Department of Justice

Tasmanian Industrial Commission

www.tas.gov.au
Contact  |  Accessibility  |  Disclaimer

T8831

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute

Jan Crosswell
(T8831 of 2000)

and

Tasmanian Country Club Casino Pty Limited (ACN 009 516 189)

 

COMMISSIONER P A IMLACH

HOBART, 24 May 2000

Industrial dispute - termination of employment - assault - organisation values - order issued - file closed

REASONS FOR DECISION

This was an application for a dispute hearing made under section 29(1A) of the Industrial Relations Act 1984 (the Act) by Jan Crosswell of Prospect (the applicant).

The applicant was in dispute with the Tasmanian Country Club Casino Pty Limited (ACN 009 516 189) of Prospect Vale (the company) over the alleged harsh unjust or unfair termination of her employment. She sought reinstatement and compensation.

At the hearings the applicant was represented by Mr Shaun McElwaine, a legal practitioner, and the company was represented by Mr Damien Durkin.

The applicant had been employed by the company as its security manager, commencing in September 1995, and, up until the time of the termination of her employment, she had not been reprimanded or disciplined specifically.

In the midst of the celebrations in the main foyer of the Casino soon after midnight at the commencement of the new millennium, a great number of helium filled balloons were released. The applicant, being very concerned about the blocking effect of the balloons on the company's security cameras, approached another employee who appeared to her to be handing some balloons to a reveller and requested him not to do so and to secure the balloons from where he had taken them.

According to the applicant, the other employee disobeyed her direction in a defiant manner and, with a view to his complying with her direction, she struck him in the chest with the back of her hand for emphasis.

The other employee denied he had disobeyed the applicant's direction and that he had been defiant; he said he had been shocked at the blow to his chest which he claimed was made with a closed fist.1

Within about five to ten minutes of the incident, the other employee complained to his local union representative about the applicant's treatment of him and, in a letter dated 4 January 2000, the company received a formal complaint from the union about the applicant's behaviour.

On Tuesday, 11 January 2000, the general manager of the company, who was also the applicant's immediate supervisor, Mr David Logie, confirmed with her that the complaint had been received and he sent her home whilst he reviewed the situation.

A meeting between the general manager and the applicant took place at 5.30pm on Friday, 14 January 2000, and during the meeting the general manager terminated the applicant's employment; at the same time, he gave the applicant the option to resign with three months' pay. A later letter, dated 21 January 20002, from the general manager to the applicant, confirmed her employment termination operative from Friday, 21 January 2000 and it also confirmed the resignation option.

In evidence, the general manager said in early 1999 the company had been reviewed and restructured by its owners in conjunction with management heads and as a result certain business values and a mission statement were drawn up as "the cornerstone of that restructure".3

Key statements in the company's "Organisation Values" and "5 Year Business Plan 1999 - 2004", relevant to this application which were brought out in evidence were:

"We will encourage trust between employees and the Company."4

"Core Values

The integrity of the Country Club Casino is reflected in the core values of the organisation and its employees.

...

Trust

This means we will contribute to making our work environment a place where we can trust each other, and where we are trusted by our customers and the Tasmanian community in general.

Respect

This means we will treat each other fairly and respectfully, recognising our differences while welcoming the varied perspectives and strengths we bring to the business."5

The applicant said in evidence she was aware of the company's values, but, said she had not been advised of them formally.

The general manager said in the light of those values, the applicant's actions amounted to serious misconduct warranting the termination of her employment. He said in particular her failure to apologise directly to the other employee within a short time indicated to him that the applicant, whilst admitting that she had mistreated the other employee by striking him, was not properly contrite at all and showed no consideration for the other employee. He said such an attitude was contrary to the company's policies and values and not befitting a company senior manager. He said the applicant's apology to him did not satisfy the requirement for her to apologise to the other employee.

The general manager admitted the procedure as followed when terminating the applicant's employment left something to be desired. The company also admitted that, whilst it had a formal grievance procedure policy, it had no formal employment termination policy.

A witness, Mark Patrick Poulson, another company employee who had been in close proximity to the applicant and the other employee at the time of the incident, said in essence that the two had a difference, the applicant slapped the other employee with the back of her hand, the other employee had proceeded to put the balloons back from whence they came and he appeared shocked.

Another witness, Damian Peter Saunders, the company's conference sales manager, had been in the vicinity at the time of the altercation and he said the other employee looked quite shocked as a result of the applicant's behaviour.6 Mr Saunders did not see or hear the incident only its after effect on the employee.

It was submitted by the applicant that she had been provoked by the defiance and disobedience of the other employee in a situation where the applicant, having full responsibility for security on the eve of the new millennium, was very concerned about the effects of the loose balloons.

The applicant pointed out her previously good record as an employee of the company and submitted that, in the circumstances, her actions could not be construed as serious misconduct.

In these latter circumstances, it was submitted that termination of employment on account of one failure was unfair.

Relying on the International Labour Organisation Convention and the requirements of the Commission, the applicant submitted that the company had failed completely in carrying out a fair procedure in relation to the applicant's employment termination: in particular, the results of investigations were not put to her for response, nor were the details of the complaint made known to her and she was not given a chance to respond in any event.

It was pointed out to the Commission that the general manager had conceded there had been no procedure set in place to comply with the Commission's requirements and he had also conceded he should have afforded the applicant more procedural fairness.

The applicant said that she had not been given time to apologise to the other employee and she said the core values as enunciated were "motherhood" statements without specifics.

On the basis of the two witness statements (the applicant and Mr Poulson), it was submitted by the applicant that the blow to the other employee ought to be accepted as a back-handed slap and therefore not as serious as the company contended.

The applicant referred to the International Labour Organisation provisions with regard to the practicability, or otherwise, of reinstatement and in seeking reinstatement in this case, submitted that there was nothing put forward by the company sufficient to prevent reinstatement. In support of this contention, the applicant relied on extracts quoted from a decision in the case, Liddell v Lembke (1994) 127 ALR 342, and the case Nicholson v Heaven and Earth Gallery (1994) 126 ALR 233.

In response, the company submitted that legally the applicant had assaulted the other employee and she had admitted doing so. This was the basis, the company said, upon which the general manager reached his decision to terminate the applicant's employment. Added to this basic reason was the company's commitment to its core values which had been conveyed and stressed to the staff by one of the owners and senior management prior to the incident.

Compounding these factors, the company said, was the lack of remorse shown by the applicant towards the other employee. The applicant relied on the alleged disobedience of the other employee as provocation for her actions.

As to the lack of fair procedure surrounding the applicant's termination of employment, the company submitted that the procedural question should not override the substantive issues in this case and should procedural error be found, then the penalty should not go as far as reinstatement.

The company said the decision to terminate the applicant's employment was reasonably open to the general manager and the actions of the applicant had irreparably damaged her relationship with the company.

Findings

In the main, where there was conflict, I accepted the evidence of the other employee against that of the applicant and I am satisfied that the applicant had been made aware formally of the company's values.

I am satisfied the company had a valid reason for terminating the applicant's employment. In the context of the company's clear concern as to its relationship with its employees, and they in turn with each other, which the company took some pains to stress to its employees, and in the context of the applicant's senior management position in the company, I consider her act in hitting the other employee was serious misconduct. I find the company, in its discretion, had sufficient grounds to terminate the applicant's employment. In the circumstances, it was reasonably open for the general manager to terminate the applicant's employment.

Because of these factors, I do not consider it necessary for me to decide on the type nor the intensity of the blow struck by the applicant against the other employee, except to say that I accept on the evidence the other employee was set back and shocked by it.

On the basis of the general manager's attitudes and statements in evidence, and the efforts of the company in communicating its policy, I do not accept the applicant's submission that the company's professed values were without substance.

In the context of this aspect of the case, it is not the role of the Commission to impose its view over and above that of management unless it can be clearly established that the actions of management were unfair.

I am satisfied, however, that the termination of the applicant's employment was unfair because of the failure to afford her fair procedure which was admitted by the company. In particular, I accept that the applicant should have been advised of the details of the complaint against her, she should have been given an opportunity to respond to the complaint and she should have been given the opportunity to have a representative or advocate present when those meetings occurred. None of these basic requirements were properly met by the company.

In looking at the primary remedy in these circumstances, reinstatement, which was sought by the applicant, I find that such would be impractical on the basis of the evidence of the general manager, which I accept. He cited two factors. He said reinstatement would send the wrong message to the company's employees, in particular the other employee, that the core values were not being upheld. He also said he would not have confidence that the applicant would, in the future, uphold the company's core values.

In the absence of reinstatement, some compensation is due and I consider the alternative amount originally put forward by the company for a different reason was nevertheless appropriate, that is, three months' pay.

Order

In accordance with the power vested in me under section 31(1) of the Industrial Relations Act 1984, in settlement of this dispute, I hereby order that, within fourteen (14) days from the date of this decision, Tasmanian Country Club Casino Pty Limited of Launceston, pay to Jan Maree Crosswell of 7 Leslie Grove, Prospect, Tasmania 7250, an amount equivalent to the amount of wages she would have received had she been at work for three calendar months from 21 January 2000.

 

P A Imlach
COMMISSIONER

Appearances:
Mr S McElwaine, Barrister and Solicitor, for Jan Crosswell.
Mr D Durkin, Durkin & Associates, for Tasmanian Country Club Casino Pty Limited ACN 009 516 189.

Date and place of hearing:
2000
February, 29
March, 28
Launceston

1 Transcript, 29/2/00, at 42.
2 Exhibit M4.
3 Transcript, 28/3/00, at 63.
4 Exhibit D5.
5 Exhibit D4.
6 Transcript, 29/2/00, at 57.