DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Andreas Bletas
v
The Star Entertainment Qld Limited T/A The Star (formerly Jupiters)
(U2018/11076)

Application for an unfair dismissal remedy – failure to wear uniform vest – Applicant claimed authorisation given not to wear vest – Applicant refused to participate in workplace meetings regarding vest – Respondent concerned that Applicant’s behaviour erratic – Applicant refused direction to attend independent medical examination – Applicant dismissed for failure to follow reasonable and lawful direction – dismissal not unfair – application dismissed.

[1] Mr Andreas Bletas has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his dismissal by The Star Entertainment Qld Limited T/A Star Casino (Star).

[2] Mr Bletas began working for Star on 1 April 2010 as a Table Games Croupier. He was dismissed from his position on 5 October 2018. At the time of his dismissal Mr Bletas’ employment was covered by the Jupiters Hotel & Casino Enterprise Agreement 2014 (the Agreement).

[3] There are no jurisdictional issues for me to determine. I am satisfied that Mr Bletas is a person protected from unfair dismissal pursuant to s.382 of the Act. Mr Bletas’ application was made within the 21-day statutory time limit. 1

[4] The only matter that I must determine is whether Mr Bletas’ dismissal was harsh, unjust or unreasonable pursuant to s.387 of the Act.

Hearing

[5] This matter was listed for hearing before me in Brisbane on 13 and 14 February 2019. Leave was granted for Ms Leanne Tacey of Anderson Gray Lawyers to appear for Mr Bletas, and for Mr Marc McKechnie of Counsel to appear for Star, instructed by King & Wood Mallesons.

[6] Mr Bletas gave evidence on his own behalf. Mr Daniel Lorraway, Organiser for United Voice, who is based at Star’s Gold Coast operations also appeared and gave evidence in support of Mr Bletas.

[7] The following persons appeared at the hearing and gave evidence in support of Star:

•  Ms Simone Keat, Human Resources Manager;

•  Ms Anne Hardy, Director of Gaming;

•  Mr Ian Brown, General Manager of Gaming;

•  Mr Jim Graham, Gaming Operations Manager;

•  Mr Glenn Ivey, Gaming Operations Manager;

•  Mr Roger Spence, Gaming Area Manager.

Evidence of Mr Andreas Bletas

[8] Mr Bletas provided a witness statement in these proceedings. 2 He first worked for Star as a Croupier from around April 1996 until September 1998 when he resigned from his employment and relocated to America. After returning to Australia in 2009, he recommenced casual employment on 1 April 2010 as a Croupier. He later became a permanent part-time employee of Star in January 2018.

[9] Mr Bletas gave evidence that from the recommencement of his employment with Star until 26 August 2018 he was not subject to any disciplinary action in relation to his conduct or performance at work.

[10] In approximately March 2017, Star changed the type of waistcoat/vest required to be worn by table games dealers, causing him to overheat. 3 He raised concerns regarding the vests and his overheating with his managers in early April 2017, and over time he also raised these concerns to onsite and offsite union delegates and representatives.

[11] In September 2017 Mr Bletas was diagnosed with type-2 diabetes. His doctor advised him that due to his diagnosis, he was more prone to overheating. 4 He further stated that in late 2017 or early 2018 he provided medical certificates to the Gaming Manager, Ms Sue Lloyd, which provided that he suffers paraesthesia.5 Mr Bletas explained to Ms Lloyd that this condition was linked to his diabetes.

[12] During February 2018 he removed his vest during a shift due to overheating. Mr Bletas and Ms Lloyd then had a dispute about the vest. Mr Bletas gave evidence that Ms Lloyd yelled, “Put your vest back on Andreas!” His evidence was that he reminded Ms Lloyd he has diabetes which affects his body temperature, and that the vest was causing him to overheat. He stated this exchange was witnessed by Mr Christian Stewart, Pit Boss.

[13] Mr Bletas gave evidence that on several occasions between February 2018 and August 2018 he raised his concerns about the vest with several Pit Bosses, and complained to Mr Danny Lorraway, United Voice Organiser and Mr Ray Dowling, United Voice Officer. On advice from Mr Lorraway, Mr Bletas completed two hazard reports, which he stated he personally handed to Ms Simone Keat, HR Manager.

[14] In April 2018, and in response to his concerns, Ms Lloyd ordered him a lighter vest. In June 2018, he was asked to go to the office, where he saw Mr Jim Graham, Ms Lloyd and Mr Glenn Ivey. Ms Lloyd presented the new vest to Mr Bletas, and Mr Bletas thanked her for getting the vest for him. His evidence was that on his way out of the office, Ms Lloyd stated words to the effect, “Oh Andreas, don’t tell anyone else about this”. 6

[15] Mr Bletas explained that his new vest was silver and didn’t blend with the other dealers’ gold vests. As a result, he was directed on one occasion by a Pit Boss, to change his vest for a gold one. Mr Bletas gave evidence that he explained to the Pit Boss why his vest was different, and after the Pit Boss made a call to the office, he apologised and allowed Mr Bletas to continue wearing it. Mr Bletas’ evidence was that these misunderstandings occurred regularly, meaning managers often had to call the office to confirm Mr Bletas was authorised to wear the silver vest.

[16] Mr Bletas gave evidence that in June or July of 2018 he was asked to return the vest as it was too small, and he returned to wearing the gold vest which caused him to overheat.

[17] On 3 August 2018 Mr Bletas met with Mr Geoff Hogg, General Manager to explain his concerns regarding the vest. His evidence was that he explained his medical condition to Mr Hogg, and that he had been attempting to raise his concerns through other channels, but nothing was being done to resolve the issue. He explained to Mr Hogg that every time he removed the vest due to overheating, he felt he was deliberately being harassed or ostracised by his managers and other staff. 7 Mr Bletas gave evidence that Mr Hogg expressed sympathy for his situation, and advised he would speak with Mr Ian Brown, General Manager of Gaming to alleviate the situation.8

[18] A second meeting with Mr Hogg was held on 24 August 2018, which Mr Bletas attended with his support person, Mr Lorraway. Mr Bletas gave evidence that at this meeting, Mr Hogg advised he had spoken with Mr Brown who indicated a memo had been sent out ‘months ago’ indicating that if a dealer was uncomfortable or feeling faint, they could remove their vest. Mr Bletas advised Mr Hogg that he had heard about a memo, but had never seen it, and further there remained a consensus among the dealers that if they removed their vest, they may be in trouble. Mr Hogg indicated that the problem had been resolved, and Mr Bletas gave evidence that he replied:

“Yes, that’s good, however, when you take it off you are subjected to humiliation and ostracisation [sic] by your managers or even other dealers … There needs to be some kind of meeting held in order to ensure that we are not harassed when removing the vest”. 9

[19] Mr Bletas’ evidence was that Mr Hogg again confirmed the problem had been resolved, and further stated, “Andreas, I authorise you not to have to wear it at all on account of your current medical situation, if you wish”. 10

Events of 26 August 2018

[20] Mr Bletas stated that during his next shift on 26 August 2018 he was challenged by a number of managers as to why he was not wearing a vest. Each occasion is detailed below:

(a) Mr Ivey and Mr Graham

Mr Ivey:	Where’s your vest?
Mr Bletas:	Hi Glenn, I have been authorised to have it as optional from Geoff Hogg as I have a medical reason. Hasn’t anyone informed you?
Mr Ivey:	No, I’ll check on that.
Mr Bletas:	OK, well I don’t have my own vest right now because I had to hand it in as we were supposed to be getting a smaller size. I can see if I can get a spare from uniform room if you like?
Mr Ivey:	No, that’s all right. When’s the last time you did compliance training?
Mr Bletas:	I’m not sure off the top of my head.
Mr Ivey:	Oh OK, I may have to pull you off the game sometime during the day to do compliance training.
Mr Bletas:	That’s fine.

(b) Mr Roger Spence and Mr Jimmy Sommerville

[21] Mr Bletas dealt a game for approximately 1hr, 20 minutes. At approximately 3.40pm, and after a break, Mr Spence asked Mr Bletas to wait while he found him a table to deal. The conversation continued:

[22] Mr Spence then made a phone call. Mr Bletas suspected that it was to Mr Ivey. The following was discussed when Mr Graham came to the pit:

[23] Mr Bletas’ evidence is that Mr Graham left and Mr Bletas reported to Mr Spence that he did not want to be in the same room as Mr Ivey and Mr Graham without a support person. He informed Mr Spence that he would email Mr Hogg. Mr Spence shortly found him a game to deal.

[24] At approximately 5.20pm, Mr Bletas and Mr Ivey had the following conversation:

[25] It is Mr Bletas’ evidence that Mr Ivey looked unhappy, waved his hands and then walked off.

[26] Mr Bletas stated that at around 6.00pm, Ms Loredana Van Der Heyden, Pitt Boss walked up to him in the pit and thrust a folder at him and the following exchange occurred:

[27] Mr Bletas went to take the letter to his locker. On his way there he saw Mr Ivey standing outside of the pit with his arms folded across his chest, staring dead ahead. He appeared to Mr Bletas to be agitated. Mr Bletas said that he tried to ‘defuse’ the situation by saying to him, “Hi Glenn. I’ve got your letter, I’m going to put it in my locker right now.”

[28] Mr Bletas said that Mr Ivey did not make eye contact. Mr Bletas moved closer to Mr Ivey and put out his hand in a friendly manner. Mr Ivey unfolded his arms and shook his hand. The following exchange occurred:

[29] Mr Bletas stated that after the events of 26 August 2018 he just felt like going home early so he asked for an ‘early out’. Mr Bletas was replaced by another employee and finished his shift at approximately 8:00pm, after which he returned home.

[30] Upon returning home, Mr Bletas read the letter, the effect of:

(a) Directed him to attend a meeting with Mr Graham and Mr Ivey on 28 August 2018;

(b) Stated the purpose of the meeting was to discuss his conduct and behaviour in relation to not wearing the correct uniform and the events of that afternoon; and

(c) Stated that if the allegations were substantiated, he could be subject to disciplinary action and his employment could be terminated.

[31] Mr Bletas gave evidence that he was upset by the letter, as the vest issue had not been fixed as Mr Hogg had said that it would be.

[32] Mr Bletas attempted to contact Mr Adam Ridley, United Voice Delegate, on 27 August 2018, to make arrangements to have a union representative present as support person for the meeting of 28 August, set to commence at 10:00am.

[33] However, at 7:47am on 28 August 2018 Mr Bletas sent the following email to Ms Jackie Tosh, Mr Hogg’s Executive Assistant: 11

“Hello Geoff

I am sending you this email in the hope that we can have this current hostile work environment dealt with.

We have had our meetings – the last one DJ of Workers Union fame was present.

Thank you DJ

At that meeting as I recall it, We discuss the ongoing 2 year long dilemma of hot, stuffy vests as part of the uniform we wear yes?

You and I had a friendly courteous back & forth banter regarding my perspective on the problem. I finally understood that you had spoken to Ian Brown and that the situation had been resolved, or as you put it handled, yes?

Well Geoff, No it wasn’t.

As evidenced by this formal letter that was HAND GIVEN to me by Pit Boss Loredana. I speaks for itself.

Geoff, I can no longer work on these same days as Glenn Ivey.

It’s impossible, irreconcilable. I will work Friday Saturday this week on which I believe he is off.

I will work on his off days and it’s fine with me that he gets his 5 days as opposed to my 2. That’s fine, that’s fine Geoff, that’s fine.

As long as I help to feed myself, my mother, Vicky, and my pet Stumpy- we do soo enjoy our shopping at the discount bin at Woolies.

So much so that we ended up going to hospital last month with salmonella!

I will NOT and SHOULD NOT be subjected to this type of harassment, bullying & ostracization that I was subject to all day from the pit bosses to the floor people etc. So I ended up early out at 8pm and lost 2 hours of Sunday rates. (That I expect to be given to me BTW )

Not all mind not all the management are thus inclined. Unfortunately they are the ones in the toughest more demanding sections of the casino floor and always seem never to advance.

I would like to thank Pit Boss Roger for stepping up to me and apologizing early on in the day. He stood before me like a man and extended his hand as a gentleman should.

He is a gentleman like you are a gentleman as is DJ, Adam (Dealer Union Representative) on swing, Paul Cowd, my brother George and many, many more fine people that we have.

Geoff, I expect that you and Ian Brown take care of this business because here I am typing out emails at 5 am in the morning instead of sleeping.

I will not be attended his “formal meeting” at 10am this morning nor will I be contacting him ever or speaking to this person.

Ever.

Can yourself or Ian please handle this??

I will text copy of the letter to Jackie Tosh right now – I appreciate you Jackie, you have been a tremendous help

Feel free to call me on [phone number] and, gentlemen, if we could please not have my brother hear of this, if possible…

Thank you &

Best regards

Andreas Bletas [sic]”

[34] Mr Bletas sent Mr Ivey a text message requesting the meeting be rescheduled, informing Mr Ivey that Ms Tosh is his ‘point of contact’.

[35] That evening, Ms Hardy attempted to contact Mr Bletas by hone. He sent her a text message to inform her to contact either his union representative or Ms Tosh, and to put it in writing.

[36] On 30 August 2018, Mr Bletas was informed by text message from Ms Hardy that he had been placed on special paid leave and was not required to attend work. On the same date, Mr Bletas received an email from Ms Keat, requesting that he attend a formal meeting on 31 August 2018 at 2:30pm. His evidence was that this letter confirmed, among other things, that:

•  He was not required to attend his next rostered shift, and he was placed on “Special Paid Leave”;

•  He was not to contact Mr Hogg any further regarding his matter;

•  He could bring a support person to the meeting of 31 August;

•  If he did not attend the meeting, he would be subject to further disciplinary action; and

•  His employment was at risk. 12

[37] Mr Bletas’ evidence was that at 7:55pm on 30 August, he received a text from Ms Keat which confirmed the meeting would include discussion regarding his continued refusal to follow a reasonable directive. 13

[38] Mr Bletas sent the following email to Ms Keat, Ms Hardy and Ms Tosh at 6.00pm on 30 August 2018: 14

“Hi Simone

We have not met to my knowledge and please refer to the text replies that I have sent to Anne regarding any future meetings. I don’t want to be in an controlled formal meeting with 2 on 1 or 3 on 1, even 4 on 1, the one meaning me, with a group of people who are running their own agenda.

That has to stop as does this apparent need for table games managers to micro-manage and control through conformity, peer group pressure and/or humiliation and rumor mongering. Glenn Ivey being the quintessential example of this off putting behavior.

Sorry but its time to put this type of thinking to bed once and for all.

As I said refer to texts I’ve sent to Anne. Hopefully after this we can meet under better circumstances.

Regards

Andreas”

Meeting of 31 August 2018

[39] Mr Bletas gave evidence about the meeting of 31 August 2018. Mr Bletas stated that he attended with Mr Ridley and Mr Lorraway from United Voice, Ms Keat and Ms Hardy.

[40] Mr Bletas stated that he said that he had not wished to meet with Mr Graham and Mr Ivey on 26 August 2018, as he had felt threatened by them on that day, and he wanted the ‘allegations’ in writing so that there would be a record of what was to be discussed at the relevant meeting. He stated that despite providing a detailed explanation of what happened on 26 August 2018, Ms Hardy was not interested in hearing what he had to say and was intent on defending all of Mr Ivey’s actions.

[41] Mr Bletas attempted to return the discussion to the issue of the vests, in response to which Ms Keat questioned him about his medical condition. Mr Bletas stated that he advised her that a medical certificate was on record with HR, and he offered to provide her with a copy of his National Diabetes Services Scheme card. 15 Further, he stated to Ms Keat that he had been directed to hand in his specially ordered vest to Ms Lloyd.

[42] Mr Bletas stated that as the meeting progressed, he put to Ms Hardy that she and other Star managers had not done anything to alleviate the vest issue, and suggested that the way that he and other staff that had issues with the vests had been treated had made the issue worse. After he said that to Ms Hardy she berated him for disrespecting her staff, to which Mr Bletas responded, “So, what you’re saying is that you and your staff respect me?”

[43] Mr Bletas stated that Ms Keat rolled her eyes at his response and asked whether he would be willing to change shifts. Mr Bletas agreed that he would prefer to change to the ‘graveyard’ shift.

[44] Mr Bletas stated that Ms Keat provided him with a copy of Star’s grievance policy and said that she would investigate his side of the story.
[45] On 10 September 2018 Mr Bletas received a letter from Ms Hardy, indicating that the meeting of 31 August 2018 was to be reconvened on 12 September 2018. The letter stated the following further issues to be discussed: 16

“...

1. Your tone and manner in your email to Geoff Hogg, Managing Director on 28 August 2018 was rude, sarcastic and disrespectful and in breach of The Star Entertainment Group Code of Conduct and values;

2. On Sunday 26 August 2018 after receiving you Notice of Meeting letter, you approached Glenn Ivey, GOM in Star Café and allegedly slapped Glenn on the back of the neck/shoulders with the letter stating “I got your letter”. Glenn found this disrespectful and rude. If proven this is also a breach of the Code of Conduct and The Star Entertainment Group values with regards to respect for colleagues.

3. On Sunday 26 August 2018 after receiving your Notice of Meeting letter, after allegedly slapping Glenn on the back of the neck/shoulders with the letter stating “I got your letter” you then proceeded to be very vocal and make reference to the letter in front of other team members. We remind you as per our letter dated 30 August 2018:

“This letter and anything relating to this matter is strictly confidential and must not be discussed with any other team member or third party outside of your nominated support person (who for, your benefit is also required to keep the matter confidential). We treat these matters very seriously, if you are found to have breached your confidentiality obligations you may be subject to disciplinary action up to and including the termination of your employment”.

4. On Sunday 26 August 2018 in the Pit when discussing you not wearing your vest and a request for you to attend the GOM office, Roger Spence, GAM had to approach you and in the Pit to discuss this and you made a threat to him stating words to the effect “I like you Roger…it’s best you don’t get involved as I don’t want to have to come after you as well”. Roger believes this comment was threatening and inappropriate.

5. Witness statements obtained and surveillance from the Pit on 26 August 2018 demonstrates you behaving in an inappropriate and aggressive manner towards Glenn Ivey, GOM, Roger Spence, GAM and Jim Graham, GOM. We will provide you with examples of this during the meeting. This behaviour constitutes a breach of our Code of Conduct and values of respect and professionalism.”

[46] After receiving Ms Hardy’s letter of 10 September 2018, Mr Andreas emailed Ms Hardy in response, copying in Ms Tosh, and which stated, amongst other things: 17

“… I must say that I’m very very disappointed in what is being conveyed within.

It may be best to clear the air with Geoff before you and I meet again….

I’m sure you understand the importance of that and as you chose to bring his name into this, I”m [sic] also including his contact email in this response.

Before I send a copy to my attorney – I’d like to get permission from Geoff, just to have his take on this.

…

I also recall that in the last meeting in (which we never finished in 3 hours) you brought up the name [name]. I’d like to know why? Please explain because as far as I know, he is on extended leave?”

[47] On 11 September 2018, Mr Bletas received a telephone call from Star’s scheduling department enquiring why he was absent from a rostered shift. Mr Bletas informed the department he was on special leave and had been directed not to attend work. He asked that the department contact Ms Hardy to confirm the reason for his absence.

[48] Mr Bletas sent a text message and email to Ms Hardy following this exchange, requesting that he be allowed to return to work. Mr Bletas’ email is relevant to the events that followed in this matter, and is extracted below:

“Good morning Anne

I have forwarded your voice message from Friday 7th September to the message bank at ph. Number [redacted] regarding special leave status for Monday Sept 10th. Hopefully you can verify that you have received it(?), if not Adam and I can share it with you when next we meet …

As I said to you and Simone at the last meeting I felt a bit funny about this special leave status and I think its only fair that I come back to work. If the vest is still an issue for you and Glen then I’ll be happy to wear I for your benefit, however as Geoff Hogg informed DJ and I at our last meeting, Ian Brown had sent out a memo many months ago stating that if anyone has any issues with over heating, feeling faint etc because of the vest then he had authorized us to remove it.

He was quite adamant about it. – In a nice way of course!

I think we need to have that memo at our next meeting when DJ returns as obviously yourself and Glen seem to be at odds with Ian Brown’s directive. Any thoughts on this?

Perhaps we should also have Glenn Ivey at the next meeting as he especially seems to have a real issue with this and as he said to me on that day, that He wants me to give him the opportunity to explain. I’d really like to hear him out in Geoff and Ian’s presence.

I hope I am reading into this correctly. Its really hard sometimes as I think we are communicating at different levels, especially if it takes over 3 hours just to go through some questions, and as I recall, you didn’t seem to want to answer why you and Glen are ignoring your Duty of Care for the employees in Table Games.

This is why I was insisting on written communications only from the start as apparently we are not all on the same page. If we are going to continue verbal communication then I suggest we have both audio and video taping of said communications, otherwise it all seems to become convoluted.

Let me know your thoughts as well as Simone’s. I do apologize to Simone that we took so long at the last meeting and kept her away from her family that night…

Kind regards

Andreas”

[49] On 12 September 2018 Mr Bletas received an email from Mr Brown requesting that he attend a meeting with him that day. Mr Bletas agreed to meet, on the basis that it was an informal meeting. Mr Bletas’ evidence was that at this informal meeting, Mr Brown stated:

•  He had spoken with Mr Hogg, and a memo had been sent out;

•  He was sorry for the miscommunication within the team;

•  He was going to review the surveillance footage in relation to the events of 26 August; and

•  That Mr Bletas was to remain on special leave while he conducted his investigation. 18

[50] Mr Bletas stated this was the first of three meetings with Mr Brown, and that Mr Brown was his point of contact for Star from this point on. 19

[51] Mr Bletas stated that he met with Mr Brown on 14 September 2018, during which the following conversation occurred:

[52] Mr Bletas spoke with a former Star employee who had been examined by Dr Freiburg at an independent medical examination (IME) and dismissed by Star.

[53] On 24 September 2018 Mr Bletas again met with Mr Brown. A conversation to the following effect occurred:

[54] Upon reviewing the paperwork given to him by Mr Brown, Mr Bletas found a letter dated 24 September 2018 and signed by Mr Brown which stated, in summary terms:

“…Further to our discussion on Friday 14 September 2018 we discussed our concerns about your well-being and behaviours at work. During this meeting I asked if you were willing to attend an appointment with a medical specialist for an independent medical evaluation, you advised that you were not willing to do so. Given our ongoing concerns, as a result we are now directing you to attend this appointment.

Next steps

We need to investigate your ongoing ability to safely perform the inherent requirements of your substantive role of Games Dealer.

In order to do this, The Star will engage a medical specialist to make an assessment of your condition and employment status.

We have made an appointment with a preferred medical specialist, Dr Freiberg, as set out below:

Date: Saturday, 6 October 2018

Time: Afternoon (actual time to be confirmed shortly)

Location: On Property (actual room location to be confirmed)

…

Medical assessment is a reasonable direction

The Star notes that it must pay Dr Freiberg even if you fail to attend the appointment. The Star also considers it to be a reasonable, and indeed necessary direction that you attend the appointment with Dr Freiberg.

We consider our request for you to attend the associated medical appointment as a reasonable direction of your employer. Should you refuse this direction this would constitute misconduct, and you may be subject to disciplinary action up to and including the termination of your employment.

Please also sign and return to me, the attached consent form by 5pm Friday 28 September 2018 that Dr Freiberg can prepare the report for The Star.

…

Yours sincerely,

Ian Brown

General Manager Gaming [original emphasis]”.

[55] Mr Bletas gave evidence that the letter did not provide Dr Freiberg’s qualifications and/or specialist field. 20

[56] On 1 October 2018 he sent a text message to Mr Brown asking to be told which of the United Voice representatives had stated Mr Bletas was seeing a psychiatrist in Melbourne. Mr Brown did not respond.

[57] On 2 October 2018 Mr Brown sent the following email to Mr Bletas: 21

“Dear Andreas

Medical Assessment is a reasonable direction

Thank you for your text message on Monday 1 October 2018. The Star Gold Coast considers it to be a reasonable, and indeed necessary direction that you attend the appointment with Dr Freiburg. I would like to take this opportunity to strongly encourage you to follow this direction. As discussed previously, we are concerned about your erratic and unprofessional behaviour at work and disordered conversations with management. Feedback from United Voice in relation to your conduct and behaviours with them has also concerned us.

We consider our request for you to attend the associated medical appointment as a reasonable direction of your employer. Andreas, we are not able to continue to pay for you to remain on paid special leave (given we do not consider you are currently able to perform the inherent requirements of your role in the front of house position of Dealer) and you will not agree to attend a medical assessment to allow us to obtain a report as to you fitness for work. This means you will leave us no choice but to review your ongoing employment arrangements with us. I need to advise you that should you refuse this direction this would constitute misconduct, and you may be subject to disciplinary action up to and including the termination of your employment.

Can I please strongly encourage you to confirm with me by 5pm, tomorrow 3 October 2018, the consent form already provided to you so that Dr Freiburg can prepare the report for The Star Gold Coast.

If you do not contact us to confirm your attendance at the medical assessment, we will be unable to determine if you can safely perform the inherent requirements of your substantive role. Therefore, we will not be able to offer you continued employment and your employment with us will end. We confirm that we will make such a decision if we do not hear from you by 5pm, tomorrow.

Alternatively, if you do not wish to engage in a medical assessment you may choose to resign from your employment with The Star.

Please don’t hesitate to contact me if you have any questions or if you need clarification on the above.

Kind regards

Ian Brown

General Manager

Gaming Operations [original emphasis].”

[58] On 3 October 2018 Mr Bletas sent an email to Mr Brown copying in Ms Tosh, Ms Hardy and Ms Keat, in which he:

•  Denied suffering any mental health issues;

•  Stated Mr Brown was relying on hearsay for directing him to attend an independent medical examination (IME);

•  Stated that he could provide a “certificate of capacity” from his own doctor, whom he had been seeing for “34 years”;

•  Raised concerns regarding Star’s directives, and noted his trust had been betrayed;

•  Proposed to take legal action;

•  Requested a meeting be held to achieve a resolution of all issues; and

•  Invited Mr Brown, his wife and any other people named in his letter to join him for dinner at the Star the next night when Mr Bletas dined with his mother. 22

[59] At 1:23pm on 4 October 2018, Mr Brown sent the following email to Mr Bletas: 23

“Hi Andreas,

Thank you for your email dated 3 October 2018.

You are of course welcome to provide us with any information from your Family GP to assist The Star Gold Coast’s assessment of this matter. However, it is not reasonable for you to insist that only Geoff Hogg may view such medical documentation from your doctor. Mr Hogg is the Managing Director of both Queensland The Star properties and is not responsible for dealing with this matter – that responsibility rests with myself and the HR team members involved. As such, we would need to review that evidence.

The Star Gold Coast’s position remains that it is a reasonable for you to attend the appointment with Dr Freiburg on 6 October 2018. The Star Gold Coast has provided you with the basis on which we require you to attend the assessment with Dr Freiburg, both verbally and in writing, and it is untrue to assert that our reasons are based on hearsay evidence. We remain concerned with your behaviours and the language used in your emails. We have concerns regarding your mental health Andreas and we wish to ensure you are well and remain well. The Star is seeking to assist you with this process. If there is a mental health concern, it can then be properly diagnosed so you can obtain any necessary treatment.

I am unclear what you have been told about Dr Freiburg and by whom (or their motives for doing so) – however he is a very experienced psychiatrist who runs his own private practice in Sydney. He is very familiar with the workplaces of casinos and hospitality industry. He is a very personable individual and your appointment with him would not involve any “psychological interrogation” or “railroading”. Dr Freiburg does not make assessments over the phone and would meet with you in person, at the Gold Coast, for approximately 2 hours. I trust you will agree to meet with Dr Freiburg.

Ultimately, it is a reasonable direction of your employer and you are still required to advise whether you will attend this assessment and to sign the consent form by 5pm today Thursday 4 October – or a decision regarding your ongoing employment will be made at that time. The Star Gold Coast has already provided you with two occasions to agree to attend the appointment. This is the last and final time we will extend the opportunity to you. I hope you make the decision to co-operate with us.

As you know, The Star Gold Coast also has a free and confidential Employee Assistance Program, that is available 24/7 and you can contact them on [number redacted].

I tried to contact you on your mobile before I sent this email and please call me if you would like to discuss this further.

Thank you

Kind regards

Ian Brown

General Manager

Gaming Operations [original emphasis]”

[60] Mr Bletas’ evidence was that he responded to Mr Brown by text at 3:00pm and stated that he was in meetings and would not be available until the evening to address Mr Brown’s email. Mr Bletas again requested the names of the union representatives who had stated that he was seeing a psychiatrist in Melbourne. Mr Bletas stated that he sent a further text at around 3:30pm enquiring whether Dr Freiberg would be willing to meet with him and a lawyer for “an informal meeting”. Mr Bletas sent a third text to Mr Brown at 4.30pm, advising the 5:00pm deadline did not give him enough time to respond and that he would respond after returning home. Those text messages are extracted below: 24

[61] At 8:22pm on 4 October 2018 Mr Bletas sent the following email to Mr Brown copying in Ms Tosh, Ms Hardy and Ms Keat: 25

“Hi Ian

I can show you the report – that’s fine, but when you say “we” who are exactly are you referring to ? Please furnish all the concerned names for the record as it has been our experience with you and your team that you don’t respect ur privacy so we need to make sure my personal information stays personal.

Since our texts earlier today I have received more information RE: Freburg.

Apparently he is under investigation for false diagnoses. He has been referred to as a Quack, Criminal, Destroyer of Lives, Casino Hatchet Man, Termination Tool etc etc.

Is it true that he is on your payroll? That would also make it a conflict of interest.

Sorry Ian, doesn’t sound like someone I should talk to much less trust to do a fair assessment, especially when again you have failed to provide any real reason for you to continually harass me over this.

I have checked with the Union members who were present at the 3 1/2 meeting I had with Simone and Anne.

They are shocked & flabbergasted at your allegation of any knowledge of the rumor you have perpetuated about my seeing a psychiatrist in Melbourne, indeed I will take legal action against anyone who is involved in this slander. Apparently the Union also agree that legal action should be taken as their organizations reputation and integrity is at stake as well.

Ian, do you realize you asked me about this false Melbourne story weeks ago? And it was on the basis of that story you are doing this ? Why are you so pushy about it? Whom did you hear it from? When was the last time you, yourself got pushed into getting a mental health assessment? Please answer these questions in writing thank you.

I really believe that you owe me an apology over this.

Having said that, I think we could still possibly resolve our differences in our next meetings with the right direction and supervision. As you and your team seem to have difficulty giving straight answers, I strongly suggest we video tape any future formal discussions.

Also, I think t would be best that I went to another department or at least another shift as suggested by Simone and Anne.

Maybe I should discuss that with Geoff Hogg as unfortunately, you and your team have let me down too many times.

By the way, has Glenn Ivey seen your house Doctor yet? We think it would be good for him having witnessed over several years his cold manipulative mannerisms and aggressive attitude towards my fellow staff members. Have you spoken to him about his behaviour towards me as you promised?

Seems you have one set of rules for us and another for yourselves – namely none. When was the last time you formally disciplined any of your team ? This seems to be a case for what I call “selective enforcement” whereby rules are applied to whomever you see fit.

Ian, forgive me for saying this but I believe that you lack the leadership qualities necessary to deal with this matter. In fact, given your behaviour you are part of the problem certainly not the solution, especially since you had promised me to resolve the matter quickly. Perhaps it might be a good idea for you to step aside and let someone else run things.

You were right in saying that it was your fault, although that in no way excuses Glenn Ivey for his actions especially when I had informed him of my meeting with Geoff and the situation with the vests BEFORE I started the shift.

Pit Boss Roger checked it all out over the phone and came back to me and apologized, why couldn’t he?? Instead he and his crew harassed me the entire day until I finally had enough and put in for an EO – on a Sunday leaving after 6 hours instead of 8.

Anyways, I sincerely do wish you the best – I’m hoping you will listen to what I’m saying and stop this silly unreasonable nonsense with Freburg. Are you really serious when you say that you think I’m not capable of dealing? Are you now claiming to make diagnoses?

Please instruct Jackie Tosh to ask Geoff to intercede in this matter. I’m ready to meet formally and document everything regarding this incident and others. Again, we insist on having our own video & audio copies of future meetings

Have a nice evening, regards to Tanya

Andreas [smiley face] [sic]”

[62] At 4:47pm on 5 October 2018, Mr Bletas received an email from Mr Brown attaching a letter terminating his employment, which stated: 26

“Dear Andreas

Termination of your employment

This letter serves to confirm the termination of your employment today 5 October 2018.

Your employment has been terminated on the basis of your continued refusal to follow a reasonable and lawful direction of your employment whilst on paid special leave, specifically we reasonably required that you attend a medical assessment with an independent medical specialist at The Star Gold Coast’s expense – as a result of our ongoing serious concerns regarding your mental health. We gave you several opportunities to comply with this direction. You continued to refuse to comply and ultimately did not comply.

We further advise that for the period of the next six (6) months you will be prohibited from being on the Company’s premises, even as a guest using the services of the restaurants, theatre or other amenities.

We also take this opportunity of reminding you of your continuing obligations to the Company after the termination of your employment, including in relation to intellectual property and confidential information.

A more detailed letter to again confirm the termination of your employment, and the reasons for it, will follow in due course.

Yours sincerely

Ian Brown”

[63] Mr Bletas stated that at 4:49pm on 5 October 2018, he sent a text to Mr Brown in an effort to save his employment. The emails exchanged are detailed below:

[64] On 11 October 2018, Mr Bletas received a second termination letter which expanded on the reasons for Mr Bletas’ dismissal, and stated: 27

“Dear Andreas

Termination of your employment

Further to our letter dated 5 October 2018, the purpose of this letter is to provide you with further details and reasons for the termination of your employment with The Star Gold Coast.

Summary of Actions by The Star Gold Coast

On 26 August 2018, we issued you with a notice of meeting letter requesting you to attend a formal meeting. The purpose of this meeting was to address concerns that you were not following a reasonable directive by our Gaming Leaders including refusal to meet with them and insisting that they put any requests in writing.

On 30 August 2018, after you had been afforded the opportunity to meet with Managing Director, Geoff Hogg, we issued a further notice of meeting to you advising you that you were placed on special leave and you would be required to respond to the initial letter dated 26 August 2018 and additional allegations including that we deemed your behaviour showing lack of respect for management and insubordination. We advised you to refrain from contacting Mr Hogg any further. We also reminded you that you do not have a right to request for The Star Gold Coast to put every communication to you in writing and that our requirement to meet with you is a reasonable direction and an obligation in your employment contract.

On 31 August 2018 you attended a formal meeting with Simone Keat, HR Manager and Anne Hardy, Director of Gaming. You elected to have a support person from United Voice with you at this meeting. This meeting was adjourned for us to further investigate matters raised by you and fully establish the circumstances and facts.

On 10 September 2018 after further investigation, you were issued with a further notice of meeting requesting you to attend a meeting on 12 September 2018. This letter detailed that after obtaining witness statements and reviewing surveillance footage we required you to respond to further allegations. The letter alleged, amongst other matters, that you slapped Glenn Ivey, GOM with your notice of meeting letter and that you made a threat towards Roger Spence including “I like you Roger…its best you don’t get involved I don’t want to come after you as well”. The letter also included an allegation that you behaved in an inappropriate and aggressive manner at work towards Glen Ivey, Roger Spence and Jim Graham.

However, this meeting was postponed as we were concerned about your behaviour, well-being and mental health. The Star Gold Coast provided you with paid time off work (paid special leave) to allow you to regroup and demonstrate your mental wellbeing to us.

On 12 September 2018 I met with you front of house, in a less formal capacity to discuss your concerns raised throughout this process. You advised me of your meetings with Mr Hogg in relation to your uniform, specifically the vest. You also stated that you had a number of personal matters affecting you, including a boundary dispute with your neighbour.

On 14 September 2018 I met with you again front of house to discuss my ongoing concerns with your well-being and behaviour. I also advised you that we had been advised by United Voice that you were seeing a Psychiatrist in Melbourne and were on prescription medication. You denied these claims and when asked if you would be willing to see an independent medical specialist due to our ongoing concerns around your erratic behaviour and mental health, you refused to comply with this request. I stated that I would provide you with more time to feel better and that our next meeting may result in a formal direction to attend a medical assessment.

On 24 September 2018 I met with you to discuss The Star Gold Coast’s direction for you to attend an assessment by an independent medical specialist. At this meeting, I issued you with a letter confirming this request and that this was a reasonable and lawful direction. This letter requested that you comply by returning a signed authority by 5pm 28 September 2018. You did not return the signed authority by the deadline. You sent me a text on 1 October 2018 asking for named of those who alleged you had seen a Doctor in Melbourne and the names of the Union Representatives involved.

On Tuesday 2 October 2018 I sent you a further email reiterating the importance of you complying with our direction and extended the deadline to 5pm Wednesday 3 October 2018. In this email I reminded you that if you did not contact me to confirm your attendance at this medical assessment, we would be unable to determine of you can safely perform the inherent role requirements of your role as a Dealer, and as such your employment with The Star Gold Coast may end.

On Wednesday 3 October 2018 you emailed me and made allegations of defamation and advised that you felt you had gone “above and beyond” what was reasonable to satisfy The Star Gold Coast of your wellbeing. You stated the work environment was toxic and you were ready to “name names”. We will write you separately in relation to that issue.

On Thursday 4 October 2018 I called your mobile and you did not answer. I then sent you a text message to advise you that you needed to respond to my email and that my email required a response by 5pm Thursday 4 October 2018. You responded to my text stating that you were in “meetings”. I advised you again in a text message that your ongoing employment may be at risk and to read the email and respond by 5pm. You sent me a text message at 4.29pm stating you had seen the email and did not have enough time to respond and that you would reply when you got home from dinner that night. You replied later that evening via email stating that you would not attend the appointment with the psychiatrist, and that you wished to video tape all future meetings with The Start Gold Coast. In this email you also asked me to “step aside” from dealing with your matter and stated “please instruct Jackie Tosh to intercede in this matter”. I note that Ms Tosh is Mr Hogg’s Executive Assistant. You then stated that you were ready to “formally document everything” and again insisted on video and audio recordings of all meetings. I note that your email response was not only unreasonable and unprofessional, but more importantly you refused to comply with our reasonable direction to attend an independent medical assessment.

At 4.47pm on Friday 5 October 2018 I emailed you with a letter confirming your employment had been terminated as you had refused to follow a reasonable direction by The Star Gold Coast to attend an independent medical assessment and therefore we could not assess your ongoing ability to perform the inherent requirements of your role.

Outcome

As outlined in our letter dated 5 October 2018, your employment has been terminated on the basis of your continued refusal to follow a reasonable direction of your employer whilst on paid special leave. Specifically, we reasonably required that you attend a medical assessment with an independent medical specialist at The Star Gold Coast’s expense – as a result of our ongoing concerns regarding your behaviour and mental health. We gave you several opportunities to comply with this direction. You continued to refuse to comply and ultimately did not comply.

As a result, The Star Gold Coast made the decision to terminate your employment with notice (paid in lieu). The termination of your employment took effect Friday 5 October 2018 as notified to you in the short form termination letter sent to you on the day.

Next steps

You will be paid 5 weeks’ in lieu of notice of termination. You will also be paid the balance of any termination entitlements that are owed to you, less any monies owed by you to The Star Gold Coast.

If you have any remaining The Star Gold Coast property in your possession, please arrange with me on the number below to return these to us immediately including your casino licence, employment identification and locker key.

We also take this opportunity of reminding you of your continuing obligations to The Star Gold Coast after the termination of your employment, including in relation to intellectual property, confidential information, and any post-employment restrictions that may apply to you.

We wish you the best in your future endeavours.

Yours faithfully

Ian Brown”

[65] As part of Mr Bletas’ evidence, he stated he holds a category 416 firearms licence, which allows him to own rifles and shotguns only. 28

Cross-examination

[66] In cross-examination Mr Bletas agreed that upon receiving Mr Brown’s letter dated 24 September 2018 directing him to attend an appointment with Dr Freiburg, he knew that a consequence of not agreeing to attend the IME was termination of employment.

[67] Mr Bletas denied that he knew why Star was requesting him to be examined by Dr Freiburg.

[68] Relevant to the letter dated 2 October 2018, he agreed that he was informed that if he didn’t meet with Dr Freiburg he would be dismissed.

[69] Relevant to the email dated 4 October 2018, he agreed that Star provided reasons as to why it required him to be examined by Dr Freiburg. He then stated that he still doesn’t know why he was being directed to be examined by Dr Freiburg. He explained that he has an idea why he was being directed, but he does not know why.

[70] Relevant to the email sent by Mr Bletas on 3 October 2018, it was put to him that he had unequivocally decided against seeing Dr Freiburg. Mr Bletas agreed in cross-examination that he had made a decision in his mind that he would not see Dr Freiburg.

[71] In answering a question from me, I asked him why, when he had said concerning things about Mr Brown, why did he then wish to have his regards passed on to Mr Brown’s wife, Tanya and invite her to dinner. He said he was trying to make some peace and resolve the situation.

[72] Mr Bletas determined that Mr Brown had been appropriate during the first meeting, but he had then performed a ‘flip-flop’ at the second meeting and was simply backing up ‘his own people’.

[73] The CCTV footage of 26 August 2018 was shown to Mr Bletas. He agreed that he pointed his finger at Mr Graham. Relevant to the conversation with Mr Ivey, after watching the footage he agreed that he shook Mr Ivey’s hand at 5.20pm at [24] where his written evidence did not cover that.

[74] When asked why he had declared Jackie Tosh as his contact person, he stated, “Jackie Tosh was my point of contact. I cannot contact Mr Hogg directly. I have to go through his secretary. There’s a buffer there.” He agreed that Mr Hogg is the ‘big boss’. It was put to Mr Bletas that it was ridiculous that Ms Tosh could be his personal contact. Mr Bletas answered, “That’s your opinion.”

[75] Relevant to requesting Ms Keat become a Facebook friend following his dismissal, Mr Bletas gave evidence that following the meeting of 31 August 2018 she was ‘very sympathetic’ towards him. When I referred him to Ms Keat’s notes, he agreed that perhaps she was not sympathetic towards him. I asked him why he was writing to her after he had been dismissed through messenger. He disagreed that it was ‘creepy’.

[76] I questioned Mr Bletas as to whether he had, as it had been suggested apparently by a United Voice organiser, been seeing a psychiatrist in Melbourne to overcome gun licencing laws in Queensland. He attested to not having been to Melbourne since around 2009. He has not seen a psychiatrist in his life.

[77] Mr Bletas agreed that he had occasionally worked in casual jobs since the dismissal. His earnings since the dismissal up until 18 February 2019 amount to $750.

Re-examination

[78] I questioned Mr Bletas as to why on 26 August 2018 he shook Mr Spence’s hand, and then shook Mr Ivey’s hand twice. He answered that he shook Mr Ivey’s hand a second time because Mr Ivey looked upset, and he considered that he was deliberately not looking at him. He thought it was the right thing to do. He disagreed that he was being combative when he approached Mr Ivey on the second occasion, at approximately 7.00pm.

[79] I asked him why he wanted to shake the hand of somebody that he didn’t want to meet with unsupervised. I put it to him that it was an unusual thing to do. He did not think it was an odd thing to do.

[80] I questioned Mr Bletas how often he shook colleagues’ hands when he had already been at work for several hours. He answered me by saying that he personally doesn’t have an issue with Mr Ivey. He also gave evidence that Mr Ivey is a manipulative type of person and he likes to ‘stir the pot’.

[81] His evidence was that he could not be directed to have a meeting without a witness present. He had been told by ‘the union’ that he had to have a witness present.

[82] In re-examination Mr Bletas stated that when he objected to being seen by Dr Freiburg, he felt that he was not being listened to and he was being lied to, and the Star was covering for Mr Ivey.

[83] He confirmed that on 5 October 2018 he was considering seeing Dr Freiburg, but with special circumstances including videoing and a support person in order to save his job. Mr Bletas stated that Dr Freiburg would have provided a subjective analysis to the Star as opposed to an objective analysis. He relied on the advice of an earlier terminated employee that Dr Freiburg would provide a report to the Star to have him terminated.

[84] It was Mr Bletas’ preference that his own GP recommend a specialist who could conduct an IME. He would have liked to have done that, but he did not provide the name of any such recommended specialist to the Star. He responded to me that he did not need to as he ‘felt fine’.

[85] Mr Bletas stated that if the Queensland Police Service trusts him to have long guns in his home, with ammunition, why should Star have any issue?

[86] On the issue of reinstatement, he said that he would see three psychiatrists, as long as it was not Dr Freiburg. He stated that he considered reinstatement to be appropriate as he considered that he had not done anything wrong.

[87] In re-examination he stated that he does not have a problem with Mr Ivey.

[88] I questioned Mr Bletas as to what would happen if he ran into Mr Ridley in the workplace? He said that he had never had any problem with Mr Ridley, and had been speaking normally with him up until he was dismissed.

[89] Mr Bletas stated that he had never been asked if he had a gun licence. He said that he acquired a long gun licence after he commenced at the Star. He is a target shooter, and he has no interest in hunting. He was not obliged to inform Star on acquiring a gun licence.

[90] In answering questions from me, Mr Bletas denied that he said to Mr Spence that he liked him and didn’t want to ‘come after him.’

Evidence of Mr Daniel Lorraway

[91] Mr Lorraway provided a witness statement in these proceedings and appeared as a witness in support of Mr Bletas. 29 Mr Lorraway confirmed that he is a United Voice Casino Organiser, based at the Star Casino on the Gold Coast. He gave evidence that in his role he has regularly advised union members that if they are concerned about meetings with management, they have a right to defer the meeting until they are able to have a union support person attend with them. He stated that is standard practice.30

[92] He gave evidence that in early 2018 he became aware that the new Star vests were causing a number of employees to overheat. Mr Bletas made a number of complaints to him about overheating in the vests, and treatment by his managers regarding the vest issue. Mr Bletas was not the only staff member to approach him about the vests, and he was not the only staff member to raise issues about their treatment by Mr Ivey. 31

[93] Mr Lorraway confirmed he advised members that if they had complaints about the vests, they should fill out hazard reports and submit them to the Workplace Health and Safety Department, and further that complaints about management should be put into writing and provided to Human Resources. Mr Lorraway stated, “There is generally a great reluctance by staff to make written complaints against management…” most commonly from a fear of losing their jobs or having their hours cut. 32

[94] On or about 19 August 2018, Mr Bletas approached him and said that he had met with Mr Hogg about several matters, including the overheating issue and how it had been handled by Star. Mr Bletas asked Mr Lorraway whether he would attend a second meeting scheduled with Mr Hogg for 24 August 2018, which Mr Lorraway agreed to.

[95] At the meeting of 24 August 2018, Mr Bletas spoke with Mr Hogg about a number of issues including the overheating issue, his diabetes and his treatment by Star managers regarding the vest. Mr Lorraway’s evidence confirmed that Mr Hogg advised a memo had been sent, stating dealers could remove their vests if they were overheating. Mr Lorraway recalled that Mr Hogg informed Mr Bletas that he did not have to wear the vest. Further, he said that if team members want to take it off due to suffering discomfort they just need to let their manager know. 33

[96] Mr Lorraway gave evidence that on 31 August 2018 he attended a meeting with Mr Bletas as his union representative and support person. Mr Ridley attended as an observer. Ms Anne Hardy and Ms Simone Keat attended the meeting for Star. Mr Bletas was animated and expressive during the meeting, but not aggressive. He stated that Mr Bletas would often digress, and raised the vest issue and treatment by Star management repeatedly, and particularly his treatment by Mr Ivey. Mr Lorraway stated that Ms Hardy occasionally questioned or challenged the comments made by Mr Bletas. Mr Lorraway noted the meeting went on for a couple of hours, and only ended when Ms Keat stated she needed to attend to a personal matter.

[97] Mr Lorraway gave evidence that a short time after this meeting, a HR representative from Star informed him that Star were concerned about Mr Bletas’ mental health and were going to send him for an IME. His evidence was that he never raised concerns regarding Mr Bletas’ mental health with Star’s management team, nor did he speak to anyone working for Star about Mr Bletas seeing a psychiatrist in Melbourne or that he was taking medication.

[98] Mr Ridley informed Mr Lorraway that Mr Bletas’ behaviour during the meeting of 31 August 2018 made him uncomfortable. Mr Lorraway said that Mr Ridley had informed him that Mr Bletas’ level of agitation concerned him. Mr Lorraway considered that Mr Ridley was scared. Mr Ridley informed Mr Lorraway generally that he was concerned with Mr Bletas’ mental state.

[99] In re-examination Mr Lorraway stated that Mr Ridley had been a delegate for about two years, and still requires training. He acknowledged that Mr Ridley would not have attended many meetings in his time as a delegate. He might have attended mundane-type meetings such as a member being late to work.

[100] Mr Lorraway advised Mr Ridley that if he felt scared, he could contact him and Mr Lorraway would attend all meetings with him from that point in time. Mr Ridley informed him that the animated nature of the conversation by Mr Bletas added to his concern. Mr Lorraway assumed that Mr Ridley scares more easily than he does; he hasn’t seen what Mr Lorraway has seen. Mr Lorraway had been present at the meeting of 31 August 2018, and he now agreed that Mr Bletas was quite agitated during the meeting. Mr Lorraway did not share Mr Ridley’s immediate concern.

[101] Mr Lorraway stated that during the meeting, the longer the vest issue went on, the more agitated Mr Bletas became over the vest issue.

[102] At some stage Mr Ridley informed Mr Lorraway that Mr Bletas has a firearms licence, and he said he wouldn’t be surprised if Mr Bletas had a firearm and ‘went nuts’ if Mr Bletas was dismissed.

[103] Mr Lorraway did not escalate Mr Ridley’s concern to anybody. He didn’t consider that Mr Ridley actually thought it would actually happen.

[104] Mr Ridley said to Mr Lorraway that it made him nervous when Mr Bletas put his hands behind his back during the meeting. Mr Ridley informed Mr Lorraway that he had reported his concerns to Star management.

[105] In answering questions from me, Mr Lorraway stated that the union encourages members to take a support person with them to meetings with management. If a person is requested to go to the office straight away without a support person, they should attend, but not answer questions if they are uncomfortable with it.

[106] Mr Lorraway stated that he had considered the Agreement required an employee to have a person with them during disciplinary meetings. A copy of the Agreement was produced and considered by the parties and myself during Mr Lorraway’s evidence. Having reviewed the Agreement, he confirmed that is not a requirement of the Agreement.

[107] Mr Lorraway confirmed his understanding that if an employee was directed to attend ‘the office’, they would need to attend unless an employee felt uncomfortable due to the manager’s behaviour. Mr Lorraway stated that if he had been contacted about Mr Bletas attending the meeting with Mr Ivey, he would have recommended Mr Bletas attend with a support person but then not answer any questions put by Mr Ivey. The support person would preferably have been a United Voice delegate, or if not available, another dealer. He said that typically at any point in time there might be around four delegates across the venue.

Evidence of Mr Glenn Ivey

[108] Mr Ivey, Gaming Operations Manager for Star, provided a witness statement in these proceedings. 34

[109] His evidence was that prior to 26 August 2018, he had interacted with Mr Bletas on occasion regarding his work performance. He was not aware of any medical issues relating to Mr Bletas. 35

[110] Mr Ivey stated that on 26 August 2018 he was in the office when he was advised by Mr Spence that Mr Bletas was not wearing his vest and had refused to come to the office to talk about it.

[111] Mr Graham, who was also in the office at that time, went to the gaming pit to speak with Mr Bletas. Mr Ivey stated that on Mr Graham’s return, he confirmed Mr Bletas was still refusing to attend the office to discuss his uniform.

[112] Mr Ivey’s evidence is that he spoke with Ms Keat about the issue, who suggested that Mr Bletas be allowed another chance to follow the directive to attend the office, and that a support person should be offered to attend with him.

[113] Mr Ivey stated that he went to the pit area and approached Mr Bletas at about 5:20pm, as Mr Bletas was returning from a break. Mr Bletas shook his hand in a strange way, which made Mr Ivey feel awkward. Mr Bletas became agitated, accusing Mr Ivey of touching his arm and stating “You can’t touch me!” Mr Ivey’s evidence regarding this interaction was that he had no recollection of making contact with Mr Bletas other than shaking his hand.

[114] Mr Ivey asked Mr Bletas to attend the office for a chat, and offered him a support person if he was feeling uncomfortable. He gave evidence that Mr Bletas replied, “If you want to talk to me it has to be in writing”. Mr Ivey stated that at no point did Mr Bletas advise him that he had approval of Mr Hogg not to wear the vest due to a medical reason.

[115] Mr Graham then prepared a Notice of Meeting directing Mr Bletas to attend a meeting. Mr Ivey stated that he gave that notice to Ms Loredana Van Der Heyden, Gaming Area Manager, to hand to Mr Bletas.

[116] Mr Ivey gave evidence that sometime later on 26 August 2018 while he was on his break, Mr Bletas approached him while carrying some papers. He rolled the papers up and hit Mr Ivey on the shoulder stating, “Yeah! I got your papers!” 36 Mr Ivey’s evidence was that Mr Bletas then walked away, but returned five minutes later while Mr Ivey was taking a phone call. Mr Ivey stated that while he continued his phone call Mr Bletas was talking at him about the date or time of the meeting to be conducted.

[117] Mr Ivey stated that Mr Bletas’ behaviour on 26 August 2018, including hitting him with the rolled up papers and trying to talk to him while he was clearly on a phone call, was inappropriate, odd and socially unacceptable. 37

[118] In re-examination, Mr Ivey said that there were four interactions he had with Mr Bletas on 26 August 2018:

•  Before shift

•  5.20pm

•  In the mealroom/staff canteen

•  Approximately 7.00pm

[119] Mr Ivey said that he could only recall the 7.00pm incident on the morning of the second day of the hearing after Mr McKechnie questioned him as to whether there had been additional conversations. Mr Ivey’s initial reaction was that no, there had not been, but he did recall it the morning of the hearing for the first time.

[120] Mr Ivey said that he addressed the whole group of employees starting at 2.00pm to inquire who required compliance training; he didn’t single Mr Bletas out.

[121] Relevant to Mr Ivey’s evidence as to being hit with a piece of paper by Mr Bletas, it was put to him that as a manager, he should have taken action if it had happened, including standing Mr Bletas down. Mr Ivey said that he was on a very important, personal phone call which he was not going to disrupt. When Mr Ivey finished the phone call Mr Bletas was no longer in the vicinity. Mr Ivey considered it to be disrespectful. He did not stand Mr Bletas down, as he had already been issued with a notice of meeting.

[122] Mr Ivey said that to the best of his knowledge, in the past two years only one other employee has made a complaint about him.

[123] Mr Ivey said that his involvement with Mr Bletas ended a few days after the incident on 26 August 2018 as the meeting of 28 August 2018 did not go ahead.

[124] Mr Ivey was asked questions relevant to the text messages sent by Mr Bletas to the Gaming Manager’s mobile phone on or around 29 August 2018. Mr Ivey pieced together that it was Mr Bletas who sent them. The messages were sent in about 18 messages as follows:

Email to: [Jackie tosh email address] for info & updates

And to reschedule your meeting

[wave hand emoji]

And

You learn

To speak and act

Respectably & Honestly

Enjoy your day

Hang on

Give me half hour

Might be able to rearrange for Saturday

U don’t mind coming in on your day off do you, Glenn?

I also have misplaced the paperwork

[sad face emoji]

Can you please email or text through a copy for me?

[email address supplied]

Thanks Glenn

[pray emoji and angel emoji]

[125] Mr Ivey understood that Ms Hardy became involved after these messages were received.

Evidence of Mr Roger Spence

[126] Mr Spence, Gaming Area Manager for Star, provided a witness statement in these proceedings. 38 Mr Spence stated that he reports to the Gaming Operations Manager. His evidence was that prior to 26 August 2018, he and Mr Bletas had worked different shifts and therefore their interactions were limited.

[127] Mr Bletas arrived at work around 2:00pm on 26 August 2018 and was not wearing his vest. Mr Spence asked why he was not wearing the required uniform, to which Mr Bletas informed he should speak with Geoff. Mr Spence responded, “Geoff?” to which Mr Bletas said, “You know! Your boss Geoff!”

[128] Mr Spence tried to have Mr Bletas clarify why he wasn’t wearing the vest, and in response Mr Bletas accused Mr Spence of touching him and being aggressive. Mr Spence responded, “I haven’t touched you Andreas, I’m just standing here”. Mr Bletas responded, “I can see you’re getting angry, so I’ll just stand over here while you calm down”. 39

[129] Mr Spence stated that he thought Mr Bletas’ conduct was strange and erratic; he had not touched Mr Bletas, and he was calm during the interaction. 40

[130] Mr Spence stated that Mr Bletas did not say anything about a medical condition which prevented him from wearing the required vest.

[131] He gave evidence that after this exchange, he walked Mr Bletas to a gaming table, and on the way over Mr Bletas said, “I like you Roger so it’s best you don’t get involved, because I don’t want to come after you as well”. 41 Mr Spence stated that he thought Mr Bletas was trying to irritate and agitate him by his statement.

[132] Mr Spence went to the office to speak with Mr Graham and Mr Ivey and asked them if they knew why Mr Bletas was not wearing his vest. They told Mr Spence that they would speak with Mr Bletas after his break.

[133] Mr Spence stated that at around 3:40pm after Mr Bletas finished his break, he asked Mr Bletas that he go to the office. Mr Bletas responded with words to the effect that he ‘doesn’t go to the office’ and ‘if they want to speak to me, they can put it in writing and send it to my email’. Mr Spence stated that Mr Bletas said that he had discussed the vest issue with Geoff and that he didn’t want to talk to Gaming Operations Managers as he had essentially bypassed them and had gone “straight to the top”, although he refused to tell Mr Spence the content of his discussions with Mr Hogg. Mr Spence considered that Mr Bletas’ behaviour was arrogant and unnecessarily combative. 42

[134] Mr Spence called Mr Graham and told him that Mr Bletas refused to attend the office, after which Mr Graham came out of the office into the pit to speak with Mr Bletas. Mr Spence recalled that Mr Bletas became more agitated at Mr Graham’s involvement and, before Mr Graham spoke, said to him, “Oh! Here we go! If you want to talk to me put it in writing!” 43 Mr Spence stated that Mr Graham walked away without saying anything.

[135] Mr Spence confirmed he had no further involvement in the matter, and did not speak with HR regarding progress of such.

[136] Mr Spence was not aware of any medical condition which would prevent Mr Bletas from wearing his required vest.

Cross-examination

[137] Mr Spence watched the video during the hearing. It is his evidence that he tried to get Mr Bletas to calm down. Ms Tacey suggested that it was Mr Spence who was angry, to which Mr Spence denied that he was angry. Ms Tacey then suggested that Mr Spence touched his arm, to which Mr Spence denied that he did.

[138] Mr Spence said Mr Bletas then touched him on his arm. At around 3.40pm, Mr Spence asked Mr Bletas to go to the office. Mr Bletas said he doesn’t ‘do the office’. He refused to go to the office, so Mr Spence spoke with Mr Graham. Mr Graham said he would come out.

[139] When Mr Graham came out, Mr Bletas said, “Oh here we go”, and “Don’t call me An-dre-ass”. Mr Spence could not recall Mr Graham replying. He could not recall Mr Graham saying, “Whoa, whoa, whoa!”

[140] Relevant to Mr Bletas shaking Mr Spence’s hand, it was Mr Spence’s evidence that he did not say to Mr Bletas that he was ‘correct’ in not wearing the vest. Mr Spence’s evidence is that if he had been apologising to Mr Bletas, there would be no reason for him to need to go to the office to deal with the situation about him not wearing the vest.

[141] Regarding the ‘threat’ made by Mr Bletas to Mr Spence, it was Mr Spence’s evidence that Mr Bletas’ behaviour was out of the ordinary. Mr Spence has worked in the casino industry for 34 years, and has seen a lot of things. Mr Spence denied that it was overly noisy. He remembers that Mr Bletas definitely made the statement. Mr Spence did not ask Mr Bletas what he meant, as Mr Bletas was in a strange mood, and Mr Spence didn’t want to ‘push any buttons’.

[142] Mr Spence stated that he completed an incident report. It was not, however, in Mr Spence’s evidence. It was produced during the hearing and admitted into evidence. It is reproduced below:

I, Roger Spence c/of [address], Gaming Area Manager, state the following:

Andreas Bletas came to Pit 2 at 13:57 and I noticed he had no vest on. I asked Andreas why he had no vest. Andreas said that my boss Geoff had said he didn’t need too. When I tried to ask Andreas to clarify this he became argumentative and accused me off touching him and said I was getting aggressive. I then asked Andreas if he could go to his table which he did.

After Andreas came back from a break at 15:40 I asked him to go to the office. Andreas stated that he doesn’t go to the office and if they want to speak with me they can put it in writing.

I then rang Jim Graham to inform him and Jim said he would come to the Pit to speak with him.

When Andreas saw Jim he said “Oh here we go, if you want to talk to me put it in writing and don’t call me Andre Ass. Jim had not spoken to Andreas at this point.

I directed Andreas to go to BA38.09 and walked to the table with him. Andreas said to me that he has always liked me and I shouldn’t get involved because he didn’t want to come after me too. [original emphasis]”

[143] Mr Spence denied ever touching Mr Bletas. He said he was in a defensive position. Mr Spence denied being angry around Mr Bletas. Mr Spence agreed that if he had in fact touched Mr Bletas then what Mr Bletas then said to him would not be a strange response. He considered, however, that it would be a reaction akin to somebody having pushed somebody.

[144] Mr Spence stated that dealers who now have an issue with overheating with the vests have now had special vests made for them. He has seen dealers remove their vest approximately once per fortnight. He has knowledge that one dealer has a heart condition and removes his vest. Mr Spence reiterated that he did not know the reason why Mr Bletas was not wearing his vest.

Evidence of Mr Jim Graham

[145] Mr Jim Graham, Gaming Operations Manager for Star, provided a witness statement in these proceedings. 44 Mr Graham’s evidence is that Mr Bletas reported to Mr Spence, who reports to Mr Graham. Mr Graham reports to Ms Hardy.

[146] Mr Graham gave evidence that prior to the events of 26 August 2018, he had very little to do with Mr Bletas, and would only say hello from time to time. 45

[147] At around 2:00pm on 26 August 2018, he was telephoned by Mr Spence who advised him that Mr Bletas had presented at work in an incorrect uniform. Mr Graham asked Mr Spence to send Mr Bletas to the office, which was standard procedure. 46 Mr Spence informed him that Mr Bletas refused to attend the office.

[148] Mr Graham stated that when he went out into the pit to see Mr Bletas, Mr Bletas said, “Here we go! You are right on time”. Further, Mr Bletas pointed his finger and said, “I don’t go to the office. If you want to speak to me, put in a letter!” Mr Graham’s evidence was that he said nothing. Mr Graham did not engage with Mr Bletas, due to what he considered to be aggressive and odd behaviour. He said that he was forced to take a step back, and was shocked by Mr Bletas’ demeanour. 47 Mr Graham stated that Mr Spence was witness to this interaction.
[149] Mr Graham had never had a team member refuse to go to the office. He wanted to ask Mr Bletas why he wasn’t wearing his vest, privately in the office, away from staff and customers. He discussed with Mr Ivey the best option moving forward. It was Mr Graham’s evidence that Mr Ivey contacted the Human Resources department, and he and Mr Ivey were instructed to issue Mr Bletas with a ‘notice of meeting’. Mr Graham and Mr Ivey then drafted a letter to Mr Bletas, directing that he attend a meeting on 28 August 2018.

[150] Mr Graham had no further involvement in this matter on that day. 48

Later events

[151] Mr Graham’s evidence was that the meeting of 28 August 2018 did not go ahead. The matter was then passed to HR.

[152] He gave evidence that further to the failed meeting of 28 August 2018, he spoke with Ms Keat who expressed concerns about Mr Bletas’ wellbeing.

[153] He stated that on 29 August 2018 Mr Bletas sent a number of text messages to the ‘Gaming Operations Manager’s’ mobile number.

[154] His evidence was that he had no awareness of “any medical condition”. Further, while he wanted to ask Mr Bletas why he was refusing to wear the vests, he never received a reply to such.

[155] In cross-examination, Mr Graham stated that he didn’t review the footage until several weeks after 26 August 2018.

[156] Mr Graham agreed that he and Mr Bletas have worked together for quite a number of years, but they have not had much to do with each other. Mr Graham had not earlier had any reason to discipline Mr Bletas.

[157] It was put to Mr Graham that Mr Bletas is animated, on occasions. Mr Graham said that he could not comment on that, but did notice that he was animated on 26 August 2018.

[158] Mr Graham denied that he used to pronounce Mr Bletas’ first name Andreas as An-dre-ass. Mr Graham said that he didn’t understand what Mr Bletas was saying by suggesting that he mispronounced his name. Mr Graham asked Mr Spence was Mr Bletas was talking about, and Mr Spence said, “He thinks that you call him An-dre-ass.” Mr Graham said Mr Spence explained this just before he returned to the office. He agreed that had not been included as evidence in his witness statement.

[159] In reviewing the footage, it was put to Mr Graham that while he was in the pit, he was talking to Mr Bletas. Mr Graham denied that he was talking. In cross-examination he said that he asked Mr Spence the question above regarding the mispronunciation of Andreas.

[160] It was put to Mr Graham that he said to Mr Bletas, “You need to get into the office…..”. He denied that he said anything to Mr Bletas. Mr Graham said that Mr Bletas said words to the effect, “If you want me to go into the office you need to put it in writing.”

Evidence of Ms Simone Keat

[161] Ms Keat provided a witness statement in these proceedings and appeared and gave evidence for Star. 49 Ms Keat stated she has been a HR Manager for Star since September 2011.

[162] Ms Keat first became involved with Mr Bletas on 26 August 2018 after she received a phone call from Mr Ivey, who advised her that Mr Bletas was not wearing his vest. Mr Ivey said to Ms Keat that the managers had been trying to get Mr Bletas to meet with them to discuss the issue, but that he had refused to do so. Ms Keat stated that she suggested to Mr Ivey to give Mr Bletas another chance to meet with them and to issue a notice of meeting. 50

[163] On 29 August 2018 Mr Brown forwarded to her an email chain showing that Mr Bletas had been contacting Mr Hogg and Ms Jackie Tosh, Executive Assistant. On 30 August 2018, she emailed to Mr Bletas a letter signed by Ms Hardy directing Mr Bletas to attend a meeting on 31 August 2018 and not to contact Mr Hogg any further.

31 August 2018 Meeting

[164] Ms Keat stated that she attended the meeting of 31 August 2018. Those present included Mr Bletas, Mr Lorraway, Mr Ridley, together with Ms Hardy. Ms Keat arranged for a security guard to be present as it had been reported that Mr Bletas had been aggressive towards Mr Ivey, Mr Spence and Mr Graham on 26 August 2018.

[165] Ms Keat stated that Mr Bletas appeared agitated at the meeting. He kept standing up and pointing, being sarcastic in his responses, and his behaviour was generally quite animated. 51

[166] Mr Bletas stated during the meeting that he had provided a medical certificate to Ms Lloyd regarding his diabetes and the overheating issue, which Ms Keat stated that she was not aware of at the time of the meeting. Ms Keat’s evidence is that after the meeting of 31 August 2018 she has been advised by Ms Lloyd that Star does not possess a copy of any medical certificate. 52

[167] Ms Keat gave evidence that Mr Bletas kept going on a lot of random tangents during the meeting, and at one point Mr Lorraway adjourned the meeting and took Mr Bletas outside so that he could refocus. 53

[168] During the meeting Mr Bletas stated that he felt Mr Ivey and Mr Graham were aggressive towards him, to which Ms Keat said that they needed to “park that issue”. She stated that Mr Bletas interrupted Ms Hardy and herself a number of times, and raised his voice. Ms Keat denied that she rolled her eyes at Mr Bletas during the meeting.

[169] Ms Keat provided detailed notes of the meeting. The notes include the following:

(a) When asked to take a seat he did not;

(b) ….stood up a couple of times when responding and was asked to take a seat by [Mr Lorraway] and stop interrupting “let them finish mate” said [Mr Lorraway];

(c) [Ms Hardy] then went on to describe the process for designing and developing a new vest which was cooler and that she thought [Mr Bletas] had trialled one of these through Sue Lloyd. [Mr Bletas] stated that he had to hand it back in. [Mr Bletas] cut Anne off mid-sentence. [Ms Hardy] tried to proceed to the next and final point in the letter re point 6 and 7. [Mr Bletas] stated, “I just keep getting interrupted and I can’t speak”. [Mr Bletas] said, “hang on a minute and pointed at [Ms Hardy] standing up” then, “I’m talking about the vest”. [Ms Hardy] tried to proceed again, and [Mr Bletas] raised his voice and stood up stating, “hang on you listen now I’m talking now”. [Mr Bletas] then started talking about how from day 1 he felt he wasn’t wanted by Glenn Ivey and he was made to ‘suffer and sweat it out’. [Mr Bletas] then pointed two fingers to his eyes and two fingers to [Ms Hardy] as if to say ‘I am watching you’ he also pointed across at [Ms Keat ] a few times. [Mr Bletas] was asked by [Mr Lorraway] to take a seat. [Mr Bletas] appeared very agitated and tense;

(d) [Mr Bletas] then went on to allege that Jim Graham needed to stop calling him names and “Andre ass”;

(e) [Mr Bletas] indulged a story about a hypothetical ……….he then protracted this story for about 10min stating how disappointed we would be if this happened. He became quite animated standing up and raising his voice and staring across the room….Mr Lorraway then asked [Mr Bletas] to sit down. [Mr Lorraway] then asked to adjourn the meeting.

Facebook request

[170] Ms Keat stated that on 6 October 2018, the day after Mr Bletas’ dismissal, he sent her a friend request on Facebook. She did not accept the request. He also sent her a personal message through Facebook messenger which referred to her twins. Ms Keat stated that this concerned her as she had never mentioned to Mr Bletas that she has twins. She stated she felt very uncomfortable and requested to have no further involvement in managing Mr Bletas’ employment issues.

Other

[171] Ms Keat stated she has never seen documentation about Mr Bletas’ medical condition, nor has she received any hazard reports from him. 54

Re-examination

[172] Ms Keat stated in re-examination that Ms Hardy had informed her on 17 September 2018 regarding her meeting with Mr Ridley on 14 September 2018.

Cross-examination

[173] Ms Keat agreed that following the meeting of 31 August 2018 she did not have any further involvement with Mr Bletas. She did, however, look into matters raised by Mr Bletas during the meeting of 31 August 2018. She reviewed the surveillance footage on 4 September 2018.

[174] Ms Keat spoke with Ms Hardy, and both women were concerned with Mr Bletas’ welfare. Where Mr Bletas had accused Mr Ivey and Mr Spence of being in their space, Ms Keat concluded that Mr Bletas was in their personal space. She considered his behaviour to be intimidating and threatening.

[175] It was put to her that such conduct would normally constitute a disciplinary issue, however Ms Keat said that there were other conduct issues that were of concern. This included the meeting of 31 August 2018 where Mr Bletas would stand and point towards her eyes, and attempting to email the managing director, including using a sarcastic tone.

[176] Ms Keat was kept in the loop about matters as they progressed with Mr Brown. She agreed that she drafted the termination letter that was issued to Mr Bletas at the direction of Ms Weaver, Mr Brown and Star’s legal counsel.

Evidence of Ms Anne Hardy

[177] Ms Anne Hardy, Director of Gaming, provided a witness statement in these proceedings for Star. 55 Ms Hardy has worked for Star since 1992 and has been employed as Director of Gaming since October 2016. She has interacted with Mr Bletas regarding various matters over her time with Star.56

[178] Ms Hardy became involved in this matter on 29 August 2018 due to a concern within Star about Mr Bletas’ welfare following a text message he had sent to the mobile number of the Gaming Operations Manager. It included a picture of a youtube link to a song by Phil Collins titled, “I don’t care anymore”. 57

[179] On 29 August 2018 she telephoned Mr Bletas to make sure he was ‘alright’. Upon answering the phone, Mr Bletas said that he wouldn’t have answered it if he had known it was her.

[180] Ms Hardy and Mr Bletas exchanged several text messages regarding the meeting originally scheduled for 28 August 2018, which Mr Bletas failed to attend and was rescheduled to 31 August 2018. Ms Hardy’s evidence was that Star didn’t want Mr Bletas returning to work until a meeting was held due to the “abnormal behaviours” he had displayed towards his managers while at work. 58

[181] She confirmed that a letter was signed by her and sent by Ms Keat to Mr Bletas on 30 August 2018. This letter noted Mr Bletas was being placed on “special leave”, requested that he attend a meeting on 31 August 2018 and directed Mr Bletas not to contact Mr Hogg.

[182] Some of the text messages exchanged are reproduced below, but have been not been produced in full to the Commission:

Meeting of 31 August 2018

[183] Ms Hardy gave evidence that the meeting of 31 August 2018 was over two hours long, and that Mr Bletas was constantly interrupting the meeting. She stated that Mr Lorraway and Mr Ridley took at least two breaks to remove Mr Bletas from the meeting. She stated Mr Bletas kept going on tangents, including “irrelevant stories about his girlfriend and other random things”. 59 Ms Hardy’s evidence was that Mr Bletas was physically extended over the table so that he was close to Ms Keat and he was pointing in her face, which she stated was aggressive and confrontational behaviour.60

[184] Ms Hardy stated that at the meeting the vest issue was discussed, as well as Mr Bletas’ view that it was ‘optional’ to wear it; her evidence was that the vest was not optional. 61 While Mr Bletas stated that he had approval from Mr Hogg not to wear it, Ms Hardy stated that she explained that if he did not want to wear the vest on a particular day, it would be dealt with on a case-by-case basis, and he would need to speak with his manager on each occasion.

[185] In regard to discussions at the meeting, Ms Hardy further noted:

•  While Mr Bletas stated he was diabetic, she does not remember him mentioning his “diabetes card”;

•  Concerns regarding Mr Bletas’ ability to follow directions were raised at the meeting, but Mr Bletas would not listen, and simply referred to his approval from Mr Hogg not to wear the vest; and

•  Mr Bletas stated Mr Ivey was aggressive toward him on 26 August 2018 and that he would not shake Mr Bletas’ hand. 62

Correspondence further to the meeting

[186] On 7 September 2018, Ms Hardy sent a text to Mr Bletas which stated:

“Dear Andreas, informing you that investigations have not been completed, you will remain on Special Paid Leave for your rostered shift on Monday 10th Sep. I will call you on Monday, kind regards Anne Hardy”.

[187] Mr Bletas replied:

“Hi Anne Thanks for your message. DJ is on holiday till 20th but Adam is available on Wednesday from 2:30pm onwards if they would like to meet up then? Or I will wait for you to call me Monday Thanks Andreas”.

[188] Ms Hardy submitted that she confirmed she would call him on Monday, and that Mr Bletas replied “Ok Have a good night”.

Meeting of 11 September 2018

[189] Ms Hardy’s evidence was that she sent a notice of meeting to Mr Bletas on 10 September 2018, for a meeting to be held on 11 September 2018. Mr Bletas provided a response on that same date, which is extracted in part above at [46].

[190] The meeting of 11 September 2018 did not go ahead. It is Ms Hardy’s evidence that it was decided by Mr Hogg to ‘take a different approach; rather than being concerned with the issue of the vest and Mr Bletas’ following directive, there was concern about Mr Bletas’ wellbeing.’. Ms Hardy was informed by Mr Brown that he would be meeting with Mr Bletas.

Mr Ridley’s concerns

[191] Ms Hardy gave evidence that on 14 September 2018, Mr Ridley, Dealer for Star and United Voice delegate, told her that he felt uncomfortable with Mr Bletas’ behaviour, both in general and exhibited during the meeting on 31 August 2018. Ms Hardy stated that she made contemporaneous notes which she then typed out and emailed to Ms Keat on 24 September 2018. Her notes are reproduced below: 63

“Hi Simone,

As requested – notes from meeting with Adam Ridley.

Adam Ridley (AR) came in to see me on Friday 14 Sep at 2200 and asked if he could have a confidential conversation with me.

AR said he was concerned about ABs mental state. AB had said to AR that he thought we would have a surprise for him at the second meeting because second meetings always had something you did not expect but AB was going to surprise us.

AR said AB was talking about ‘mental control’ AR said he was off the planet.

AR said he was ‘shitting himself’ at the first meeting. AR said he knew that AB had a weapons license and when AB put his hands behind his back when he was sitting down he and DJ were both freaking out about what AB was going to do. AR said he has never experienced anything like it in a meeting.

AR said that he has a weapon’s license that was how he knew that AB had a license as well. AB had previously asked him to go shooting.

AR said he felt so much better to get this off his chest.

AR said no would not normally ever betray the confidence of a TM and said he took confidentiality really seriously but if something had happened and he hadn’t said something.

I thanked AR and assured him that we has escalated the incident and said that we shared concerns over AB and that AB had been placed on Special Paid Leave. (Summary of conversation only).

I did not provide AR with any other details.

Kind regards Anne

Anne Hardy

Director-Gaming [original emphasis]”

[192] Ms Hardy stated she didn’t have any further involvement in the matter, other than being copied into emails to and from Mr Brown. She stated did not make the decision to direct Mr Bletas to an IME, and further that she was not aware of any medical evidence allegedly provided by Mr Bletas regarding a medical condition. 64

Re-examination

[193] In re-examination, Ms Hardy said she only looked at the period of footage covering the early hours of Mr Bletas’ shift. The footage is only available for up to 14 days and given Mr Bletas now states that there was a second interaction with Mr Ivey at around 7.00pm on 26 August 2018, it is not available to be viewed.

[194] Relevant to the meeting that Ms Hardy had with Mr Ridley, Ms Hardy reported the matter to Mr Brown on the next occasion she saw him, three days later.

Cross-examination

[195] Ms Hardy stated that she spoke with Ms Keat to report Mr Ridley’s concern, but did not send the email to Ms Keat until around two weeks later. She could not recall on which date she spoke with Ms Keat.

[196] It was put to Ms Hardy that she sought Mr Ridley out on 14 September 2018. Ms Hardy stated that was incorrect.

[197] Ms Hardy said she and Mr Brown spoke about Mr Bletas until such time as Mr Brown took over the matter on 11 September 2018.

[198] Ms Hardy agreed that she had not reviewed the footage by the time she met with Mr Bletas on 31 August 2018.

[199] Ms Hardy was asked by Ms Tacey what abnormal behaviours Mr Bletas was exhibiting to warrant him being stood down from work on 30 August 2018. Ms Hardy said her involvement commenced on 29 August 2018 when Mr Bletas sent the Phil Collins clip. She considered from a duty of care she needed to speak to him. He responded that he wouldn’t have answered the call if he had known it was her. On 31 August 2018 Ms Hardy did have concerns for Mr Bletas’ welfare at the time.

[200] Ms Tacey suggested that Mr Bletas had not been appropriately put onto paid special leave pursuant to the enterprise agreement governing his terms and conditions. An employee can only be put onto special leave due to misconduct or due to concerns for the employee. Ms Hardy responded that she does not consider that it has to be only one or the other. She said that it was in the business’ interests and Mr Bletas’ interests that he was put on special leave.

[201] Ms Hardy explained that where Mr Hogg had taken a different approach, it was to no longer be concerned about Mr Bletas’ refusal to wear the vest, but to deal with Mr Bletas’ welfare.

Evidence of Mr Ian Brown

[202] Mr Ian Brown, General Manager, Gaming for Star, provided a witness statement in these proceedings. 65 Mr Brown stated that in his role he is responsible for the operation of all gaming at Star, including approximately 500 staff. Ms Hardy reports to him.

Requirement to wear vests

[203] Mr Brown’s evidence was that all Dealers are required to wear a vest as part of their Star uniform. In early 2017, a number of gaming staff expressed concerns regarding the air-conditioning not working, accordingly gaming staff members were informed that if they were experiencing discomfort they should raise such with their manager. A copy of a memo sent to managers on 22 February 2017 included, among other things:

“…

On a day to day basis, Gaming Operations Managers are monitoring all areas and team members may be given the option to remove their vests and jackets if work areas are excessively warm.

…

Team members are encouraged to raise immediate concerns with their manager on shift.” 66

[204] Mr Brown recalled a conversation with Mr Hogg at some stage prior to 24 August 2018, where Mr Hogg informed Mr Brown that he had met with Mr Bletas and approved leave for Mr Bletas to sort out personal issues. He stated that Mr Bletas had raised his concerns about the vest and overheating. Mr Hogg also asked Mr Brown to clarify the process for staff members raising concerns about overheating. Mr Brown’s evidence was that he explained for any individual experiencing discomfort, they should “raise the issue with their manager, who would deal with it on a case by case basis”. 67

26 August 2018

[205] Mr Brown’s evidence was that on or shortly after 26 August 2018 he was advised by Ms Hardy and the ‘Gaming Operations Team’ that Mr Bletas had attended work on 26 August 2018 but had not worn his vest. Mr Brown was advised that Mr Bletas stated he didn’t need to wear the vest as he had approval not to wear the vest from Mr Hogg and Mr Brown. Mr Brown was informed that Mr Bletas refused to attend a meeting regarding his non-compliance with the uniform policy. Mr Brown was informed that there had been a notice of meeting process.

[206] Mr Brown was aware a meeting was held on 31 August 2018, and a further meeting scheduled on 11 September 2018.

[207] On 11 September 2018 he was forwarded a copy of an email from Mr Bletas to Ms Keat (extracted above at [48]). Mr Hogg asked Mr Brown to speak with Mr Bletas to check on his wellbeing and try to resolve the ongoing issues, in light of what Mr Brown understood to be concerning comments made by Mr Bletas in his email. Mr Brown sent an email to Mr Bletas requesting a meeting and this was agreed.

12 September 2018 meeting

[208] Mr Brown met with Mr Bletas on 12 September 2018 and asked about his wellbeing. Mr Bletas described to Mr Brown the events of 26 August 2018 and said that Mr Hogg had given him assurances. Mr Brown explained to Mr Bletas that the memo communication about vests stated that if someone didn’t want to wear their vest, they needed to advise their manager. He told him that there is a process to be followed.

[209] Mr Bletas advised that he has diabetes and gets hot, and that he also had a number of personal matters impacting him. Mr Brown responded that Mr Bletas had been on leave to deal with those personal matters. Mr Bletas stated that Mr Hogg had approved his personal leave.

[210] Mr Brown’s evidence was that Mr Bletas did not appear engaged in the explanation about the process to be followed regarding the vests. He digressed, spoke about personal issues and raised allegations about the conduct of others on 26 August 2018, including that Mr Ivey had been aggressive towards him. Mr Brown stated that he advised Mr Bletas that he would look into Mr Bletas’ allegations and review surveillance footage of the events of 26 August 2018. Mr Brown agreed to catch up with Mr Bletas before he returned to work.

Concerns regarding Mr Bletas’ behaviour

[211] Mr Brown reviewed the surveillance footage of the events of 26 August 2018. It was his view that the footage demonstrated that Mr Bletas was the aggressor on 26 August 2018. Mr Brown considered that Mr Bletas took the personal space of those he was talking to, and not the other way around. He formed a view that the managers involved in the relevant discussions appeared calm. 68

[212] When considering the allegations made by Mr Bletas against Mr Ivey, Mr Brown discussed the matter with Ms Hardy, who told him that Mr Bletas had been aggressive to her and Ms Keat during the meeting of 31 August 2018. She reported that he had made aggressive gestures, pointed, and was leaning forward into Ms Keat’s face when responding to questions.

[213] Ms Hardy informed Mr Brown of Mr Spence’s assertion that Mr Bletas had said, “I don’t want to have to come after you as well”. Mr Brown stated that after reviewing the surveillance footage and discussing the matter with Ms Hardy he became concerned about the reports of aggressive behaviour exhibited by Mr Bletas.

[214] On 13 September 2018, a person in HR brought to his attention concerns raised by a United Voice representative, Mr Ridley, about Mr Bletas’ mental health. Mr Ridley had claimed to know that Mr Bletas had personal firearms, and had been concerned with his behaviour during the meeting of 31 August 2018.

[215] Additionally, a second United Voice representative, ‘Brett’, had reported to Ms Janine Weaver from HR that Mr Bletas was seeing a psychiatrist in Melbourne and obtaining psychiatric medication from Melbourne. 69 Mr Brown’s evidence was that the reason given for this arrangement was to avoid alerting gun licence authorities in Queensland that he was taking prescription medication for mental health reasons.70

14 September 2018 meeting

[216] Mr Brown met with Mr Bletas again on 14 September 2018. He stated that at the time of the meeting he was concerned about Mr Bletas’ behaviour and his wellbeing. He told Mr Bletas that Star had been advised by United Voice that he was seeing a psychiatrist in Melbourne and was on prescription medication, which Mr Bletas denied. Mr Brown asked Mr Bletas whether he would see a doctor to obtain an independent medical report due to ongoing concerns about his erratic behaviour and mental health. Mr Bletas refused, stating that he didn’t need to, and his behaviour didn’t give rise to any concerns.

[217] Mr Brown gave evidence that Mr Bletas enquired about the names of the union representatives that had raised concerns about Mr Bletas, but that Mr Brown refused to divulge this information.

[218] Mr Brown stated that he explained to Mr Bletas that Star could direct Mr Bletas to attend an IME, and that Mr Brown was happy to support him and could be in the room with him if that was what Mr Bletas wanted. Mr Brown stated to Mr Bletas that they would reconvene their meeting at another time to allow Mr Bletas to consider those matters. He informed him that he would remain on paid special leave.

[219] Mr Brown’s evidence was that at this meeting, as with the meeting on 12 September 2018, Mr Bletas spoke about a range of things, including details about his personal life, a property boundary dispute, an issue with an uncle, and a story about Chinese beheadings on YouTube. Mr Brown stated that he was concerned about his mental health, given these were erratic stories, he considered he was rambling, and Mr Bletas’ perception that Mr Ivey had been aggressive. Further, he was concerned because of the information provided by United Voice.

Meeting of 24 September 2018 and direction to attend an IME

[220] Mr Brown met with Mr Bletas on 24 September 2018 and informed him that Star was concerned about his wellbeing and believed it was reasonable to send him to an IME in the current circumstances. He provided Mr Bletas a letter directing him to an IME.

[221] An appointment had been made for Mr Bletas on 6 October 2018 to meet with Dr Freiberg on property at Star. Consent forms were required to be completed and returned to Star by 28 September 2018.

[222] On 1 October 2018, Mr Bletas sent the following text message to Mr Brown:

[223] Mr Brown emailed Mr Bletas on 2 October 2018, informing him that Star was concerned with his ‘erratic and unprofessional behaviour at work and disordered conversations with management.’ Mr Brown stated that Star considered the request for him to attend the medical appointment as a reasonable direction.

[224] The letter pushed out the time for the consent forms to be completed to 5.00pm, 3 October 2018. It finished:

“If you do not contact us to confirm your attendance at the medical assessment, we will be unable to determine if you can safely perform the inherent requirements of your substantive role. Therefore, we will not be able to offer you continued employment and your employment with us will end. We confirm that we will make such a decision if we do not hear from you by 5pm, tomorrow.”

[225] On 3 October, Mr Brown received an email from Mr Bletas refusing to attend the IME appointment. The email is referenced at [58].

[226] Mr Brown wrote to Mr Bletas on 4 October 2018, reproduced at [59]. Mr Brown also attempted to call Mr Bletas on his mobile on 4 October 2018, but Mr Bletas did not answer. The email details that the deadline for providing the consent would end at 5pm 4 October 2018, and would not be extended.

[227] Mr Brown sent him a text, asking him to respond to the email by 5pm that day. Mr Bletas responded at 4:29pm by text, saying he did not have enough time to respond and would reply after dinner. Mr Bletas responded by email later that day, refusing to attend the IME and “requesting that any future discussions be video-taped”. 71 These items of correspondence between Mr Brown and Mr Bletas are reproduced above at [60].

Termination of Mr Bletas’ employment

[228] As Mr Bletas failed to provide a consent form and attend the IME as directed, Mr Brown confirmed he decided to terminate Mr Bletas’ employment for refusing to follow a reasonable direction. 72 He emailed a copy of the termination letter to Mr Bletas at 4:47pm on 5 October 2018, and at 5pm Mr Bletas responded stating he would meet with the doctor if he could have an independent witness present. Mr Bletas also sent a number of texts to Mr Brown, to this effect.

[229] Mr Brown replied advising the IME appointment had been cancelled. Mr Brown stated further, “his employment had already been terminated as a result”. 73

Mr Bletas’ grievance

[230] Mr Brown’s evidence was that Mr Bletas raised concerns about Mr Ivey’s behaviour towards him on 26 August 2018. Correspondence from Mr Bletas of 17 October 2018, confirmed he still wished to pursue a grievance against Mr Ivey. Mr Brown sent correspondence on 18 October 2018, requesting particulars of the allegations against him, to which Mr Bletas replied, on 21 October 2018, that he had already provided such.

[231] Mr Brown gave evidence that the HR department investigated the allegations, and reported back verbally to him, to the effect the allegations were not substantiated and warranted no further action. This was conveyed to Mr Bletas by letter on 25 October 2018. 74

Cross-examination

[232] Mr Brown agreed that the memo was sent to the Gaming Team, but it did not go to all staff. The memo was placed on a notice board. The memo might have stayed on the board for approximately 12 months.

[233] Mr Brown does not agree that there is an on-going concern of overheating of employees in the casino. If an employee has a concern they are entitled to address it with their manager.

[234] Mr Brown agreed that in early August 2018 he was aware that Mr Bletas had held a conversation with Mr Hogg regarding overheating while wearing a vest. Mr Brown confirmed to Mr Hogg that he would handle the situation.

[235] Relevant to Mr Bletas’ email dated 28 August 2018 (extracted above at [33]) Mr Brown agreed that Mr Bletas may have been distressed. Mr Brown agreed that he did not contact Mr Bletas until 11 September 2018; he had Ms Hardy meeting with Mr Bletas and overseeing the issue.

[236] Mr Brown agreed that up until 12 September 2018, he had had very little to do with Mr Bletas. He agreed that he had no knowledge of Mr Bletas’ inherent and usual personality.

[237] Mr Brown was shown the CCTV footage in cross-examination. Where he had described Mr Bletas as the aggressor, he said he had focussed on the footage with Mr Ivey. He said that Mr Bletas was pointing at Mr Spence, and being more aggressive than Mr Spence. Where Mr Brown had earlier said that Mr Bletas took up the managers’ personal space, after watching the footage, Mr Brown agreed there had been an occasion that Mr Ivey had walked towards Mr Bletas. Mr Brown said that Mr Bletas had taken the personal space of Mr Spence.

[238] Mr Brown agreed that Mr Bletas repeatedly asked him who from the United Voice had stated that he was seeing a psychiatrist in Melbourne. He confirmed that Mr Bletas was upset when this had been suggested.

[239] In cross-examination Mr Brown agreed that where he had said that he had information about Mr Ridley’s meeting with Ms Hardy on 13 September 2018, he thought he might be incorrect on that date, as Ms Hardy’s notes reflect the meeting took place at 10pm on 14 September 2018. Mr Brown was informed of the meeting by Ms Keat, not Ms Hardy. Mr Brown was of the view that he had that information before him at the meeting of 14 September 2018, but accepted that he could be wrong about that.

[240] It was put to Mr Brown that by 14 September 2018, when the Star wanted to send Mr Bletas for an IME, the only concerns it could have had would be relevant to Mr Beltas’ concerns regarding Mr Ivey. Mr Brown disagreed with that proposition. He agreed that at this time he knew Mr Bletas held a gun licence, he had reviewed the footage, and he had been informed of what occurred at the meeting of 31 August 2018.

[241] He agreed that at the meeting of 14 September 2018 he did not ask Mr Bletas if he held a gun licence. Mr Brown later told Mr Hogg verbally that he was aware that Mr Bletas held a gun licence.

[242] Mr Brown denied that at the meeting of 24 September 2018 he was angry towards Mr Bletas. He denied that he snatched from Mr Bletas the material relevant to the IME. Mr Brown agreed that there was no contact between him and Mr Bletas after the meeting of 24 September 2018 until Mr Bletas emailed on 1 October 2018.

[243] It was put to Mr Brown that in Mr Bletas’ correspondence he was trying to resolve the issues. Mr Brown disagreed.

[244] Mr Brown agreed that the appointment with Dr Freiburg was not set in stone, and could have been rescheduled. It was put to Mr Brown that because extensions had been granted to Mr Bletas to return the consent form and advise he would attend the IME, that it could have been extended again. Mr Brown said that it had been extended twice, and would not be extended again. His employment was terminated before Mr Bletas said he would attend. Mr Brown was not persuaded to reverse his decision.

[245] I questioned Mr Brown relevant to the invitation by Mr Bletas to have Mr Brown and his wife join him for dinner. Mr Brown stated that he did not consider the invitation to be genuine.

Legislation

[246] Section 385 of the Act defines the meaning of “unfair dismissal” and states 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) 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.”

[247] Section 387 of the Act sets out the criteria that must be taken into account when considering whether a dismissal was harsh, unjust or unreasonable, and states:

“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.”

[248] The type of conduct that may fall within the words ‘harsh, unjust or unreasonable’ was outlined by McHugh and Gummow JJ in an oft-cited extract from Byrne v Australian Airlines Ltd 75 as follows:

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

[249] I am duty-bound to consider each of the criteria set out in s.387 of the Act in determining this matter. 76

Mr Bletas’ submissions

[250] Much of Mr Bletas’ submissions prior to the hearing restated the evidence contained in his statement; such reproduced evidence has not been set out in detail again here.

[251] Mr Bletas submitted that from when he commenced employment with Star on 1 April 2010, to 26 August 2018, he was not subject to any disciplinary action in relation to his conduct or his performance. 77

[252] Mr Bletas submitted that despite him raising concerns about his overheating when wearing the vest, and his provision of a medical certificate confirming his diagnosis with diabetes, Star failed to properly address the issue, and Mr Bletas’ physical condition was therefore exacerbated. 78

[253] Mr Bletas referred to several precedent cases that have discussed the interpretation of the provisions of the Act relating to unfair dismissal and what is meant by the words “harsh, unjust or unreasonable” in s.385(b) of the Act. Mr Bletas referred to Selvachandran v Peteron Plastics Pty Ltd 79 and Doig v Colin Joss & Co Pty Ltd80 and submitted that those authorities established that in order to be a valid reason for termination, the reason must be sound, defensible and well-founded rather than capricious, fanciful, spiteful or prejudiced.81

[254] Mr Bletas submitted that where an employer issues a warning to an employee, the employee must be afforded a reasonable chance to fix the problem, 82 and the warning must:83

•  Identify the relevant aspect of the employee’s performance which is of concern to the employer; and

•  Make it clear that the employee’s employment is at risk unless the performance issue identified is addressed. A mere exhortation for the employee to improve his or her performance is not sufficient.

[255] Mr Bletas referred to a oft-cited extract from the judgment of McHugh and Gummow JJ in Byrne & Frew v Australian Airlines Ltd 84, as follows:

“[465] 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.”

[256] Mr Bletas made submissions in respect of each of the criteria set out in s.387 of the Act.

s.387(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)

[257] Mr Bletas made reference to a number of case authorities giving consideration to whether a dismissal is proportionate to an employee’s conduct. Mr Bletas cited the decision in Potter v WorkCover Corporation, 85 in which the Australian Industrial Relations Commission held that:

“[55] In circumstances of summary dismissal, the issue of whether the penalty imposed was proportionate to the conduct is a matter more appropriately considered in the context of s 170CG(3)(e) rather than s 170CG(3)(a). If summary dismissal was disproportionate to the misconduct that would support a conclusion that the termination was harsh, despite the existence of a “valid reason” for termination.”

[258] Mr Bletas further referred to the decision in Dissanayake v State Transit Authority, 86 in which the Industrial Relations Commission of New South Wales held that:

“[106] In a passage of a judgment of Gillard J in Rankin (at [250]), recently cited with approval by the NSW Court of Appeal in Willis Australia Group Services Pty Ltd v Mitchell-Innes [2015] NSWCA 381 at [90] to [92] (per Macfarlan JA), Gillard J concluded that the conduct of an employee may justify summary termination where the employee has conducted himself in such a way as to demonstrate a repudiation of the contract: at [51]. It is useful to extract that passage from the judgment in Willis, as follows:

[250] The authorities do establish that the employee's breach of contract of employment must be of a serious nature, involving a repudiation of the essential obligations under the contract or actual conduct which is repugnant to the relationship of employer-employee, before an employer may terminate the contract summarily. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature.”

[259] Mr Bletas submitted that he was not provided a valid reason for his dismissal. He submitted that Star’s directive for him to subject himself to a diagnostic psychiatric assessment was not a lawful and reasonable directive for the following reasons:

•  He had a physical health problem and not a mental health issue 87; and

•  Star’s Enterprise Agreement provides at clause 7.2(n) Pattern of Absenteeism, that where Star reasonably considers an employee has a pattern of absenteeism, Star may require the employee to undergo an independent medical assessment. In this regard, Mr Bletas submitted he did not have a pattern of absenteeism, and therefore the requirement for such an assessment was not enlivened. 88

[260] Mr Bletas further submitted that Star’s directive for consent to be provided for access to Mr Bletas’ medical records was not lawful, and was not a reasonable directive; it was a fishing expedition.

[261] Mr Bletas submitted he was able to provide a medical certificate from his general practitioner, whom he had been seeing for 34 years, to the effect that he did not have any mental health issues. He submitted such a certificate was accepted by the Weapons Licensing Division of the Queensland Police Service, and therefore should have been acceptable to Star.

[262] Mr Bletas submitted that Star failed to particularise instances where his conduct was said to be “strange, out of the ordinary, or a threat to himself or others”, and further that Star had no genuine need to require him to attend a diagnostic psychiatric IME. Mr Bletas submitted his conduct towards Star’s representatives did not extend beyond him trying to:

•  Defend himself from vexatious allegations, including the incident of 26 August 2018 and that he had a mental health issue;

•  Negotiate a mutual resolution to the issues; and

•  Protect his personal and private medical information. 89

[263] Mr Bletas submitted that 90 an employee disputing the conduct of their employer and other employees was not an indicator that the employee has a mental health issue.

[264] Mr Bletas submitted that he was treated differently from other employees in Star’s management team that had demonstrated conduct issues, as those managerial employees were not stood down on special leave and directed to undertake a psychiatric IME. 91

[265] It was further submitted that Mr Hogg had provided to Mr Bletas an exemption to wearing the vest, but this was never accepted by managers on the floor. No managers sought to make inquiries with Mr Hogg.

[266] Relevant to Mr Bletas’ refusal to attend the meeting he was directed to on 26 August 2018, it was submitted that Mr Bletas held a true and honest belief that he did not need to attend unless accompanied by a support person. Where representatives of United Voice had been under a mistaken belief that the enterprise agreement provided for such a right, it was submitted that it was understandable that Mr Bletas held this view.

[267] In closing submissions, it was put on Mr Bletas’ behalf that the reason why he said on 28 August 2018 that he would never meet in the same room as Mr Ivey was due to his lack of sleep.

[268] On Mr Bletas’ behalf, Ms Tacey conceded that HR might have considered the various emails from Mr Bletas as ‘colourful’, but they should be considered in the context where he had not been earlier disciplined.

[269] In closing submissions Mr Bletas criticised Star for switching from a disciplinary process to a concern for Mr Bletas’ welfare. It was submitted that it was understandable that Mr Bletas was arguing against the requirement to have an IME. It was put that the various managers were not aware of Mr Bletas’ usual and inherent personality.

[270] Where Mr Bletas met with Ms Hardy and Ms Keat on 31 August 2018, it was submitted that Mr Bletas demonstrated only that he was passionate and animated.

[271] Where Mr Lorraway gave evidence during the hearing that Mr Bletas had been aggressive or agitated during the meeting of 31 August 2018, it was submitted that if he had, in fact, been aggressive or agitated, the employer’s inquiries should have remained as a disciplinary investigation and not an inquiry into his welfare.

[272] Relevant to Mr Bletas’ objection to being seen by Dr Freiburg, it was submitted that it was a reasonable objection, with all of the information that Mr Bletas had before him. It was suggested that it was ‘interesting’ that a doctor was to be flown from Sydney to the Gold Coast at the employer’s expense, when it was open to Star to have a practitioner from the Gold Coast examine Mr Bletas. It was submitted that Star did not hold a genuine reason to direct him to be examined.

[273] Mr Bletas submitted that following his acceptance to seeing Dr Freiburg, Star should have revoked the termination and then rescheduled another appointment.

s.387(b) - Whether the person was notified of that reason

[274] Mr Bletas submitted he was not appropriately notified before the decision to terminate his employment was made and communicated to Mr Bletas by email. Mr Bletas submitted that Start failed to effectively and meaningfully notify him that his employment was to be terminated, provide a valid reason for the termination or provide him an opportunity to respond and show cause as to why his employment should not be terminated.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[275] Mr Bletas submitted that he was not given a genuine opportunity to respond to Star’s intention to terminate his employment because a decision to terminate his employment had already been made. Mr Bletas submitted that the IME scheduled for 6 October 2018 had been cancelled prior to Mr Bletas receiving the termination letter, evidenced by Mr Brown’s refusal or failure to reschedule the IME after Mr Bletas’ text message of 4.49pm on 5 October 2018 attempting to ‘save his employment’. Mr Bletas submitted that the termination had been effected irrespective of anything he said or could have said in his defence.

s.387(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

[276] Mr Bletas submitted that his dismissal was effected unexpectedly by email; no meeting was held, and therefore he was not given an opportunity to request a support person.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[277] Mr Bletas submitted that Star had not raised any performance issues with him prior to his dismissal, and that he was capable of performing the inherent requirements of his position.

s.387(f) - Whether Star’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed

[278] Mr Bletas submitted that Star is a large enterprise and has dedicated human resource management specialists and expertise, and that those factors should be taken into account in considering the procedures followed in effecting his dismissal.

s.387(h) - Other matters

[279] Mr Bletas submitted that the Commission should give consideration to the fact that he was employed by Star from April 2010 and had an unblemished employment record. He submitted that the Commission should give weight to the fact that he was not issued any formal warnings in relation to his performance or conduct prior to his dismissal, and that the dismissal was effected “immediately” by email.

[280] Mr Bletas submitted that Star’s ‘threats’ to his employment were a prepared script and mechanical process delivered in a repetitive unreasonable and unparticularised manner:

(a) “as a means to try, to force the Applicant to comply with the Respondent’s directive to provide his consent to the Respondent having unfettered access to his medical records” and

(b) “when the Applicant questioned the legitimacy of the Respondent’s directive to attend a diagnostic appointment with the Respondent’s chosen medical practitioner thus substantially diminishing any weight that could be attributed to putting the Applicant on notice that his employment was at risk.”  92

[281] Further, Mr Bletas submitted that Star failed to take into account the impact of the dismissal on his personal and economic situation.

Remedy

[282] Mr Bletas seeks an order for reinstatement to the position of permanent part-time table games dealer, with continuity of service maintained. In addition to reinstatement, he seeks an amount of compensation for lost remuneration suffered as a result of his dismissal.

[283] In the alternative, should reinstatement be found to be inappropriate, Mr Bletas seeks an order for compensation which gives consideration to the following:

•  Mr Bletas’ length of service with Star;

•  Mr Bletas’ lost wages; and

•  Any other matter the Commission considers relevant. 93

Post-employment conduct

[284] Relevant to Mr Bletas’ conduct in making contact with Ms Keat via Facebook and Messenger, it was submitted that he is ‘just friendly’, and he had no issue or animosity with Ms Keat. It was merely a request to ‘be my friend’.

[285] I suggested to Ms Tacey that perhaps it was more than that. Ms Tacey submitted that some people don’t have insight into their own behaviour. She submitted that he was genuinely friendly and merely making an inquiry.

Star’s submissions

[286] Star submitted that Mr Bletas’ employment was terminated on 5 October 2018 for reasons which Star summarised as a repeated failure to comply with a direction to attend an IME. 94

[287] Star submitted that Mr Bletas was first advised of Star’s intention for him to attend an IME during his meeting with Mr Brown on 14 September 2018, however Mr Bletas refused to do so. Star submitted the issue was again raised at the meeting of 21 September 2018, and again Mr Bletas rejected the suggestion of an IME.

[288] Star submitted that a formal direction for Mr Bletas to attend an IME was issued in a letter of 24 September 2018. The letter confirmed an appointment would be made for 6 October 2018. Star submitted the requirement to attend an IME, and the date of the scheduled appointment were reiterated in email correspondence of 2 October 2018 and 4 October 2018, but Mr Bletas failed to respond with his consent to attend.

[289] Star submitted that Mr Bletas did not agree to attend the IME until after the termination of his employment had taken effect, and even then would only provide his consent subject to “inappropriate qualifications”. 95

[290] Star made submissions in respect of each of the criteria set out in s.387 of the Act.

s.387(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)

[291] Star submitted that Mr Bletas did not dispute that he was issued a direction to attend the IME with Dr Freiburg, which he did not comply with. Star disputed that there could be any contention that the direction to attend the IME was unlawful. Rather, Star submitted that the only relevant consideration is whether the direction to attend the IME with Dr Freiburg was reasonable.

[292] In this regard, Star submitted that it is a well-established principle that a failure to follow a lawful and reasonable direction “involves serious misconduct, justifying summary dismissal”. 96 It submitted that a direction need not be necessary or essential; it will only be unreasonable if no reasonable employer could have adopted it.97

[293] As to a direction to attend an IME, Star cited the decision in Varas v Fairfield City Council, 98 where the Court commented:

“In Blackadder Madgwick J reached the conclusion (at [67]-[69]) that in contracts of employment terms should be implied entitling an employer to require an employee to furnish particulars and/or medical evidence affirming the employee’s continuing fitness to undertake duties and, to be able to require an employee, on reasonable terms to attend a medical examination to confirm his or her fitness. Madgwick J observed that such terms were essential for compliance by an employer with the employer’s occupational health and safety duties.

To like effect, Goldberg J in Thompson held (at [49]) that it was reasonable for an employer to direct an employee to attend a medical examination to determine whether the employee was fit to perform his or her duties and whether he or she could do so safely. In the circumstances of that case his Honour found that it was reasonable, and probably necessary, for the respondent to find out more about the applicant’s condition, which included the obtaining of a report from a psychiatrist, especially having regard to unexplained absences (at [54]).” 99

[294] Star further referred to the decision in Peek v AGS, 100 in which the Court stated:

“the applicant has not made out a prima facie case that his exclusion from work is wrongful or unlawful as it results from his failure to attend a medical examination which, prima facie, the respondent was entitled to require him to attend”. 101

[295] Star submitted that Mr Bletas had multiple opportunities to submit to the requirement to attend an IME, but failed to do so. Star submitted that discussions about the IME took place over a period of weeks, and that Mr Bletas’ refusal to attend was therefore both deliberate and considered. 102

[296] In response to Mr Bletas’ criticisms of the direction to attend an IME, Star submitted the following:

•  The IME was not to treat or diagnose an established condition, it was to determine whether there was one;

•  The fact that Star’s Enterprise Agreement provides for a process in relation to absenteeism does not codify the circumstances when an IME is reasonable, it only establishes one scenario where the parties to the agreement have recognised it would be reasonable;

•  As to Mr Bletas’ claim that the IME was a “fishing expedition”, Star submitted that implicit in such is the idea that Star did not know whether Mr Bletas had a medical condition and was trying to use the IME to identify one. Star submitted that seeking professional advice to explain conduct which is out of the ordinary was an entirely appropriate approach;

•  Further, it was reasonable to seek expert medical advice and not rely on advice from Mr Bletas’ own general practitioner, particularly in light of Star’s duty to Mr Bletas and other employees; and

•  Lack of performance issues or issues in relation to the inherent requirements of Mr Bletas’ role is irrelevant; the IME was intended to confirm Mr Bletas’ capacity to perform the inherent requirements of his role. 103

[297] Further to the above, Star submitted that Mr Bletas should have submitted to the IME. Star submitted that if the IME had resulted in an outcome with which Mr Bletas disagreed, he would then have been able to raise a dispute to this effect. 104

[298] In oral closing, Mr McKechnie submitted that the matter before the Commission is not a case relevant to vests or alleged management hostility; it is about a reasonable directive that was refused. The Commission was urged to find that Star held a genuine concern about Mr Bletas’ wellbeing. He was provided with repeated opportunities and extensions to meet the reasonable direction, to which he refused.

[299] It was submitted that Mr Bletas had decided in his mind that he was not going to see Dr Freiburg, and he knew that one of the consequences of such a decision was termination. In re-examination, he was asked if he was still considering attending Dr Freiburg’s appointment on 5 October 2018, to which he responded, “Absolutely not.”

[300] It was submitted that where Mr Bletas had decided against wearing the vest, nobody forced him to wear it. It was submitted that nobody harassed him. It is not clear why nobody showed Mr Bletas the memo which stated that it would be on a case-by-case basis.

[301] It was submitted that the video footage does not demonstrate hostility from Star management.

s.387(b) - Whether the person was notified of that reason

[302] Star submitted that Mr Bletas’ criticism of the dismissal process is misguided. It submitted that while Mr Bletas assumes that there is a “natural sequencing” involving an employee being advised of a proposed termination, the reason for it, and then provided an opportunity to respond, what the legislation considers is whether an employee was notified of the reason and given an opportunity to respond before the termination. Star submitted this process occurred here.

[303] Star submitted that the directions to attend the IME confirmed the requirement was mandatory and specified the consequences should Mr Bletas fail to comply. Mr Bletas was therefore advised non-compliance could result in termination, and he took the opportunity to respond in writing to the direction.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[304] Further to the above, Star submitted that the decision to terminate Mr Bletas’ employment was not taken until after his written responses had been received and considered; a process which was carried out over a number of days.

[305] Star submitted this satisfied an “opportunity to respond”.

s.387(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

[306] Star submitted that s.387(d) relates to any refusal to allow a support person, and does not require the employer to offer a support person. Star conceded that there was no meeting between it and Mr Bletas regarding the dismissal, and therefore no requirement for a support person. Further, as Mr Bletas was on paid leave throughout the relevant period he was at liberty to seek the support of whomever he wanted when corresponding with Star.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[307] Star did not in its submissions prior to the hearing of this matter specifically address this criterion. However, it did respond to Mr Bletas’ criticisms of the direction to attend the IME and in doing so, submitted that its concerns about Mr Bletas’ mental health did not require conduct or performance issues to have been identified. Rather, the very purpose of the IME was to establish Mr Bletas’ capacity in relation to the inherent requirements of his role. 105

s.387(f)(g) and (h)

[308] Star did not in its submissions prior to the hearing of this matter specifically address these criteria.

[309] Star urged for the application to be dismissed.

Consideration

[310] I will address each of the criteria set out in s.387 of the Act separately.

s.387(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)

[311] Whilst a very large part of the hearing dealt with the issue of Mr Bletas not wearing a vest up until and including 26 August 2018, it was not the reason why he was dismissed. It is necessary, however, in my view to say some things about the issue.

[312] I accept Mr Bletas’ evidence, and that of Mr Lorraway, that when they met with Mr Hogg on 24 August 2018, he gave Mr Bletas general permission not to wear a vest if he was overheating. There is evidence before the Commission that Mr Hogg and Mr Brown discussed the memo that had been circulated. Mr Brown explained the memo to Mr Hogg and detailed that it was on a case-by-case basis.

[313] It is apparent, however, that following the meeting between Mr Hogg and Mr Brown, Mr Hogg again met with Mr Bletas and Mr Lorraway, where he issued to Mr Bletas an exemption. Disappointingly, and without any satisfactory explanation, this was not ever relayed to any other manager.

[314] Mr Hogg was not called as a witness when he could have been. There was no attempt to refute Mr Bletas’ evidence that he was provided with such an exemption by Mr Hogg. I accept, therefore, that when Mr Bletas attended for work on 26 August 2018 without a vest, he had permission from Mr Hogg to do so. The incidents that occurred from 26 August 2018 are a sad tale, when it appears that all it might have taken was Mr Hogg to issue to Mr Bletas a written exemption that he could show to any Pit Boss or Gaming Manager that sought to instruct him to wear a vest or inquire of him why he was not wearing a vest.

[315] Mr Bletas’ conduct up until 26 August 2018 should not have caused any concern for Star, and indeed, as he had an audience with the highest ranked manager on the Gold Coast, it is demonstrative that there were no concerns. If any had been held, Mr Hogg would have alerted HR or another manager to such concerns.

[316] Relevant to Mr Bletas’ refusal to attend a meeting with Mr Ivey and Mr Graham on 26 August 2018 during his shift, I find that Mr Bletas was under a genuine belief that he was not required to do so unless he could have a support person, such as a union delegate with him. It is clear from Mr Lorraway’s evidence that he himself was mistaken as to the rights afforded to employees under the Agreement, and this had been incorrectly communicated to United Voice members. It is difficult to be critical of any party on this mistaken view, including Star management who are likely not to have been aware of this mistaken view held by Mr Lorraway and Mr Bletas at the time.

[317] I find, however, that some of Mr Bletas’ conduct from 26 August 2018 to 31 August 2018 was often bizarre, taunting, insulting and obstinate. I do not accept Mr Bletas’ submission that it can be explained by his unique and inherent personality. The most concerning behaviours include:

(a) Saying to Mr Spence, “I like you Roger so it’s best you don’t get involved, because I don’t want to come after you as well”. I accept Mr Spence’s evidence that this was said to him by Mr Bletas, particularly so because a written account of the conversation was made contemporaneously;

(b) The CCTV footage of 26 August 2018 where Mr Bletas uncomfortably forces a handshake while at work with Mr Spence and Mr Ivey in situations where a handshake in the workplace appears to me to be unnecessary and unwelcome (at least in the case of Mr Ivey). Mr Bletas gave evidence that there was a further handshake in the workplace with Mr Ivey at approximately 7.00pm, and he did so because Mr Ivey looked upset and Mr Bletas considered that Mr Ivey was deliberately not looking at him. He thought it was the ‘right thing to do’ to shake his hand, but he also gave evidence that he said to Mr Ivey when asked to attend a meeting, “No thanks Glenn. I just can’t trust you to meet with you alone or with your friends to bully me.”;

(c) Emailing Mr Hogg the following on 28 August 2018 refusing to attend a meeting with Mr Ivey, when Mr Bletas gave evidence in questions from me that he ‘personally doesn’t have an issue with Mr Ivey’:

•  Geoff, I can no longer work on these same days as Glenn Ivey.

•  It’s impossible, irreconcilable. I will work Friday Saturday this week on which I believe he is off.

•  I will work on his off days and it’s fine with me that he gets his 5 days as opposed to my 2. That’s fine, that’s fine Geoff, that’s fine.

•  I will not be attended his “formal meeting” at 10am this morning nor will I be contacting him ever or speaking to this person.

•  Ever.

(d) To be clear, I do not find that it was inappropriate on 28 August 2018 for Mr Bletas to send an email to Mr Hogg, explaining that he understood that when they had met only days earlier he had been issued with an exemption from wearing a vest. The language within the email to Mr Hogg is at times concerning;

(e) Nominating Ms Tosh as his contact person when she is the Executive Assistant to the General Manager and should not ever be considered by a dealer to be his contact person unless she has agreed to be;

(f) Informing Ms Hardy when she called that if he had known it was her calling, he would not have taken her call. It would have been appropriate and indeed useful for Mr Bletas to have willingly taken a call from Ms Hardy given her seniority at Star and her ability to assist in resolving his issue;

(g) Sending to the Gaming Manager’s mobile phone a Phil Collins Youtube link to a song titled, “I don’t care anymore”. There is no evidence before the Commission that the link was opened, but I accept that it was a cause of concern to Star to have such a song title sent by an employee at around the same time the text messages below in (h) were sent. The lyrics are very melancholy and include the following:

“Well you can tell everyone I'm a down disgrace 
Drag my name all over the place 
I don't care anymore
You can tell everybody 'bout the state I'm in 
You won't catch me crying 'cause I just can't win
I don't care anymore, I don't care anymore

I don't care what you say
I don't play the same games you play

'Cause I've been talking to the people that you call your friends 
And it seems to me there's a means to and end
They don't care anymore
And as for me I can sit here and bide my time 
I got nothing to lose if I speak my mind 
I don't care anymore, I don't care no more

I don't care what you say 
We never played by the same rules anyway”

(h) Sending repeated, very short text messages to the Gaming Manager’s mobile phone where he appears to know that Mr Ivey is rostered on to read the messages. The text messages firstly nominate Ms Tosh as his contact person, and then become rude to Mr Ivey, and then facetious by asking Mr Ivey to hold the meeting with him on Saturday, Mr Ivey’s day off work:

“Email to: [Jackie tosh email address] for info & updates

And to reschedule your meeting

[wave hand emoji]

And

You learn

To speak and act

Respectably & Honestly

Enjoy your day

Hang on

Give me half hour

Might be able to rearrange for Saturday

U don’t mind coming in on your day off do you, Glenn?”

(i) Where Ms Hardy had informed Mr Bletas that he was on paid special leave and he was not required to attend for work until the meeting of 31 August 2018, he sent the following inappropriate texts to Ms Hardy declaring that he would attend for work and wasn’t interested in meeting with her or Ms Keat:

Mr Bletas:	Talk to Geoff Anne You’re really not listening to me I’ve cc’d you in an email reply to Simone So based on that I think I should just come in and go to work See how we go and then maybe set up something next week with Geoff No hurry
Ms Hardy:	Dear Andreas, please see the email and attachment sent to your email address [address], you are required to attend the meeting tomorrow at 1630, this will be your opportunity to reply to the points raised in the letter, regards Anne Hardy
Mr Bletas:	No more messages tonite please Thanks I see you at work tomorrow
Ms Hardy:	Please remember you are on Special Paid Leave and not required at work until 1630 to attend the meeting, regards Anne Hardy
Mr Bletas:	Sorry no I see you tomorrow at 12 No meetings Thanks

(j) The meeting of 31 May 2018 where even on Mr Lorraway’s account, Mr Bletas’ behaviour was unorthodox, inappropriate and extremely agitated. Mr Lorraway had to request Mr Bletas sit numerous times throughout the meeting, and there were breaks to speak to him to calm him down and focus. The conduct of using one’s middle and pointer finger to look at one’s own eyes, then point them to Ms Keat and return them to your own eyes is menacing in such a meeting where it is not given nor expected to be in jest. I accept the evidence of Star’s witnesses that Mr Bletas was rambling, at times, on matters not relevant to the issue of the vest and overheating experienced by him. Further, I accept the evidence that he was, at times, leaning over the table towards Ms Keat and this conduct is inappropriate;

[318] Mr Bletas did not have many interaction with Star managers after 31 August 2018 until around 11 September 2018 when he sent an email to Ms Hardy. I do not consider his email of 11 September 2018 to be particularly concerning.

[319] When Mr Brown met with Mr Bletas on 14 September 2018, Mr Brown put to him that he was seeing a psychiatrist in Melbourne. Mr Brown had reviewed the footage by this time, and had learned of Mr Bletas’ conduct during the meeting of 31 August 2018. Mr Brown had informed Mr Hogg that he would take carriage of Mr Bletas’ issues.

[320] I accept that at this time, Star held genuine and reasonable concern into Mr Bletas’ wellbeing. I accept that Mr Bletas had been displaying unusual and inappropriate conduct that reasonably gave rise to a concern that Mr Bletas might have a mental health issue, warranting an IME. With the additional information available to Star as to Mr Bletas’ alleged visitation upon a psychiatrist in Melbourne, Mr Brown undertook to have Mr Bletas undertake an IME.

[321] Upon being informed of the name of the doctor who would examine him on Star property, and learning from a former Star employee that the doctor was a ‘career killer’, and would provide what he considered to be a biased report, Mr Bletas continued to refuse the request to be seen by the doctor.

[322] I have reviewed the ‘authority to doctor’ that Mr Bletas was requested to sign and provide to allow Dr Freiburg to provide a report to Star. Where it references authorising Dr Freiburg to ‘liaise and discuss with all of my treating doctors (past and present) my current medical status, my diagnosis, my prognosis and any other matter you consider relevant in preparing your report for my employer’, it does not go so far as require any other treating doctor, past and present to contribute to such discussion or provide any reports. I find that Mr Bletas’ concern was ill-founded, and the requirement for an examination was not a fishing expedition as he described. In completing the ‘authority to doctor’, it did not oblige any other doctors to speak with Dr Freiburg or oblige them to provide any information about Mr Bletas.

[323] Mr Bletas steadfastly refused to complete the ‘authority to doctor’ and agree to attend the examination with Dr Freiburg, scheduled for 6 October 2018. Star repeatedly informed Mr Bletas that he was obliged to attend the appointment and that his employment was at risk. The email from Mr Brown to Mr Bletas on 3 October 2018 was explicit in explaining that if he did not agree to attend his employment would end.

[324] I do not accept Mr Bletas’ submission and his pleadings with Star on 3 October 2018 that Star should have considered a certificate of capacity from his own treating doctor of 34 years as sufficient to demonstrate that he was not suffering from a mental illness. As explained to Mr Bletas during the hearing, a manual worker might not be convinced that they have a limp, but to observers, and their employer, they may exhibit a limp. Despite objections from a manual worker, and a certificate from their own treating doctor that they do not have a limp, it is reasonable for an independent doctor to determine if they indeed have a limp that might affect their ability to perform the inherent requirements of their role. An employer has a reasonable right to inquire about a potential mental illness as much as it is entitled to reasonably inquire about a potential physical illness or condition if the illness or condition might affect the employee’s ability to perform the inherent requirements of their role.

[325] Extensions were granted by Star to Mr Bletas to complete the consent and agree to be seen by Dr Freiburg. Originally he was required to agree by 28 September, then 3 October, then 4 October 2018. The closest Mr Bletas came to agreeing to see Dr Freiburg was on 4 October 2018 when he sent the following text message to Mr Brown at 4.29pm:

“Also ask Mr Freburg if he would be willing to meet with me and my legal counsel off property just informally initially of course …

And if he wouldn’t mind being video and audio taped…

Thanks again

AB”

[326] Star did not consider the text message to be an acceptance of the request for an IME with Dr Freiburg, and I am in agreement that it was not an acceptance by Mr Bletas. This is abundantly clear when regard is had for Mr Bletas’ email sent at 8.22pm on 4 October 2018 at [61].

[327] Whilst Star’s decision to have Mr Bletas attend an IME was not pursuant to a company policy, or in the Agreement, it was a decision it considered it could make. I have had regard to the following in a Full Bench of the Australian Industrial Relations Commission in Woolworths Limited v Cameron Brown PR963023 at [35]:

[35] What is reasonable will depend upon all the circumstances including the nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument governing the relationship. A policy will be reasonable if a reasonable employer, in the position of the actual employer and acting reasonably, could have adopted the policy. That is, a policy will only be unreasonable if no reasonable employer could have adopted it. A policy will not be unreasonable merely because a member of the Commission considers that a better or different policy may have been more appropriate. As the Full Bench observed in the XPT Case 106, albeit in a somewhat different context, it is not the role of the Commission “…to interfere with the right of an employer to manage his own business unless he is seeking from the employees something which is unjust or unreasonable.”

[328] In a decision of Goldberg J in Thompson v IGT (Australia) Pty Ltd [2008] FCA 994, his Honour determined that Mr Thompson, when resisting a request by his employer to attend a psychiatric examination because it was not rationally connected to the history of his back injury stated at [43]:

“…that is not a matter in respect of which he is necessarily competent to judge. Certainly, having regard to the history to which I have referred, it is not an unreasonable request by the respondent.”

[329] In Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32 at [72], Rares J said:

“Qantas’ requirements were reasonable requirements and were made solely for the purpose of assisting it in understanding how it would need to deal with Mr Kiernan in terms of matters to which Capt Miller’s evidence referred. Qantas required Mr Kiernan’s co-operation in order to make the operational side of the relationship work, bot for Mr Kiernan and for Qantas. Mr Kiernan, no doubt at the behest of the Association, withheld that co-operation without lawful justification.”

[330] The Agreement governing Mr Bletas’ employment provides for Star to require an employee to attend an IME if the employee has a pattern of absenteeism or extensive absenteeism in any year. As per the authority in Blackadder, unless the terms of the Agreement state that they are the only circumstances in which an IME can be reasonably requested, the terms are not exhaustive of the contractual right Star has to reasonably require its employee undertake an IME.

[331] I determine that Star acted reasonably in requiring Mr Bletas to attend an IME. I do not accept Mr Bletas’ submissions that his conduct did not extend trying to defend himself from vexatious allegations, negotiate a mutual resolution to the issues or protect his personal and private medical information.

[332] I have had regard to Mr Bletas’ contention that requiring him to attend an IME specifically with Dr Freiburg was unreasonable, when he had been protesting as to the objectively of Dr Freiburg, and he had undertaken research and spoken with a former employee who warned him against being seen by Dr Freiburg. Mr Bletas’ response to being seen by Dr Freiburg was to suggest that it was unnecessary, that he did not have a mental illness, and Star should accept his treating doctor’s assurances that he does not have a mental illness. Mr Bletas did not suggest, prior to his dismissal, that he should be seen by an alternative doctor.

[333] In Mr Bletas’ email of 4 October 2018, not only did he fail to offer up an alternative doctor to examine him, he attacked Mr Ivey and called for Mr Brown to stand aside from dealing with him. There is no evidence before me to satisfy me that Mr Bletas would have agreed, by 4 October 2018, to have been examined by an alternative doctor. Where Mr Bletas now states that would have been a reasonable alternative, it was not offered by him at the time, nor do I find that he would have agreed to such arrangement.

[334] I am satisfied that Star acted reasonably in requiring Mr Bletas to attend an IME with Dr Freiburg. I find it was a lawful and reasonable directive to issue.

[335] With all of the information that Star had before it by 5 October 2018 when Mr Bletas’ employment was terminated, I find that the reason for the dismissal was Mr Bletas’ repeated refusal of a lawful and reasonable direction. I find there was a valid reason for the dismissal.

s.387(b) - Whether the person was notified of that reason

[336] I accept Star’s submission that Mr Bletas was repeatedly advised that non-compliance with the direction, which it warned him was considered by Star to be reasonable could result in termination.

[337] Mr Bletas was aware of such correspondence when he communicated in writing his refusal, including on 4 October 2018, and prior to being informed of Star’s decision to terminate his employment. I find that Mr Bletas was notified of the reason for the dismissal.

s.387(c) - Whether there was an opportunity to respond to any reason related to the capacity or conduct of the person

[338] Mr Bletas was afforded numerous opportunities to agree to the lawful and reasonable direction to attend an IME with Dr Freiburg. He steadfastly refused, including in writing. I find that there was an opportunity to respond to the reason of the dismissal related to the conduct of Mr Bletas.

s.387(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

[339] Mr Bletas was afforded a support person at the meeting of 31August 2018 when the meeting was related to his refusal to attend a meeting on 26 August 2018. In following meetings with Mr Brown, Mr Bletas was not unreasonably refused a support person. In any event, these meetings were not in relation to dismissal.

[340] No meeting was held with Mr Bletas relevant to the dismissal of his employment, and I find this is a neutral consideration.

s.387(e) - Was there a warning of unsatisfactory work performance before dismissal

[341] Mr Bletas was dismissed for conduct reasons and not for performance reasons. I find this is a neutral consideration.

s.387(f) - Whether Star’s size impacted on the procedures followed and s.387(g) - Whether the absence of a dedicated resource management specialist impacted on the procedures followed

[342] Star is a large employer with a dedicated human resources team. I do not find that Star’s size impacted on the procedures followed. These matters are a neutral consideration.

s.387(h) - Other matters

[343] As noted by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd: 107

“Relevantly advanced age and long service can render harsh a termination that would not be harsh in the case of identical conduct by a younger person with relatively short service. Nevertheless, age and length of service simply remain a factor to be taken to account in considering whether the termination was harsh, unjust or unreasonable and in applying the principle of a “fair go all round.”

[344] Mr Bletas had been employed by Star for a period of eight years. I have had regard to the fact that on termination, Mr Bletas lost a reasonable period of service and opportunity for long service leave at 10 years.

[345] I have taken into consideration Mr Bletas’ otherwise satisfactory employment for a period in excess of eight years.

Conclusion

[346] It is not necessary to have regard to Mr Bletas’ post-employment conduct, and I confirm that I have not done so in the consideration in s.387 of the Act. It would only have been necessary to have consideration to such conduct if upon making a finding of unfair dismissal I was determining if it was inappropriate to reinstate Mr Bletas.

[347] Having considered each of the matters specified in s.387 of the Act, including whether there are any other relevant matters which make Mr Bletas’ dismissal harsh, unjust or unreasonable, I am satisfied that the dismissal of Mr Bletas was not in all the circumstances harsh, unjust or unreasonable. The dismissal of Mr Bletas cannot fairly be characterised as a disproportionate response to his conduct.

[348] I find that Mr Bletas’ dismissal was not unfair and the application for unfair dismissal is dismissed. I Order accordingly.

COMMISSIONER

Appearances:

Ms L Tacey, Solicitor, Anderson Gray Lawyers, for the Applicant;

Mr M McKechnie of Counsel, instructed by King & Wood Mallesons, for the Respondent

Hearing details:

Brisbane, 13 & 14 February 2019.

Final written submissions:

Applicant’s submissions in Reply, 11 February 2019;

Submissions of the Respondent, 7 February 2019.

Printed by authority of the Commonwealth Government Printer

<PR707326>

 1   Fair Work Act 2009 s.394(2)(a).

 2   Witness Statement of Mr Andreas Bletas dated 11 February 2019.

 3   Ibid at [8].

 4   Ibid at [11].

 5   Ibid at [12].

 6   Ibid at [17].

 7   Ibid at [23].

 8   Ibid at [24].

 9   Ibid at [25].

 10   Ibid.

 11   Ibid, Attachment AB-4.

 12   Ibid at [38]; see also Attachment “AB_5” to Mr Bletas’ Statement.

 13   Ibid at [38].

 14   Ibid. Attachment AB-6.

 15   Ibid at [39].

 16   Ibid, AB-10.

 17   Ibid, AB-11.

 18   Ibid at [43].

 19   Ibid at [44].

 20   Ibid.

 21   Ibid, Attachment AB-16.

 22   Ibid at [51].

 23   Ibid, Attachment AB-18.

 24   Ibid, Attachment AB-9.

 25   Ibid, Attachment AB-19.

 26   Ibid, Attachment AB-22.

 27   Ibid, Attachment AB-23.

 28   Ibid at [55].

 29   Witness Statement of Mr Danny Lorrway dated 11 February 2019.

 30   Ibid at [2].

 31   Ibid at [5].

 32   Ibid at [6].

 33   Ibid at [8].

 34   Witness Statement of Mr Glenn Ivey dated 7 February 2019.

 35   Ibid at [2] - [3].

 36   Ibid at [12]-[13].

 37   Ibid at [15].

 38   Witness Statement of Mr Roger Spence dated 5 February 2019.

 39   Ibid at [5]-[6].

 40   Ibid at [7].

 41   Ibid at [10].

 42   Ibid at [13].

 43   Ibid, [16].

 44   Witness Statement of Mr Jim Graham dated 6 February 2019.

 45   Ibid at [4].

 46   Ibid at [6].

 47   Ibid at [8] – [10].

 48   Ibid at [15].

 49   Witness Statement of Ms Simone Keat dated 6 February 2019.

 50   Ibid at [5].

 51   Ibid at [11].

 52   Ibid at [13].

 53   Ibid at [14].

 54   Ibid at [19]-[20].

 55   Witness Statement of Ms Anne Hardy dated 6 February 2019.

 56   Ibid, [3].

 57   Ibid at [4].

 58   Ibid, [7].

 59   Ibid at [14].

 60   Ibid at [14].

 61   Ibid at [15].

 62   Ibid at [16]-[18].

 63   Ibid, Attachment AH-6.

 64   Ibid at [27]-[29].

 65   Witness Statement of Mr Ian Brown dated 6 February 2019.

 66   Attachment IB-1 of Mr Brown’s Witness Statement.

 67   Witness Statement of Mr Ian Brown dated 6 February 2019 at [8].

 68   Ibid, [26].

 69   Ibid at [31].

 70   Ibid.

 71   Ibid at [50].

 72   Ibid at [52].

 73   Ibid at [55].

 74   Ibid at [61]-[63].

 75   (1995) 185 CLR 410, [465].

 76   Sayer v Melsteel [2011] FWAFB 7498 at [20].

 77   Ibid at [11].

 78   Ibid at [16].

 79   (1996) 39 ALIR 3, 216.

 80   [2015] FWC 231, [374].

 81   Ibid, [117].

 82   Dix v Premium Beverage Solutions Pty Ltd [2013] FWC 1880.

 83   Leon B J Lovett v Pacific National (NSW) Pty Ltd (U2008/3524)

 84   (1995) 185 CLR 410, [465].

 85   (2004) 133 IR 458.

 86   [2016] NSWIRComm 10.

 87   Schoeman v Director General [2013] NSWIRComm 1018.

 88   Applicant’s Outline of Submissions filed 15 January 2019 at [52].

 89   Ibid.

 90   Ibid.

 91   Ibid.

 92   Ibid.

 93   Ibid at [57].

 94   Respondent’s Outline of Submissions filed 7 February 2019 at [2].

 95   Ibid at [3].

 96   Ibid at [4]; Rankin v Marine Power International [2001] VSC 150.

 97   Respondent’s Outline of Submissions filed 7 February 2019 at [4]; Woolworths v Brown [2005] AIRC 830.

 98   [2009] FCA 689.

 99   Ibid at [75].

 100   [2005] FCA 870.

 101   Ibid at [15].

 102   Respondent’s Outline of Submissions filed 7 February 2019 at [4].

 103   Ibid, [4].

 104   Ibid, [4].

 105   Ibid, [4].

 106   (1984) 295 CAR 188.

 107   (2003) unreported, PR931440 at [30].