| [2015] FWC 506 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
APPLICANT
v
EMPLOYER
(U2014/1450)
COMMISSIONER CLOGHAN |
PERTH, 16 FEBRUARY 2015 |
Application for relief from unfair dismissal.
[1] On 28 April 2014, the Applicant made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from the respondent Employer (Employer).
[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] By consent of the parties, the following Order was made pursuant to s.594(1)(b) of the FW Act:
“That in this application, the identity of the Applicant, all witnesses, and the Respondent not be publicly identifiable”. 1
[4] At the hearing, the Applicant was represented by Mr S Crawshaw SC of Counsel and Ms K Vernon of Counsel. The Applicant gave evidence on his own behalf.
[5] The Employer was represented by Mr R Wade, Consultant. Evidence was given on behalf of the Employer by four (4) witnesses:
[6] At the conclusion of the hearing, I reserved my decision. This is my decision and reasons for decision.
[7] The Applicant commenced employment with the Employer on 1 September 2006.
[8] On 11 February 2014, the Applicant was accommodated in a hotel by the Employer. The Employer regularly uses the hotel to accommodate employees as part of their employment.
[9] At the time the Applicant was staying at the hotel, he was being paid by the Employer. The Applicant’s accommodation and meals was also being paid by the Employer.
[10] On the evening of 11 February 2014, an incident occurred at the hotel. At the time of the incident, the Applicant was with a group of other employees of the Employer in the outside dining area of the hotel.
[11] The incident involved the Applicant and Hotel Worker A. Hotel Worker A was employed by the hotel as a Waitress and Bartender.
[12] At the time of the incident, Hotel Worker B was present behind the hotel bar.
[13] Important and material facts regarding the incident are in dispute between the parties.
[14] On 12 February 2014, the Applicant was stood down from his employment on full pay pending an investigation into the incident.
[15] The Employer conducted a disciplinary investigation concerning the allegations made against the Applicant.
[16] Following the investigation, the Employer terminated the employment of the Applicant on 17 April 2014, with pay in lieu of notice.
[17] The relevant parts of the Applicant’s termination of employment read as follows:
“We advise that we have made a decision to terminate your employment because on 11 February 2014 at the [hotel], you sexually harassed [Hotel Worker A] a waitress/bartender in that you “groped” her “bum” without her consent.
Further, or in the alternative, [the Employer] considers that your termination of your employment is appropriate in light of an earlier warning to you, dated 1 February 2013. The previous warning related to an incident in another hotel...and involved damage to a hotel room. Relevantly, that warning said:
Your actions as an employee have brought [the Employer] into disrepute and put both the Hotel and [the Employer] to significant cost and inconvenience. A future breach of your obligations as an employee or an act of misconduct will almost certainly result in termination of your employment.
Finally, the Company is of the view that the content of your email of 10 March 2014 sent from your legal representative [name of legal firm deleted] to [Hotel Worker A] also justifies the Company’s decision (for clarity, made for the reasons set out above).”
[18] There is no dispute between the parties that the Applicant has properly made the application in accordance with s.382 of the FW Act. Accordingly, the relevant statutory framework is ss.385 and 387 of the FW Act.
[19] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”
[20] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at s.387 of the FW Act and is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[21] Section 387 of the FW Act sets out the matters which the Commission must take into account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim, they are as follows.
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
[22] A valid reason for dismissal is one that is “sound, defensible or well founded and not capricious, fanciful or spiteful”. The authority for this approach is found in the often cited case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads as follows:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons 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 requirement 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 employee are treated fairly’.”
[23] A valid reason for dismissal attempts to balance, in a practical way, the needs of employees and employers.
[24] When the reason for the dismissal relates to the employee’s conduct, it is necessary for the Commission to determine, on the balance of probabilities, whether the alleged conduct occurred, and if so, whether it was a sufficient reason for termination 2. Further,
“The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed on reasonable grounds after sufficient enquiry that the employee was guilty of the conduct which resulted in the termination”. 3
The incident which led to the Applicant’s dismissal
[25] On 11 February 2014, the Applicant and a group of other employees were staying at the hotel.
[26] During the evening, Hotel Worker A was setting up juice dispensers in the restaurant for the following morning’s breakfast.
[27] During the evening of 11 February 2014, the Applicant purchased a stubby at the bar and, while returning to a table outside the dining area, was involved in an incident with Hotel Worker A.
[28] The Applicant’s written evidence was as follows:
“Whilst returning to my seat I paused and tapped [Hotel Worker A] to get her attention to ask her a question about the restaurant’s dinner arrangements. It was a friendly tap with right hand on the upper outer hip area and not with both hands. I did not touch [Hotel Worker A] on her backside. I now believe I tapped her with my right hand I had a Corona in my left hand.
I did not think my contact was unusual in the circumstances. I sometimes tap people when I approach them to get their attention. I have also been tapped by other people before in this manner.
I remember when I tapped her to get her attention she turned and looked at me with unwelcoming look, but she did not say anything. So I continued outside, I remember thinking maybe she was tired or busy.” 4
[29] Further the Applicant gave evidence that a senior employee of the Employer approached him and asked him whether he had touched Hotel Worker A’s bum, he denied doing so:
“At or about 7:30PM [name deleted] approached me while I was sitting with [other employees] and asked if I had touched [Hotel Worker A’s] bum. I was shocked and surprised at the question. From the look of the other [employees] at the table I believe they were surprised too. I denied doing so. I believe I may have said ‘I must have done it by accident’ without thinking about it and also because I was shocked at the accusation.
[Senior Employee] told me to go and apologise to [Hotel Worker A]. I believe he told me to apologise to [Hotel Worker A] in order to try and quickly resolve the situation without making a decision about whether I had actually inappropriately touched [Hotel Worker A].
I immediately apologised to [Hotel Worker A]. I believe she was standing near the bar spot and I approached her and I apologised and she then appeared to accept my apology.” 5
[30] In contrast, Hotel Worker A states in her written evidence:
“While I was setting up the juice dispenser, I noticed in the corner of my eye that someone walked past me on my right-hand side. The person was walking from near the bar area to the outside dining area. The door to the outside dining area was directly behind where I was standing. I wasn’t paying attention to the person, because I was focused on setting up the juice dispensers.
Just after this, I felt someone touch my bum with their hand. I would describe the contact with my bum as a “grope”. I felt the person squeezing my bum with their hand. It felt like the person was using two hands to grope my bum, because the contact was made across both bum cheeks and I believed I felt more than five fingers touching me. I did not see how many hands the person used to grope my bum.
I felt shocked that someone had groped my bum.
I stopped setting up the juice dispensers, looked to my right, towards the bar, and saw that [Hotel Worker B] was looking at me. I then said “Can you please not?”.
The person did not let go of my bum right away when I said “can you please not?”. I estimate that the person groped my bum for between one and two seconds in total.
Just after I said “Can you please not?”, I turned my head slightly and saw it was [the Applicant] who was groping my bum.
[The Applicant] then let go of my bum. After he let go of my bum, I saw [the Applicant] walking away from me to the outside dining area. He then sat down at the outside table he had been sitting for most of the night. Other than [the Applicant], there was nobody else near me at the time.
Right after this, I walked to where [Hotel Worker B] was standing behind the bar and spoke to her. [Hotel Worker B] told me that she had seen what just happened with [the Applicant]. She suggested that I tell [the Applicant’s] boss what had happened too.
Around this time, [Hotel Worker B] asked me if I was ok to clear the table that [the Applicant] was sitting at. I said that I was happy to clear the table because that was my job. As I was clearing the table, [the Applicant] said to me “am I in trouble” and “I’m sorry”. I didn’t say anything to [the Applicant].
Not long after this, I asked a man who I thought was [the Applicant’s] boss if I could speak to him. The man agreed and we spoke in the lobby of the hotel. I told the man that [the Applicant] had groped my bum earlier in the night. The man told me that he was not [the Applicant’s] boss, but that he would say something to [the Applicant] about the issue. I now know that this man was [name deleted], a [Employer] employee.” 6
[31] Having been accused of groping Hotel Worker A’s bum, the commencing point of disputation between the parties, was the location of Hotel Worker A when the incident occurred.
[32] Despite the agreed Statement of Facts recording that Hotel Worker A was “setting up the juice dispensers at a counter in the restaurant” 7, the Applicant could not recall whether she was standing behind the juice dispensers8, she might have been standing9, thinks she was walking but can’t recall10. However, “I know for a fact that she wasn’t facing that direction”11.
[33] After taking the Applicant through other pieces of documentary evidence, the Applicant finally agreed that Hotel Worker A must have been at the juice dispenser as recorded in the Agreed Statement of Facts 12 but asserted that Hotel Worker A was not facing towards the table on which the juice dispensers stood but facing in another direction.
[34] This oral evidence is in contrast to his Union’s response on his behalf on 19 February 2014, which states that Hotel Worker A “...was leaning forward attending to a table...” 13
[35] I prefer the evidence of Hotel Worker A as to where she was located when the incident occurred.
[36] The Applicant concedes that he found both Hotel Worker A and B attractive 14. The Applicant denies he was being sleazy that evening15. The Applicant concedes that prior to the incident he had asked Hotel Worker A words to the effect of what she was doing after work and had asked her to have a drink with him16 - the Applicant wasn’t prepared to do so17.
[37] The Applicant agrees that he admired Hotel Worker B’s facial piercing who was standing behind the bar but denies saying “it looks as sexy as fuck on you”. The Applicant agrees he said to her that he “liked piercing in that area” 18.
[38] The Applicant denies that prior to the incident that he gestured for Hotel Worker A to sit on his lap and that she is being untruthful in relation to this matter. 19
[39] The Applicant gave evidence that he approached Hotel Worker A to ask where he could obtain a menu 20.
[40] The Applicant gave evidence that he normally taps people on the shoulder to gain their attention 21 but on this occasion he could not recall why he chose to touch her on the hip and not the shoulder22.
[41] When Counsel for the Employer pointed out that, to date, the Applicant’s statements were that he made contact with her right upper hip area “because [Hotel Worker A] was leaning forward attending to a table making alternative approaches impossible” 23, he “maybe”24 agreed that that was the reason but “...I can’t remember...It was a long time ago”25.
[42] At this point, it is useful to make the observation that the Applicant was not at ease or credible as a witness. He frequently took time to answer questions that went to the believability of his previous answers and issues of fact. In part, I consider this was due to the fact that until the hearing, the Applicant had not given a direct account of the incident but indirectly through his union.
[43] I now turn to what happened, according to the Applicant, immediately after he tapped Hotel Worker A in the right hip area to gain her attention. The Applicant gave evidence that Hotel Worker A gave him an “unwelcome look” but “did not say anything” 26. The Applicant also understood Hotel Worker A to have expressed annoyance to him27. Notwithstanding this unwelcome look and expression of annoyance, the Applicant gave evidence that her actions did not convey to him that Hotel Worker A was unhappy with what had happened28. Such evidence is implausible and contrary to any reasonable understanding of the circumstances. When asked whether Hotel Worker A’s reaction was “puzzling” to him, the Applicant responded “no”, “yes” and “I didn’t really look that much into it”29.
[44] The Applicant’s evidence was that his contact with Hotel Worker A was a “quick tap” 30 around the “right upper hip area”.
[45] Initially, the Applicant thought that he may have made contact accidently with Hotel Worker A’s bum, but in cross examination was “quite certain” that he did not make contact with her buttock 31.
[46] Hotel Worker B had worked at the hotel for approximately 18 months. She was the hotel employee who served the Applicant with a stubby at the bar before the incident with Hotel Worker A occurred.
[47] Despite long and detailed cross examination, Hotel Worker B gave straightforward solid and unshaken evidence that:
[48] I am not satisfied that the differences between Hotel Worker B’s earlier statements, and her oral evidence, disturb the plain facts of the incident that led to the Applicant being dismissed. I do not accept any inference by the Applicant’s Counsel that her evidence was “tailored” to support Hotel Worker A’s evidence. Further, I find there is no evidence to suggest that Hotel Worker B directed Hotel Worker A to make a complaint.
[49] Hotel Worker B’s plain evidence is that she saw the Applicant go up behind Hotel Worker A and “grab”, “squeeze” or “grope” her bum 39.
[50] After the incident, I accept Hotel Worker B’s evidence that the Applicant attended the bar for another stubby and enquired of Hotel Worker B whether he would get into trouble “for that”. “For that” was indicated by gestures towards the juice dispenser area 40.
[51] Hotel Worker A’s evidence was also straightforward and a description of what happened on 11 February 2014. Intensive cross examination failed to disturb the essential facts that she was at the juice dispensers carrying out preparatory work for the following morning’s breakfast when:
“[Hotel Worker A]...please, to describe without looking at anything that you may have in front of you - can you describe now the touch of your bum that you have referred to in your witness statement. So when you said you felt someone touch your bum, can you tell us what it is that you felt?---It felt like two hands. I don't know whether it was two hands or not because I didn't see, but it felt like two hands. Whether hands are big or not, but both bum cheeks got touched and it felt like two hands to me.” 41
[52] Even when pressed in cross examination as to whether the touching was “squeezing” or being “groped”, as she set out in her statement as part of the Employer’s disciplinary investigation, Hotel Worker A gave oral evidence that:
“Because it is a word that you used in the incident complaint form, but now what you've just said to us a moment ago is that you don't remember whether it was a squeeze or not, but you know that you were touched?---Yes. I remember the touch. I don't remember whether the squeeze was there or not, because we're talking about months ago. I don't remember.
In terms of what you've described to us as having happened, this is something that happened incredibly quickly, didn't it?---Yes.
So in terms of it happening incredibly quickly, you didn't have very much time to actually work out what had happened, did you?---No, I knew what happened.
Someone had touched you?---Yes.” 42
“It is possible though, isn't it, [Hotel Worker A], that this touch of you that happened so quickly was not actually a touching of your bottom, but it was actually touching you at what would be your upper hip area?---No.
But you're not in a position to say how many hands the person used who you felt touch you, are you?---No, I don't know how many hands, but both bum cheeks got touched.
Have you in the past though said that you were 100 per cent sure that you were touched with two hands?---I was a hundred per cent sure because both bottom cheeks got touched.” 43
[53] On being touched, Hotel Worker A:
turned her head slightly to the right and saw the Applicant 45; and
[54] I am positively satisfied that both employees gave truthful evidence as to the incident. Any discrepancies in their evidence with previous statements were simply because they never envisaged internal hotel reporting, and a disciplinary investigation by the Employer, required the detail that was expected in cross examination before the Commission. I have no hesitation in coming to the conclusion that on each occasion they were required to set out what happened, they did so to the best of their recollection.
[55] From the moment the Applicant was cross examined, he exhibited an instinct of self preservation. His answers were full of doubt, cautious, hesitation and wary of what they may lead to.
[56] Both Hotel Workers A and B overall gave precise, cogent and convincing evidence. On material differences between the parties, I prefer the evidence of Hotel Workers A and B.
[57] The facts are that the Applicant found Hotel Worker A attractive and had asked her what she was doing after work. I prefer Hotel Worker A’s evidence with respect to the Applicant’s gesture of patting his lap prior to the incident at the juice dispenser.
[58] Clearly, the Applicant finding both Hotel Workers A and B attractive, made comments of a sexual nature to Hotel Worker B regarding her facial piercing and gestured to his lap to Hotel Worker A; this is not the normal relationship a hotel patron has with the hotel employees. It is said that “youth” is a disease from which we all recover. My observation is that from the Applicant’s behaviour prior to the incident, he has not fully recovered from the disease of “youth”.
[59] However, the Applicant’s subsequent conduct deliberately changed in character and escalated in gravity, when he come into physical contact with Hotel Worker A.
[60] Unions in Australia have pushed for many years for a safe working environment. A safe working environment in the hotel industry includes its employees being free from unwanted and unwelcomed physical contact from customers. Hotel workers are not paid to be “groped” or “squeezed” on the bum. It is actions such as these by customers that lead to employees leaving the hotel industry. Having a job is critical to a large proportion of our community - being inappropriately touched by hotel patrons leads to some leaving their jobs and, in some cases, a career in the industry.
Events after the incident which led to the Applicant’s dismissal
[61] In this application, the Commission has before it three separate “time” events. The events prior to the incident between the Applicant and Hotel Worker A at the juice dispensers. Secondly, the actual incident between the Applicant and Hotel Worker A at the juice dispenser. And finally, the events immediately following and subsequent to the incident.
[62] I now turn to events immediately after the incident and on the following day at the hotel.
[63] Shortly after the incident, the Applicant gave evidence that he was approached by a more senior employee of the Employer and asked whether he had touched Hotel Worker A’s bum. The Applicant denied that he touched her bum but conceded that he may have said “I must have done it by accident”. The Applicant shortly afterwards apologised to Hotel Worker A. 47
[64] On the following morning, after being approached by Hotel Worker C, the Applicant gave evidence that he told Hotel Worker C that “it was an accident and that I was sorry...he [Hotel Worker C] told me with words to the effect of, ‘to go and apologise if I ever wanted to step foot in his restaurant again and added words to the effect that ‘Hotel Worker A was shaken up” 48.
[65] As the Applicant was checking out of the hotel, he engaged in a further conversation with Hotel Worker C, “...and asked him would he think it be a good idea if I wrote a written apology...I believe he replied ‘what good would that do”. 49
[66] Further, the Applicant, on 10 March 2014, through his solicitor, sent the following email to Hotel Worker A:
“I sincerely apologise for any embarrassment and distress that I have caused you as a result of my actions, I understand that you were in your work place and you are just trying to do your job and earn money for a living.
I don’t know if you are aware but my [Employer] that I employed with, are trying to terminate my employment because of the incident that occurred. I know this has nothing to do with you but I would please like to ask if you could take the following into consideration.
...[personal circumstances]
I hope you can take this into consideration before you make your final decision, I’m not letting you know this to make you feel guilty, but just to inform you of the current situation that I would be in if I was to have my employment terminated.
Again I express my sincere apologies and hope that this matter can be resolved privately.” 50
[67] Having apologised on five separate occasions, the Applicant asserts that he did so because he was either “shocked by the accusations”, “told” or “to try and quickly resolve the situation”.
[68] The Applicant confirmed that on all those occasions, he never said that Hotel Worker A had her facts wrong and that he touched on the hip and did not grope her bottom. 51
[69] The Applicant admits that he verbally apologised on four occasions and on one occasion in writing. Does this evidence support an inference that the conduct for which his employment was terminated, actually occurred or not. I am satisfied that when I consider this evidence and all the other evidence in the heraing, it strongly supports the inference that the Applicant touched Hotel Worker A’s bum in such a way that it led to the termination of his employment.
[70] On the evidence, there is sufficient for me to conclude that the Applicant realised quickly the gravity of his actions and thought apologies would bring the matter to a speedy conclusion without impacting upon his employment.
Is there a sufficient connection between the Applicant’s conduct and his employment?
[71] The Employer states that there is a manifestly clear connection between the Applicant’s misconduct and his employment relationship with the Employer 52. The Applicant contends that, “there was not a valid reason because the conduct occurred out of working hours”53.
[72] The facts are:
[73] The Applicant submitted that the incident took place out of work. Consequently, both parties referred to Rose v Telstra Corporation Limited (Rose v Telstra) (1998) AIRC 1592, and in particular, the following passage:
“It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:
In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee.
Absent such considerations an employer has no right to control or regulate an employee's out of hours conduct. In this regard I agree with the following observation of Finn J in McManus v Scott-Charlton:
"I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified."
A number of Australian cases have dealt with the question of whether an employee's out of work behaviour warranted termination. But in my view each of these cases falls within the circumstances identified above.” (footnotes omitted)
[74] The Applicant submits that, “it cannot be said that the conduct of groping the bottom of an employee of a hotel, rather than an employee of the Respondent:
[75] Further, “it cannot be seriously suggested that an incident not involving the Respondent, the Respondent’s work or any of the Respondent’s employees other than the Applicant could cause damage to the relationship between the Applicant and the respondent or be incompatible with the employee’s duty as an employee” 62.
[76] I disagree.
[77] If I return to basics, and ask the following questions:
[78] To cut to the chase, the only reason why the Applicant was in the hotel at the time of the incident was because of the employment relationship he had with the Employer.
[79] The Applicant’s enterprise agreement establishes, as a right, that travel and accommodation for roster changes or training purposes, is at the Employer’s expense. These conditions are set out in the enterprise agreement because they pertain to the employment relationship.
[80] While the Applicant was not at his normal physical work location, that does not expunge all conduct at locations which are not his normal place of employment but which are provided as part of his conditions of employment. Any argument to the contrary, would be the equivalent of saying that an employee has rights in the employment relationship to accommodation and training but no responsibilities that go with that right.
[81] In the case of Rose v Telstra, what is readily distinguishable is that Mr Rose was given a daily travel allowance which could be spent how he liked, including which accommodation he stayed at.
[82] The incident in Rose v Telstra took place in a location in which the Employer had no input into, unlike this application.
[83] While both parties went to the criteria outlined in Rose v Telstra at paragraph [74] above, that criteria was preceded by the following supportive context in the decision:
“The modern law of employment has its basis on contract not status. An employee's behaviour outside of working hours will only have an impact on their employment to the extent that it can be said to breach an express or implied term of his or her contract of employment.
In certain circumstances an employee's out of work activities may be in breach of an implied or explicit term of their employment contract. An employee's implied duty of fidelity and good faith is particularly relevant here. One of the most concise and authoritative statements of what is generally encompassed by the duty of fidelity and good faith is to be found in Blyth Chemicals v Bushnells. In that case their Honours Dixon and McTiernan JJ said:
"Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty. Or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to future conduct arises."
... The implied term of mutual trust and confidence imposes reciprocal duties on the employee and employer that they shall not `without reasonable and proper cause, conduct themselves in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee'.” (footnotes omitted)
[84] Ross VP, as he then was, made the following observation in Wall v Westcott:
“It is important to recognise that the behaviour of the applicant in that case constituted serious and wilful misconduct not because the tribunal felt that it was immoral and warranted a penalty, but because it was `a serious and very much intended affront to an employer in a relatively small community'. On this basis the case clearly falls within the limited circumstances I have identified. The applicant's conduct was clearly likely to cause serious damage to the relationship between the employer and employee.” (my emphasis)
[85] This was the second occasion in which the provider of accommodation to the Employer advised that the Applicant was not welcome in the future.
[86] I consider it reasonable to conclude that when an accommodation provider comes to the view that it no longer wishes to provide one of the Employer’s employees with meals or accommodation, this affects the Employer’s relationship with the Applicant.
[87] In conclusion, the evidence in the proceedings strongly satisfied me that the Applicant made unwanted physical contact with the Applicant’s bum. On the balance of probabilities, the Applicant conducted himself in the manner which led to, and was set out, in his letter of termination of employment.
[88] Acts such as that alleged by the Employer rarely take place in a vacuum. The Applicant’s behaviour leading up to the incident was, as my mother used to describe it, “acting the eejit”. However, the Applicant overstepped the mark when he touched Hotel Worker A’s bum.
[89] Hotel Worker A has a right to carry out her work without been touched up on the bum by a hotel patron.
[90] What was the Applicant’s motive in touching Hotel Worker A? According to him, it was to get her attention and enquire about dinner arrangements. I don’t believe this explanation for one moment. However, I am not going to make any assumptions relating to his reason for doing so.
[91] Having heard the evidence and considered the overall context of the incident, it was reasonable for Hotel Worker A to react in the way she did and take offence to the incident and eventually report the matter.
[92] I am satisfied that the Employer was entitled to treat the Applicant’s actions as serious, not only because of its relationship with the hotel but the potential damage to its reputation more broadly. This is especially so given the small and discrete “industry” which the employment relationship existed.
[93] The Applicant physically touching Hotel Worker A’s bum was, possibly sufficient of itself, to warrant dismissal. However, the gravity of his actions also need to be considered in the context of a letter to the Applicant 12 months previously which relevantly reads:
“Our correspondence and discussion was in regard to significant damage caused to your hotel room at the [name of hotel deleted] on the evening of 26 January 2013.
You indicated in our discussion and your email that you did not cause the damage in question and it must have been caused by a couple that you met earlier in the night and invited back to your room. You claim that you fell asleep and that this was when the couple would have caused the damage.
If your response is an honest account of what occurred, then your actions in inviting strangers to your room can at best, be described as irresponsible. The responsibility for the damage rests with you. It is of concern that you have shown no remorse for this.
...
[The Applicant], I have reviewed your personnel file and note that the history indicates that you are an employee with little regard for your responsibilities as an employee of [Employer]. I refer to incidents of missed flights and failure to return...[after] leave. I am also informed that you are difficult to contact in regard to [roster] changes and considerable time and effort has to be expended in order to advise you of [roster] arrangements.
In considering the hotel damage incident, it is apparent that you have been negligent in your obligations to the Hotel and [Employer] and have shown no remorse in this respect. Your actions as an employee have brought [the Employer] into disrepute and put the Hotel and [the Employer] to significant cost and inconvenience. A future breach of your obligations as an employee or an act of misconduct will almost certainly result in the termination of your employment.” 63 (my emphasis)
[94] The words are plain - misconduct yourself again and it is likely that your employment will be terminated. There is nothing to suggest that the correspondence was not issued in good faith. There is no good reason why the Employer should not take into account this correspondence when coming to the decision to dismiss the employee. I disagree with the Applicant’s submission that because the correspondence is not marked “warning” or “final warning”, it should be given less weight.
[95] It has been clearly established by decisions of the Commission that employees should not conduct themselves in a manner that is likely to cause serious damage to the employment relationship. The Employer was entitled to treat objectively, the Applicant’s conduct as a breach of mutual trust and confidence in the employment relationship. The Applicant’s conduct was certainly incompatible with his role as an employee in an environment preparatory to his transfer to the actual physical work environment. Finally, any unwarranted departure from appropriate conduct, as the Applicant demonstrated, has the potential to damage the Employer’s interest. In this case, the Applicant’s departure from expected employee conduct, was significant, and consequently, a greater likelihood to cause damage to the Employer.
[96] The Applicant disregarded the previous correspondence to conduct himself appropriately in accommodation provided by the Employer. Having considered the evidence and the nature of the incident, I find that the Employer had a valid reason to terminate the Applicant’s employment; a reason that was sound, valid and defensible.
[97] The Applicant submits that if the Commission accepts the Employer’s version of the facts as set out in the termination letter (that is, grope on the bum), his dismissal was harsh and he should have been issued with a warning letter, a final warning letter or similar. “At its highest, the respondent has found the applicant has groped the complainant’s bum with his hand. This is not a violent act, nor is it a long lasting act, while it may not necessarily be viewed as trivial contact, it is not a significant contact” 64.
[98] While I disagree with the Applicant’s characterisation of the incident, the short point he is making, is that the Employer’s punishment should fit the conduct. Put another way that even if the Employer has a valid reason to terminate the Applicant’s employment, was it “harsh, unjust and unreasonable” which is best expressed in the judgement of McHugh and Gummow JJ in Byrne v Australian Airlines Ltd [1995] HCA 24 in the following paragraphs:
“128. ...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
“130. That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable(168). But the question...is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second.”
“135. Procedures adopted in carrying out the termination might properly be taken into account in determining whether the termination thus produced was harsh, unjust or unreasonable...”
[99] For the reasons set out above, it is not necessary to address the issue of whether the dismissal was “unjust or unreasonable”. Accordingly, was it harsh?
[100] I do not consider the dismissal harsh because:
[101] The Applicant’s evidence was damning in terms of his inability to evaluate his conduct. With few exceptions, his evidence was not credible. The Applicant simply refused to take responsibility for his actions. Given the seriousness of the incident, I consider the Employer had, after the previous incident, good grounds to conclude that it no longer had trust and confidence in the Applicant. For the above reasons, I am satisfied that, even taking into account the Applicant’s personal circumstances, the dismissal was not harsh.
s.387(b) - notification of the reasons for termination of employment
[102] From various correspondence sent by the Employer to the Applicant commencing on or about 17 February 2014 to his letter of termination of employment dated 17 April 2014, I am satisfied that the Applicant was aware of, and notified of, the reasons for his dismissal.
s.387(c) - opportunity to respond
[103] I am satisfied that the Applicant was given an opportunity to respond to the allegation.
s.387(d) - support person
[104] The Applicant does not consider this criterion relevant. I agree. The Applicant has had the support of his union throughout the disciplinary investigation proceedings.
s.387(e) - unsatisfactory performance
[105] The Applicant does not consider this criterion relevant. The Employer referred to a previous incident in the Applicant’s employment but agreed that the dismissal of the Applicant’s employment related to his conduct and not unsatisfactory performance.
s.387(f) - size of enterprise
s.387(g) - Human Resources
[106] The size of the Employer’s business and dedicated human resources reflected a fair and appropriate approach to the allegations made against the Applicant and its subsequent disciplinary investigation.
s.387(h) - other matters
[107] I am satisfied that there are no other matters in this application which have not been considered and require my consideration.
[108] In conclusion, for the reasons set out above, I am satisfied that the Applicant’s dismissal from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the application must be dismissed. An order to this effect is issued jointly with this Decision.
COMMISSIONER
Appearances:
S Crawshaw, of Counsel with K Vernon, of Counsel for the Applicant.
R Wade, Consultant for the Employer.
Hearing details:
2014:
Perth,
30 and 31 October.
Final written submissions:
Applicant: 12 and 24 November 2014.
Employer: 19 November 2014.
2 Brink v TWU PR922612 at paragraph [7]
3 King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]
4 Exhibit A3
5 Exhibit A3
6 Exhibit R7
7 Exhibit A1 (11)
8 Transcript PN347
9 Transcript PN353
10 Transcript PN355
11 Transcript PN369
12 Transcript PN387
13 Exhibit R3 (9)
14 Transcript PN412 and PN413
15 Transcript PN411
16 Transcript PN400
17 Transcript PN403
18 Transcript PN418
19 Transcript PN415
20 Transcript PN437
21 Transcript PN450
22 Transcript PN454
23 Exhibit R1 (9)
24 Transcript PN454
25 Transcript PN455
26 Transcript PN458 and PN459
27 Transcript PN468
28 Transcript PN469
29 Transcript PN474
30 Transcript PN488
31 Transcript PN1503
32 Transcript PN675
33 Transcript PN750 to PN 755
34 Transcript PN756
35 Transcript PN809 to PN824
36 Transcript PN858 to PN861
37 Transcript PN875 to PN906
38 Transcript PN905
39 Transcript PN1026
40 Transcript PN1073 to PN1079
41 Transcript PN1824
42 Transcript PN1833 to PN1836
43 Transcript PN1839, PN1841 and PN1842
44 Transcript PN1863 and PN1864
45 Transcript PN1846
46 Transcript PN1880
47 Exhibit A3
48 Exhibit A3
49 Exhibit A3
50 Exhibit R3 (14)
51 Transcript PN210
52 Employer’s closing submission paragraph 42
53 Applicant’s closing submission paragraph 30
54 Exhibit R5
55 Exhibit R5
56 Transcript PN290 to PN292
57 Transcript PN287
58 Transcript PN294
59 Exhibit R4 and R6
60 Transcript PN280
61 Applicant’s closing submission paragraph 34
62 Applicant’s closing submission paragraph 35
63 Exhibit R3 (3)
64 Applicant’s outline of submissions
65 Exhibit R3 (9)
66 Transcript PN266
67 Transcript PN306
Printed by authority of the Commonwealth Government Printer
<Price code C, PR560258>