CATCHWORDS INDUSTRIAL LAW - Termination of employment - Unlawful termination - Abandonment of employment - Breach of contract - Constructive dismissal - Operational requirements. Industrial Relations Act 1988, S170DC, S170DE, S170DF, S170EA. Siagen v Sanel Pty Ltd [1994] 122 ALR 333. Association of Professional Engineers, Scientists and Managers Australia and Another v Skilled Engineering Pty Ltd [1994] 122 ALR 471. Grout v Gunnedah Shire Council (Industrial Relations Court of Australia 30 September 1994, unreported). Western Excavation (ECC) Limited v Sharp [1978] IRLR 27 and Australian Bank Employees Union v ANZ Banking Group Limited (Australian Conciliation and Arbitration Commission , 22 September 1988, unreported, Print H4736) Marchesi v Mitsubishi Motors Australia Limited (Industrial Relations Court of Australia, Murphy JR, 14 December 1994, VI-1669/94, unreported) and Wong v Hades and Another (Industrial Relations Court of Australia, Tomlinson JR, 26 September 1994, unreported). WILLIAM HENRY WINTER v AUSTRALIAN NATIONAL HOTELS LIMITED No. TI-193/94 Before:Ryan JR Place: Hobart Date: 13 April 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY Matter No TI-193/94 B E T W E E N: WILLIAM HENRY WINTER Applicant AND: AUSTRALIAN NATIONAL HOTELS LIMITED Respondent RYAN JR MINUTES OF ORDER 13 APRIL 1995 THE COURT ORDERS THAT: The application be dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules. IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA TASMANIA DISTRICT REGISTRY Matter No TI-193/94 B E T W E E N: WILLIAM HENRY WINTER Applicant AND: AUSTRALIAN NATIONAL HOTELS LIMITED Respondent COURT: RYAN JR PLACE: HOBART DATE: 13 APRIL 1995 REASONS FOR JUDGMENT (EX TEMPORE) The applicant began work with the respondent at Wrest Point Hotel Casino as a security officer on 10 December 1993. He was engaged on a casual basis and was soon assured, he claims, of a minimum of four shifts per week, i.e. 32 hours. In his application for employment dated 1 December 1993 the applicant stated that he had had "thyroid cancer but have had a complete recovery". He also claims that he was advised of the need for regular checkups. This is denied by those who conducted the initial employment interview but the Court accepts that such examinations would be a likely and reasonable precaution. It does not, of course, follow that the applicant mentioned this at the selection interview. In an affidavit sworn 7 March 1995 the applicant's solicitors claim that: 1. the applicant informed the respondent's security management that he had been advised by his medical advisers to avoid exposure to high levels of ambient tobacco smoke 2. security management responded that there was "no problem" or words to like effect, that his employment was "still safe" and that efforts would be made to accommodate him within areas of Wrest Point less prone to high levels of ambient tobacco smoke 3. security management subsequently rostered the applicant to work in areas of Wrest Point not prone to high levels of ambient tobacco smoke and other security staff were advised of this 4. in August 1994 the applicant assisted in the preparation of a claim against the respondent to the Human Rights and Equal Opportunity Commission by a Ms Tammy Payne for alleged sexual discrimination. The respondent's solicitors in an affidavit also sworn 7 March 1995 claim that: 1. on Tuesday 30 August 1994 the applicant was counselled by Mr Rod Escourt, the head of security at the respondent's work site as to the applicant's poor attendance record and his failure to provide adequate notice of non-attendance due to ill health 2. on the evening of 7 September 1994 (in fact at about 12:15 am on 8 September) the applicant left the work site of the respondent without first obtaining permission to do so 3. on 9 September 1994 the applicant was advised at a meeting attended by himself and senior officers of the respondent and Ms Helen Hudson (Union Official) as to the reasons for the applicant not being returned to the roster and advised as to conditions for his return 4. the applicant was provided with a copy of the record of the above meeting which the applicant signed. In respect of the meeting on 9 September 1994 the applicant's solicitors in their affidavit of 7 March claim that the respondent required the applicant to: (a) obtain a certificate from the Royal Hobart Hospital in relation to an occasion for which the applicant was unable to attend his duties with the respondent due to ill-health (b) obtain a medical certificate "clearing" the applicant to return to full duties including work in the disco area of Wrest Point (c) advise the respondent of any inability to attend work due to ill health at least two hours before a rostered shift of employment. The applicant's solicitors also assert that: 1. in response to the requirement to obtain a medical certificate "clearing" the applicant to return to full-time duties including working in the disco area of Wrest Point the applicant produced to the respondent a letter from Dr K T P McMillan dated 13 September 1994 certifying that the applicant was fit to carry out duties as a security officer and that this letter was personally delivered by the applicant to the respondent on or before 16 September 1994 (the letter is Exhibit A2) 2. the applicant has not been rostered for work by the respondent since 8 September 1994 3. the respondent has failed to furnish any reasons to the applicant for the termination of the applicant's employment with the respondent 4. the termination of this employment by the respondent is unlawful The respondent does not concede that there has been a termination of employment at the initiative of the employer or that such a termination would be or was unlawful if found to have occurred at the initiative of the employer. The respondent: 1. asserts that the applicant was provided with reasons for his non-return to the casual roster by virtue of his attendance at the meeting of 9 September 1994 and at that meeting was given the opportunity to be heard personally or by representation through the union official present 2. states that on 2 December 1994 the applicant provided the respondent with a letter dated 12 August 1994 from Dr John Ward, Radiation Oncologist certifying that the applicant's existing health condition would be exacerbated by exposure to high ambient levels of tobacco smoke (the letter of 2 December is Exhibit A1) 3. denies that its actions in requiring the applicant to be fully fit to perform the functions of a security person is unlawful in the circumstances 4. claims that the respondent has offered the applicant alternative work on similar terms and conditions to security in a "back of house" position, which offer the applicant has refused 5. contends that at common law and by statute it is precluded from returning the applicant to a working environment which contains a known hazard to his health 6. contends that a security door person must be able to attend all parts of the respondent's work site at all times during a shift without exception to ensure physical security for staff and patrons alike 7. denies that the applicant's involvement in the complaint lodged by Ms Tammy Payne to the Human Rights Commission was in any way a factor in his not being returned to the roster 8. contends that if the applicant was returned to the roster then in order to provide a safe working environment for staff and patrons it would be necessary to roster additional staff and as such incur substantial and unreasonable extra costs The Court is indebted to Counsel for both parties for an agreed statement of facts handed up at the commencement of the hearing. There is no agreement in respect of a number of matters occurring or alleged to have occurred between 1 December 1993 and 9 September 1994. The applicant states that in early 1994 licensed security officers were assured of a minimum of 32 hours a week on a rotation basis. The security surveillance manager at Wrest Point, Mr Escourt, does not accept this occurred but nothing turns on that. At about this time the applicant claims he began to experience problems in the disco but not in any other area of the complex. He described his problems as dryness and soreness in the throat and hoarseness. At this stage, the applicant gave evidence which the Court found curious and not believable. He stated that at first he worked on the new casino floor, in the foyer and in the River View lounge and that he had been told his working area was the main floor and that it was never explained that the disco was one of his working areas. Given the broad nature of the duties of a uniformed security officer, it is difficult to accept any inference in the applicant's evidence that he did not know or was not told that his duties would include the disco. The applicant was an experienced security officer who had previously worked at Jupiters Casino and earlier again as a member of the Tasmanian Police Force. The Court also notes that the applicant in his application of 2 May 1994 for a position of permanent security doorman described his position and responsibilities at that time as: "general security of the casino, foyer, disco and River View lounge." The Court also notes that in an application for a main security position 21 July 1994 and for a full-time uniform security position 22 July 1994 the applicant included crowd control and enforcing dress regulations or standards among his existing duties and responsibilities (for these three applications see Exhibit R3). The applicant's evidence is that at the end of February 1994, following an appointment with Professor Lowenthal, he explained to Mr Escourt and to his deputy, Kerry Best, that it had been suggested to him that he should not work in the disco. He further claims that Escourt and Best assured him that they could cover the disco without him and from then on he was rostered on the casino floor, the foyer and the River View lounge. Best and Escourt gave different evidence. Best states that the applicant approached him in May 1994 and advised of throat problems, tests he was to undertake and the possibility of another operation and the possibility of up to one month in hospital. Best swears that he reassured the applicant that his job would be kept open. Escourt states that he was also approached by the applicant who said he was ill, had a recurrence of the thyroid cancer, would require up to a month off work and was concerned about his job. Escourt states that he reassured the applicant his job would remain open. In that respect, the evidence of the applicant, Best and Escourt is consistent, i.e. that his job would remain open. The Court notes that, whether or not the applicant expressed the view that he had a recurrence of thyroid cancer, there is no medical evidence which suggests a recurrence. The Court does not accept the applicant's claim that he told Escourt and Best of problems with his throat in February 1994. The Court accepts the Escourt/Best evidence that it was in May that the applicant reported problems but there was no mention of ambient smoke even then but rather a fear expressed by the applicant that security work could lead to an injury to his throat either through a punch or some person grabbing him around the neck. The Court also rejects the applicant's claim that he produced a copy of Exhibit A1, Dr Best's certificate of 12 August 1994, soon thereafter to Escourt and Best. The Court accepts the evidence of Escourt and Best that they were never shown such a certificate. However the Court notes and accepts the evidence of Carol Langridge, Human Resources Manager, that the certificate was provided to her by the applicant on 23 September 1994. Mr Tresize for the applicant argues that the applicant having obtained Dr Ward's certificate of 12 August would have shown it to the employer but it can also be said that given the nature of that certificate the applicant might well choose not to show it to the employer because it could lead to a decision on health grounds not to roster the applicant in any area with ambient smoke. The Court finds that the certificate was first brought to the attention of the employer on 23 September 1994. It is not necessary to go into detail as to the applicant's involvement with his fiance, Tammy Payne, either in terms of her application to the Human Rights Commission or her attendance on a number of occasions at the casino while the applicant was on duty. The Court rejects any suggestion that the applicant was taken off the roster, in whole or in part, because he assisted Ms Payne in a complaint against the respondent. There is no evidence to support this allegation. It seems clear that Ms Payne's presence at the casino while the applicant was on duty was a cause of some unrest among some casino staff but the Court does not find that unrest or concern a relevant factor. The applicant's reaction to concern expressed by Kerry Best that Ms Payne was distracting him while he was on duty and was a cause of staff disruption seems to have been a factor in the applicant walking off the job. Indeed, Ms Payne's own reaction to these concerns may have been a potent force in the applicant taking the action he did. At approximately 12:15 am on 7 September 1994 the applicant left his place of employment without permission and with just under half of his eight hour shift as a security officer still to run. The acting security surveillance manager, Kerry Best, immediately prepared a written report for the security surveillance manager, Rod Escourt (Exhibit R4). At 9:40 am Escourt telephoned the applicant and his written record of the conversation was tendered as Exhibit R5. Escourt informed the applicant that he had no alternative but to remove him from the roster because at about 12:15 am the applicant without sufficient excuse abandoned his position and refused to carry out his duties. Escort gave evidence that he regarded a security officer abandoning his post without good and proper reason as serious misconduct which had potential to endanger the safety of patrons and other staff. At 5:15 pm on Friday 9 September 1994 a meeting was held at the request of Ms Helen Hudson. The record of the meeting is Exhibit R1. It was typed on 13 September and signed on that date by the applicant and Carol Langridge, Human Resources Manager. The Record of Interview reads as follows: "A meeting was held in Mr Rudge's Office at approximately 5.15 pm on Friday , 9th September, 1994 at the request of Ms Helen Hudson, Secretary - Australian Liquor, Hospitality and Miscellaneous Workers' Union on behalf of Bill Winter and the attendees were:- Dennis Rudge - General Manager Rod Estcourt - Security Manager Carol Langridge - Human Resources Manager Helen Hudson - Secretary, Australian Liquor Hospitality and Miscellaneous Workers' Union Bill Winter - Uniform Security The matter raised by Helen Hudson for discussion and resolution was re Bill Winter being removed from the Security roster after leaving the premises at approximately 12.15 am on 8th September 1994. Rod Estcourt explained the circumstances around Bill being removed from the roster including statements from Kerry Best, Assistant Security Manager, and a record of a telephone conversation he had with Bill on the 8th September, 1994. Rod Estcourt also had a statement re "first and final" warning he had given Bill approximately a week earlier after Bill failed to report for duty one evening. Discussion ensued and it was decided by Dennis Rudge that Rod Estcourt was harsh by imposing a "first and final" warning when it was Bill's first occasion; however, Dennis Rudge confirmed in the Award all employee's are required to give at least 2 hours notice before their starting time. At the end of the discussions it was put to Helen Hudson and Bill that the Company would consider putting Bill back on the roster on the following conditions: *Bill obtained a certificate from the Royal Hobart hospital covering him for the occasion he was unable to attend duty due to illness; *a medical certificate clearing Bill to return to full duties including working in the Disco area; *an assurance from Bill he would advise the Company of any inability to attend work due to illness at least two hours before a rostered shift. Mr Rudge cautioned Bill re friends and family visiting him during his working hours and distracting him from his duties. Bill undertook to provide the medical certificates as soon as he could arrange same and would attend the Human Resources Manager's Office to hand these in and sign this document as a record of interview." On the 13 September 1994 the applicant produced the two medical certificates requested at the meeting on 9 September and which were pre-conditions to reinstatement on the roster. The Court notes that paragraph 11 of the agreed statement of facts is as follows: "the applicant has not been rostered for work by the respondent since 8 September 1994." That statement may well be correct in terms of drawing up and inclusion of the applicant on a roster but I find that the applicant was offered work on 16 September. I find that the applicant was offered the evening shift in the disco on that date. The offer was as directed by the General Manager, Dennis Rudge and the applicant was advised of that fact by Carol Langridge, Human Resources Manager. The applicant declined to attend for work on that evening and has not attended to work as a security officer with the respondent from that date. I find that the applicant in fact abandoned his employment on the 8 September 1994 and has not worked since. I also find that the respondent has not terminated the employment. The respondent did not end the employment relationship, a requirement for remedy set out by the Chief Justice of this Court in Siagen v Sanel Pty Ltd [1994] 122 ALR 333 at 371. The respondent did not terminate or purport to terminate or take action intended to terminate the contract of employment, a requirement for remedy set out by Gray J in Association of Professional Engineers, Scientists and Managers Australia and Another v Skilled Engineering Pty Ltd [1994] 122 ALR 471 at 482. There was no act of the employer terminating the employment of the employee as defined even more recently by Moore J in this Court in Grout v Gunnedah Shire Council [1994] 125 ALR 355 at 372. The applicant left the employment on 8 September 1994. He discussed the requirements of the employer for return to the roster on 9 September and provided the certificates requested on 13 September. On 16 September he was offered a shift that night, albeit in the disco. He did not attend for work on that evening and has not attended since. Those circumstances do not constitute constructive dismissal. There is no evidence of an intention on the part of the respondent to terminate the contract. For this conclusion I rely in general terms on the criteria as outlined in Western Excavation (ECC) Limited v Sharp [1978] IRLR 27 and Australian Bank Employees Union v ANZ Banking Group Limited (Australian Conciliation and Arbitration Commission , 22 September 1988, unreported, Print H4736) and Marchesi v Mitsubishi Motors Australia Limited (Industrial Relations Court of Australia, Murphy JR, 14 December 1994, VI-1669/94, unreported) and Wong v Hades and Another (Industrial Relations Court of Australia, Tomlinson JR, 26 September 1994, unreported). Fundamentally, of course, I reach that conclusion on the facts as one always must in any case of alleged constructive dismissal. It is not clear to the Court whether employment is still open for the applicant at Wrest Point Casino. Time has passed. The applicant himself states that his relationship as he perceives it with Escourt, Best and indeed with the respondent's advocate and senior employee, Mr Durkin, precludes practicable, workable re-employment. He may well be right. Escourt believes re-employment is impracticable and the employer has understandable concerns given Dr Ward's medical reports (Exhibits A1 and A3) and the inevitable presence of ambient smoke in many areas of the casino and I would say high levels of ambient smoke and no doubt at times high levels in several areas and not just in the disco. The employer at one stage was prepared to consider "back of the house" employment for the applicant. This would not really be security work and the applicant's position seems to be that he was unfairly forced out of employment for reasons other than conduct and performance and now he does not want reinstatement he wants compensation. He cannot have his cake and eat it. He demonstrated no willingness to transfer to back of the house employment. He left the employment. It was his act and not an act of the employer. The application under S170EA is dismissed. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan. Associate : Date : 2 May 1995 Appearances: Counsel for the Applicant : Michael Tresize Solicitor for the Applicant : Butler McIntyre Butler Counsel for the Respondent : J S Bronstein Solicitor for the Respondent : Finlay Watchorn Date of Hearing : 12 and 13 April 1995 Judgment : 13 April 1995