Coulson v Austereo Pty Ltd [2003] QIRC 127 (2003) 173 QGIG 1034

25 July, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1034 ########################################################################################################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 – s.74 – application for reinstatement Justin Christopher Coulson AND Austereo Pty Ltd (No. B182 of 2003) COMMISSIONER BECHLY 15 July 2003 DECISION Mr Justin Christopher Coulson seeks reinstatement to the position of Radio Announcer/Assistant Music Director with Austereo Pty Ltd (B105). Mr Coulson was first employed in this position from 21 March 2002. He tendered a letter of resignation from that position on 24 January 2003, effective from that date. Prior to his employment in Brisbane Mr Coulson was employed for a period of six months by the respondent at a radio station in Newcastle in a similar position. Prior to that he had relatively short term employment with two other employers in the industry in various country areas in both Queensland and other parts of Australia. The terms of employment at B105 are contained in a letter of appointment dated 14 march 2002, effective from 25 March 2002. The letter is endorsed by Mr Coulson confirming his agreement to the terms and conditions stated therein. Item 3 (b) of that letter detailing the responsibilities of the position is in the following terms: “3(b) make yourself available for station promotional activities (including those on weekends), air checks and planning sessions reasonably required by the General Manager (“GM”) or Program Director of the station;”. An issue between the parties is the belief expressed by Mr Coulson that he was not required to work on Sundays, except in emergencies. Mr Coulson gives examples of such emergencies as being absolute emergencies or natural disasters i.e. earthquakes, cyclones, death of Princess Diana, staff shortages that could not be overcome etc. He says that such an arrangement existed at his Newcastle employment and was entered into with the General Manager of the respondent, Mr Richard Barker, during discussions prior to acceptance by him of the position at B105. Mr Coulson states that it is contrary to his religious beliefs to work on Sundays, other than in the above circumstances. The issue of Sunday work was discussed between Mr Coulson and Mr Barker but Mr Barker’s recollections of the discussion are different from Mr Coulson’s. Mr Barker cannot recollect Mr Coulson stipulating that he would only work on Sundays in the above described circumstances. He can recollect an indication from Mr Coulson that he was prepared to work on Sundays as long as it was not every week of every month. He understood that Mr Coulson had worked on some Sundays in Newcastle. An arrangement in those terms did not trouble him because the staffing arrangements in Brisbane were such that staff were not regularly rostered to work on Sundays and efforts were made to minimize the occasions where staff were rostered on Sundays It is more likely that this is the arrangement entered into. This is the type of arrangement that was proposed by Mr Coulson to his Newcastle employer after having signed a letter of employment which granted no specific rights not to work on Sundays. Mr Coulson proposes that this arrangement was entered into prior to his Newcastle employment commencing but evidence tendered by him indicates that it was raised subsequent to his employment commencing. Evidence as to this was presented in a document from his Newcastle employer in the following terms “On commencing employment at NXFM, Justin Coulson requested that where possible he not be rostered on Sundays to allow him to tend to his faith…. It was verbally agreed that this request would be accommodated only if and when possible. Justin was grateful for the consideration and confirmed he would willingly work on any Sunday that we required him to. As a result of fortuitous circumstances and the roster preferences of his fellow announcers, it was never necessary to roster Justin on a Sunday. I never doubted that he would have kept his word and worked such a shift had the need arisen. The verbal agreement not to be rostered on Sundays was viewed as an additional benefit…the benefit of ample resources.”. It is Mr Barker’s evidence that had Mr Coulson placed such stringent terms on his acceptance of the position then he would not have offered him the position in Brisbane. Mr Coulson was the more junior of several applicants being considered for the position. No exemption from working on Sundays was included in the contract. There was a requirement included that promotional work on weekends be performed. Special conditions were included to meet Mr Coulson’s transfer costs but no inclusions were contained in the contract exempting Mr Coulson from work on Sundays. Had discussions of the nature proposed by Mr Coulson taken place one would have thought that the arrangement would have been included in the contract rather than which required work to be performed on weekends. I accept the evidence of Mr Barker as that being more likely to reflect the actual circumstances entered into between the parties. Mr Coulson was eager to accept the role. It was where he and his wife always wanted to be. It was the achievement of his goal. His eagerness to accept the offer can be gauged from the fact that he had just purchased but not moved into a house in Newcastle and was prepared to leave the house, described in glowing terms by him, and move to Brisbane after signing a contract requiring work to be performed on weekends. -- 1 of 4 -- 25 July, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1035 Mr Coulson commenced employment in March 2002 after an induction program and performed allocated duties which were reviewed largely on a weekly basis. The standard of his performance varied from week to week. He achieved well in technical results but had a lack of knowledge about popular culture which was integral in understanding the target audience and therefore what songs should be played and what matters should be discussed on air. The target audience was mainly females in the 18-40 age bracket. His performance was reviewed on 27 June through a formal assessment with his supervisor, Mr Rex Morris, the Program Director. On a scale of A to D, where A is exceptional and D is inadequate he scored a B and several C’s. He was counseled as to his propensity to inject himself into conversations of others and counseled to listen more and talk less in the workplace. His B score was related to his degree of drive initiation, cooperation, job interest and determination and the C score related to planning and keeping up to date; communication and working relationship. In early September 2002 Mr Coulson raised personal concerns about a proposed on-air activity to promote the television program “Sex in the City” which was to take place on a future Saturday when he was rostered to work. The promotion involved the on-air announcer asking listeners to ring in and identify where Penny Cooper, an on-air breakfast announcer, was having sex in the city after being given a clue by the announcer. This promotion is said to be typical of those engaged in to maintain and improve ratings within the target audience. Mr Coulson considered the promotion to be disgusting. During the hearing it was referred to as crass. Without doubt there are those who would consider it to be crude, offensive, vulgar, smutty, coarse or improper. Mr Coulson’s concerns about being identified within the promotion are quite understandable. There are those who, reasonably would consider the promotion quite demeaning to womanhood or particularly to Ms Penny Cooper. However, those who profess the knowledge that such a promotion was attractive to females in the 18-40 age bracket decided that it should go to air. The promotion did not offend any legislation or the commercial radio code of practice. It was a promotion which the respondent was entitled to run in the belief that it made the station more attractive to its listening audience. Mr Coulson also had some difficulty being associated with the playing of some songs programmed for air. The content was offensive to him. These songs apparently fell within the limits of acceptability under the appropriate code of practice. In early September, prior to the Saturday shift where he was to do the “Sex in the City” promotion Mr Coulson raised his concerns with his supervisor and indicated a desire not to participate in the promotion. Several meetings were held and eventually arrangements were made for Mr Coulson to swap shifts with another announcer so that he would not be required to work on the Saturday concerned. During the above meetings discussions took place on the broader conflict between Mr Coulson’s personal values and the types of activities undertaken by the respondent. At about this time a review of the working environment was undertaken and Mr Coulson’s desk was moved into the announcer’s area away from where it had been situated next to the Program Director. The reasons for the move were discussed with Mr Coulson at the time and included his propensity to interrupt others, provision of unsolicited comments and involving himself in professional conversations of others that did not concern him. Mr Coulson acknowledges that he was told the move had been on the cards for some time and that he had no reason to doubt that fact. However, he the felt that he was no longer part of the team, having been moved a little way from the Music Director and Program Director but into the area occupied by other announcers. Mr Coulson continued with his duties until January when one of the regular air checks was held to assess his performance. In the interim, during air checks or at other discussions, the Program Director and Mr Coulson had dealt with Mr Coulson’s progress, his career aspirations and prospects of achieving those aspirations. At the air check on Wednesday, 8 January 2003, Mr Coulson was counselled about only “hitting the mark” about 50% of the time. This meant that he was only discussing things of relevance to the designated audience about 50% of the time. There were also discussions about the need to embrace popular culture, making himself aware of, for example, TV shows that rated well with the audience aimed at and acceptance of promotions aimed at the target audience. The respondent stated that it believed Mr Coulson’s knowledge of popular culture was minimal. Discussions were also held about Mr Coulson’s career aspirations and leadership role associated therewith and difficulties that might be experienced in achieving those aspirations in the work environment associated with the audience targeted. These discussions appear to have been in quite some depth and included consideration of two costly errors, on one day, when Mr Coulson failed to present on-air promotions in premium time. These were basic errors, regarded as gross misconduct and unacceptable at Mr Coulson’s level of employment and experience. Mr Coulson refers to the counselling as “belittling and manipulation”. The Program Manager denies this approach. On the next day 9 January Mr Coulson states that he attended work with a migraine and uncontrollable shakes but performed his three-hour on air-shift. He sought a meeting with the Program Manager and told him that he felt pressured to leave work and that he felt that he was squeezing him. He states that the Program Manager responded by saying “I’d be surprised if you weren’t”. The Program Manager acknowledges the generality of the conversation but relates the circumstances to his belief that he was not surprised that Mr Coulson felt squeezed between his moral beliefs and the need to fully embrace popular culture. During these relatively brief discussions the issue of conflict between Mr Coulson’s beliefs and the “moral” standards adopted at the radio station was again raised and belief was expressed by the Program Manager that the conflict was not resolvable by him. On a consideration of the evidence of both, it is clear that during counselling sessions there was discussion about possible future promotion and limitations that might be placed on that by, in the Program Director’s words, Mr Coulson’s refusal “to take responsibility for his career path by accepting the need for him to embrace popular culture and culture of B105. It was clear that Mr Coulson felt a conflict between the culture of B105 and certain moral concerns he felt.” To assist in an understanding of Mr Coulson’s work capabilities the Program Manager contacted the Newcastle radio station operated by the respondent. These contacts were made known to Mr Coulson during the discussions. The Program Director states that he believed Mr Coulson was struggling in Brisbane and he thought it fair to him to ascertain whether there was an opportunity for him to grow in an environment in which he had previously worked and he assumed, felt comfortable. He was aware that there was a position of Program Director becoming available in Newcastle. The Program Director states that he was advised by Mr Mike Bryce from Newcastle that he would not rehire Mr Coulson. The Program Director’s evidence is that at no time did he state or imply that Mr Coulson did not have a position at B105. Mr Coulson states that his response to the counseling was that he felt betrayed by friends, that he did not belong at work and that his employer did not want him there. He was mentally and emotionally beaten by the comments. He sates that under duress, he did acknowledge that he had a moral struggle between his beliefs and the work environment, which he had been living with for five years but during which time he had been promoted super fast and proved to be a positive contributor time and time again. -- 2 of 4 -- 25 July, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1036 It seems clear from the evidence of both that it was stated that Mr Coulson would be expected at some time in the future to work on some Sundays, whether it be in his present role or in a management role at the station. It is agreed that during this discussion the Program Director stated to Mr Coulson that he could remain working at the radio station for as long as he liked but that the working environment would continue to get more difficult. An approach by Mr Coulson to secure a concessionary benefit if he resigned was rejected. That evening Mr Coulson sought medical advice and was provided with a certificate for two weeks’ absence as stress leave. This information was conveyed to the Program Manager the same evening and the next day Mr Coulson initiated a Workers Compensation claim through the respondent. On 16 January, prior to his return to work, the respondent received a letter from Mr Coulson’s solicitors which related Mr Coulson’s perception of his employment experience with the respondent; states that Mr Coulson does not wish to work on Sundays because of his religious beliefs; that the action of the respondent pays no regard to this belief; alleges a systemic course of conduct aimed at “Squeezing Mr Coulson out of the station”; alleges victimization bullying and discrimination; states that Mr Coulson is of the view that he is no longer welcome as an employee; will be required to compromise his moral convictions if he is to continue his employment and will no longer be considered for promotion or advancement. The letter alleges unlawful victimization for the purposes of the Anti-Discrimination Act 1991(QLD); unlawful discrimination on the basis of religion; a breach of the express contract of employment and proposes a resolution by the payment of 12 months’ salary in exchange for Mr Coulson’s consent to the termination of his employment. On 21 January the respondent replied rejecting the allegations and on 24 January Mr Coulson attended work and gave the General Manager a letter of resignation effective immediately in the following terms: “I refer to the various conversations between us, the letter from Rostron Carlyle Solicitors dated 16 January 2003 and the response from Austereo dated 21 January 2003. It is clear that the station is not prepared to address, in any reasonable manor, the matters I have raised. In the circumstances, I have no choice but to tender my resignation effective immediately. Please ensure that all of my entitlements, including outstanding wages and annual leave are paid to my account as soon as possible.”. All such payments were made by the respondent. No deductions were made as provided in clause 17 – termination and clause 18 – relocation expenses of the contact of employment. Conclusion The first question to be decided is whether there was a dismissal. It is claimed that Mr Coulson’s resignation was without choice for the following reasons: (a) he was subject to discrimination. (b) the respondent attempted to unilaterally alter the terms of the employment contract. (c) the respondent embarked on a course of conduct designed to force the resignation. The alleged discrimination related to work on Sundays. The relationship between the parties as to this issue has been earlier dealt with. There was some discussion about limited work on Sundays. I conclude that Mr Coulson did not express his limits, at that time, as being those he expressed during the hearing. If he had expressed those terms he would not, on the evidence of the General Manager, been employed. The General Manager believed that the limited Sunday work proposal by Mr Coulson could be accommodated in the roster, which minimised Sunday work. Mr Coulson signed a contract and accepted the requirement to perform promotional work on weekends. Mr Coulson had never been rostered to work on a Sunday nor was there a specific instruction for him to do so. The requirement to work on a Sunday which Mr Coulson complained of was a projected one and had to do with his career aspirations to move up the ladder to become a Music Director and later Program Director although reference has been made to his existing role also. It was expressed to him that he would need to work on some Sundays at B105 if he wished to achieve his career goals because of the nature of the seven day operation of the station and the culture within which the station operated as a necessary ingredient to its success. Associated with these discussions which he had with the Program Director on 8 and 9 January was a critique of his performance and his understanding of the culture within which the station needed to operate to maintain its ratings and thus maintain its level of success. He was told that his level of cultural understanding was minimal. This theme appears throughout the various counselling activities. Mr Coulson believes that the Managing Director and Program Manager harshly judged him at his first counseling in August 2002. This was prior to the “Sex in the City” promotion. The concerns about his infusion into the target culture was a significant focus in the performance management through his employment. This cultural knowledge was an essential ingredient both as to his success as an announcer/assistant musical director and the success of the station. The success of the station is measured by the ratings assessing the level of listening audience. Achieving top rating is a highly competitive process and is the major determinant of the financial success of the station. Mr Coulson was aware of this. His evidence is that he acknowledged that his “pop culture knowledge wasn’t 10 out of 10 but that I choose to be a good father and husband and to improve myself as a person rather that watch every episode of Friends or The Secret Life of Us.”. There was discussion about Mr Coulson’s moral standards and the conflict with the culture standards lawfully utilized in the conduct of the respondent’s business. On the evidence I take the view that the counselling was a proper response to the respondent’s concerns about Mr Coulson’s capacity to perform the role he occupied in a way which did not damage the viability of its legitimate business. Mr Coulson’s evidence is that he eventually acknowledged that he did have a moral struggle between his beliefs and the work environment, had been living with that conflict for five years but had been promoted super fast and been a positive contributor time and time again. His evidence also is that he knew that he did not have to leave unless he was sacked and that he knew that there were no grounds for dismissal and on 9 January, stated that he was not leaving. However, at the end of the shift on that day he removed all of his personal possessions and returned confidential music testing material. -- 3 of 4 -- 25 July, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1037 Mr Coulson tendered a letter of resignation on 24 January. Mr Coulson was not forced or instructed to resign, nor was he forced to leave in response to conduct of the respondent. Mr Coulson’s resignation was voluntary. He was aware that he did not have to leave, that there were no grounds for dismissal and that his employer adopted the position that he could stay as long as he wished. He resigned after a two-week absence and after seeking legal advice. It is contended on his behalf that the respondent embarked on a course of conduct consistent with a design to force the resignation. Included in the course of conduct was said to be the following features: (a) Removal of his desk to another area. Mr Coulson agrees this was on the cards prior to the “Sex in the City” matter and that he had been counselled about his habit of interrupting others unnecessarily in their conversions. (b) Exclusion from Music Director’s meetings. These were held depending on the availability of the Music Director. Mr Coulson attended some, not others. Mr Coulson attended those which were held when his on-air schedule made him available. Mr Coulson’s replacement attends meetings on the same basis. (c) Comments that Mr Coulson was at a crossroad. This was a factual comment arising from appropriate and lawful counselling. (d) Insinuation that Mr Coulson would not be promoted. On the evidence there was nothing sinister in the counselling which pointed out the difficulties Mr Coulson would encounter in achieving his goals if he was unable to immerse himself in the culture to which the station endeavored to attract its audience from. (e) The work environment would get tougher and tougher. See (d) above. (f) The requirement to work on Sundays. There was a projection that at some time in the future occasional work would be required on Sundays either at the level of Music/Program Director or in his present role. Mr Coulson had, on one occasion only, been rostered to work on Sunday, early in his employment. He himself organised a swap with another employee because of a family activity. There was no direction, in January, to work on any Sunday. There was a clear indication only that at some stage some Sunday work would arise. This appears to be within the contract arrangements between the parties, both verbal and written. The respondent was not in breach of the contract when it counselled Mr Coulson on its concerns about his ability to meet the essential needs of the job. It is quite apparent that in the end the counselling caused Mr Coulson to consider whether his moral convictions and the moral standards or culture of the section of the radio industry in Brisbane within which he was attempting to establish a career were compatible. It was a matter of considerable anguish to him. Finally, he decided that the two were not compatible and he decided to pursue another career in sports management. On a consideration of the evidence I have come to the conclusion that the requirement for an announcer to become immersed in pop culture attributed to the audience which the respondent seeks to engage is an inherent requirement of the position. There is ample material to support this. The announcer is, obviously, the “face” of the station. If the announcer is not aware of what is attractive to the designated audience then the requirement of the role to attract the audience cannot be carried out successfully. It is the level of audience attracted which determines the rating level. The rating level determines the standing of the station in the advertising community. The requirement that Mr Coulson become more knowledgeable of or more immersed in the pop culture within which the respondent operated was not unreasonable. The requirement to occasionally work on a Sunday was also not unreasonable, considering that the respondent operated in a seven day, twenty-four hour industry. I find that there was no invalid reason involved in this matter nor was Mr Coulson’s resignation a matter constructed at the initiative of the respondent. The application is dismissed. R.E. BECHLY, Commissioner. Hearing Details: 2003 2 June Appearances: Mr G. Rostron of Rostron Carlyle Solicitors on behalf of the applicant. Mr C. Murdoch instructed by Minter Ellison on behalf of Austereo Pty Ltd. Released: 15 July 2003 -- 4 of 4 --