John Jennings v Downtown Duty Free [1995] IRCA 168

C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - Misconduct - Procedural Fairness Industrial Relations Act 1988, S170CD, S170EA. JOHN JENNINGS v DOWNTOWN DUTY FREE - No. NI 1347 of 1994 Before: Judicial Registrar LINKENBAGH Place: Sydney Hearing Date: 21 March 1995 Judgment Date: 2 May 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA SYDNEY REGISTRY NO. NI 1347 of 1994 Between: JOHN JENNINGS Applicant And: DOWNTOWN DUTY FREE Respondent Before: Judicial Registrar LINKENBAGH Place: Sydney Hearing Date: 21 March 1995 Judgment Date: 2 May 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The Application be dismissed under section 170EA of the Industrial Relations Act, 1988. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA SYDNEY REGISTRY NO. NI 1347 of 1994 Between: JOHN JENNINGS Applicant And: DOWNTOWN DUTY FREE Respondent Reasons for Judgment 2 May 1995 LINKENBAGH JR This is an application pursuant to the provisions of section 170EA of the Industrial Relations Act 1988, in which the applicant seeks orders that the employer, the respondent contravened the provisions of the Act in terminating his employment on 21 November 1994. The applicant seeks in his application an order for reinstatement. He also seeks leave to file the application out of time - there was no mention of that during the hearing and I formally grant leave to file the application out of time. Turning to the merits of the application, I find the facts as follows. The applicant was employed in the store area of the respondent's business at Sydney airport as a storeman. On 21 November he arrived at work and he went to his workplace by way of a retail shop which was a duty free store conducted by the respondent on the airport concourse. He approached Mr Mansour, who was another employee of the respondent who worked as a supervisor in the shop, and there was an altercation which involved the use of unacceptable language by the applicant and a display of annoyance or temper by the applicant. The applicant's evidence was that Mr Mansour accosted him initially. I do not accept that evidence. I find that the applicant approached Mr Mansour for some reason known to the applicant and which is still not yet apparent. He had matters to discuss with Mr Mansour and those matters related on the applicant's evidence to the business of the union to which they both belonged and in respect of which Mr Mansour was the workplace delegate. The applicant cannot remember any detail of what was said and he described the exchange as "a heated storm in a tea cup". Mr Mansour could offer no explanation to the court or no reason as to why the applicant would have seen any need to approach him on this morning or such subjects which there would have been cause to discuss. The applicant's evidence was that there were doubts in his mind as to Mr Mansour's activities as the union delegate and as a supervisor and he had some concerns because he felt that Mr Mansour had a vested interest in the company's business because he was a shareholder of the company and further Mr Jennings saw the possibility of a conflict of interest arising out of the fact that Mr Mansour held shares in the company. I find that the applicant had reason to approach Mr Mansour about matters which he saw as matters of concern to himself. He admitted that there was a possibility that he swore at Mr Mansour and that he probably said, "get fucked." Mr Mansour's evidence and the evidence of Ms Cossin is that there was more language along those lines used during the exchange. The applicant then went to his place of work and commenced work. His evidence to the court was that he was not happy with the exchange which had taken place and that he needed clarification of the situation and that he went back into the shop and had another exchange with Mr Mansour. When pressed as to what the issue may have been he told the court that it was something to do with a perception by him that a union election had been unfairly constituted. The applicant cannot recall any details of the second conversation but did say that at the conclusion of it he turned on his heel and left. Mr Mansour's evidence is that during the second exchange the applicant pushed him in the chest area and that he laid hands on him. Both the applicant and Mr Mansour gave evidence that they had previously had a good relationship and had known one another for something over twenty years, and in fact Mr Mansour described the applicant as "an old friend." Mr Mansour could offer as I have said no reason for there to be any ill-feeling between the applicant and himself and knew of no reason why the applicant would wish to speak to him on this morning let alone speak to him and behave towards him in the manner in which he did. The respondent took swift action in relation to this conduct. It suspended the applicant on the same day and during the next few days attempted to arrange a meeting with the applicant which because of his being unavailable finally took place from the first of December. The applicant's recollection of the sequence of events at that meeting varies from the recollections of the meeting given to the court by Mr Darton and Ms Venning for the respondent. I note that the applicant did not approach the respondent between 21 November and 1 December and that at the meeting on 1 December he had a prepared statement which he either read from or used as a reference in a statement which he made to that meeting. The applicant's case is that he was not afforded procedural fairness at that meeting because he was terminated before he was given the opportunity to explain himself, or to explain his conduct. I prefer the evidence of Mr Darton and Ms Venning as to the sequence of events at that meeting which was that the applicant was informed as to the nature of the conduct which was alleged against him and was informed that in the view of the respondent and the terms of the guidance and disciplinary document agreed between the company and the union it was serious misconduct which would normally lead to summary dismissal. I find that he was given the opportunity to explain his conduct and that in response to being given that opportunity he read from the prepared statement which he had brought to the meeting. That statement did not address the issue of his conduct on 21 November but went to statements about his former good relationship with the company and the role which he had in the union. Ms Venning's evidence was that she was looking for matters in what was said by the applicant which went to the areas which were of concern to her being essentially his conduct on 21 November. The applicant was informed at the conclusion of his statement that there was nothing in the response which could be seen as an adequate explanation or excuse for what was otherwise serious misconduct and that he was to be instantly dismissed. I find therefore that the respondent had a valid reason for the termination of this employment and I find that the respondent complied with its obligations under the legislation, particularly the obligation under section 170DC in relation to giving the employee the opportunity to respond to allegations. I find therefore that this termination of employment was for a valid reason connected with the employee's conduct and that the termination is not harsh, unjust or unreasonable within the meaning of the act. I note Mr Staff's submissions as to the previous decisions of courts in Australia and in England in relation to the meaning of those words. It is the view of this court that every case is to be determined on its own facts. In this case the respondent has a business which has a high public profile and in which the highest standards of courtesy and politeness are required. The applicant admitted to the court that he was well aware of the requirements of his employer in relation to standards of personal conduct in the workplace and he also admitted that he was conscious of the fact that the employer's business at the airport might be put at risk if the highest standards of personal conduct between staff members was not maintained at all times. In this case the standard of conduct expected of employees is of the very highest order and the applicant breached those standards not just once but twice. Whilst it may well have been enough to justify the dismissal if there had only been the first confrontation on this morning, the fact that the applicant saw fit to return and initiate a second confrontation with Mr Mansour leaves no doubt in my mind that his attitude and motivation on this day was a breach of the standards which should be expected of him in all the circumstances. The application will therefore be dismissed.