It is submitted that I should not accept that there was a possibility that the applicant’s drink had been spiked nor should I accept that the applicant was of an independent view that his drink had been spiked. It is submitted that the central person to the spiking allegation is Mr Phillips who was not called by the applicant. A Jones v Dunkel (1958/9) 101 CLR 298 inference should be drawn.

[92] The respondent refers to inconsistencies in the applicant’s evidence and submits that he was not entirely honest in his answers. It is also submitted that Mr Cartwright’s evidence was shaken during cross-examination. Furthermore there were inconsistencies between the evidence of the applicant and each of his witnesses. Mr Sipura was not a credible witness. It is submitted that the evidence of the respondent’s witnesses should be preferred.

[93] The respondent submits that the fact that the applicant had volunteered for redundancy did not detract from his obligation to act appropriately on the night of the function. Furthermore he should not be rewarded for his behaviour with an award of the redundancy package he would otherwise have received.

[94] It is submitted that the respondent did not breach its duty of care to employees, including the applicant, on the night of the Christmas function. Prior to the function employees were informed about the respondent’s expectations as to responsible drinking and behaviour. There was ample food available at the function which was held at a licensed venue. The respondent organised for security guards to be present.

[95] The applicant was not treated unfairly when compared with the treatment of other employees including Mr Wheatly and Mr Macey. It is noted that both of these employees were disciplined by the respondent. The respondent submits that the conduct of these employees was not as serious as that of the applicant. It is also submitted that different disciplinary outcomes may be appropriate despite action arising from the same incident. The decisions of Burke v Boyne Smelters Limited [Print R7793] and Mason v Boyne Smelters Limited [Print R7701] are referred to.

[96] The respondent submits that reinstatement is not appropriate especially in view of the applicant’s conduct. Furthermore the department in which the applicant was engaged has since closed. Hence any order for reinstatement would impose a significant burden upon the respondent. The decision of Nicholson v Heaven and Earth Gallery Pty Limited (1994) 57 IR 50 is referred to.

[97] It is submitted that any order for compensation should be minimal. The applicant has not actively tried to mitigate his loss. Any amount of compensation should be reduced by the applicant’s earnings since the date of termination: Sprigg and Ellawala v Australian Postal Corporation [Print S5109]. It is submitted that the schedule of applicant’s earnings, Exhibit Applicant 16, is not reliable and little weight should be placed upon it.

CONCLUSIONS

[98] The primary issue I need to determine is whether the termination of the employment of the applicant was harsh, unjust or unreasonable. In this regard I need to consider the factors set out in section 170CG(3) of the Act.

[99] This section provides as follows:

[100] In considering these factors, it is important to note that the existence of a valid reason for a termination is only one of the issues to be considered by the Commission when deciding matters of this kind. In this regard, I refer to the decision of McLauchlan.

[101] It is also of relevance to consider the provisions of section 170CA(2) which provide that the procedures and remedies concerning the conciliation and arbitration of claims such as these, as well as the manner of deciding on such remedies,

[102] In relation to the meaning of the term “harsh, unjust or unreasonable” in section 170CG(3) I refer to the comments of McHugh and Gummow JJ in the decision of the High Court in Byrne and Frew:

[103] The first matter to which I need have regard is whether there was a valid reason for the termination of the applicant’s employment. The meaning of valid reason is a matter which has often been considered by the courts in relation to section 170DE(1) of the former Industrial Relations Act 1988 and also by the Commission both in relation to that section and, more recently, with regard to the statutory provisions currently before me. There appears to be general acceptance of the often quoted words of Northrop J in Selvachandran:

[104] In the particular circumstances of this case, as part of determining whether there was a valid reason for the termination, I need to consider whether there is a necessary connection between the applicant’s alleged conduct and the employment relationship.

[105] The question of whether conduct is employment related has been addressed in a number of decisions some of which are referred to in the parties’ submissions and cited above. In this case the alleged conduct took place following a work related social function. The function was fully funded by the respondent and was attended by employees only. The respondent went to some lengths to ensure that employees were aware that there were certain expectations as to their behaviour and that the company’s policies and procedures were to apply at the function. I consider that in the circumstances this was reasonable.

[106] It is true that the incident occurred after the formal conclusion of the function. The evidence differed as to exact times. However, I accept the evidence of Mr Wheatley that the applicant was still in the function room at the time Mr Wheatley left which was approximately 10.30pm. It would appear that, shortly afterwards, the applicant left the room, walked out onto the balcony and urinated over the side.

[107] In my view there is a sufficient temporal and physical proximity to the work function such as to provide a necessary connection with the employment relationship. At least some members of the public were aware of the conduct, specifically those diners on whom the applicant’s actions had the most direct impact as well as the restaurant representative. There could have been others. I accept that it appears that no complaint was made to the company, however, it is clear that the behaviour had the capacity to reflect adversely on the respondent.

[108] As the reason for the termination of the applicant’s employment was related to his conduct rather than his capacity or the operational requirements of the respondent’s business, I have to determine for myself whether the alleged misconduct occurred and, if so, whether it amounted to a valid reason for termination. In this regard I refer to the following observations in the Full Bench decision of King:

[109] The applicant’s evidence is that he cannot recall the incident. I accept the evidence of Mr Cole and Mr Wheatley that the applicant did urinate over the balcony. I also accept that he urinated onto diners below and/or onto their meals. If it were otherwise there would have been no need for a discussion with the diners and the restaurant representative and no reason for paying for anyone’s meals. That this occurred is also reinforced by Ms Wright’s evidence that she apologised to the restaurant representative for the applicant’s behaviour. If the conduct hadn’t happened the representative would presumably have indicated some bemusement.

[110] In my opinion behaviour of the kind identified in the immediately preceding paragraph, prima facie, amounts to serious misconduct. The next issue is whether there was some reason for the behaviour such that it should not be so viewed. I now turn to the drink spiking allegations. There is a direct conflict between the evidence of Mr Sipura on the one hand and Mr De Oliviera and Mr Gumulia on the other. I prefer the evidence of the latter two witnesses. Mr De Oliviera was clear, firm and responsive in his testimony and he impressed me as being a witness of truth. Mr Gumulia was less firm and responsive, however, it needs to be remembered that his evidence was given through an interpreter which has inbuilt delays in response. I note that there were some inconsistencies between their evidence, however, these were not in relation to the central issues.

[111] It should be noted that, even if I had preferred Mr Sipura’s evidence to that of Mr De Oliviera and Mr Gumulia, I could not be satisfied that his evidence was reliable as to it being the applicant’s drink which was spiked at the function.

[112] It is possible that there may have been some drinks spiked at the Christmas function. I have considered the statement of Ms Mikus-Symes. However, on the evidence before me I am not satisfied, on the balance of probabilities, that the applicant’s drink was spiked. I am satisfied that there is no reason why I should not consider that the applicant’s conduct amounted to a valid reason for termination.

[113] I am satisfied that the applicant was notified of the reason for the termination in the meeting on 21 December 2004. I note that the reason for the termination was also set out in the letter of 23 December 2004. Of course this, in itself, would not be sufficient as it was provided to the applicant after the respondent had made the decision to terminate. I note the applicant’s submissions about the respondent’s failure to refer to certain matters in that letter however, in my view, that does not detract from the fact that the applicant was notified of the reason for his dismissal prior to the relevant decision being made.

[114] I am satisfied that the applicant was given an opportunity to respond to the reason for termination. I do not accept that, in the circumstances of this case, there was any need to provide the allegations in writing. The issues were fairly clear. I also note that the applicant was accompanied at the meeting by two other delegates and the relevant organiser. I am satisfied that Mr Dennis informed the applicant at the start of the meeting on 21 December 2004 that termination was a possibility. As indicated in paragraph 35 above, the applicant conceded as much.

[115] In my view paragraph (d) of section 170CG(3) is not relevant in this case. I note the applicant’s submission about not having been warned that his conduct might jeopardise his employment. Leaving to one side the question of whether it would be necessary for an employer to warn its employees that urinating in a public place into people’s meals might cause their employment to be at risk, paragraph (d) refers to instances where dismissal is related to performance. Here it was solely related to conduct.

[116] I have had regard to paragraphs (da) and (db). I note that the respondent is a large employer, with dedicated human resource management specialists. I am satisfied that these factors were reflected in the procedures which were followed in effecting the termination.

[117] There are a number of other factors which I consider to be relevant. The applicant had a period of over 11 years service with the respondent apparently without blemish. I accept that he has and very likely will continue to find it difficult to obtain comparable employment. I also accept that the termination has caused additional hardship to the applicant by virtue of the fact that he didn’t receive notice, long service leave and severance pay that he would have received if he had been made redundant. I am however satisfied that the termination was not in any way based on a desire by the respondent to save the cost of a redundancy. It related directly to the applicant’s conduct.

[118] The next two factors I wish to consider relate to the meeting on 21 December 2004 which resulted in the respondent’s decision to terminate the applicant’s employment. There is clearly a difference in the evidence of the various witnesses as to the applicant’s response to Mr Dennis’ question about whether he thought his drink had been spiked. Perhaps this difference is attributable to the phonetic similarity between “no” and “know” as in “don’t know”. In this respect I do not conclude that any of the witnesses are being untruthful. I do note that Mr Dennis made contemporaneous notes of the meeting.

[119] However, even if I accept that Mr Dennis was wrong in his recollection of the applicant’s response, and, hence, perhaps the respondent should have conducted its own investigation into the alleged spiking at an earlier time, this does not vitiate the termination. As indicated earlier, ultimately, it is for this Commission to decide on the evidence before it.

[120] Similarly, whilst I accept that there may have been a misunderstanding between Mr Timmis and Mr Dennis about whether any investigation had been completed, in view of the evidence before me and the conclusions reached earlier, I am not satisfied that this undermines the whole dismissal.

[121] On the evidence before me it is clear that the conduct of some other employees on the evening of the Christmas function was not without fault. Mr Wheatley’s behaviour in bringing alcohol to the event, slapping the applicant on the back of the head and then engaging in pushing, shoving and exchanging blows with Mr Smith certainly warranted censure. Perhaps he was fortunate to have only received a written warning. However, I do not consider that this is a case which required equality of penalty.

[122] I note that, in the applicant’s submissions, there is a suggestion that Mr Wheatley may have been guilty of fraud in forging the applicant’s signature. I reject this submission and accept Ms Wright’s evidence that she saw the applicant sign the receipt. That it is not his usual signature is perhaps reflective of his consumption of alcohol.

[123] I am unable to make any comment on the appropriateness, or otherwise, of the written warning given to Mr Macey as I do not have enough evidence before me. I note that Mr Smith doesn’t seem to have received any warning.

[124] The next issue I wish to consider is whether the respondent abrogated its responsibilities to its employees in relation to the conduct of the Christmas function. There is probably always room for improvement in the way in which such events could be handled and it may be that consideration could be given to certain aspects in view of the issues that have been raised in this case, for example, a ban on employees bringing their own alcohol to the function. However, in my view, the respondent took reasonable and appropriate steps. After all the employees are adults and have to take some responsibility for their behaviour.
[125] I note that, even if the respondent had arranged for the premises at which the function was held to provide only sealed bottles, this would not necessarily mean there was no scope for drink spiking to occur. After all, on Mr Sipura’s evidence, tampering took place to drinks whilst the applicant was dancing. Even a ban on the service of alcohol may not address any possible risk. Bag and/or body searching prior to entry to the function would raise a number of other issues including the invasion of privacy.

[126] The final issue I consider to be relevant is the adequacy, or otherwise, of the respondent’s investigation of the spiking allegations. I accept the evidence of both Mr Williams and Mr Dennis that they referred the matter to the police. I also accept Mr William’s evidence that he contacted the police on a number of occasions and was told to await the outcome of their investigation. That the police apparently didn’t undertake any such investigation is not the fault of the respondent. In the particular circumstances I do not consider that it was unreasonable for the respondent to not undertake an investigation of its own at an earlier time.

[127] After considering all of the conclusions outlined above I find that the termination of the applicant’s employment was not harsh, unjust or unreasonable. The application is dismissed. An order to this effect is contained in Print PR960647

BY THE COMMISSION:

COMMISSIONER

Appearances

S. Penning by leave, for the applicant.
P. Flynn by leave, for the respondent.

Hearing details:

2005.
Sydney:
June 20, 21, 22,
July 5.

by Video Link Hearing:

2005.
Hong Kong:
June 21.

Printed by authority of the Commonwealth Government Printer

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