T9840
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Christopher Colin Campbell and Wynyard Ex-Servicemen and Citizen's Club Inc.
Industrial dispute - alleged unfair termination of employment - procedural fairness - found afforded procedural fairness - application dismissed - file closed REASONS FOR DECISION (1) On 10 October 2001, Christopher Colin Campbell (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Wynyard Ex-Servicemen and Citizen's Club Inc. arising out of the alleged unfair termination of his employment. (2) This matter was first listed for hearing on 1 November 2001. Mr R Glover, a solicitor, sought leave to appear for the applicant and Mr B Trafford sought leave to appear for the employer. Leave was granted in each case. (3) Following preliminary submissions, the hearing was adjourned into private conference, with the Commission, in an effort to find a resolution to the dispute. This proved to be unsuccessful and the hearing resumed on the same day to determine, in the first instance, an application for an extension of time, based on "exceptional circumstances", pursuant to s.29[1B] of the Act. (4) A decision granting this application was made on transcript, with reasons subsequently published in a preliminary decision dated 16 November 2001. (5) The hearing resumed on 23 January 2002 with evidence taken from the following witnesses:
Background (6) Mr Campbell was appointed full-time manager of the club in December 1996. He was also in more recent years the licensee pursuant to the Liquor and Accommodation Act 1990. (7) During the Christmas/New Year period of 2000/01 the club donated the premises to a number of charitable organisations for the purpose of fund raising functions. It transpires that the necessary permits were not obtained for these functions, resulting in an investigation by the Licensing Board. (8) At a hearing of the Board in Devonport on 23 May 2001 the club admitted to seven breaches of the guidelines. The Board imposed a three-day suspension of the club's liquor licence, which effectively meant the loss of two trading days. Mr Campbell, Mr Haneveer and a Mr Flight represented the club at the hearing. (9) Later that same day there was a regular meeting of the club committee, which Mr Campbell attended. It is fair to say that the committee members were disappointed with the licence suspension and it would appear that Mr Campbell apologised for his omissions. There was no suggestion, however, that Mr Campbell was admonished, disciplined or warned as a consequence of this suspension, nor was there any move to relieve Mr Campbell of the licensee responsibility. (10) It was common ground that, prior to the licence suspension, Mr Campbell had not at any stage been warned or spoken to in relation to work performance. (11) On or about 24 May Mr Campbell suffered a heart attack resulting in a period of hospitalisation in both Burnie and Hobart. This was followed by an extended period of recuperation in the form of sick and annual leave. He had not returned to work prior to a meeting with the Executive Committee on 1 August. (12) During June and July there was correspondence between the club and Mr Campbell. The initial letter referred to a "voluntary redundancy or retirement inducement offer". Subsequent correspondence raised broad allegations relating, in the main, to alleged breaches of the Liquor Licensing and Gaming Legislation. This correspondence is covered in detail later in this decision. (13) On 1 August Mr Campbell, accompanied by a person of his choice, attended a meeting with Mr Haneveer, Mr Summers and the club's solicitor. (14) At this meeting a number of allegations were put to Mr Campbell. It is common ground that Mr Campbell responded positively to a number of questions, denied at least one allegation and repeatedly declined to respond to other allegations. (15) A major issue in contention during the hearing was the degree of particularisation of the allegations. (16) Mr Campbell was asked to leave the meeting whilst the club considered its position. Upon resumption, Mr Campbell was advised that his services were terminated forthwith as a consequence of his "serious misconduct".1 (17) From a review of the evidence it is fairly clear that the serious misconduct complained of is connected to the licence suspension, and allegations relating to the provision of credit for gambling purposes and gambling during working hours. (18) Mr Campbell was paid accrued entitlements together with an additional two weeks' pay on an ex gratia basis. (19) Mr Glover contends that Mr Campbell was not afforded procedural fairness, a contention vigorously rejected by Mr Trafford on behalf of the club. (20) In closing submissions Mr Trafford suggested that the contract of employment might well have been frustrated as a consequence of Mr Campbell's illness and his inability to perform his duties over an extended period. (21) Whilst this argument was not pursued with great vigour, it is nonetheless rejected. Mr Campbell was in alternative employment by mid to late September, albeit on reduced hours, and there are no medical reasons to conclude that he could not have returned to work in the foreseeable future. Further, s.30[4][f] states that a "temporary absence from work because of illness or injury ..." is not a valid reason for termination. The Correspondence (22) During June [un-dated] the club wrote to Mr Campbell in the following terms:2
(23) Mr Glover contended that the reference to "a generous offer ... that befits your service to the club" was not consistent with allegations of serious misconduct. (24) Mr Haneveer said that after the licence suspension the committee wanted to achieve a change in an amicable way3. It was also a reference to his length of service and hours worked.4 (25) By letter dated 11 July 2001, the club advised Mr Campbell that the voluntary redundancy offer would expire on 13 July.5 (26) On 12 July Mr Campbell wrote to the club in the following terms.6
(27) The club responded by letter dated 18 July as follows:7
(28) It is common ground that this was the first occasion that the issues of credit gambling or gambling during working hours had been raised. Indeed Mr Haneveer said that the club had no knowledge of any allegations relating to these matters at the time the voluntary redundancy offer was made.8 (29) On 25 July the club again wrote to Mr Campbell in the following terms:9
The 1 August Meeting (30) At the meeting the club solicitor, Mr Trafford, asked a series of questions. It is uncontested that Mr Campbell responded positively to a number of questions concerning his understanding of the responsibilities of a licensee. (31) It is also clear that Mr Campbell denied a specific question as to whether he had allowed credit for the purpose of gaming.10 (32) In relation to specific questions concerning provision of credit for TOTE gambling and gambling during working hours, the uncontested evidence is that Mr Campbell refused to respond. (33) The evidence of Mr Campbell is as follows:11
(34) The evidence of Mr Haneveer and Mr Summers is quite consistent with this account save for the clarifying distinction between credit for gaming [which was denied] and credit for TOTE betting. (35) Mr Campbell acknowledged that the provision of credit for gambling purposes was an offence.12
(36) On the question of whether Mr Campbell was given the opportunity to respond to the allegations, his evidence was as follows:13
(37) And later:14
Particularisation of the Allegations (38) In contending that Mr Campbell had been denied procedural fairness, Mr Glover relied in particular on the submission that the allegations had not been sufficiently particularised. He said:15
(39) And later:16
(40) For the purpose of this analysis, the issue of the licence suspension can be disregarded as it was both an historical event and there is no contest as to the facts. (41) The issues of gambling whilst at work and the provision of credit for gambling were first raised in the letter of 18 July in the following terms:
(42) The letter of 25 July referred to:
(43) Prior to the 1 August meeting, there had been no additional degree of particularisation, either in writing or verbally, put to Mr Campbell. (44) Mr Haneveer said he first became aware of the allegation concerning credit gambling in late July. In broad terms, the allegation concerned the provision of credit by Mr Campbell to a particular club member, for the purpose of gambling on the TOTE. Further, that on one particular occasion, a substantial sum was advanced to the club member, which was not repaid until some 10 days later. The allegation also went to an irregular transfer of funds between club accounts. (45) I hasten to add that this issue was never elevated beyond the level of an allegation to that of an accusation, a point made by Mr Glover and readily acknowledged by Mr Haneveer. (46) In a similar vein, it is not the role of this Commission to make a finding as to whether the allegation is proven and I refrain from doing so. Indeed, neither party asked the Commission to make such a finding. (47) There is considerable conflict in the evidence as to the degree of particularisation of the allegations. Having reviewed the evidence of Mr Campbell, Mr Haneveer and Mr Summers, I have reached the following conclusions. (48) There is no doubt that Mr Campbell was asked whether he understood his responsibilities under the Licensing and Gaming Acts and that he responded positively. (49) There is no doubt that Mr Campbell was asked whether he had provided credit for gaming purposes and that he denied this allegation. (50) There is no doubt that Mr Campbell was asked whether he had gambled during working hours, and that he refused to answer the question. Further, Mr Campbell repeatedly declined to answer this question.17 There is no evidence that this particular allegation was particularised in any greater detail than as a general question. (51) There is no doubt that Mr Campbell was repeatedly asked whether he advanced credit for the purpose of gambling on the TOTE and that on each occasion he declined to respond.18 (52) It is likely, but not certain, that the date of December 200019 was put to Mr Campbell as to when the alleged offence occurred. (53) It is possible, but specifically denied by Mr Campbell, that the amount of money involved in the alleged incident was raised.20 (54) It is unlikely that the name of any person/s involved in the alleged incident was put to Mr Campbell.21 Questions to be Determined (55) Mr Glover, in his closing submission, made it clear that the only issue to be decided was the question of whether Mr Campbell was afforded procedural fairness in the way the club went about terminating his employment. To determine this question, the following issues need to be addressed: 1. Was it reasonably open to the club to make the allegations? 2. What level of particularisation should accompany the allegations? 3. Was procedural fairness denied? Findings (56) I turn firstly to the issue of the licence suspension. The rationale for the licence suspension in May 2001 was a number of permit breaches that occurred several months before. Whilst the club committee was no doubt disappointed with the outcome, it took no action at the 23 May meeting to discipline, reprimand or warn Mr Campbell for his involvement in these events. (57) In the circumstances it seems to me quite inappropriate to resurrect this issue several months later in the context of "serious misconduct". I do not accept that the licence suspension issue constitutes a valid reason for termination. (58) As a matter of fairness, for an employer to raise allegations against an employee, there must be some substance, as distinct from a "fishing expedition", upon which the allegations are based. (59) Having reviewed the evidence of Mr Summers and Ms Strempel, I am quite satisfied that the club had every right, indeed probably a duty, to raise the allegation concerning the provision of credit for TOTE gambling with Mr Campbell. I do not accept Mr Glover's contention that something should be read into the use of the word "may" rather than "did" in the correspondence of 18 July. The matters put to Mr Campbell were allegations, as distinct from accusations, and the club was perfectly entitled to seek an explanation from Mr Campbell. (60) There was insufficient evidence before the Commission to understand the basis of the allegation relating to gambling during working hours. However nothing was put to me to suggest that this allegation was improperly made. (61) Mr Glover's contention concerning the level of particularisation of the allegations must be considered in the overall context of procedural fairness. (62) Section 30[2] of the Act states:
(63) Put another way, this is the "fair go all round" test. It also means that regard must be had for the particular circumstances of each case. (64) Mr Trafford made the valid point that there is no statutory requirement to provide written particulars, only a requirement that the individual be given the opportunity to respond. That is not to suggest that the committing of allegations to writing with appropriate particulars is not a sound human resource management practice. It, of course, is, but the level of HR management sophistication that might reasonably be expected of a large corporate or public sector organisation, should not, in my view, be slavishly imposed on a small business with limited resources. (65) The critical question is whether or not the employee was afforded fair treatment? (66) Based on the correspondence referred to above, I am quite satisfied that Mr Campbell was aware of the subject matter, even if not the detailed particulars, of the allegations before he attended the 1 August meeting. (67) It is clear from the evidence that Mr Campbell was asked whether he had gambled during working hours, and whether he had provided credit for TOTE gambling purposes. (68) As opening questions, there was nothing improper or unfair with this approach. (69) It would of course have been quite open to Mr Campbell to deny the allegations, or in the alternative, seek better particulars of the allegations. He could also have requested time to prepare a response. (70) The evidence is clear that Mr Campbell chose none of the above, but repeatedly refused to respond to the questions put. Indeed, under cross-examination, Mr Campbell agreed that he made it quite clear, that no matter what questions were put concerning these specific allegations, he was not prepared to give any answer at all.22 (71) In the circumstances I am not prepared to accept Mr Glover's implied contention that Mr Campbell's refusal to respond was justified in light of the limited particularisation of the allegations. (72) I am quite satisfied that Mr Campbell was given the opportunity to respond to a series of perfectly reasonable questions, and for his own reasons, repeatedly chose not to. (73) It follows that I reject the applicant's contention that he was denied procedural fairness. Indeed, I find positively to the contrary. (74) There is one final matter. Mr Glover submitted that the club's Constitution and Rules does not provide any documentary basis for the procedure in dismissing a manager. He suggested that as two members of the Executive and the club solicitor effected the termination, it might well have been procedurally improper. (75) Section 28[6] of the Constitution provides for the Executive Committee to attend to urgent matters during intervals between meetings. Mr Haneveer said that the Executive Committee had been previously empowered to terminate Mr Campbell if that was considered necessary.23 This was not challenged. (76) I therefore reject any contention that the Executive Committee acted improperly. (77) In all the circumstances I am not prepared to interfere with the decision taken by the employer to terminate Mr Campbell's contract of employment. (78) Pursuant to s.21[2][c] the application is rejected and I so order. Tim Abey COMMISSIONER Appearances: Date and Place of Hearing: 2002 1 Exhibit R1 |