William James Whitaker v Australia Post [1995] IRCA 612

C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim for UNLAWFUL TERMINATION - whether PROCEDURAL FAIRNESS - code of conduct inquiry and APPEAL procedure - whether there was a VALID REASON for the termination INDUSTRIAL RELATIONS ACT 1988 Ss 170DC, 170DE, 170EA WILLIAM JAMES WHITAKER - v - AUSTRALIA POST - WI 95/1357 BEFORE: BOON J PLACE: PERTH DATE: 17 NOVEMBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1357 BETWEEN: WILLIAM JAMES WHITAKER - Applicant AND: AUSTRALIA POST - Respondent MINUTE OF ORDERS BEFORE: BOON JR PLACE: PERTH DATE: 17 NOVEMBER 1995 THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1357 BETWEEN: WILLIAM JAMES WHITAKER - Applicant AND: AUSTRALIA POST - Respondent BEFORE: BOON JR PLACE: PERTH DATE: 17 NOVEMBER 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act for an order for reinstatement and compensation arising out of the alleged unlawful termination of the applicant's employment by the respondent. The applicant, Mr Whitaker, alleges that the termination of his employment contravened the provisions of the Industrial Relations Act in a number of ways. In the first place, it is alleged that he was not given an opportunity to respond to allegations made against him within the meaning of Section 170DC of the Act. The respondent, Australia Post, denies that it breached the provisions of Section 170DC and says that Mr Whitaker was counselled verbally on several occasions about his conduct and further was given an opportunity at two separate inquiries plus an appeal to respond to allegations made against him. Secondly, Mr Whitaker says that the termination of his employment occurred without a valid reason or was in any event harsh, unjust or unreasonable within the meaning of Section 170DE of the Act. Australia Post denies that it breached the provisions of Section 170DE and states that the termination of Mr Whitaker's employment occurred for valid reasons, namely that he failed to behave in an acceptable manner to fellow employees within the Post Office. BACKGROUND Mr Whitaker is 48 years of age, is a married man and has five children. He has been employed by Australia Post since 18 June 1985. At the time of his termination, he was a Postal Service Officer Grade 2 earning an annual salary of $26,468. Until August of 1994, Mr Whitaker was employed at the Claremont Post Office. Following complaints by a customer and by his fellow staff members at the Post Office, Mr Whitaker's conduct became the subject of an inquiry. As a result of the inquiry and its outcome, Mr Whitaker was transferred to the Maddington Post Office. After he had been working there for several months, his conduct was once again the subject of complaints by fellow staff members. A second inquiry was held after which Mr Whitaker's employment was terminated. The nature of the allegations made against Mr Whitaker and the inquiry process will be dealt with in greater detail below. Craig Palmer, an Australia Post employee at Claremont for eight years, was called by Mr Whitaker to give evidence. Mr Palmer is the Acting Assistant Postal Manager at Claremont. He agreed with Mr Whitaker that a Mr Rick Cornis, a fellow employee, had kept a folder of pornographic literature in a locker at the Claremont Post Office. Mr Cornis has since retired from Australia Post. Mr Palmer was not aware of any complaints made about Mr Cornis. In his evidence-in-chief, Mr Palmer said that he had occasionally overheard Mr Whitaker making inappropriate personal remarks to customers. Mr Palmer's evidence was that there was nothing inappropriate in Mr Whitaker's dealings with male customers or the elderly, but that he did make inappropriate remarks to female customers. Mr Palmer also heard Mr Whitaker occasionally make inappropriate remarks to female members of staff. Mr Palmer's evidence was that Mr Whitaker's inappropriate remarks usually contained a double meaning or sexual innuendo. He said that he remembered on one occasion a regular customer who was pregnant was asked by Mr Whitaker for a ringside seat at the birth. Mr Palmer said that everybody in the Claremont Post Office could hear these remarks but the customer didn't seem to mind. He said, however, that other customers who overheard were embarrassed by these remarks. Mr Palmer said that Mr Whitaker made these inappropriate remarks quite often, at least once a day. Mr Palmer remembered another occasion on which Marie Munt, a former Australia Post employee aged around 50, was serving a male customer. Mr Whitaker joined in the conversation and Mr Palmer heard Mr Whitaker suggest that Ms Munt go out with the customer. That didn't seem to matter because they were already having a joke. However, Mr Whitaker then said that "Marie probably had cobwebs". Ms Munt became upset and ran out the back. Mr Palmer himself was embarrassed by the remark. Mr Palmer said that later on he became a supervisor at the Claremont Post Office. He didn't receive complaints from people about Mr Whitaker's behaviour but in retrospect he felt he should have done something about it. Mr Whitaker then called Carol Bootherstone to give evidence. Ms Bootherstone has been an Australia Post employee since 1990. She worked with Mr Whitaker in the Claremont branch but is now Postal Manager at Fremantle. She gave evidence that when she first started at Claremont during her training she was talking to someone at the counter and Mr Whitaker came past and patted her on the bottom. She told him off soundly for it and Mr Whitaker didn't speak to her for a long time afterwards. Ms Bootherstone said that if the weather was cold Mr Whitaker would often say to female staff and to customers "Is it cold in here or are you just pleased to see me?". Ms Bootherstone's evidence was that Mr Whitaker would make this remark if a customer came in with casual clothes on which were perhaps a bit transparent. Some of the customers were obviously embarrassed by it. Some customers, however, seemed to enjoy such remarks. Ms Bootherstone also said that if a staff member was in a bad mood Mr Whitaker would say "Didn't you get any last night?". Her evidence was that on some occasions Mr Whitaker would say things that were really disgusting. On one occasion, Mr Whitaker said to Ms Bootherstone that even though she was married she was still a virgin as she'd never "had a man with a big enough penis to give her a proper fuck". Ms Bootherstone was upset by this. She said that she made it clear at the beginning what she felt about his remarks. Sometimes she would ignore it and sometimes she told him not to be stupid. She said that the female staff didn't give him the impression that they were encouraging him. Sometimes, however, they would laugh at a joke he would make. Ms Bootherstone said that sometimes Mr Whitaker would admire a brooch or a necklace on a female customer. He'd ask the customer to lean forward so that he could admire it. This was generally done with young women or those with a low cut top on. Ms Bootherstone's evidence was that virtually every day he made inappropriate comments to customers and staff. She said that she also saw Mr Whitaker stack the queue in that he would manipulate the queue so that he would be serving young attractive women or his army friends. Ms Bootherstone was also involved in an alleged incident just before Mr Whitaker was transferred from Claremont. A regular customer, Michelle Noonan, had handed Mr Whitaker a hockey stick for posting. Ms Bootherstone was busy with her back to Mr Whitaker. She looked up and saw Willa Currie's face, and this made her turn around. She faced Mr Whitaker who was standing with his arms outstretched holding the hockey stick near the bottom of her skirt. She asked Mr Whitaker what he was doing and he jiggled the stick around and then posted it. Ms Currie's evidence was that Mr Whitaker had been jiggling the hockey stick under Ms Bootherstone's dress, making as if to lift up the dress. The next person to give evidence was a customer, Michele Noonan. Ms Noonan is a young, attractive woman aged about 30. She is an employee of Gryphon Traders and attends the Claremont Post Office on a daily basis, sometimes up to three times per day. Ms Noonan said that she had noticed that Mr Whitaker served mostly female customers if he could. He avoided serving male customers by ducking behind the counter and keeping busy until it was time to serve a female customer. Initially, Ms Noonan didn't have a problem with him. She thought Mr Whitaker was just friendly. As time went on, however, the remarks he made to her became more and more personal. It made her uncomfortable. On one occasion, he grabbed hold of her hand and asked why she didn't have any rings. He said "What's the matter, wouldn't anyone have you?". This upset Ms Noonan as she felt that he was putting her down. Mr Whitaker also told Ms Noonan that he had lots of rings at home and if she'd like to she could come home with him and he'd give her one. Ms Noonan also complained that Mr Whitaker consistently maintained eye to chest contact with her. This made her feel uncomfortable. Ms Noonan's evidence was that she heard Mr Whitaker regularly make sexual remarks to staff and customers. These remarks were not at all appropriate. Ms Noonan gave evidence that on 17 August 1994 she was wearing an extra large T‑shirt with a Gryphon logo on it. Mr Whitaker served her and told her that she only wore those T-shirts so that he could look at her "titties". Ms Noonan was disgusted, went back to work and rang Australia Post. She recited the incident and made a formal complaint about the matter. A few weeks after Ms Noonan made the complaint, she received a phone call from a female whom she judged to be in her thirties. This woman said that she was acting on behalf of Bill Whitaker and said that she'd drag Ms Noonan through every court in the country as Ms Noonan had been telling stories about Mr Whitaker. This was understandably distressing to Ms Noonan. Although there was some suggestion made on behalf of Australia Post that Mr Whitaker's wife was the person who made the call, there was simply no evidence before this Court on which such a finding could be made. That kind of behaviour, however, is a cause for great concern and is totally unacceptable. Kylie King, another employee at the Claremont Post Office, also gave evidence. She said that she worked on the counter at the Claremont Post Office next to Mr Whitaker. This enabled her to hear a great deal of what he said. Her evidence was that Mr Whitaker sometimes spoke suggestively to female customers. Mr Whitaker said things which could be taken in two ways. He would allude to meeting customers socially after work. Ms King said that some ladies seemed to take this quite well but others didn't. Some female customers said when Ms King served them that they were glad that Mr Whitaker was not serving them. Ms King said that Mr Whitaker made remarks to staff as well. She said that he made suggestive remarks virtually every day. Mr Whitaker would ask Ms King if she'd "had any last night". This made Ms King uncomfortable. Ms King said that she was new and took her lead from the others. It became known that she did not have a boyfriend at the time. Mr Whitaker would suggest that he set her up with male customers. Ms King was made to feel uncomfortable and she didn't like that. Ms King said that she remembered the incident with Michele Noonan. Mr Whitaker was serving about a metre away from her. She remembered that Ms Noonan was wearing a T-shirt with a logo. She said that this T-shirt was not tight or indecent. She couldn't remember the exact words Mr Whitaker said but he said something to Ms Noonan along the lines that her T-shirt was encouraging him to look at her chest. Ms Willa Currie gave evidence that she had been a Postal Services Officer at Claremont since October 1989. When she started, Mr Whitaker was already an established member of the staff. Her evidence was that Mr Whitaker quite often used sexual innuendos with customers and members of the staff. He would often remark on customers' brooches, necklaces and things around the chest area. She formed the conclusion from observing him that he was looking at their breasts in a leering manner. The general flavour of the remarks Mr Whitaker made were of a double meaning type. Ms Currie described Mr Whitaker as a "perve". She said he behaved like this on a daily basis. Ms Currie also remembered the Marie Munt incident. Ms Currie had become quite friendly with Ms Munt and knew that she had recently been out on a date. Ms Munt had been widowed for some time. Ms Munt remarked that her date had gone well and that she'd had a nice time. Mr Whitaker then said to Ms Munt "Good on you love, I bet that got rid of the cobwebs". According to Ms Currie, Ms Munt went bright red and her eyes filled with tears. Ms Munt had to walk away from the counter for some time. Ms Currie heard Mr Whitaker sometimes make remarks to Ms Munt about the fact that she was celibate. These remarks were obviously unwelcome to Ms Munt. Ms Currie also said that at the time her boyfriend worked in the country and came to Perth every second weekend. Whenever her boyfriend had been down for the weekend, Mr Whitaker would make embarrassing remarks on the following Monday about what Ms Currie had been up to on the weekend. This happened to the extent that Ms Currie would dread going to work on a Monday. Ms Currie remembered the incident when Michele Noonan posted a hockey stick. Mr Whitaker served her. Carol Bootherstone was standing serving in front of the trap door. Mr Whitaker held the hockey stick behind Ms Bootherstone and moved it up and down behind her dress. Ms Currie was at the counter along from Mr Whitaker and she could see all of Mr Whitaker and all of Carol Bootherstone. She said Ms Bootherstone had a long skirt on and Mr Whitaker had the hockey stick underneath her skirt and moved it up and down. He didn't actually lift up the skirt. Ms Bootherstone looked around and saw the expression on Ms Currie's face. Ms Bootherstone swung around to see what was going on. Ms Currie's evidence was that at this stage Mr Whitaker had walked up to put the stick through the chute. Ms Currie said that she didn't think to complain about Mr Whitaker's behaviour as she was aware that other complaints about his behaviour had been made earlier to Ron Clarkson and to her knowledge nothing had been done. She didn't think that anything would be done if she complained. She also didn't complain because she had to work with Mr Whitaker and she didn't want to inflame the situation. Ron Clarkson, the former Postal Manager at Claremont, gave evidence. He said that he left Claremont in mid 1994. He remembered an incident concerning a young female employee of Viva Colour. One of the managers of Viva Colour came in complaining that one of her young female staff was going to leave her employment with Viva Colour as she didn't like the continual sexual innuendo from Mr Whitaker when she visited the Post Office. Mr Clarkson suggested that the complaint be put in writing but this was declined by the complainant. Mr Clarkson called in Mr Whitaker and talked to him about the incident. Mr Whitaker denied making any sexual innuendo. Mr Clarkson said to Mr Whitaker that the lady hadn't made a complaint but that it was best not to say anything of that nature in future or "you'll get caught". Some time later Mr Clarkson had received another complaint from a customer about Mr Whitaker's behaviour. He went to the customer's house with his Area Manager. The customer was a young woman in her late teens or early twenties. The customer was visibly upset when discussing the incident. She complained that Mr Whitaker had made a comment to her comparing her breasts to car headlights. Mr Clarkson later put to Mr Whitaker what the customer had complained about and Mr Whitaker denied the incident. The customer would not make a formal complaint so Mr Clarkson formally counselled Mr Whitaker. Mr Clarkson wrote it down on a disciplinary form and also told Mr Whitaker not to do it again. As per Australia Post procedure, Mr Clarkson gave Mr Whitaker a copy of the disciplinary form and one copy was put in Mr Whitaker's file for destruction after six months. As far as Mr Clarkson was aware, the form was destroyed after six months as no further formal complaints were made against Mr Whitaker within that time. Mr Clarkson said that he remembered Mr Whitaker apologising to the manager of Viva Colour when she attended again at the Claremont Post Office. Mr Whitaker had not admitted making the remarks but had said that if he had said anything to offend the young girl then he apologised. Stuart Adair, the Postal Manager of the Claremont Post Office, also gave evidence. In July 1994, Mr Adair was Mr Whitaker's supervisor and was second in command at the Claremont Post Office. Mr Adair said that he heard Mr Whitaker often say things that had a double meaning. Mr Adair never received any customer complaints until Michele Noonan complained in August 1994. Mr Adair's evidence was that a lot of Mr Whitaker's comments seemed to have double meanings and Mr Adair did not know if it was in fun or if it was double edged. When Michele Noonan telephoned to complain about the T-shirt incident, she first spoke to Craig Palmer and sounded very distressed and was crying. Mr Adair spoke to Ms Noonan and found out the nature of the complaint. He didn't immediately take it up with Mr Whitaker because what Ms Noonan was alleging went beyond Mr Adair's jurisdiction. Mr Adair then spoke to the Area Manager in accordance with the Australia Post Code of Conduct. Mr Adair spoke to Mr Whitaker on the following Monday, as the day after the complaint Mr Whitaker was not at work. Mr Adair believed that Mr Whitaker should not be serving on the front counter until the matter was resolved. He went to Mr Whitaker's house on the Monday to inform him by letter that he had been suspended. Mr Whitaker's response was one of shock and he was in a state of disbelief. He was taken aback by the allegations and he denied them. Mr Adair said that after Mr Whitaker was suspended on one occasion he had a customer who expressed her relief that Mr Whitaker had gone and that she would not have to have him serve her again. Mr Whitaker was unrepresented at the trial. In relation to the Claremont incidents, Mr Whitaker's evidence consisted of a flat denial that the incidents complained of ever happened. As to the Michele Noonan incident, he said that he had never used the word "titties" in his life. Mr Whitaker said that when Ms Noonan first started coming into Claremont she was keen on him and she became upset that he "fobbed her off". Mr Whitaker denied rubbing Ms Noonan's hand and denied maintaining eye to chest contact with her. He also denied inviting her over to his house so that he could give her a ring. He said that the only time he might have touched her hand was inadvertently in passing over a parcel. Mr Whitaker also denied making any offensive remarks to Marie Munt. He said that she worked there so long ago that he could remember very little about her. As to the Viva Colour employee, Mr Whitaker said that she was only 14 or 15 years old and he would never make any comments of a sexual nature to a girl of that young age. Mr Whitaker did remember one incident with Kerry Taymen, the manager of Viva Colour, who came into the Post Office once when it was raining. She was wearing a white blouse which was undone. Mr Whitaker said to her "Careful, you might fall out. You'd better do it up". He said that Mrs Taymen gave him a hard time. Mr Whitaker hinted that Mrs Taymen's evidence was not to be trusted as she had been going through a bad time and was having marital problems because, as he put it, "her husband was drawn to the young female employee". He described the incident with the young Viva Colour employee as a storm in a teacup. Mr Whitaker further denied the "headlights" incident. As to the incident with the pregnant customer, he said that she was an old girlfriend of his and had said that her husband would not be attending the birth. Mr Whitaker said as a joking gesture that the whole staff would come and help. The customer was a friend of his and this was a friendly comment made in a joking manner. He said that it was not inappropriate in the way that he said it. Further, Mr Whitaker denied ever saying to Kylie King or Carol Bootherstone "Did you get any last night?". Mr Whitaker further denied manipulating the queuing system so that he could serve Michele Noonan and other female customers. As to the alleged hockey stick incident, Mr Whitaker said that the hockey stick was handed over the counter to him and he made as if to play a cricket stroke. He raised the stick behind him as a cricket bat and lowered it to just near his feet. Mr Whitaker denied putting the hockey stick anywhere near Ms Bootherstone's dress. Mr Whitaker denied ever asking Willa Currie about her sex life over the weekend. Mr Whitaker said that if he ever said anything to upset any of the staff it was done unintentionally and nobody had ever told him to stop making any comments. He denied that Ron Clarkson had every spoken to him about any alleged incidents or that he'd ever been warned, either orally or by way of a disciplinary form, by Mr Clarkson. Mr Whitaker said that the women in the office went to equal employment opportunity training and when they returned they said they "could set us up and destroy us any time they liked". As a result of this, Rick Cornis warned Mr Whitaker to be careful. Mr Whitaker said that Mr Cornis kept pornographic material in a locker at the Claremont Post Office, had a pornographic tape for the computer and sometimes showed pornographic videos in his office behind a closed door. Nobody ever complained about Mr Cornis' behaviour. Mr Whitaker alleged that all of the allegations relating to his time at the Claremont Post Office were fabricated by the staff and said that the female members of staff were engaged in a conspiracy to have him removed from his job. This was denied by each of the female staff members who gave evidence. THE FIRST CODE OF CONDUCT INQUIRY After Michele Noonan lodged a formal complaint against Mr Whitaker, he was notified by letter dated 22 August 1994 that an inquiry would be held into his conduct as an employee of Australia Post. The letter says in part: "The subject of the inquiry will be that during a period of time up to and including 18 August 1994 you (a) consistently failed to behave in a courteous manner to your fellow employees and (b) that at 3.00 pm on 17 August 1994 you behaved in a manner unbecoming of an Australia Post employee when speaking to a customer." The inquiry was conducted by Bryan Thomas, the Manager of the Personnel Services Branch at the GPO in Perth. Mr Whitaker was suspended with pay until after the inquiry. The letter clearly stated that the inquiry officer would interview Mr Whitaker during the inquiry and that he would have the opportunity to put his views. The letter concluded: "If the inquiry officer finds your misconduct proven, he may recommend the following disciplinary action: