CATCHWORDS INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID TERMINATION - Sexual Harassment - Workplace culture of sexual innuendo - HARSH, UNJUST or UNREASONABLE - - Long Service Leave Industrial Relations Act 1988ss 170DC, 170DE GUISEPPE ILARDO AND MEDIA ENTERTAINMENT AND ARTS ALLIANCE -v- VILLAGE ROADSHOW CORPORATION LIMITED ACN 004 318610 No. NI 2032 of 1995 COURT: MCILWAINE JR PLACE: SYDNEY DATE: 16 AUGUST 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. 2032 of 1995 BETWEEN: Guiseppe ILARDO, MEDIA ENTERTAINMENT AND ARTS ALLIANCE Applicant AND: VILLAGE ROADSHOW CORPORATION LIMITED ACN 004 318610 Respondent REASONS FOR JUDGMENT (Delivered ex tempore - revised from transcript) This is an application by Guiseppe Ilardo who was formerly an employee of the Village Roadshow theatre complex in George Street. He was employed, according to his application, on 4 April 1986 and has remained in employment until 27 April 1995. His application calls for his reinstatement to his position. I have also a certificate from Vice President McIntrye of the Australian Industrial Relations Commission to the effect that the matter has been to the Commission by way of conciliation and it has been unable to be settled. I am therefore satisfied that the matter is properly before me. The hearing has proceeded over two days in which I have heard evidence from Mr Ilardo and two witnesses who were mostly character witnesses in support of his case and a series of witnesses on behalf of the respondent. Mr Ilardo gave evidence that he commenced to work in the cinema industry in the front of the house area with the Greater Union organisation in 1974. He was promoted there to head usher in 1977. In early 1986 he was offered a position as head usher at Village Cinema City by Mr Donald Smith who was then the manager and he commenced in this position on 3 April 1986 which varies from the date shown, on his application although nothing turns on this date. He started in that position immediately after leaving his former job with Greater Union. On 29 September 1994 he was promoted on a probationary basis to the position of Customer Relations Officer Level 2 (CRO2), which involved substantially more supervisory duties. There is no question in this case that he was still under any period of supervision or probation in his appointment as a supervisor. He gave evidence that he completed the probationary period and on 18 December 1994 was confirmed in that position by a memo from Mr Christopher English, the then, complex manager. Although he originally gave evidence that at no time in his career prior to the events of 24 April 1995 had he been approached, counselled or disciplined by management on any issue concerning his work performance or his personal behaviour, I accept this evidence with some reservation because it subsequently appeared that there was an incident some five years ago in which he was remonstrated with in relation to "RS". That person also gave evidence about this particular event. (Note: It is not my intention to publish the names of the witnesses but simply to refer to them by identifying letters.) There was a subsequent incident in relation to the use of inappropriate of language which was used to "LR", a former employee. It is quite clear that his claims that the management never spoke to him in a disciplinary way other than for these two instances is quite accurate. A former manger, Mr Taylor, confirmed this view of Mr Ilardo in his supporting evidence. Mr Ilardo received additional character evidence from a female employee of a nearby cafe. Moreover Mrs Shearer, Recruitment and Development Manager of the respondent, testified that her knowledge of him was limited to her involvement in the current matters. Under cross-examination, Mrs Shearer agreed that he had a good record with the company and that there were no disciplinary notations on his file as one would expect there to be in an organisation of this size. Both the applicant and the respondent's witnesses gave similar evidence in relation to the way in which this matter came to a head following an incident on Monday 24 April 1995. There is no dispute between the parties on this date. In his evidence before me, Mr Ilardo says that he walked into the staff room of the candy bar area, he saw Ms "MS" crouched down tying her shoelaces, "I went over and touched her on the shoulder, saying words to the following effect: "Hello, how are you?", Ms "MS" looked up at me from her crouched position and I continued on my business." Ms "MS" gives an entirely different version of that incident. In her version, Ms "MS" denied that there was any tying of shoelaces. Her explanation was that she was on her knees on the floor getting her shoes out of a storage area and at that time Mr Ilardo came up behind her and pushed her face into his groin area as she turned around. There is a discrepancy between her evidence and that of Mr Raj in which he says that he was told by Ms "MS" that she had been tying her shoelace and whilst not a lot turns on it, I am prepared in this case to accept the evidence of Ms "MS" that there was an incident of the nature described by her. Just how serious it was, I am not sure. If I accept her version, then it was a serious sexual assault or indecent assault to say the very least. My assessment of the description of the incident given by Ms "MS" was that it was vague. Although Ms "MS" was clearly embarrassed in giving her evidence. I will accept her version on the basis that there has been given to me today a litany of events where Mr Ilardo has allegedly grabbed the hands of persons, usually women, and sought to draw them near his groin area. To some extent I am not completely sure about accepting that additional evidence because it is quite clear to me that this conduct took place over a number of months and maybe even years and none of the witnesses at any stage complained until the most recent incident was taken up with the Management by the Union. Contrary to the view of the respondent, I am not convinced that any of the supervisors or persons at management level were not aware that this behaviour was occurring. In my view, they did, and should have intervened and stopped it much earlier. Had that been the case Mr Ilardo may well have continued to have his employment. I make no adverse comment about Mr Raj, the manager who was responsible for the initial report. I do not think I need to mention the individual witnesses as it is fairly late in the day, to assess or to individually indicate my view about their evidence, some of which I did not accept because I thought it was exaggerated and some of which was not quite truthful. I do not need to specify which witness or witnesses I do not completely accept, given the decision that I am going to make in this matter. However, I do accept the evidence of Ms "SC" who indicated that there was a sexual climate in the workplace at the time of her arrival. This witness was a relatively new employee having previously worked for the company in another state. Her length of employment in this complex was very short compared to many of the other witnesses. I just do not believe that some of the incidents that have been described to me to have taken place in the cinema, that is, particularly the many references to the applicant with a torch between his legs, making thrusting movements back and forth and his suggestive stance and actions at the top of the stairs, would not have been seen or noticed by a supervisor, manager or indeed a customer. In my view it probably may well have been part of, as I describe it, a workplace culture of sexual innuendo in the cinema complex. In their evidence given to me by all witnesses there were many further allusions to other improper remarks and incidents, for example, references to: boyfriends of female staff being nicknamed "The Greek Stallion", or "Cathay Pacific"; torches being used as vibrators; "my Pussies"; lurid discussion of male genital size; a suggestion that a male member of staff had masturbated in front of a customer; the showing of pornographic photographs in the toilets; pinching of male members of the staff on the buttocks; displaying of bananas in the staff room in a sexually explicit way; an allegation that a male member of staff was in the habit of picking up guys who were customers at the complex and the suggestion that a female member of staff had the "USS Missouri parked out side her flat overnight." All of these alleged instances are totally unacceptable in the workplace. I accept the submission by Mr Gunn of the Media Arts Alliance, who represented Mr Ilardo, that there was a workplace culture of sexual innuendo and other improper remarks were freely exchanged between employee in that theatre complex. I an satisfied Mr Ilardo was probably a willing participant and more than likely he, to use the words of Ms "SC", was "slightly more personal and more coarse" than some of the other persons, male or female, who participated in that course of conduct in the complex. I therefore find that Mr Ilardo went further and behaved more personally and more coarsely then other employees in the way in which he conducted himself in the cinema complex. I turn now to the interview process at which Mr Ilardo was terminated. Because I am of the view that management had been inactive in policing this improper behaviour and that Mr Ilardo appeared, on the evidence given to me, to be the first person dealt with under a recently published disciplinary policy I have some reservations about the interview that Mrs Shearer conducted in the sense that there were two things that perhaps could have been done better. One was to ensure that a representative of the union was involved at the interview. Although I understand the difficulties in this matter, as really the whole issue came to a head, not as a result of management taking any action but by intervention of the union and a formal complaint from that organisation. So in that respect the union would have been in some difficulties in that it had union members complaining to it about Mr Ilardo's conduct and Mr Ilardo seeking its support. Nevertheless, it would seem to me that it probably would have been preferable if a member or official of the union could have been present and may well then have been at that time prepared to put certain issues forward in defence of Mr Ilardo such as his previous good conduct. If this had been done, Mr Ilardo may well have been given an opportunity to resign rather than be dismissed. The other issue being the fact that this behaviour was general in the complex and nobody had ever apparently, on the evidence, previously complained about it. Most of the respondent's witnesses saying that they had always ignored it. This issue should have been investigated so the complete picture was available. I might say that I also do not necessarily accept some of the evidence in relation to the alleged touching in the box office area because I accept Mr Ilardo's evidence that he was instructed to oversight the collection of the money and treatment of patrons by selling staff. I am satisfied that the company did allow the applicant the opportunity to defend himself and that he did so. In the light of the finding that I have made in relation to the seriousness of the touching incidents there is no alternative to me accepting that there was a valid reason for the termination. I am however, concerned that he is a person who has spent a considerable period of time in the one job, that he will have difficulties about gaining some other employment and that for those reasons alone, that it might well be that I could make a finding that even though the company had a valid reason for his termination in all circumstances that it may be harsh, unjust or unreasonable. I have given a lot of thought to that particular situation. I am also conscious of something which has arisen late in the day. Because of the way in which the company terminated his services, it has meant a loss of money to Mr Ilardo, I think on my calculation, of over $5000 in long service leave. I have given careful consideration to that consequence. Nevertheless, I have made a finding that there was a serous infringement of the personal integrity of Ms "MS" by Mr Ilardo. In all the circumstances, I am not prepared to make a decision that the termination is harsh, unjust or unreasonable and therefore the application is dismissed. There will be no order for costs. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment of Judicial Registrar McIlwaine. Associate: Caroline Sternberg Date: 22 September 1995 APPEARANCES: Advocate for applicant: Mr D Gunn Counsel for respondent: Mr JE Murdoch INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. 2032 of 1995 BETWEEN: Guiseppe ILARDO, MEDIA ENTERTAINMENT AND ARTS ALLIANCE Applicant AND: VILLAGE ROADSHOW Respondent BEFORE: MCILWAINE JR PLACE: SYDNEY DATE: 16 AUGUST 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed.