[2015] FWC 506


Fair Work Act 2009

s.394 - Application for unfair dismissal remedy




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:

[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:


[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:

[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:


[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:

[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 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:

[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:

[30] In contrast, Hotel Worker A states in her written evidence:

[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:

[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:

[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:

[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:

[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:

[84] Ross VP, as he then was, made the following observation in Wall v Westcott:

[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:

[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:

[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.



S Crawshaw, of Counsel with K Vernon, of Counsel for the Applicant.

R Wade, Consultant for the Employer.

Hearing details:



30 and 31 October.

Final written submissions:

Applicant: 12 and 24 November 2014.

Employer: 19 November 2014.

 1   PR557324

 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

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