PR925334

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AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996

s.170CE application for relief in respect of termination of employment

Geoffrey Atfield

and

Jupiters Limited trading as Conrad Jupiters Gold Coast

(U2002/1949)

COMMISSIONER HODDER

BRISBANE, 10 DECEMBER 2002

Termination of employment.

DECISION

[1] This decision concerns an arbitrated hearing of an application lodged under section 170CE of the Workplace Relations Act 1996 (the Act) by Mr Geoffrey Atfield (the applicant).

[2] The grounds contained within the section 170CE application1 alleged that the termination of the applicant's employment as a licensed games dealer by Jupiters Limited which operates a casino located at Broadbeach on the Gold Coast in Queensland (Jupiters), on 19 March 2002, was harsh, unjust or unreasonable. Jupiter's letter of termination dated 19 March 20022 advised the applicant that his employment had been terminated for ". . . gross violation of company policies".

[3] The proceedings in this matter were conducted on 15, 16 and 28 August and 16 September 2002 with the applicant being represented by Mr John Spreckley of the Australian Liquor, Hospitality and Miscellaneous Workers Union (the union) and Jupiters having been represented by Mr Gary Black of the Retailers Association of Queensland.

Background

[4] The applicant's employment history with Jupiters commenced on 11 December 2000 following his having signed a document entitled Induction Checklist on 8 December 20023 which included an acknowledgement that he had read and understood the contents of the Staff Employee Handbook4 and agreed to abide by the conditions referred to within it. The applicant's signature was witnessed by a human resources department employee of Jupiters on the same date.

[5] The basis for the applicant's termination was an alleged breach of Jupiter's gaming policy as far as it related to its employees whether on or off duty (the policy). On 16 March 2002 whilst off duty and, as permitted by Jupiters, the applicant had visited the gymnasium located within the casino premises. The applicant was recorded on a security video as leaving the gymnasium at around 1645 hours, while still within the Jupiters complex, he placed a bet on a rugby league match, which was to take place some time later that day, at a TAB outlet which is located within the casino complex.

[6] The TAB outlet operates from premises known as the Prince Albert Hotel (the hotel) which the evidence revealed, comprises part of Jupiters Casino but is divorced from the main gaming activity area where the table games, poker machines and the like are situated. A type of foyer separates the hotel and the main gaming area and there are also what appears to an onlooker to be lobby shops within this area. The actual physical location and appearance of the TAB within the hotel became an issue in these proceedings as far as its appearance differing from the rest of the casino and its separate location some distance away from the main gaming area. The outside facade of the hotel appears to have been decorated to resemble that of an English Pub5.

[7] On the day in question the applicant proceeded to place his bet on the rugby league match but almost immediately thereafter cancelled the wager and his money was returned to him. The reason for the cancellation of the ticket was that a TAB operator on duty at the time, a Mr Ronald Ashdown, asked the applicant if he was a staff member after the applicant had placed his bet and when the applicant responded that he was, Mr Ashdown then asked the applicant if he was aware that gambling on the TAB at the hotel was prohibited to staff. The applicant responded by stating that he had not been aware and, according to the applicant, he then asked Mr Ashdown if the matter could be fixed up.

[8] Elements of Mr Ashdown's evidence varied from the applicant's evidence but in any event the security video records Mr Ashdown cancelling the bet immediately after the dialogue took place between the two individuals. The applicant however maintained that Mr Ashdown advised him that the ticket could be cancelled and that the applicant was happy to proceed with this course of action.

[9] Effectively these were the events which led to the termination of the applicant's employment by Jupiters. It was claimed by Jupiters that the applicant's actions within the hotel constituted a breach of its policy which is included within the Standards of Conduct section of the handbook6. Contained within this section are the terms of a prohibition imposed upon on or off duty employees which also defines the requirement for employees not to gamble either at Jupiters Casino and other selected casino premises located in Queensland. The Casino TAB is included within such prohibition in the handbook.

[10] The events which resulted in the termination of the applicant's employment generally were not contested as a videotape was played during the proceedings7 which had recorded the applicant's movements on the day in question surrounding the relevant events. The video clearly records the applicant having placed the bet and Mr Ashdown speaking with him. The evidence later revealed that the reason why Mr Ashdown asked the applicant if he was an employee was that concern had been expressed by another TAB employee to Mr Ashdown concerning the fact that the applicant could have been a fellow employee.

[11] What followed only became an issue as far as the actual details of the conversation which took place between the applicant and Mr Ashdown and has been previously mentioned there was some conflict in the evidence of these two individuals in this regard. In any event the security video evidences the cancellation of the bet and the return of the wager to the applicant. However the incident was reported to security who in turn reported it to the human resources department. The applicant had been rostered to commence work at 2000 hours that evening but was suspended from duty and ultimately his employment with Jupiters was terminated for what Jupiters referred to in the letter of termination8 as being ". . . gross violation of company policies"

[12] The handbook contains general conditions of employment, requirements for personal presentation of employees and standards of conduct but specifically employees of Jupiters are cautioned in respect of two types of behaviours9. The first described list of behaviour is listed in detail containing the warning that they are regarded as serious misconduct, and will result in disciplinary action with the possible consequence of job loss. The second caution states:

[13] In relation to the applicant's conduct on 16 March 2002 the issue for consideration which arises from the policy is whether the applicant's actions constitute a breach of the policy as has been relied upon by Jupiters as being the reason for the termination of his employment. It was not in dispute between the parties that at the end of the transaction, when the policy was brought to the applicant's attention that he promptly cancelled the bet and the amount wagered was returned to the applicant by Mr Ashdown. Accordingly no wager was in place as clearly the applicant could neither win nor lose with no bet on foot.

Submissions for Jupiters

[14] The policy for casino employees was characterised by Jupiters as being an almost universal one within Australian casinos and the initial outline of submissions of Jupiters10 in this regard provided further insight into both the policy, the dismissal consequences and an overview of the history of previous breaches of the policy both at Jupiters and at other casinos within Australia.

[15] It was claimed that the policy has been in place since Jupiters came into operation in 1985 with a consistent disciplinary outcome resulting in termination of the employment of the individual concerned having been adopted when the policy has been breached. The two most recent occurrences where the policy had been breached were cited by Jupiters as being on Melbourne Cup Day in 2001 when a bet had been placed by an employee on the Melbourne Cup and in May 2002 when gambling took place on the casino floor. In both instances the employees involved had been terminated.

[16] In relation to the awareness of the policy of the employees of Jupiters, it was submitted that this was very high amongst the staff as a breach of the policy could result in a loss of the employee's licence and that:

There was little evidence given in relation to the licence in question but the following clause was contained in the initial letter of appointment dated 16 November 200011 addressed to the applicant:

Accordingly the issue of such a licence was essential to the applicant's employment as a games dealer in the casino industry.

[17] It was put that other well known casinos within Australia have introduced TAB and KENO facilities with the TAB facility having operated at Jupiters since 1996 and the actual physical location of each facility varying from casino to casino. A 1998 authority was referred to by Jupiters in which instance an employee of Sydney based Star City Casino12 was dismissed for breaching its employee no gambling policy, applied for reinstatement and was unsuccessful. In this instance it was put that the applicant had worked at Star City prior to his employment with Jupiters and accordingly would have been familiar with the policy in place at Star City.

[18] An overview of the induction and orientation process conducted by Jupiters upon the commencement of the applicant's employment was detailed with the applicant completing a two hour induction and seven hour orientation program. It was submitted that the induction included reference to the key points contained in the handbook being the policy of no gambling which was explained to the applicant at the time and included the TAB and KENO facilities. In particular, reference was made to page 12 of the handbook which includes the following clause13:

and to the caution contained on page 13 of the handbook which has been earlier reproduced in this decision. It was also alleged that the policy was raised in Jupiter's interview for employment with the applicant and during his procedures training with it and that opportunities for clarification of any remaining uncertainties were available to him through his supervisor. Despite the fact that the applicant was a licensed employee, Jupiters claimed that the applicant never availed himself of this opportunity to obtain clarification of any doubts he may have had.

[19] As far as the justification for the reasons for the introduction of the policy, Jupiters claimed that the policy both minimised the risk of fraud as well as enhancing the reputation of its gaming operations and it went on to submit that:

The evidence

[20] Both parties called evidence from a number of witnesses who generally comprised either former or current employees of Jupiters. The witnesses for the applicant challenged the assertion by Jupiters that there was a high awareness amongst Jupiter employees that the TAB facility within the hotel was off limits to employees even though the staff prohibition on gambling on the actual gaming floor appeared to be a matter of general common knowledge. The central issue which arose from the evidence presented on behalf of the applicant was there were staff who had not been made aware that the TAB facility located within the confines of the hotel in the casino building was included in Jupiter's no gambling policy for employees.

[21] In contrast there was a large number of witnesses who gave evidence on behalf of Jupiters and who were all current employees stating that they were aware of the betting prohibition in relation to the TAB and other betting facilities located away from the gaming floor and that this prohibition had been made known to them at the time of their respective inductions.

[22] As far as the applicant is concerned, his evidence was that the TAB prohibition could have been mentioned to him during his induction but that he had no actual recollection of it. The applicant did however confirm that he had signed the Induction Checklist14 at the commencement of his employment with Jupiters.

[23] It was the conflict in the evidence of the witnesses for the applicant and those for Jupiters surrounding the issue of what was the exact information imparted to all employees at the time of the commencement of their employment with Jupiters in relation to the policy for employees which has arisen and is central in this matter. The evidence for the applicant demonstrated that certain employees of Jupiters were not clear or even unaware of the TAB ban and this would suggest that discrepancies and/or uncertainties in respect of the induction or communication process have existed. Some employees were well aware of Jupiter's no gambling policy for employees and how it applied to them both on or off duty but other employees were not totally clear on its absolute application to them.

[24] In response to a request by this Commission concerning further details in respect of the consultation processes between Jupiters and its employees and the creation of its procedures and policies, the following information was submitted as an agreed position between Jupiters and the union:

[25] Whilst it would appear from the evidence that familiarisation on induction had been carried out by Jupiters it has nonetheless emerged that a lack of measurement or evaluation of the knowledge and understanding of all of its employees exists in relation to the policy. This would apply to all potential new employees as well as its ongoing employees who are subjected to its policies by way of an induction prior to commencement of employment.

[26] It appears to me that this familiarisation process was two-fold in that an element of the process ensured that the employee was required to assume a degree of ownership for his or her employer's policies. A perusal of the handbook reveals approximately 100 policies, conditions and/or requirements. However, the employees would have had in reality little or a limited understanding of all of the policies to which they were subject including the genesis or need for such policies nor would they have been capable of interpreting them if it was necessary. Confirmation of this occurred during the presentation of Jupiter's final submissions where it was accepted that the reasons behind the need for Jupiters to have certain policies is not explained to employees.

[27] A consideration of the evidence reveals that the induction process was carried out within a group setting and not with individual employees. Accordingly, it is not surprising that certain inductees could recall specific elements of what they were told during the induction process and others could not, given differences in attention spans and the individual capacity of each of the employees, even though Jupiters claimed that each of the employees ultimately received a copy of the handbook. In this particular instance the applicant could not specifically recall having received a copy of the handbook15.

[28] I do not consider that it is remarkable that prospective employees willingly comply with Jupiters' requirement for each of them to certify in writing that he or she has read and understood its policies. When one considers that the possible consequences of declining to sign the acknowledgement could be the alternative of a withdrawal of the offer of employment in combination with the vulnerability of a potential employee who had not yet commenced his or her new employment as was the case of the applicant, then the willingness of a prospective employee in signing off on the acknowledgement is understandable. Whether the requirement is a fair and reasonable one in view of the limited time permitted for the induction with the wording of the acknowledgement that the prospective employee has read and fully understood the contents of the handbook is highly questionable.

[29] Clearly a potential employee would not put a prospective career and income in jeopardy by refusing to certify that he or she has read and understood the terms of the handbook, even though it would appear unrealistic to expect that such an employee could have fully read and digested all 25 pages of the handbook following a two hour induction process in a group environment. Ms Sarah Smith, a witness called on behalf of the applicant who was also his partner, and who underwent the induction process only a month or two earlier before the applicant himself made the following comment when she was asked if she remembered signing the acknowledgement document16:

[30] When the applicant himself was asked if he recalled what the acknowledgement document stated he made the following comment:

[31] I have perused the contents of the handbook itself and have taken into consideration the time factor involved on the day as well as the evidence presented and have formed the view that it would be unrealistic for any individual to participate in a two hour induction process and read and fully understand the contents of the handbook with its lengthy requirements, conditions and policies. The acknowledgement document is a one page document which refers to general conditions such as dress codes and the like. It checks other matters such as ID, uniforms, parking, general information and then moves on to a section entitled Completion of paper work. The acknowledgement appears underneath this section at the foot of this document. The acknowledgement accordingly is not a stand alone document but comprises part of the induction checklist but specifically requires the individual Team member to sign under the following clause:

[32] In effect I find that a very real probability existed for the applicant to not have understood the effect of what he was required to sign on 8 December 2000 as there is considerable other detail on the checklist. However as has been pointed out above, it would be most unlikely for unemployed individuals about to embark upon a future career to refuse a request of a prospective employer whether they thought the request was unfair or unrealistic at the time. I am also mindful of the fact that the applicant was commencing his new employment three days later on 11 December 2000 at the time that he executed the acknowledgement.

[33] In reality even a genius would have difficulties participating in a two hour group induction session, digesting the information provided at the session and then finding the time to read all 25 pages of the handbook as well as memorising and/or fully understanding its contents. At the very least the acknowledgement on this document could be perceived by a prospective employee as being extremely confusing but in a worse case scenario the requirement imposed for an individual to sign an acknowledgement which could not possibly have been complied with is unrealistic, unfair and coercive.

[34] The evidence presented indicated that each induction period can vary but generally the process takes in the vicinity of one and a half to two hours in duration and although the entire process may take up to the maximum period, no evidence was presented by Jupiters that potential employees are tested in a practical manner in any way as to their actual comprehension of the conditions of employment and/or policies even though they are required to sign that they have fully read and understand the same.

[35] The methods adopted by Jupiters to update and inform its ongoing employees of policy changes or reminders of specific policy requirements could best be described as hit and miss on the basis that staff are informed by means of noticeboard, an accessible computer site facility or by means of described as table talkers. These notices are placed on tables in the staff canteen and are described as team bulletins17. A demonstration of the ineffectiveness of these methods can be exampled by this Commission's inspection of specific areas of the casino which included the TAB within the hotel location, the staff entrance and hallway. It was during such inspection that I observed some 20 or so employees who entered the staff entrance and walked down the hallway where the noticeboards are located with not one employee even glancing at the noticeboards.

[36] The evidence of Mr Robert Vail, the director of gaming Operations at Jupiters18 provided an insight into some of the reasoning which underpins the employee no gambling policy by staff, whether on or off duty at any of the casino's betting or gambling facilities. An appropriate extraction and reproduction of this evidence in hand out form to individual employees would be, in my view, of benefit to them as it succinctly and precisely explains why the need exists for employees of Jupiters to individually maintain the integrity of this particular policy. Not only would this explain the justification behind the policy but it would also educate the staff further in respect of the policy by raising their awareness as well as minimising the potential for future reoccurrences of policy breaches with staff in similar circumstances to the applicant.

[37] Rather, the evidence revealed that certain employees engaged around or prior to the time of the applicant's engagement had "fallen through the cracks". This could have occurred either during the respective induction programs or through changes of policy communicated to staff through the noticeboard or team bulletin method. Whilst the requirement for employees to sign the Induction Checklist appears on its face to shift responsibility for knowledge of policies on to the employees, there was no evidence brought which confirmed that such knowledge was tested nor that employees are capable of interpreting the policies. Consequently the outcome is that employees are "bound hand and foot" to their own detriment if they commit a faux pas, as did the applicant, even if they did not have a clear understanding of the policy involved.

[38] Accordingly I formed the view that certain grey areas existed in the manner in which Jupiters communicated a black and white policy and its parameters to certain employees as well as the methods adopted to inform or update policies. This did apply specifically to the applicant but also concerned other employees as well. Further, there was confusion with certain employees surrounding the gambling limitations placed upon them. For example, staff raffles are permitted to be conducted by employees and the evidence could not clarify beyond question whether employees were actually permitted to purchase scratchie or lotto tickets from the newsagency on the site19.

[39] The evidence revealed that the human resources department officers who investigated the incident and/or subsequently terminated the applicant's employment adopted the view that the applicant's actions constituted a clear breach of the policy. It was apparent from the evidence that no consideration was given to ignorance or doubts on the part of the applicant in respect of his personal understanding or knowledge of the policy nor of any mitigating circumstances on the day in question. The email attached to the statement of Teresa Midson,20 the applicant's pit manager, addressed to the director of human resources and others dated 16 March 2002 reveals that Ms Midson confirmed that the applicant cancelled the bet and further that he advised Ms Midson that he was unaware that the TAB was off limits to him:

[40] The letter of termination dated 19 March 200221 signed by the employee relations manager for Jupiters, Ms Raelene Barry confirmed certain elements of Ms Midson's record of conversation held with the applicant but not all. Ms Barry conducted the investigation into this matter but was not produced as a witness by Jupiters. In particular the letter of termination did not refer to the question put to the applicant concerning his awareness of the policy nor his response that he was not aware of it.

[41] Attached to the supplementary statement of Rolanda Ayling22 is a copy of a security video tape which recorded the movements of the applicant on the day and time in question and this tape was observed during the proceedings. A reference log which summarised the movements of the applicant were also provided to this Commission and it is interesting to note the recording of the time sequence relating to the security video which includes the first event commencing at 1645 pm and is reported sequentially up until the bet was made at 1652.27 pm. However whilst the actions of the applicant and Mr Ashdown were described in detail up until 1652.27 pm on the reference log, the actual time of the cancellation of the bet is not recorded on it but is visible on the security tape. It is however clear from an observation of the tape that no more than approximately one minute or so would have elapsed between the placing of the bet and the cancellation of it. In any event Mr Black confirmed on behalf of Jupiters that the bet had no impact or place within the TAB pool for this event at the close of betting upon the relevant rugby league match.

[42] Based upon the submissions made by Mr Black in response to a question put to him by this Commission, it is clear that as far as Jupiters was concerned the applicant had no capacity to right the wrong he committed when he placed the bet.23 Accordingly the immediate cancellation by the applicant of the bet was not a behaviour which Jupiters was willing to entertain to allow the applicant the opportunity to redeem himself once the bet had been placed. To summarise on this point Jupiters held that the applicant, upon placing the bet, had breached its policy and that he was unable to overcome such a breach regardless of prevailing circumstances once the bet had been placed as in his employer's eyes he had gambled and accordingly there was no relief to be accorded to the applicant.

[43] Jupiters later altered their position somewhat in relation to the applicant's intention to gamble rather than his having gambled on the day but with the effect having the same consequences and thereby being deserving of the same outcome. This arose as a result of Ms Donella Latham's evidence during the proceedings when questioned concerning whether she had personally considered whether the applicant could have been held to have gambled after cancelling the bet.24 The distinction as far as it can be applied to the policy itself is concerned is still one that requires definition and consideration. The word intent or intention25 can be defined as follows:

[44] When read in conjunction with the following various definitions contained in The Macquarie Dictionary26 of the word gamble:

the task for this Commission is to consider whether the applicant did in fact gamble within the meaning of the above criteria on 16 March 2002 and if not, was his intention to gamble by initially placing his ticket in the ticketing machine a breach of his employer's policy given that the words used do not actually make reference to an intention to gamble being prohibited.

[45] When considering the above definitions and applying them to the context of the actions of the applicant on 16 March 2002, including the cancellation of his bet, can it be held that at the end of the transaction, based upon the definitions of the word gambling, that the applicant gambled, given all of the circumstances, in such a manner that he breached Jupiter's no gambling policy for employees. Jupiters has maintained the position that the initial action of the applicant was of such an order that he had passed the point of no return with the consequent loss of redemption of his situation, even though the applicant promptly cancelled the wager once his attention had been drawn to the policy and the stake was returned. Accordingly it seems to me that all of the individual circumstances in this matter require consideration.

[46] Jupiters brought evidence about other employees who had been dismissed for gambling but none of these instances included the cancellation of a wager or bet but instead the betting remained intact with the consequent gambling or risk factor being allowed to run its course with a winning or losing outcome to the respective employee/s involved. This type of gambling scenario fully meets the criteria described within the definitions above.

[47] Alternatively, could it be considered that the cancellation of the bet in this instance constituted a nugatory act which had the effect of rendering the initial action of placing the bet to have no force or effect27 and if so could this be a more appropriate description to apply to the events which occurred on the day in question when the whole of the circumstances are examined.

[48] Flowing from this is whether consideration should be given to the applicant for attempting to redeem: (. . . to make up for; make amends for)28 himself for the error which had been made by him within the context of whether any relief should have been made available to him by Jupiters when he did attempt to negate or nullify consistent with the following definitions:

or nullify:

the bet and accordingly whether these are factors which can lead this Commission to find that the applicant should be granted the relief sought by him in his application. In this regard is it open to find that the applicant's actions actually constituted gambling as defined above or alternatively, did the actual cancellation of the bet negate the initial placement of it with an outcome that the applicant redeemed himself.

[49] As a corollary to this, the question arises whether it is open to find that the termination of the applicant's employment by Jupiters was, under the circumstances, defensible and sustainable for the reasons provided, namely for an act of misconduct or a gross violation of company policies brought about by an alleged breach of its policy which prohibited employees (on or off duty) from gambling within Jupiters Casino. Alternatively, was the termination of the applicant's employment capable of not having been representative of a fair go all round or one which constituted a denial of natural justice in view of the steps the applicant took to rectify the error he had made.

[50] Undoubtedly if the applicant had persisted in leaving the bet in place after Mr Ashdown drew his attention to the policy, then a clear breach of the policy would have taken place and his position would have been indefensible and one which would have clearly rendered his employment open to termination.

[51] However, given the nature of the evidence of certain employees of Jupiters in relation to their knowledge of the Casino and TAB situation, I am satisfied that there existed some confusion amongst staff as to the full extent of the employee gambling prohibition as it related to certain activities and locations within the Jupiters complex and that it would not be unreasonable to accept that the applicant's action on 16 March 2002 was a genuine or honest mistake.

[52] The question then arises whether Jupiters, which quite correctly in my view maintains a stringent attitude to its employee no gambling policy, should have accepted that the applicant had made an honest mistake upon observing from the security video that he promptly responded once Mr Ashdown informed him of the policy and immediately cancelled the bet. Undoubtedly this response was an attempt by the applicant to comply with his employer's policy as soon as it was brought to his attention thus preserving the integrity of the policy. An alternative disciplinary procedure was open to Jupiters whereby the applicant could have been disciplined by means of serving a satisfactory period of suspension or alternatively, he could have been cautioned with a final warning.

[53] Such an outcome however may have been viewed by Jupiters as allowing a breach of its policy and thus encouraging a rash of gambling by its employees both on or off duty. I have however formed the view that this occurrence would have been highly unlikely. What has emerged from the evidence however is numerous inconsistencies in the manner in which staff have been notified of the gambling prohibition including the integrity of the induction process.

[54] An example of these types of inconsistencies was demonstrated by the evidence under cross-examination of Ms Ayling30 where a Ms Narelle Lont was notified by letter dated 14 March 200231 which confirmed her appointment with Jupiters and clearly laid out all gambling activities prohibited by Jupiters as a condition of her employment stating that participation in such activities would result in the termination of her employment. However it was noted that the applicant's letter of appointment dated 16 November 200032 made absolutely no reference at all to the employees no gambling policy or activities prohibited but rather only advises the applicant that he shall receive a staff handbook on the first day of work which would detail the remainder of his terms and conditions.

[55] Ms Lont being a more recent appointee than the applicant had the benefit upon appointment of a personalised letter which clearly informed her not only of the policy but also of the exact activities which were prohibited and the penalty for breaching the policy. The applicant however did not receive the same type of notification as Ms Lont and it would appear that Jupiters assumed that he and quite possibly other employees were left to the other methods of notification of the TAB prohibition either during the induction process, by means of the staff handbook or through the bulletin method and the effectiveness of such methods of notification were not surveyed by Jupiters.

Findings

[56] After having considered the evidence and the submissions made by the parties, I am required by subsection 170CG(3) of the Act when determining whether an applicant's employment was harsh, unjust or unreasonable, to have regard to the following:

[57] In reaching my conclusions as to whether the termination of the applicant's employment was harsh, unjust or unreasonable I have had regard to the above requirements of the Act and have used subsection 170CG(3)(a) of the Act as a commencement point in giving consideration to:

[58] Accordingly, in determining whether the decision to terminate the applicant's employment was based on a valid reason and whether he was provided with a fair go all round, I have considered all of the evidence and the circumstances of this matter. In so doing I have applied the term harsh, unjust or unreasonable against the evidence and circumstances, at the same time being mindful that this Commission must also be satisfied that a fair go all round has been accorded to both parties as contained within the provisions of subsection 170CA(2) of the Act.33

[59] However, authorities upon this question have made it clear that this does not necessarily mean that a remedy will be granted in any case where the applicant has not been accorded a fair go all round. It follows that a remedy can only be granted if the Commission has determined that the termination was harsh, unjust or unreasonable.34

[60] What has emerged as to the question of whether there was a valid reason for the termination of employment is that this is no longer the critical question (as it was under the Industrial Relations Act).35 Whilst the existence of a valid reason may be an important factor it does not answer the question of whether the termination was harsh, unjust or unreasonable in the context of ensuring that a fair go all round has been accorded to both the employer and the employee concerned.36.

[61] The valid reason for the termination of the applicant's employment relied upon by Jupiters it was claimed were consistent with section 170CG(3) of the Act and related to a gross violation of company policies by the applicant. Subsection 170CM(1) of the Act relates to circumstances where an employee's employment must not be terminated except in certain circumstances with serious misconduct being one of the exclusions. In this instance the terms serious misconduct and gross violation of company policies need to be considered with a determination being required by this Commission whether the actions of the applicant on 16 March 2002 constituted a gross violation of company policies and/or serious misconduct.

[62] Based upon a consideration of the circumstances revealed by way of the evidence presented in this matter, I find that in relation to subsection 170CG(3)(a) of the Act:

that I am not satisfied that the applicant breached the relevant policy of his employer and that the termination of his employment was not representative of a termination based upon a valid reason. I further find that under all of the circumstances of this matter that it was not open to Jupiters to characterise the reason for the termination of the applicant's employment as being a gross violation of company policies or that the applicant engaged in behaviour which could be construed to be serious misconduct.

[63] I further find that the manner in which the investigation into the applicant's conduct and behaviour was carried out by the human resources staff of Jupiters denied the applicant a fair go all round in that at no time was any consideration given to all of the circumstances other than the fact that the applicant had initially placed a bet and had thereby breached its policy.

[64] In this regard there was no evidence brought which demonstrated that a satisfactory enquiry had been made into whether the applicant had actually fully comprehended that betting on the TAB within the hotel located at Jupiters Casino was prohibited. The evidence did demonstrate however that Jupiters had been made aware through Ms Midson's email37 dated 16 March 2002 to Rolanda Ayling that the applicant had claimed that he had not been aware of the prohibition at the TAB within the hotel.

[65] In view of the applicant's apparent unblemished employee standing with Jupiters and the fact that the security video clearly recorded the applicant's immediate cancellation of the bet once he had been informed of the prohibition by the TAB operator, Jupiters did not appear to provide the applicant with any further opportunities to present his case to it. Nor did Jupiters appear to consider whether a less harsh disciplinary measure would have been more appropriate in the event that it could have been fully convinced by the applicant had he had been sincere in his claims. Accordingly, I am not satisfied that Jupiters' investigation of the incident provided the applicant with a fair go all round.

[66] I have considered a range of authorities which in my view are on point with the inherent circumstances of this matter. I note that in Shorten and Others v Australian Meat Holdings Pty Ltd38 Vice President Ross discussed decisions of the Industrial Relations Court which illustrated what may or may not constitute a valid reason including:

[67] In this instance the applicant's employment was terminated for reasons which related to an alleged gross violation of company policies. This Commission however has assumed, due to the termination of the applicant's employment, that Jupiters translated this alleged gross violation of company policies as constituting misconduct or serious misconduct. This was despite the fact that the applicant had consistently claimed to Ms Midson, Mr Ashdown and Ms Barry that he had not been aware of the prohibition on employees to bet at the TAB located within the hotel prior to his having made the bet and took the matter one step further by positively cancelling the bet as soon as he had been made aware of the policy. Accordingly what arises, in view of this, is that this Commission is required to determine for itself by way of evidence presented whether the allegation made by Jupiters of gross violation of company policies or, in the alternative, serious misconduct, against the applicant was an accurate one.

[68] I have referred earlier in this decision to the acknowledgement which Jupiters required the applicant to sign at the foot of the induction checklist on 8 December 2000. What arose from the evidence in this matter however was that Jupiters relied heavily on this document to verify its claim that the applicant had been properly informed that staff were banned from gambling at the TAB located within the hotel at the casino. Accordingly the acknowledgement document itself and whether it could be relied on as being indicative of whether an employee fully understood the policy requires close examination to determine how much weight should be placed upon it.

[69] The policies contained within the handbook are numerous and lengthy and the applicant was required to certify in writing that he had read all of them and fully understood them yet there was no evidence brought by Jupiters to demonstrate that the applicant had been tested of his understanding of the contents of the handbook either on 8 December 2000 or at all. This lack of measurement by Jupiters of an employee's understanding of the handbook does I find, indicate the futility of the gesture of having an employee signing the acknowledgement if the individual concerned has neither had sufficient time nor been tested on his or her understanding of it. The acknowledgement itself appears to be a document which places a huge responsibility on the applicant whilst at the same time indemnifying Jupiters of its own responsibility to ensure that an employee had actually grasped what he or she had been required to acknowledge in writing.

[70] Ideally the acknowledgement should have been sought and obtained after the handbook had remained in the applicant's possession for a defined period of time and he had been informed that this would be followed up and would have been given the opportunity to have been tested on it. Accordingly I find that the applicant was not accorded a fair go all round when he was required to sign the acknowledgement document.

0

[71] In King v Freshmore (Vic) Pty Ltd40 the issue of a termination based on the conduct of an employee was addressed and whether it was reasonably open to an employer to conclude that the employee was guilty of the misconduct. The Full Bench made the following comments:

[72] However in Annetta v Ansett Australia Pty Ltd43 a Full Bench of this Commission considered submissions which claimed that in:

[73] In taking a line from the above, from an observation of the applicant's demeanour on the day in question as recorded by the security video, I found nothing in the applicant's actions or behaviour that indicated that he was behaving in a wilful or rebellious manner. The video records the applicant emerging from the gymnasium and proceeding to walk to the hotel in a sober manner. The security video then recorded the applicant making an enquiry within the hotel and ultimately placing the bet but promptly cancelling it after a brief conversation held with Mr Ashdown. Under cross-examination during the hearing of these proceedings the applicant presented as a sincere, forthright and consistent witness.

[74] Based on the evidence and the demeanour of the applicant I have concluded that he made a genuine error when he placed the bet at the TAB and was not in fact aware that the policy for employees extended to the TAB located within the hotel at the casino complex on or before 16 March 2002 but in effect became aware after he had placed the bet on that day after his conversation with Mr Ashdown.

[75] Mindful of the definitions44 contained within the Macquarie Dictionary of the words gross ". . . glaring or flagrant . . ." and violation ". . . breach, infringement or transgression, as of a law, promise . . .", I find that the applicant did not engage in misconduct or behaviour representative of a gross violation of company policies on 16 March 2002 in the course of his employment with Jupiters and it therefore follows that I find there was no valid reason for the termination of his employment.

[76] In relation to subsection 170CG(3)(b) of the Act:

the evidence revealed that issues concerning the applicant's actions in the first instance were the only actions taken into account by Jupiters. As far as the cancellation of the bet by the applicant was concerned, this action was not taken into account by Jupiters nor any credit extended to him by it with the allegation of gross violation of company policies not standing up to scrutiny when the circumstances of the matter are put against this term.

[77] In view of this I find that the applicant did not receive the benefit of a fair go all round as a consequence of his meeting following the investigation by Ms Barry, irrespective of the fact that the bet was cancelled by the applicant and he had informed Ms Midson that he was not aware that the TAB within the hotel was prohibited to staff. Clearly not all of the circumstances in this matter were taken into account by Jupiters prior to the termination of the applicant's employment.

[78] However I am also mindful that a Full Bench of the Commission has considered at length the intention and or meaning of the word notified in subsection 170CG(3)(b)45 and whether it should be construed as referring to the giving of notice of the reason for termination prior to the decision to terminate or whether it is sufficient if the employee is told of the reason for termination after the employer has made the decision to terminate.

[79] In this regard the requirement that notice be given prior to the decision to terminate was preferred for three reasons:

[80] I further find that at a meeting with Ms Barry and others on 19 March 200247 the applicant was advised that a decision had been made to terminate his employment. A letter dated 19 March 2002 was subsequently posted to the applicant confirming the termination of his employment48 and that one of the specific reasons advanced by Jupiters for the termination was that the applicant had been seen placing a bet in the on site TAB on 16 March 2002 and:

[81] In relation to subsection 170CG(3)(c) of the Act:

I find that procedural fairness was not afforded to the applicant by Jupiters on 16 and 19 March 2002 in that the applicant was not provided with sufficient opportunity to respond at length and in detail to the issues raised by Jupiters with him relating to his capacity or conduct.

[82] Whilst subsection 170CG(3)(c) of the Act only requires that the employer provides an opportunity for the employee to respond, based upon the evidence of Ms Ayling this opportunity was not properly given to the applicant and therefore the applicant was not provided with an opportunity to avail himself of such an opportunity as raised in Gilbert v Taranto's Ice Cream Pty Ltd49where Senior Deputy President Watson found that it is not the employer's responsibility to ensure that the employee avails himself or herself of such an opportunity.

[83] The relevant principle relating to procedural fairness is that an individual should not exercise legal power over another, to that person's disadvantage and for a reason personal to him or her, without first affording the affected person an opportunity to present a case.

[84] Based upon the evidence presented in this matter, I find that I am satisfied that the applicant was disadvantaged by the meetings Jupiters held with him on 16 and 19 March 2002. The reasons for this finding are that Ms Midson had made Ms Barry and Ms Ayling aware50 of the applicant's claimed lack of knowledge of the TAB prohibition and that he had informed Ms Midson of his immediate cancellation of the bet. However there was no evidence brought by Jupiters to demonstrate that it conducted any further enquiries into these claims of the applicant other than the security video recording the cancellation of the bet. Ms Barry was not made available by Jupiters to give evidence concerning the investigation she conducted but it would appear from the evidence of Ms Ayling51 that as the applicant had signed the acknowledgement on the induction checklist52, the applicant's claims were investigated no further.

[85] Having earlier found that the acknowledgement does accurately indicate that the applicant had been made aware at the induction process of the full extent of the policy, It would appear from the evidence that the human resources officers for Jupiters did not hold the document up under a similar process of scrutiny when they investigated the actions of the applicant on 16 March 2002. This was despite the fact that the applicant had notified Ms Midson that he had not been aware of the TAB prohibition prior to having placed the bet. If this had have occurred at the time of the investigation then the cancellation of the bet by the applicant may have led them to a different conclusion. However the evidence revealed that Ms Barry and/or Ms Ayling gave no attention or weight to the applicant's attempts to redeem himself by cancelling the bet and therefore I find the applicant was denied a fair go all round.

[86] I find that based upon my observations of the applicant and of the evidence presented, that he was genuine and did not know that he could not gamble at the TAB within the hotel but that he was unreservedly clear that staff could not gamble within the main gambling area within the casino. What appears to have been lacking from the human resource officers of Jupiters was an acceptance or acknowledgement that Mr Ashdown had no authority to force the applicant to cancel his bet. The cancellation was voluntary on the part of the applicant and from my observations of the evidence was a sincere attempt to rectify a genuine error in absolute contrast to the actions of a foolhardy or irresponsible individual who was simply being rebellious or taking risks. The applicant was a responsible, licensed casino employee who appeared to highly value his career and was off duty for approximately a further seven hours. There is no doubt that the applicant could have proceeded elsewhere to make the wager and I find that he certainly would have adopted this course of action if he had have been aware of the TAB policy at the time.

[87] Whilst Mr Black on behalf of Jupiters addressed a hypothetical situation where the betting for the match could have closed and therefore the wager could not have been cancelled, I have not given this weight as it is speculation and not factual.

[88] As to subsection 170CG(3)(da) of the Act:

I find that the size of Jupiter's establishment had no impact upon the manner in which procedures were conducted in connection with the termination of the applicant's employment as there exists within this organisation a dedicated Human Resources Department undoubtedly experienced in human resources and industrial relations matter. Any criticism made of the actions of this department or its officers should be limited to the extent of an inability, due to a preconception, to investigate all of the circumstances which had occurred.

[89] Similarly in relation to subsection 170CG(db):

I find that I am satisfied that there was no impediment of the type referred to in this subsection of the Act which could be applied to the circumstances of this matter but that I do not concur with the decision made by the human resources officers of Jupiters.

[90] Finally I have considered what the High Court had to say in Byrne v Australian Airlines Ltd53 that a termination of employment could be considered harsh because it is disproportionate to the gravity of the misconduct. This finding was followed by the Full Bench of the Commission in Australian Meat Holdings Pty Ltd v McLauchlan54. Consistent with the above authority I find that the decision to terminate the applicant's employment was harsh in that it was disproportionate to the gravity of the pertinent circumstances which unfolded on 16 March 2002.

[91] Under all of the circumstances and in light of the above findings I find that I am not satisfied that the applicant was accorded a fair go all round, nor was the termination of his employment for a valid reason and that it was disproportionate to the gravity of his conduct.

[92] Accordingly I find that the termination was harsh given the circumstances as they presented in that the applicant's dismissal for the reason alleged placed him in a position of potentially being denied a career within any casino in Australia, possibly for the rest of his working life, and therefore was disproportionate.

[93] Further I find that the termination of the applicant's employment was unjust and unreasonable when one considers that immediately the applicant had been made aware that he had made an error not clearly within his knowledge and forthwith attempted to redeem himself, that this action was given no consideration by his employer. I therefore find that the termination of the applicant's employment was harsh, unjust and unreasonable and uphold the application for relief lodged by the applicant under section 170CE of the Act.

Remedy

[94] Having made the above findings I now turn to the question of remedy conscious of the requirements of subsection 170CH(1) of the Act which provides that the Commission may make an order providing for a remedy if it has determined that the termination was harsh, unjust or unreasonable and having done so I now turn to the requirements to be considered as to remedy.

[95] Subsection 170CH(3) provides that:

[96] This is complemented by subsection 170CH(4) which provides that:

[97] There are no relevant issues which attract subsection 170CH(5) in this matter.

[98] The obligation under subsection 170CH(2) of the Act provides that the Commission must not order a remedy unless satisfied the remedy ordered is appropriate, having regard to all the circumstances of the case including:

[99] In Henderson v Department of Defence55 a Full Bench of the Commission said with respect to these provisions:

[100] It has however been held that the primary consideration when determining the question of remedy is that the Commission must firstly consider reinstatement.56

As to subsection 170CH(2)(a)

[101] At the time of the termination of the applicant's employment he was employed as a licensed table dealer by Jupiters and held a current licence. I am satisfied that an order for the reinstatement of the applicant by reappointing him to his former position in which he was employed immediately before the termination of his employment would not affect the viability of Jupiters's undertaking establishment or service.

[102] Similarly, I am satisfied that orders to maintain the continuity of the applicant's employment and for payment of the remuneration lost by him due to the termination would not affect the viability of respondent's undertaking, establishment or service.

[103] In this regard, there was no evidence brought by Jupiters indicating that there had been an irretrievable breakdown in employment relations between the applicant and Jupiters nor that the reinstatement of the applicant's employment would disadvantage the business of Jupiters through loss of trade or employees.

[104] Accordingly, I find that the effect of the abovementioned orders on the viability of Jupiters's undertaking, establishment or service is a factor that neither favours nor goes against the making of such orders.

As to subsection 170CH(2)(b)

[105] The applicant first commenced employment with Jupiters on 11 December 2001 as a casual games dealer in its table games department and currently is was, at the time of these proceedings, an accredited dealer holding a current licence. On or about January 2002 the applicant was promoted to games dealer/floor manager. The applicant's employment with Jupiters was terminated by means of a letter addressed to him from Jupiters dated 19 March 2002. I find that the evidence and circumstances of this matter favours the making of the abovementioned orders.

As to subsection 170CH(2)(c)

[106] With respect to the remuneration that the applicant would have received, or would have been likely to receive if his employment had not been terminated, I am satisfied that the applicant would have remained in employment with Jupiters for at least another 52 weeks or even for an indefinite period. There was no evidence brought by the parties which would indicate anything to the contrary in this regard. In fact the evidence revealed that the applicant's personnel file was said to contain no warnings or counselling notices and that he appeared to maintain a good standing with his employer which was obviously evidenced by his promotion.

[107] The evidence available to me at the time of hearing this matter was that the applicant had been successful in obtaining other limited employment and had been receiving unemployment benefits. At the time of the issue of this decision the applicant would have been either unemployed or in unstable employment for a period of almost nine months. Accordingly the applicant has lost a considerable amount of remuneration due to the termination of his employment with Jupiters.

[108] I find that such loss of remuneration by the applicant favours the making of the abovementioned orders concerning reinstatement, continuity of employment and lost remuneration.

As to subsection 170CH(2)(d)

[109] As far as the applicant's efforts to mitigate the loss he has suffered as a result of the termination of his employment, I am satisfied that since his termination the applicant has made serious efforts to mitigate that loss by seeking and obtaining alternative employment even in different occupations and industries. This evidence was not contradicted by Jupiters. In his witness statement57 the applicant provided the following evidence in this regard:

[110] Accordingly, I find that the applicant's efforts to mitigate the loss he has suffered as a result of the termination of his employment also favour the making of the abovementioned orders.

As to subsection 170CH(2)(e)

[111] A matter which I do consider relevant and which favours the making of the abovementioned orders concerning reinstatement, continuity of employment and lost remuneration is that the applicant sought reinstatement and has maintained this position and if reinstatement is granted to him it will restore his ability to seek and achieve employment at any other casino within Australia which has been potentially denied to him by the decision of Jupiters.

[112] In his statement the applicant addressed the career difficulties he has been experiencing as a result of the termination by Jupiters: 58

and as far as his attitude towards Jupiters and its policies, the applicant elaborated further:

[113] Other matters that I consider to also be relevant and which I have taken into account relating to the issue of the above orders are that Jupiters did not oppose or offer evidence against the making of the orders on the grounds that a lack of trust exists between the parties or that the integrity of Jupiters's policy would be challenged and no direct evidence was led in support of these matters. Accordingly, I do not find these issues to be sufficiently relevant or of a such a magnitude to preclude the issue of the abovementioned orders.

[114] In all of the circumstances of this matter the factors in favour of the issue of the above orders are considerably outweighed by any matters which go against their issue.

[115] Accordingly, after having found that the termination of the employment of the applicant was harsh, unjust or unreasonable and after having reached my conclusions in respect of the matters addressed in relation to subsections 170CH(2)(a), (b), (c), (d) and (e) of the Act, this Commission ORDERS:

BY THE COMMISSION:

COMMISSIONER

Appearances:

J. Spreckley of the Australian, Liquor, Hospitality & Miscellaneous Workers Union for the applicant.

G. Black of the Retailers Association of Queensland for the respondent.

Hearing details:

2002.

Southport:

August 15 and 16.

Brisbane:

August 28.

September 16.

Printed by authority of the Commonwealth Government Printer

<Price code G>

1 Refer Form R18 at paragraph 20.

2 Exhibit Atfield 8(d).

3 Attachment RA27 to Exhibit Jupiters 21.

4 Exhibit Jupiters 1 commencing at page 12.

5 Exhibit Jupiters 14 comprises photographs taken of the exterior and surrounding areas of the hotel.

6 Exhibit Jupiters 1 commencing at page 12.

7 Attachment RA 29 to Exhibit Jupiters 22.

8 Exhibit Atfield 8(d).

9 Exhibit Jupiters 1 at page 13.

10 Exhibit Jupiters 15.

11 Attachment RA 28 to Exhibit Jupiters 21.

12 Maquinad v Star City Pty Ltd, Cargill C, [Print R2517].

13 Exhibit Jupiters 1.

14 Attachment RA27 to Exhibit Jupiters 21.

15 Transcript commencing at PN531.

16 Transcript commencing at PN295.

17 An example of one of these bulletins is Exhibit Atfield 5 which was issued to employees on 22 March 2002 following the dismissal of the applicant.

18 Exhibit Jupiters 23.

19 Refer to transcript at PN670 and PN993.

20 Attachment M1 to Exhibit Jupiters 6.

21 Exhibit Atfield 8(d) and attachment 26 to Exhibit Jupiters 21.

22 Attachment RA29 to Exhibit Jupiters 22.

23 Transcript commencing at PN2971.

24 Transcript commencing at PN2402 and PN2954.

25 The Macquarie Dictionary, Revised Third Edition, (The Macquarie Library Pty Ltd, 2001 at p.985).

26 Ibid at p.772.

27 Ibid at p.1314.

28 Ibid at p.1585.

29 Ibid at pp. 1280 and 1314.

30 Transcript commencing at PN2011.

31 Attachment RA32 to Exhibit Jupiters 22.

32 Attachment RA28 to Exhibit Jupiters 21.

33 Windsor Smith v Lui and Others, Giudice J, Polites SDP and Gay C, [Print Q3462] and Australian Meat Holdings Pty Ltd v McLauchlan, Ross VP, Polites SDP and Hoffman C, [Print Q1625].

34 Bridgestone TG Australia Pty Ltd v Nhut Chau Banh, McIntyre VP, Duncan DP & Jones C, [Print Q4039].

35 Windsor Smith v Lui and Others, [Print Q3462].

36 Smith and Roulston v Capral Aluminium, Whelan C, [Print R9808].

37 Attachment M1 to Exhibit Jupiters 6.

38 (1996) 70 IR 360.

39 This case was affirmed in Austral Ships Pty Ltd v Schreier, Ross VP, Drake DP, Dight C, [ Print P3975].

40 Print S4213, Ross VP, Williams SDP and Hingley C, 17 March 2000.

41 See Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201; Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

42 Edwards v Giudice (1999) 169 ALR 89 at 92 per Moore J.

43 Giudice J, Williams SDP and Cribb C, [Print S6824], 7 June 2000.

44 Ibid at pp835 and 2097 respectively.

45 Crozier v Palazzo Corporation Pty Limited trading as Noble Park Storage and Transport [Print S5897], 11 May 2000, (Ross VP, Acton SDP and Cribb C).

46 The Oxford English Dictionary (Oxford University Press, Oxford, 1978) Vol VII at p.232.

47 Exhibit Atfield 6.

48 Exhibit Atfield 6(d).

49 Print R2275.

50 Attachment M1 to Exhibit Jupiters 6.

51 Transcript commencing at PN2029.

52 Attachment RA 27 to Exhibit Jupiters 21.

53 (1995) 185 CLR 410.

54 Print Q1625, Ross VP, Polites SDP, Hoffman C.

55 Print S8591, 28 July 2000 per Giudice J, Williams SDP and Huxter C.

56 Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, at 16: Newtronics Pty Ltd v Salenga, [Print R4305], 29 April 1999; Wark v Melbourne City Toyota, (1999) 89 IR 132, at 135; Ellawala v Australian Postal Corporation, [Print S5109], 17 April 2000.

57 Exhibit Atfield 6 commencing at paragraph 62.

58 Exhibit Atfield 6 commencing at paragraph 71.