Barnes v Barrier Reef Motors [1999] QIRC 104 (1999) 161 QGIG 3

2 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 May, 1999 7 May, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 #########ll#############ffl#######ffl########lt###########41##############fflfflffl##############ff/1Jt###############ffl41###### Q UEENSLAN D I NDUSTRIAL RELATIONS COMM I SSIO N COMM ISSIONER FISIIER Workplau Rt:lat1011s Ac1 1997 - s. 218 -applicatio n for reinruitement Jeffrey Banies a n d Ba r rier Reef Motors (:-io. B1358 of 1998) 28 April 1999 Apphc.tuon for rein<tatcment - Yhscondua - Police c harges - Wife advised applicant absent from work - Newspaper article - Applicant adrruL~ guilt to nunagcm.:nt - Comp.<ny takes ·po.m1ve acuon to prOl ect staff - Summary dismissal - No misconduct found - Compensation - Respond ent to pay three weeks pay In lieu of notice. DECISION Jeftrey Barnes was e~loyed as a full-t1me car deta,lcr with Barrier R eef Motors trading as Pacific TO}Ota from I I January I 994 un11J 2 June 1998 when he wa., disrrussed for rrusconduct. On Sa1urday 30 May 1998 Mr Barnes was c harged with rape and ind ecent a.~sault. He was held in CUSlody over the weeke nd and appedl'ed in the Cairns Mag1strdle~ Court on Ylonday J June 1998. He was noc required to e nt er a plea. lie w.is released on hail pen dm g comnti ttal proceedings on J July 1998. On I June Mr Barne.,' J>d.rtner contacted Graham White, Mr Barnes' supervisor. 10 ad,uc that .\fr Barnes would nOI be a11ending work that day. She did not inform Mr Whit e ol the rea.son for Mr Barnes' absence. When Mr Barnes amved foe work on 2 June 1998, he aske d Mr White whether he still had a job as he had previously been warned about absence< from work. Vlr White told him that he hdd but queried the rca.~on he was aslm1g. Mr B.;rne~ said 1ha1 he would talk 10 him later. Upon funher enquiry :'vfr Barne, told '-1r White that he had been locked up over the week end for 25 year old parkmg offences. Short!) after \ir White leMnt that an amcle was 1n "The Cairns Post" r eporting that Mr Barnes had appeared in Court the prev1ou• day charged with raping and indecent! y ass,lU!tiog a woman. So me d c1a il of the c.ase again5t Mr Barn e.1 wa s reported. Mr White contact ed Craig P 1t lgerald, the Genera l .M,1nager of Sales, "'ho was out of the office, to ask wheth~r he had ~een the anicl e. By that time Mr Fitzgerald had been telephoned by seve1al other staft with the same ~t<,ry \1r F1t1gcrald read th~ article then 1elephon ed the Managmg D irector of Pacific Toyota, John O'Brien. who mstru ctcd Mr Fi t zgerald to discuss the matter privately with Mr Barn es and ask whe lhcr th e contenls of th e newspaper Story w ere IJ'Ue. Mr O'Brien further instructed th at if guilt was ad nutted Mr Barnes was 10 be dismissed to protect the female staff who wor ked in ever y department of the Company. There 1< :rome dispute about what h~pp.:ned next. Resolution is thus based on issues of crediL I accep1 that the nature: of some of the matters r,u~cd 10 ev1d.:ncc caused a measure of embarra.ssm.:n1 to Mr Barnes. Despite making th<: ncce..ssar;' allowanc.i~ I found Mr Barnes level of d1.scomfort to be excessive. In add1t1on p.trts of his evidence were contradictory. Agamst this back ground I found Mr Bar n es to lack cred ib1hty. Allhough Mr F1tLgcrald had dtfflcuhy at 11 mcs 111 answering questt011s directly hi s version remained cons iStent. In the circums tances, f pr efer Mr Fi t zgera l d' s act'Ount. He said he approached !I.fr Barnes di 2pm m the car detailing bay. The new~pap.!r article: was raised. Mr Fitzgerald said that the repon md1cated that !\.1r Barne, was guilt} and ~ ked him whether that was the case. Mr Barne.~ acknowledged that he was guilt)'· In bght of that respon~c \otr Fttzgerald told Mr Barnes that th e Company had to 1ake "pos1t 1ve action to protect our staff' and th en proc eeded to summarily dismiss Mr Barnes. From the e,idence of 001h Mr Htzgerald and Mr Barnes 11 seems that the la11er was exp.!ct ing lo be di smissed. The 1~sue in this case " whether Mr Barnes should be dismissed in lhcse crrcum.stano:s. The mailer 1s complicated by the dropping of the charges prior 10 the commmal proceedings. Mr Barnes· partner who broughl the Chdl'g'-'s admiucd in evid ence to the Commiss ion that s he had lied in part to the police about Mr Barnes' action, on the fateful nigh t. She was u nd er a d ea l of strain at lh e ti me and later regretted h er co mpl aint r esulted in cn minal charges. She said she intended to tdke Olli a domestic violence order. 11 1s clear from this, other statements she made in evidence to the Commission and in her compla int 10 the poli ce and Mr Barne~· own .statement~ that more than consensual int ercourse occurred Althoogh the n ewspaper anicle pre-empted him, Mr B.imes had a responsibili ty to rnform his employer of the charges dS soon as pracllcable upon his return to work. Except for hi s passing comment 10 Mr White on arriva l tha t he would talk 10 bun la1er, i1 is clear Mr Barne.~ d id not inleod 10 take immediate steps to bring the situati on 10 tl1e anention of his employer. ::ODMA\GRPWISE'-OJRC-DOM.IRO-POI .OENERALI :28696.1 QGJG 715/99 -- 1 of 2 -- 4 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 7 May, 1999 There is little doubt that Mr Fitzgerald' s interview with Mr Barnes should have been conducted entirely differently both in respect of venue and content. For a person who professed reasonable familiarity with disciplinary and dismissal procedures it is of concern that such a sensitive subject was approached so ineptly. Depending on the gravity of charges, the relationship with or impact on an employer's business, an employer may elect to suspend an employee until the charges are determined rather than to immediately dismiss. Such a course of action may protect an employer from a claim of unfair dismissal in the even t the charges are not proceeded with or the employee is found not guilty. There is no hard and fast rule, ii is a matter of each case being considernd upon i ts Ol'.'D facts and circumstances. Jn this case Mr Fitzgerald was confronted with an admission of the charges. Mr Bames' admission was consistent with th e eviden ce of Senior Constable Stevens given lo the Commission that Mr Barnes had acknowledged during the police interview he had done something wrong. Mr Barnes did not alert Mr Fitzgerald to the prospect of the charges being dropped nor did Mr Fitzgerald pursue with Mr Barnes the comment in the newspaper !hat the woman did not want charges laid. Discussion of this issue may have clarified the situation but this omission was not entirely the fault o f Mr Fitzgerald. In the face of a n ad mission of guilt Mr Fitzgerald could not have reasonably been el<pected to react in any other way but to terminate Mr Barnes' e mploymenL A suspension from duty pending resolution of the charges was not a feasible option in these circumstances. During his emp loyment Mr Barnes had not r ecei ved any counselling or warning about his conduct, especially conduct towards female staff. Although there may not have been a solid foundat ion to be concerned about Mr Barnes' conduct towards female staff in the workplace, after the charges had been laid many of those staff were naturally concerned about Mr Barnes' continued presence. Bearing in mind Mr Barnes' admission, the concern of staff and an employ er's duty of care to its employees it is not unreasonable for an employer to act to protect the inter eru of its staff. Summary dismissal was however, an overreaction. Thi s was not a case of misconduct in the workplace nor were the charges in any way connected with Mr Barnes as an employee of this Company. While his continued employme nt could well affect productivity and morale, these concerns give rise to consi derations of dismissal wilh pay in lieu of notice rath er than summary dismissal. Mr Barnes had been employed for just over four and a-half years. He was entitled to be paid three weeks wages in lieu of notice. Th ere is some suggestio n by the Company that Mr Barnes was paid monies in lieu of notice, albeit not his full entitlement under s 226(4) of the Workplace Relations Act 1997. This payment is inconsistent with a summary dismissal. The Ernploymem Separation Certificate doe-~ n ot assist in resolving !he matter. Given the lack of clarity I propose to is sue an order for compensation 10 ensure Mr .Barnes receives his entitlement to three weeks wages in lieu of notice. 1n the circurnsiances I order Barrier Reef Pty Ltd trading as Pacific Toyota do pay J effrey Barnes compensation in an amount to ensure three weeks wages in total are paid in li eu of notice. Such an amount is to be paid within 22 days of the date of release of this decision. I shoul d add for completeness that two juris dictional issues were raised but not pressed by the respondent. These were an extension of time and the employment of the applicant under an award of the Australian Industrial Relations Commission. Despite the application being filed 62 days beyond the statut ory 21 day time period prescribed by s.2 18 of the Workplace Relations Act 1997, in light of the absence of opposition, I have deci ded to extend time for the filing of the application to 24 August 1998. On the second jurisdictional issue, I rely on the decis ions of Wilde and Wa11erton v Griffith. University (J 57 QGlG 167) and Foley v Alliance Colliery (159 QGIG JOO) to find JUnsdiction. Order accordingly. G.K. FISHER, Commissioner Released: 28 April 1999 Appearances - .:Vfr F. Lanza (Barrister) instructed by Murray Lyons Dickenson solicitors fOf the applicant. Mr P. Morzone (Barri~ter) instructed by MacDonnells solicitors and with them Mr C. F itzgerald <>n behalf of the respondent. ###############################################################################################41########################### 7 May, 1999 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 ::ODMA\GRPWISE\QJRC- DOM.IRO - POJ .GENERALI :28696.1 QGIG 715199 -- 2 of 2 --