Beard v Dunwich Buffalo Memorial Club Incorporated [1999] QIRC 187 (1991) 162 QGIG 5

4 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 September, 1999 3 September, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 #########ffl###############ffl###################################################/1######################################### QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Workpliice Relations Act 1997 - s. 21 S - applicatton for reinstat,m1ent Carolyn Eliu,beth Beard AND Dun,.ich Buffalo Memorial Club Incorporated (l\o. B415/99} COMMISSIONER SWAN 25 Augusi I 999 Reinstatement Application - Summary Di s missal - Permanent Ca sua l Employment - Allegati ons of Inappropriate B�havi our - Complaints from Clients of Cluh - Evidence from Patrons and Employees of Club - Con tradictory Evidence - Procedura l Fairnes� Lacking - No Convincrng Evidence to Support Summary Dismi ssal - Compensation Awarded DECISION Ms Carolyn Beard seeks reinstatemeni to her formerly held posi tion of Bar Attendant with the Dun wich Buffalo Memonal Club In corporated (the Club} which i s situated at Dunw,ch on North Stradbroke Islan d . M s Beard wa.� repres ented by Mr Reed from the Australian Liquor, Hospitali ty and Miscellaneous Workers' Umon Queen sl and Bran ch, Union of Employees (the Un1011) and the Club by Mr Watt s of E mployment Advocacy an d 'vfediation Services. Ms Beard was employed by the Club from 14 August )997 to 22 Mar ch 1999 as a casual employee earning an average gross wage of $400 per week. 'vis Bear d was summarily dismissed from thi� employment for m isconduct. The alleged misconduct related to inc1denL5 which had occurred a t the Club on 21 March J 999. The inc idents relate lo all eged abuse of clien ts of the Club by Ms B�ard. ::ODMA\GRPWISE\QIRC-DOM.JRO-PO l .GE:t-:ERALI :29419. I QGIG 3/9199 -- 1 of 3 -- 6 QUEENSLAND GOVERNME NT INDUSTRIAL GAZETTE 3 September, 1 999 Mr Fraser, the Manager of the Club, details the followi ng i ncidents as representing the h asis upon which the summary dismissal of Ms B ea1 J occurrt:d:- That he had received a telephone call from a patron of the C lub claiming that on the evening of 2 1 March 1 999, Ms B e,1rd had been rude to he and hi.s party "telling them to keep quiet and if they did not she would close the bar''. O n each occasion wh0n the abovemcntioned complainant, of his friends, sought to purchase drinks at the bar, :\-1s B eard was again rude to them and at some stage she told a patron who was i ntent upon dnvrng a car that he had consumed too much alcohol and that she would not scrv..: him; That the employer of one of the patrons had advised his staff not t o g o to the Club when Ms B eard was on duty as she was "a sour old bitch and look her time servrng contractors" ; Another patron had telephoned the Manager at this time complainmg about Ms B eard' s service on the mght of 2 1 March 1 999 stating that she had told him that he was too drunk to be served. This patron insisted that, at the time, he had not been drinkmg; An employee of the Club, M s !\icky B orey. had not attended work on 2 1 March 1 999 alter adv1smg the Manager that she coul d no longer work with M s B eard. She claimed that on 20 March 1 999 Ms B eard had all egedly aggravated her boyfriend and M s B eard ' s husband to the pornt where an altercation between the two occurred. After receiving these complaints, \fr Fraser telephoned Ms B eard asking her to attend at his office. He states that u pon asking .\fa B eard whether anything particular had happened at the Club on 2 1 \1arch 1 999, she replied ··nothing at all". He proceeded to tell her that he had already received two complaints from clients and these, added to previous complaints received regarding Ms B eard, were enough for him to summarily dismiss her. Mr Fraser states that sometime later, Ms B eard arrived at the C lnb with her husband who abused Mr Fraser and the Secretary of the Club, threatening both with physical violence . Furthermore, it wa� claimed that as a consequence of Ms B eard ' s conduct at work, the C lub had lost many members resulting in a financial lo�s. Ms B eard claims that prior to the appointment of Mr Fraser as Manager of the Club in 1 998, she had not received any complaints regarding her work performance or conduct. During the course of 1 998, however, M s B eard had occasion to mention w the (]uh ' s H onorary S ec.,eta1 y (a person who shared accommodation with the Manager of the Club, Mr Fraser) that it was inappropriate for he and his friends to drink in the storeroom area b ehind tht'. h.1.r. Contrary to Mr Fraser' s assertions, Ms B eard b el i eves that when Mr Fraser spoke to her on 22 March 1 999, he mentioned four instances concerning her conduct and performance which formc:d the basi.s of the rationale to summarily d ismiss her. According to Ms B card, these were:- "That I had allegedly abused employees ot Consoli dated Rutile Ltd. a nd refused them drinks on th.: previ ous evening. That he had two written complaints from patrons. One ot these complaints w as that l had asked a patron to take his hat otf w1thrn the C lub. The other complaint was not particularised to me. That I was responsible for some Jack Daniels whisky which was nussing. Again no particulars of time or place wer e given to me. Thai I had been giving free drinks to customers. Again no particulars were givc�n to me.'' Ms B orey, a flJI mer employee of the C lub, had worked with Ms B eard on man y occasions According to \fr r�raser, she had told him that she had to re.)ign her position as she u,uld n o longer work with Ms B eard . .\fr FL1ser had cited thi.s as one of many rea.sons why M s B eard had been dismi ssed. Ms B orc:y, howe v.:r. when giving direct evidence stated that her conversation w ith Mr Fra..,er was as follows:- ·'IIe rang up to see if I was coming into work and l said. "No, you can shove it.". W hen asked why she thought this way. she responded " I ' m sick of everything . . . .. and I ' m sick of the committee and l ' m sick of what ' s gorng on. Get effing Carol to w ork.". M s B orey d enied the claim that she had left her job because of M s B eard. I n fact, Ms B orey said many compli mentary things about M s Be&d whilst g1vrng evidence. lt needs to be said before turther commentary 1s made, that the C lub environment was far from "genteel". Ms B orey' s evidence 1.s set against a background of admitting, whilst having drmks at the C lub when off duty and on the day pnor to Ms B eard ' s d1sm1ssaL to kicking someone who had given "the finger" to her boyfnend. Ms B orey was adamant that !vis B eard had conducted herself appropriately at the Club on that day. She: danns her reasons for resigning on the day following Ms B eard ' s dismissal were for the followmg reasons:- "The placco wasn't managed properly that I thought [ sic]. I mean as for the language. there was language all the tim,,. There was no discipline towards intoxicated people. The committee didn ' t do anything about it. Arguments broke out. N othing was done about it. They expected you to be a bouncer behmd the bar when you ' re only a bar attendant and when you cop a lot of abuse and the committee and the management don' t d o anything about it - a n d especiall y when a committee member does something t o a friend of your' s, when it' s n o t called for yes. you have a �uttul.". The ,:onsistent thrust of M s B orey' s ,wi,�ence was that she was annoyed by the manner in which the Club was managed, rather than annoyed with her wurk colleague, M s B eard. I have accepted that Ms B orey was disaffected with the Club, but her relationship with Ms B eard was not a reason for her r,'.signation. Ev1dence wa� adduced frnm pairons of the Club. A M.s Hopkins and her friend, Mr C ostelloe gave evi dence that Mr C ostelloe, when approachtn,s'. \:b B eard w be served on 2 1 Millch 1 999, had i nitially hee.n ignored hy Ms B ear d and wa� then t ol d hy her "don ' t yell at me and wait y1.,ur 1urn" fh>th witnesses claimed that Ms B eard continued to ignore Mr Costelloc when he sought to be scrve.d. \is H opkins believed that on occasion p�trons of the Club became very boisterou� and it was necessary for them to he told to quieten down. Mr Costelloe ' s evidence was that he occasionally had altercations with Ms B eard' s husban d and that this may have heen a contributing factor towards Ms B ,:al(l' s alleged treatment of him It appears, from this ev1deuce, that "tiffs" and altercations were quite common at this C lub with Mr Costelloe recounting various incidents that were occuuing around him on the day i n question. Mr Costelioe d i d not l odge a complaint with the management concerning M s B eard ' s dlleged poor treatment o f him. Ms B eard states that on occasion, Mr Costelloe had been barred from the C lub for alleged drunken behaviour. She did not recall any particular adverse incident with this witness on the day in question. l am prepared to accept Mr Costelloc ' s evidence that he was spoken to by Ms B eard in the manner so de.scribed but m sayi ng this, 1t 1s also possible that \.1s B eard may simpl y not have recalled saying words to that dfect. The consequent difficulty I have with this finding 1s that, whilst under normal circumstances such b ehaviour would he rnappropnate, agarnst a background ot argumems between patrons and the concerns expressed by �1s B orey about the rok of the B ar Attendant at the Club, 1t may well be considered behaviour which was in keepmg with the g,·neral tenor of the Club (see evidence of Mr Bmnette p. 52 transcnpt). This of course does not excuse Ms B eard' s behaviour (and certainly a higher 3 S eptember, 1 999 QUEENSLAND GOVERNMENT INDUSTR I AL G AZE1TE 7 standard of behaviour was expected from her\, but at least it places it in context. Mr Costelloc also accepkd that 1t was the role of the B ar Attendant to dtt,;mpt to quieten b()i.'itc:wus patrons. It appedr-' 1o me that tl1, rnk of a B ar Attendant al this p,lrticular establish ment would he very ddficult. The evidence �trnn,::l y su ggests that ;;ome client:; ot the C lub cPuld be troublesome, that a\tc;rcat1on� between patrons occurred frequeutly , that r,�fusal ot further dnnks to som,;; clients would be nece$sary, that the B ,11 ,\ttendants were c:xpected to "control'' the behaviour ot cli ents who behaved niappropnately, and t hat generally .,peakm?, t here was a heavy ,-mus placed upon the: B ar Attendant to fulfi l many d1ft1cult roles. In formiug this vie,.,.·, l have taken r nto account the e vidence ot �I Brunette. the B ar Manager of the Club. Mr Brundte stated that Ms B eard was an excdlent D ar AtLendant. Mr Bnmette recounted his view of events on the day in question. He recall s a n altercation which had occurred between one ')articular patron and some contractors where he had advise d the:: partws to ' calm clow n' . At some stage he recalls ��s B ear d either stating that patron� :hould buy their la.c;t dnnks for the day and/or rdusin g service to those wtm had been behaving disruptively. Certainly, Mr B runette states that he would have acted in a manner similar to that adopted b y Ms B eard u nder the .same circumstances . .\fr Brun..:tte did not observe M s B eard being abusive to any ,>f the patrons or perfonrung her dunes on that day i n an inappropnate manner. Mr B runette had been summonsed by the applicant to give this evidence. The evidenc0 was given in a straight .. forward manner and I accept it:,; general thrust. Tiie reason� b ehmd th e s ummary dismissal of .\:ls Ikard by Mr Fraser have prc:viously bi:en cited. Mr Fraser also �tated that the Club relied financ1all:, upon the patronage of c:ontrnct workers as the community at Dunwich was relatively small. On the day after the alleged mc1dents had occurred, Mr Fraser telephonc'd !vls B eard and ask<".d ha to att,:nd at his offic,:. I n rt:sptm.,,· tll Ms fleard' , question "\Vhat' , wrong now·· . h,; respondc:d " nmhin g reall y" Accordin3 lo M1 Fra,er ' ., evidenc:e, the following occuned:- "Afi•�r Carol ,,nlr'.red the dub I asked her into the office where I said to her tliat I ' d had complaints about her conduct the evenmg befrn e and that I would have to let her go. I had phone. complaiut.s, I ' d diso had w1 itter, complaints prior to thi.s, and it' s not the first tune compldints against her had <:ome through. Previous management had also wrillen compiaints. One of the semor elders on the island wrote d rather extensive letter to the cluh at a pn,x date. I had no alternative with the loss of re venue. I could n,)t afford to lose 1t dt that stage. It' s a very qmct time of the year and I had to rckase her from her employment." M r Frll.'.'cr stated that he did not "recap" upon c::arlier complaints the Club had rece1vc:d c oncerning Ms B eard, but h,: did discuss the telephone calls he had received regarding \1s B eard' s alkged conduct on 21 M arch J 999. He was adamant that thc previou� warnmgs, whilst the Club was under diff.:rent management. did uot play any pan m his d ec1s10n to summarily disrruss Ms B eard (see transcnpt p. 66). He cianned that h.:: had told her that "Loss of business, her attitude bchmd the bar. snappy towards the customers !sic] . .slow service, JU.St the general way ,:he greets guests when they enter the club" were the reasons why he had chosen to summarily d1s1russ Ms B eard. Mr haser believed that busrness at the C lub had improved since the departure of \1s B eard. in c,os�-examination by Mr R eed, Mr Fraser claimed not to havco bec:n aware that he mi ght need to produc.;; some form of documentation to sup_{X)rt his claim of the financial i mplications of Ms B eard' s employment and subsequent dismissal from the Club. When pressed a." to any specific matters of concern held by the Club relating w Ms B eard' s conducl whilst at wrnk, Mr Fra,cr refeired gcnnally to h,::r apparent sliU<' of stress particularly when her husband was at 1he Club. H,, also stated that on m:ca,ion, he had to perform her duties becdli.',e she wouid be upset hy a partJCuLu incident. \-tr Frase! ag1ec:d that a k vel of intcx1cation and loudne�s was l i kely to occur at the Club on any day of the week (.see iranscript p. 68). Mr 1-r,tsa. up,in di�cus.sing complaints from customer., on 2 1 March l 999 with Ms B eard. did not tell her t h e names of the c:omplainant:, h,:causc he remained u na ware of their identity. llaving previousl y stated tlldt pnor complaints concerning Ms B eard had not been taken i nto arcom;t when the decision was made to summarily dismiss her, Mr Fraser proceeded dunng lata cross-examination to ."late that t hose pnor matters had formed part of his o,crall deCision to ,.::vcr the employment ties. When a.5ked hy M r Reed as to why h,� hadn ' t taken the time to tully rnvesllgate the comptunts concermng \L, Beard'5 work performance on 21 March 1 999, Mr Fn1sa r0plicd that "b,:causc that was not the :<ole incident. Vrrtually, that was the icmg on the cak..:." The followmg interaction b etween Yir Fraser and '-1r Rct:d during cTo.si-exarmnat1on h1ghhgbts Mr fra.ser· s view of the alleged 11ic1dent� ,,n 2 J Mardi 1 99 9 :-- Mr Reed .\fr haser Mr R�ed Mr Fr,,.ser '.\1.r Ree<l \.1r Fraser Mr Re.ed Mr Frnser "And you didn't bother to establish whether Ill tact Mrs B eard had been guilt y of any misconduct at all on the mght of the 21 ". You didn' t b other to establish that at all : did Fl\.t':" "J\iot at that stage ." "I\o, no. You sacked her withom establishing what had happened. In fact, without conducting any i nvestigation of what happened on the evening of the 2 1 sJ.?" ·'That is not the onl y evening in que-,,tion". " Well no. What ,tl l egedly happened on the c;vening of ,h� 2 1 "' formed some material con�ideration in your mi nd rn the: d,:c1sion'1" "Very minimal" "Very minimal. So can we say 11 was relevant at all?" "Yes, It was relevant, but 1t was very rmmmaL". \fr Fra.,t:r t:Xplained that when confronted with the' allegarions which had b een made �bou t !v1s R eanl' s conduct ,m 21 :via.rdi 1 999, her tick of r,:spo11.,e be came a factor 111 his dl'.ci,ion to rnrnmarily dismi ss her. Mr Fm.�er st.1.tr'.d 1hat whe11 M s B eai d ,rnd beI husb,1.ud came hack to the Club. dfter Yt., B,?ard had b,'.en d i.srnis.,ed, " Ca1 ol wa., abusing me as to why I h,ul :,ackl'.d her a nd why was11't he1 wages ready. She was extremely i ntoxicated and ,tt thdt stage I d1 1 ,H>t fn·] like talki ng tu ,1 drunkc:n person.'' ConcltL'>ion In this case, the environment i n whi ch the employment in questi on was couducted plays a part in determining the outcome. The Club in question appears. from the evidence, to be one where coarse language i.s heard and occasional physical altercation" occur. Much is required of the Dar Attendant in mch circumstances. I accept t he evidence of \.fs Dorey and the applicant that they were oft,�a r equlfed to ··control'' difficult s1tuat10ns. That may have involved refusing to serve patrons, telling them to quieten clown. ensuring patrons recorded the required jX':rsonal particulars before. ,:ntry i nto the Cluh. or ea.Hing for last drinks at times which seemed to be me�t :tppropnate, among3t other things. That the B ar Attendants often used forceful (hut not ahusivco or coarse) language in performing these duties would suggest that amongst themselves th,,y found that the most effective and th,iretore the most appropnate way ot jX':rforming their duties. : :UDM A\GRPWISE\QlRC D0\1.IRO-PO l .GE>iERAL 1 :294 1 9. l QGIG 3/9/9•) -- 2 of 3 -- 8 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 September, 1999 In this con1ext, I am more persuaded by the evidence of Mr Brunelle who, because of his position as the current Bar Mana ger, worked most closely with Ms Beard. His evidence showed tha1 he had no apparent difficulty with working wi1h Ms Beard and that her work performance a s a Bar Attendant wa s commendable. This view was generally supponed by Ms Borey who had also worked most closely with Ms Beard. In terms of Other evidence presented. ie that of Mr Cosrelloe and Ms Hopkrns. both were regular clients of the Club and both had admitted 10 having been drinking before they visited the Club on 2 J March 1999. Against the robust atmosphere of that Club, the evidence of patr ons who had been drinking at the time, and p(ior LO visiting the Club, muSt be weighed accordingly. Mr Costellw's sensit1v1ltes may have been heightened as a consequence of the amount of a lcohol he had consumed on that day. Mr Fraser's evidence was often contradictor y. On the one hand, Ms B<'<¼rd's prior work history was not considered by him in his decision 10 terminate ,'llmrnarily Ms Beard's employment, but, on the other hand, he claims that it was the "whole picture" of her work perfor mance, inclusive of her history, which was considered by him when he decided to take that course of action. Presumably, the latter scen a rio was the on e most likely to have occurred as he states that Lhe incidents which had a llegedly occurred on 21 March J999 were of "minimal" concern to him. That being so, one surely must quesflon the 1ype of dismissal which had occurred. Mr Fraser had not investigated in any appropria1e form what is a lleged to have occurred on 2 l March J 999 - he listened to two unidentified persons who had complained to him about Ms Beard's perfor mance on that day. To have summarily dismi ssed against such a ba ckground was unfai r. Boch the Workplace Relc11io11s Act 1997 and the Workplace Relations Regulation 1997 make reference to ··misconduct". The Club relies upon s. ,7 (b)(ii) of the Workplace Re/a/Ions Regulation 1997 to .�upport its claim chat Ms Beard should ha ve been summarily dismissed. J am unable 10 accept that propositi on. J sa y this for the following reasons:- The alleged "incidents•· on 2l March J 999 were never properly investigaced by the employer; The employ"r chose 10 summarily dismiss on the ba sis of two telephone calls trom unidenti fied patrons of the Club; Ms Bear d's r"sponse to the gen eral query about whether "anything had happened the previous n,ght" was understandable in Che circumstances. Clearl y she d1dn'1 see anything untoward occurring on 1ha1 night: The alleged "incidents" on 21 March J 999 appeared to be of liule significance to Che employer as they were described on mor e Chan one occasion by the Club Manager a s "minimal"; Earlier "10c1dents" which had occurred were not d1re<.1Jy wichin 1he knowledge of the current Club Manager, although he states that they had been brought lo the attention of Ms .Beard. There was msuflicient information and evidence ar ound these issues co warrant any more detailed cons1derat1on by the Commission ; In th� even1 thac they had been considered, it would not have ahered lhe view l have taken that the .summary dismissal of Ms Beard was harsh and unreasonable; The evidence of those working most closely with Ms Beard more 1han strongly suggests tha1 her work was of a n acceptable .standard and that it would need to be viewed in 1he overall conccxt of the Club env1ron men1: It was not of Ms Beard's doing that Club patrons could be argumen1a1ive, m1oxica1ed and boi�1erous - she was required to respond to difficult situations and appeared lo have done so rn an au1hon1a1iv e manner; There was nothing of substance put to che Commission lo valida1e the claim by the Club that business had declined when Ms Beard had wocked for the Club and had risen when she was absent from the Club. One would have thought 1ha1 if this was meant to be relied upon by the employer, a simple accounting of financial r.;cords over this period of time c�,uld have been presented to 1t1e Commi.,s100. I find thdt the summary dismissal of Ms Beard was sufficiently unfair as to warrant the intervention of l11e Commission The employer h� breached s. 220 of Lhe Workplace Rela1ions Act /997. The employee was not given an appropriate opportuoi1y to resix>nd to the allegacions made because such allegations were vague in thac they lacked any part1cularisation. No1w11hstanding that, lhe employer chose 10 dismiss summarily while regarding the mc1den1s for whrc:h the summary dismis.<al occurred as ..mimmal". I do nol beheve thac reinsta temeo1 10 her former fX>Sition 1s a wropriate given the sometime hosrile dynamics which exi.<t<?.d at the Club. l do, however, propose to award to .Ms Ikard compensa1ion for her unlawful dismissal. Particulars were put 10 che Commission by Mr Reed concernmg Ms Beard's financial s1tuacion v,s a v,; wages and b<?.nefits since her termination of employment. Ms Beard w;,s not a long term employee, however, she wa s an employee whose work was s11uated in a disc.re1e location where oppor1urut1es for alternacivc employmetll would be severely hnuted. Having ca ke.n the submissions of the parties mto accounc on 1h1s pomt, l propose to award an amount of compen.sat1on equal to ten weeks pay. The pan1es are directed 10 confer co deternune the amounc of compensation which should be paid to Ms Beard when app ropn<1te Legislative considerations are ta ken into accounc for wages or other payment.I which may have been received b) the applicant smce the time of her d1srcussal. Onlv in the event chat a disagreement occurs between the parties a s to the correct quantum of compensatJon co be received by Ms Beard. th� Registry should be contac.ted to re-list che matter . The amount payable to Ms Beard should be pa id in full withtn three weeks from the date of release of this decision. Order accordingly, D.A. SWA'I. Commissioner Rekased: 25 August 1999 Appeara11ces:- M.r R. Reed for the Auscralian Liquor, Hospit.ahty and Miscellaneous Workers Umon, Queensland Branch, Union of Employees, on behdlf of the Applicant. Mr B. Waits (of Employment Advocacy a od Mediation Services), with him Mr L. Fraser on behalf of Dunwich Buffalo Memor·iaJ Club Jocorporatcd. r 3 September, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 9 -- 3 of 3 --