[2012] FWA 7977 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Timothy Graham
v
Bankstown District Sports Club Ltd
(U2012/560)
DEPUTY PRESIDENT BOOTH |
SYDNEY, 21 SEPTEMBER 2012 |
Termination of employment - unfair dismissal.
[1] In this matter the applicant, Mr Timothy Graham, asks the tribunal to exercise its discretion under s.394 of the Fair Work Act 2009 (the Act) to grant a remedy for unfair dismissal. The remedy sought in this matter is reinstatement.
[2] The application was made on 19 March 2012 and a telephone conciliation was conducted on 17 April 2012. The matter was not resolved at conciliation and was listed for hearing for 3 - 4 September 2012 before me. At the request of the parties I chaired a conference on 3 September, however the matter was not resolved at the conference and I heard the application on 3 and 4 September 2012.
[3] Mr Graham was represented by Mr Acev from United Voice and permission was granted for the Bankstown District Sports Club Limited (the Club) to be represented by Ms Ryan, solicitor and Mr Ginters of counsel. Evidence was given for the applicant by Mr Maxworthy and Mr Graham and for the respondent by Ms Russo, Ms Higgins, Mr Puumalainen, Mr Lambert, Mr Sammour and Ms Coates.
Background
[4] The Club is comprised of 5 venues and employs 460 employees and 800 contractors. Mr Graham was employed by the Club on 24 June 2009 as a part-time Sommelier in the Cellar Wine Bar in the main venue in Bankstown. A sommelier is defined in the Macquarie Online Dictionary as “the head wine steward of a restaurant or dining room”. This definition is consistent with the general description of Mr Graham’s duties provided by the parties in this matter. He was dismissed on 9 March 2012 on the grounds of serious misconduct said to be conduct in contravention of the Club’s Code of Conduct. It was a term of Mr Graham’s Individual Transitional Employment Agreement (ITEA) with the Club that he comply with the Club’s policies and procedures, which include its Code of Conduct. Mr Graham had attended annual training in relation to the Code of Conduct on 26 August 2011. Notwithstanding that the dismissal was on the grounds of serious misconduct the Club provided Mr Graham with 3 weeks pay in lieu of notice. This corresponded to his entitlement to notice upon termination for other than serious misconduct pursuant to his ITEA.
[5] The dismissal followed an investigation undertaken by the Club into Mr Graham’s conduct. The allegations that were the subject of the investigation were based on complaints made by another employee, Mr George Sammour, about Mr Graham’s behaviour towards him.
[6] The allegations were: 1
Allegation 1
On 20 January 2012, you said to a new contract staff member being introduced to you, and in the presence of George Sammour (George), words to the following effect:
“You’d better watch this one, he is a virgin.”
“If you want to take something off him, you better make sure it is something special starting with the letter ‘V’.”
The Club found that this allegation was substantiated.
Allegation 2
On 10 February 2012, you were picking on George during his shift. In particular, it is alleged that you:
The Club found that this allegation was substantiated.
Allegation 3
On 10 February 2012, and in the presence of George and a contract staff member, you said words to the following effect:
“Why are older Aussie men with Asian women?”
You then turned to George and said words to the following effect:
“He wouldn’t know anything about that. He is a virgin.”
The Club found that this allegation was not substantiated.
Allegation 4
On 24 February 2012, you approached George and you had a conversation with him for about 20 minutes. During this conversation, you said to George words to the following effect:
“I know that HR may have instructed you not to talk, and that’s fine. I have noticed that you have not been happy for a few weeks. Why is that?”
Although George told you that you both should not discuss the matter, you said to George words to the following effect:
“Is it to do with the virginity comments? If so, you should have told me. I am sorry.”
“HR are out to get me and a harassment case like this is what they needed.”
The Club found that this allegation was substantiated.
Allegation 5
You have made George feel uncomfortable as a result of engaging in unwelcome conduct of a sexual nature (ie making statements of a sexual nature to George, and in his presence), and in doing so, you have breached the Club’s policies and procedures, including its Code of Conduct.
The Club found that this allegation was substantiated.
[7] The Club based its decision to dismiss Mr Graham on the findings of their investigation.
[8] The Human Resources Manager, Ms Paula Coates, who made the decision to dismiss Mr Graham, gave evidence as follows:
“I considered that four out of the five allegations were substantiated in light of the evidence obtained during the investigation. Further, I considered that among other things Mr Graham had:
(a) made inappropriate comments of a sexual nature to Mr Sammour;
(b) made Mr Sammour feel uncomfortable and ill due to those comments; and
(c) inappropriately asked Mr Sammour about the investigation being conducted by human resources, and in doing so made Mr Sammour feel intimidated.
I formed the view that Mr Graham had engaged in conduct which contravened the Club’s Code of Conduct. In light of these factors I determined that Mr Graham’s employment should be terminated.” 2
[9] Mr Graham contests some of the facts of the behaviour complained of and where there is no contest about the facts of his behaviour he denies that it constitutes conduct of the kind that would constitute conduct in contravention of the Club’s Code of Conduct.
The relevant statutory framework
[10] The tribunal exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 Unfair Dismissal of the Act. In this matter there is no contest that Mr Graham is a person who is protected from unfair dismissal pursuant to s.382 of the Act and I must apply ss.385 - 387 of the Act, which read as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[11] In short I must apply my mind to whether Mr Graham was unfairly dismissed. There is no dispute that Mr Graham was dismissed so s.385(a) of the Act is satisfied. The Club is not a small employer and therefore s.385(c) is not relevant. There is no contention that this is a case of genuine redundancy so s.385(d) does not apply. Therefore, in determining whether Mr Graham was unfairly dismissed, I must consider whether the dismissal was harsh, unjust or unreasonable and in so determining pay particular attention, amongst the other criteria contained in s.387, to whether there was a valid reason for the dismissal.
[12] If I find that Mr Graham was unfairly dismissed I then must apply the provisions of Division 4 of the Act in order to determine the appropriate remedy as between reinstatement or the payment of compensation.
[13] Mr Acev for Mr Graham submitted that I was required to make a finding relation to the assertion by the respondent of serious misconduct of the part of Mr Graham. 3 I disagree. I do not have to determine whether Mr Graham’s conduct constituted “serious misconduct”. I have to determine whether there was a valid reason for the dismissal.
[14] In Royal Melbourne Institute of Technology v Geoffrey Asher the Full Bench said: 4
“[12] The ultimate question in an arbitration under s.652(3) of the Act is whether the termination of employment was harsh, unjust or unreasonable. The Act requires the Commission to have regard to the factors in s.652(3) in considering this question including any other relevant factor. The considerations require the Commission to have regard to whether a circumstance existed, take the conclusion into account and consider it with due weight as a fundamental element in determining whether the termination is harsh, unjust or unreasonable.
[13] We have considerable difficulty with the approach of the University that the central question in relation to s.652(3)(a) is whether Dr Asher engaged in serious misconduct. That question was also expressed as the central question in paragraph 110 of the Commissioner’s decision and in the analysis which followed. The approach to s.652(3)(a) and its predecessors in the context of summary dismissal has been well established in Full Benches of the Commission.
[14] The decision in Annetta was approved by another Full Bench in Jupiters Limited trading as Conrad Jupiters Gold Coast v G Atfield where the Full Bench expressed the matter in the following terms:
‘Secondly, on one reading of the decision, the reasoning of the Commissioner appears to have imposed an obligation on the employer to prove “serious misconduct” sufficient to justify summary dismissal at common law as a prerequisite to establishing a valid reason within the meaning of s.170CG(3)(a). Such an approach, if adopted, would be incorrect. Proof of misconduct justifying summary dismissal at common law is a sufficient but not a necessary condition to establishing a valid reason within the meaning of s.170CG(3)(a). Nevertheless, since for the reasons we have given we have concluded that the termination of Mr Atfield’s employment was harsh, it is not necessary to take that matter further.’”
[15] Section 652(3) of the Workplace Relations Act 1996 was in similar terms to the current provisions of the Act.
[16] Guidance as to the meaning of the term ‘valid reason” is provided by Selvachandran v Petron Plastics Pty Ltd 5. In that decision of the Industrial Relations Court of Australia Northrop J said:
“In its context in subsection 170DE(1), the adjective ‘valid’ should be given the meaning sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of subsection 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirements applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that’ the employer and the employee are treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd, unreported, when considering the construction and application of section 170DC.”
[17] Section 170DE(1) of the Industrial Relations Act 1988 was in broadly similar terms to the corresponding provisions of the current Act.
[18] I note that the Tribunal is not confined to a consideration of the reason/s given by the employer in determining whether there was a valid reason for dismissal. In MM Cables (A Division of Metal Manufacturers) v Victor Zammit 6 the Full Bench said:
“....First, the Commissioner seems to have confined himself to determining whether the reason given for Mr Zammit’s termination was a valid reason. The question in s.170CG(3)(a) is not so limited. Rather the Commission is obliged to consider whether there was a valid reason for the termination - that inquiry is not so limited to the reason given by the employer for the termination.”
[19] Section 170CG(3) of the Workplace Relations Act 1996 was in similar terms to the current provisions of the Act.
[20] In relation to the expression “harsh, unjust and unreasonable”, contained in Clause 9 of the Manufacturing Grocers Award 1985 in Bostik (Australia) Pty Ltd v Dimitrja Gorgevski 7 Sheppard and Heery JJ said:
“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge’s view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee’s misconduct.”
Consideration
[21] In considering whether Mr Graham’s dismissal was harsh unjust or unreasonable I will deal with each of the matters I am required to consider in turn:
(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);
[22] I will first of all consider whether Mr Graham behaved in the manner complained of.
[23] Having found, on the balance of probability, how Mr Graham conducted himself in the workplace in relation to Mr Sammour, I will then consider whether this conduct provided a valid reason for dismissal.
Mr Graham’s behaviour
[24] The evidence before me is that Mr Graham is respected as a wine expert by the Club and his co-workers. He was employed by the Club to open a wine bar called the Cellar Wine Bar and the evidence is that he established and grew the business of the wine bar over the period of his employment. At the outset there were no other employees assigned to the wine bar however as the business grew employees were dedicated to this area of the Club. Upon his commencement Mr Graham reported to the Beverage Manager Mr Bevilacqua and at a later stage Mr Todd Puumalainen was appointed as Team Leader of the Piano Bar and the Cellar Wine Bar. Mr Graham, along with the other employees, reported to him. Mr Graham did not have line management authority in relation to his co-workers in the wine bar but his knowledge and experience was respected by them and the evidence before me is that they took direction from him. Up until the point of the complaints underpinning his dismissal there is no evidence that Mr Graham had any disagreements or difficulties with his any of his co-workers. The evidence is that that he regularly congratulated his co-workers on their performance at the conclusion of the shift.
[25] On 30 June 2011 Mr Sammour was employed by the Club on a part-time basis. Mr Sammour is also studying a bachelor’s degree in Medical Radiation Sciences (Diagnostic Radiography) and works 4 -5 shifts per week rostered between the Piano Bar, the Cellar Wine Bar and the Gaming Floor. When working in the Piano Bar or the Cellar Wine Bar he reports to Mr Puumalainen.
[26] The effect of Mr Sammour’s evidence is that Mr Graham singled him out for attention, that the attention was unwanted and unwelcomed, he found the comments offensive and very rude and the experience gave rise to feelings of discomfort, embarrassment and anger. The effect of Mr Graham’s evidence is that he did not single out Mr Sammour and that he and Mr Sammour engaged in light hearted banter that Mr Sammour did not resist or complain about to him.
[27] It is necessary to review the evidence to establish, on balance, which account is more likely to be correct.
Night out conversation
[28] Mr Sammour gives evidence that in November 2011 a conversation took place in the Cellar Wine Bar between himself, Todd, Elise and Daniel about an outing to Kings Cross. Mr Graham gives evidence that this conversation took place on 20 January 2012, during which time he is alleged to have made two remarks about Mr Sammour’s virginity. Ms Russo gives evidence that she heard no reference to an outing to Kings Cross on 20 January 2012 during the conversation containing the two remarks about Mr Sammour’s virginity. On the basis of the evidence of Mr Sammour and Ms Russo I am satisfied that the conversation about a night out to Kings Cross did not take place on 20 January 2012.
Virginity comments
[29] Mr Sammour gives evidence that on 20 January while being introduced to Ms Russo by Leila Mr Graham made unsolicited remarks about his virginity in the terms contained in the allegations set out above. Ms Russo gives evidence that she heard those remarks. Mr Graham denies these remarks. His evidence is that in the context of a conversation about an outing to Kings Cross he jokingly said words to the effect of “watch out George you might lose your virginity”. I have stated above that I am satisfied that the conversation about a night out to Kings Cross did not take place on 20 January 2012. On the basis of the evidence of Mr Sammour and Ms Russo I am satisfied that the comments ascribed to Mr Graham were made on 20 January.
Australian men and Asian women comments
[30] The Club did not rely on the allegation in relation to these comments in their decision to dismiss Mr Graham because the conversation was not corroborated by a third party who was present. However evidence was given on these comments in the hearing and since the occasion allegedly gave rise to another remark about Mr Sammour’s virginity I intend to deal with them. In doing so I rely on MM Cables (A Division of Metal Manufacturers) v Victor Zammit 8 referred to above.
[31] Mr Sammour gives evidence that before Christmas 2011 Mr Graham asked him a question about the motivation of Australian men to form relationships with Asian women. Mr Sammour gives evidence that he was reluctant to express an opinion but when pressed he gave an opinion. He did not state that opinion in the witness box nor in his witness statement. Mr Graham gives evidence that he did not initiate this conversation and that rather it was Mr Sammour who did so by asking him about Australian men’s motivation. Mr Graham’s evidence is that Mr Sammour said words to the effect, “it was because they had small tight pussys”. Mr Sammour’s evidence is that on 10 February in the presence of customers Mr Graham repeated the question about Australian men and Asian women, repeated Mr Sammour’s opinion and made the remark, “he wouldn’t know. He’s still a virgin”.
[32] I prefer the evidence of Mr Sammour in relation to these two occasions over that of Mr Graham. I found Mr Sammour to be a willing witness whose demeanour was consistent with his counsel’s submission that he’s a young man who holds fairly deep beliefs, and is conservative. When asked by me to repeat the sequence of events his recollection appeared very clear. Mr Graham on the other hand was inconsistent in the clarity of his recollections. I conclude that initiating a conversation about Australian men and Asian women in this manner is more consistent with Mr Graham’s conduct than Mr Sammour’s.
Singling Mr Sammour out for work performance comment
[33] Mr Sammour gave evidence that Mr Graham “picked on him” on 10 February in relation to work performance in relation to the taking of restaurant orders, putting an empty bottle in the bin and cleaning tables. Mr Graham disputes singling out Mr Sammour and says he was giving reasonable direction to staff. On face value these remarks could not be described as singling out a particular employee. The evidence of Ms Higgins and Mr Sammour is that the tone, demeanour and eye contact of Mr Graham was consistent with this conclusion. However this is evidence of their perception without objective corroboration.
[34] I make no finding in this regard as on balance both parties’ accounts are plausible.
Conversation about HR investigation
[35] Mr Sammour’s evidence is that on 24 February Mr Graham approached him to inquire about the investigation by the Club. Mr Graham disputes the duration of the conversation and the exact words used. However his evidence is that he did approach Mr Sammour, he did inquire about HR asking questions, he did acknowledge that Mr Sammour would be required to refrain from speaking about the matter and he did continue to ask questions notwithstanding Mr Sammour's monosyllabic responses including affirmation that he was not supposed to speak about it. I find that this was inappropriate and an abuse of his position of power in relation to Mr Sammour.
Other conduct
[36] Ms Higgins gives evidence that she heard Mr Graham say “Well, has he taken a test?’ and “Well he might be pregnant or something” in response to Ms Higgins informing him that Mr Sammour had gone to the bathroom. Ms Russo gives evidence that she had heard Mr Graham refer to Mr Sammour as “gay”. In spite of Mr Graham’s evidence to the contrary I find that it is more likely than not that these words were spoken.
Conclusion in relation to conduct
[37] In relation to how Mr Graham conducted himself in the workplace towards Mr Sammour I find that Mr Graham made the personal and offensive remarks he is alleged to have made. I do not conclude that Mr Graham intended harm to Mr Sammour in the making of these remarks. However, harm was the effect of these remarks. I have no reason to disbelieve his evidence that he liked Mr Sammour and found him to be “a very garrulous little fella and he’s a very enjoyable guy to work with” 9. Mr Graham’s evidence is that he thought he was engaging in light hearted banter and I accept that. Mr Graham may hold a different view of this behaviour than is now accepted in contemporary and diverse workplaces. However, he was aware of the Club’s Code of Conduct and he had participated in annual training in relation to the Code of Conduct and policies and procedures. If he did not perceive the behaviour he admits to as unacceptable, he should have.
Valid reason for dismissal
[38] In determining whether Mr Graham’s conduct constituted a valid reason for dismissal I have considered the definition of sexual harrassment given by the Australian Human Rights Commission 10:
“Sexual harassment is any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated.
Sexual harassment can take many different forms – it can be obvious or indirect, physical or verbal, repeated or one-off and perpetrated by males and females against people of the same or opposite sex.
Sexual harassment may include:
[39] I regard Mr Graham’s conduct consistent with this definition.
[40] In Graincorp Operations Limited and another re S Markham 11 a Full Bench of the Australian Industrial Relations Commission quashing a decision of a single commissioner said:
“In these circumstances, we think that the conduct amounted to sexual harassment in the sense used in Johanson v Michael Blackledge Meats.
‘....Clearly, it is not necessary that the complainant be the conscious target of the offensive conduct. Sexual harassment can occur where the conduct is directed at a limited class of people (eg employees). I see no material difference in the case of conduct directed at customers or potential customers. Once a person chooses to engage in conduct of a sexual nature in which another person, whether the intended target or not, who has not sought or invited the conduct, experiences offence, humiliation or intimidation and, in the circumstances, a reasonable person would have anticipated that reaction, the elements of sexual harassment are made out.’”
[41] This is authority for the proposition that it is the impact of Mr Graham’s behaviour, whether intended or not, that is relevant to take into account in coming to a conclusion.
[42] Relevantly, the Club’s policies, procedures and Code of Conduct contained in its Employee Handbook describe the kind of behaviour that constitutes bullying and harassment.
[43] The Workplace Bullying Prevention Policy says:
“Bullying may be described as repeated and unreasonable behaviour directed towards a person, group of people, that creates a risk to health, safety and well-being. Bullying hampers productivity by creating dysfunction and damaging morale within work environments. It includes behaviour (generally a pattern of behaviour) that intimidates, offends, degrades or humiliates another person, including by electronic means such as email, notice boards, blogs and social networking websites. Examples of behaviours that may amount to bullying include:
[44] The Workplace Harassment Prevention Policy says:
“What is Harassment?
Harassment is any type of unwelcome or unreciprocated behaviour that makes a person feel offended, humiliated, belittled or intimidated.
Harassment in the workplace can take place between:
Harassment can occur in any location where people are working. It can also occur at work-related activities outside of the workplace, such as work functions, conferences and during work related travel.” 13
[45] Both these policies describe behaviour consistent with that displayed by Mr Graham towards Mr Sammour. It is clear to me that his conduct breached these policies and he knew, or ought to have known, this.
[46] Mr Acev for Mr Graham submits that the failure of Mr Sammour to immediately report the first instance of Mr Graham’s conduct towards him, or press his Team Leader for a report back on his action after he did report it, undermines Mr Sammour’s claim to have been shocked by the behaviour. He also claims this undermines the characterisation of the behaviour as harassment or bullying. 14 Mr Ginters for the Club says:
“Firstly, it’s suggested that because there may be some procedural flaw or suggestion of procedural flaw in compliance with our policy, that the inference that the Tribunal would draw from that is that there was no harassment. Well, with respect, that’s leading Your Honour into error, with respect, that sort of conclusion....
....Just returning back to the issue of the employee handbook, it really is, with respect, and advocate’s point to take Your Honour to that and suggest that there are flaws in the process that a team leader may not have done what the policy may have suggested. The first proposition which can be advanced about that is that there’s an in-built element of discretion there, and when one sees what the statement or what the discussion that took place between Mr Sammour and Mr Puumalainen in January at paragraph 12 of exhibit R4, one can readily understand why the matter wasn’t elevated at that particular point in time because Mr Sammour had said that he wished to think about the matter. ‘I don’t want to say anything yet. Hopefully it won’t happen again,’ but it’s when the matter escalates with further incidents that the matter is escalated. It makes its way to Ms Coates who conducts an investigation.
Really the suggestion, or the highest the suggestion gets from the applicant is one of a suggestion of a counsel of perfection on my client’s behalf in terms of its obligations or what is otherwise contained in the policy. That really is a distraction, that submission, from the matter which Your Honour has got to determine, which is whether the dismissal was harsh, unjust or unreasonable. The fact that a team manager may have exercised the discretion one way or the other, depending upon what he was told, doesn’t otherwise detract from the seriousness of the conduct engaged in by Mr Graham.” 15
[47] I agree with that submission.
[48] I find that the impact of Mr Graham’s conduct on Mr Sammour was damaging and as such Mr Graham’s conduct had a negative effect on the safety and welfare of Mr Sammour.
[49] Taking all of this into account I find that this behaviour constituted a valid reason for the dismissal of Mr Graham.
(b) whether the person was notified of that reason
[50] The evidence is that the Club commenced the investigation into the complaints made by Mr Sammour on or around 14 February. While the investigation was still underway, Mr Graham became aware of it and questioned Mr Sammour about it. Ms Coates decided to inform Mr Graham of the investigation on 24 February. Her evidence is that she would have preferred to have concluded it before advising Mr Graham but since Mr Graham had become aware of it, she thought it prudent to advise him. She asked the Duty Manager, Mr Lambert, to ask Mr Graham to meet with her indicating that it was not a disciplinary meeting but he could have a support person accompany him if he wished. She told Mr Lambert that if he declined to come to meet with her he was to be suspended on full pay. Mr Graham declined to attend and was suspended on full pay on 24 February. It is uncontested that Mr Graham was invited to attend a meeting on 28 February which was rescheduled by agreement to 2 March. The allegations the subject of the investigation were emailed to Mr Graham on 28 February. Mr Graham attended the meeting on 2 March with a support person, Mr Adrian Harrison, and the allegations were jointly reviewed. It is uncontested that Mr Graham attended a further meeting with Ms Coates on 9 March and the allegations and her findings in relation to them were jointly reviewed. Mr Graham was supported by Mr Maxworthy of United Voice on that occasion.
[51] I find that Mr Graham was notified of the reason for the dismissal. I find that there is no contribution to a finding of unfair dismissal from consideration of this factor.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[52] Based on the review of the evidence in (b) above, I find that Mr Graham was given an opportunity to respond to any reason related to the capacity or conduct of the person.
[53] I find that there is no contribution to a finding of unfair dismissal from consideration of this factor.
(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
[54] Based on the review of the evidence in (b) above, I find that there was no unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal.
[55] I find that there is no contribution to a finding of unfair dismissal from consideration of this factor.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal
[56] Mr Graham was dismissed on the grounds of serious misconduct said to be conduct in contravention of the Club’s Code of Conduct.
[57] Mr Graham’s employment history was said to have been considered by Ms Coates in her decision-making, however, was not put as reason for the dismissal. 16
[58] The evidence before me was of three warnings that had been given. No final warning had been given. On each occasion Mr Graham had been given an opportunity to comment on the conduct that gave rise to the warning. His evidence went to explanations and mitigation.
[59] However since Mr Graham’s dismissal was largely unrelated to unsatisfactory performance I find that there is no contribution to a finding of unfair dismissal from consideration of this factor.
(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
[60] The Club is a large employer. I find that this is not a relevant consideration in my determination in this matter.
(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
[61] The Club has a dedicated Human Resource Department. I find that this is not a relevant consideration in my determination in this matter.
(h) any other matters that FWA considers relevant
[62] Weighing in favour of a finding that the dismissal was harsh is Mr Graham’s age (62) and his inability so far to secure a new job. He has a specialised skill and is very proud of his knowledge and expertise. Unfortunately the opportunity to deploy that knowledge and expertise appears limited in today’s labour market.
[63] Weighing against this however, is the evidence that disclosed a mismatch between Mr Graham’s values and contemporary norms about what is acceptable in the workplace. Although he attended training he did not seem to comprehend this training. He displayed no contrition, no remorse, nor any indication that the “penny had dropped”. Indeed, he continued to deny the conduct and where he acknowledged it he passed it off as a joke. The Club’s concern that he presented a risk of reoffending is reasonable and for this reason a warning, even a final warning, would have been insufficient to discharge their obligations to other employees, and indeed patrons, to provide a safe place of work and entertainment.
[64] The Club demonstrated that it is aware of its responsibility in that it has adopted policies and conducted regular training concerning them. However the evidence disclosed inconsistency in the interpretation and application of the policies and procedures by leaders in the workplace and a review of the content and form of delivery of training is recommended. Until policy and procedure are embedded in the culture of an organisation, leaders will apply their own values and norms and mistakes will happen.
Conclusion
[65] Taking all of the above into account I find that the dismissal was not harsh, unjust or unreasonable and therefore not unfair. Therefore I am not required to consider the question of a remedy. The application is dismissed and an order reflecting this decision will issue.
DEPUTY PRESIDENT
Appearances:
C Acev, United Voice, New South Wales Branch, Liquor and Hospitality Division, for Mr Timothy Graham
P Ginters, of Counsel, with S Ryan, HWL Ebsworth Lawyers, for Bankstown District Sports Club Ltd
Hearing details:
2012.
Sydney:
3 and 4 September.
1 Form F2 - Application by Mr Timothy Peter Graham, Attachment B
2 Exhibit R8 - Witness Statement of Paula Coates, PN94-95
3 Transcript PN2133-2134
4 [2010] FWAFB 1200 at [12]-[14]
5 [1995] IRCA 333
6 S8106 at [42]
7 [1992] FCA 209
8 Op.cit.
9 Transcript PN1016
10 www.hreoc.gov.au/sexualharassment/index
12 Exhibit R5, p.116
13 Ibid., p.122
14 Transcript PN2138-2140
15 Ibid., PN2158, 2166-2167
16 Ibid., PN2193
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