Egan v Kingaroy and District RSL and Citizen's Memorial Club [1998] QIRC 259 (1998) 158 QGIG 220

1\t Egan . {lla B 147 ! of j9_9?. t COMMlSSIOSER FISHER i.5 Jum~ 1998 26 June, 1998) QUEENSLAND GOVERNMENT INDUSTRIAL GAZETI'E ---'fhis person wz.s contacted by Mr Shaw rn rclalion to the allegation and invited. t('< detail the incident The 111ird incident related to Mr Egan pnsing the bar atte-ndan!' s hands Jroro !he bar and forcibly leading her to the p<Ycl table, a distance of some 20 rnerres. There he al1empted to lift her on to the pool tah!-e hut c,nded by raising her skirt &"ld au empting to kiss her. Toe ]ast two cornplainants we-re interviewed separately by the Club's Solicitor in relation to th;, allegations of sexual harassment Furrnal staternents t1f cc?rnplaint were not taken. however 1 the pt1ffK..\~t:- of the interview seemed to be to obtain more detail and also for the Club to he ,alL~fied that the l.'Omp!aints were germrne. MI Egan was invited to attend a meeting of the Club';; exernti ve 011 23 July 1997, lfo was not forewarned of the reason for the meeting hut once there wa.~ infcwmed of the allegations made by the three bar attendan!s. He was invited to respond. He restakd th~! he had been having ,l sexual reldtionship with the fo:<t roinpi<1i11ant and was thus surprised at her alkgations, Mr Egan prnvided !he names of 1w0 other bar staff who he dairnerl could l.,nobonlle his w,rsion that the first cornplainaut was a willing participant in !he behaviour In relation m the ,~cond corr.plaint, he said his ¼TiUen comments on the poker machine doeke..ls were just a joke and that he haJ hcen trying to cheer the person up as ihe W3$ mffering a serious nJedic;,l condition. He also claimed the. third incid;;ut was ineant as a Joke, Anmher st,;ff member hut not either of the two mention,xl hy ·Mr Egan was also interviewed about the a!legcd scxua,! relationship between Mr Egan and the fosl ccmplainant She confim1ed that she wa, present at Mr Egan's huuse in May 1997 when he ha,1 initia!.ly confessed to his pa1tn'"r \hal a sexual relauonship had been taking place, but later said that he had !ie4. Alter cnnsld..;ring the irtf(Jrmation before it, the Executi vc ck-eided to ask Mr Egan 10 resign and that if he failed lo do so, hc would be .summarH; dismis~ui iH Hg:ht of the serlousnes~ of th.e allegations and his itEHle.quate. rc-'ponses to them. Mr Egan refused to resign and wa$ thus dismissed for ,erioos misconduct Twf.) \-Vei~ks wages in Heu of notice- wa..s _paid despite the- Club contendi11g that Mr Egan lnd been summarily dismissed. [n theic evidence to the. Con1.missk1n each of the r:on1pla.ina.nis co11finn(:d the-fr alh'.,gati.on.s ahout ~tr Egan. Some h.azine.ss vvas appai.e,u.1 on the rnatter of dates hut thiq is only to be expected con.side.ring the hearing occurre,d li,n months et· n1{~~~ after the incident;:. Mr Egan generaUy rdied on the explanation provided to the Ciub' s Executive. He ,a1d that he had ba~n engaged m a sexual relationship "~th 1he first compl:un,m, and provide,.i a <.:oupk of personal detail, which in tu,, \iew e(,nfirmed this. The two other stall m,:mbern who Mr Egan had mentioned a! the Executive rth"':'K,liog were ~1Jso ea.Bed a.s l.vitnesscs and, wit.hoot having dire.et .kn{r\vkdg~ of any _relationship, su1~'10I'tt~d thi- conter:tion that the t:Dn:1plaiuant had bet:'.-n a. 1NiHing participant A person \Vh.o -~fr Egan da.irn:,d to ha •;e seen hi n1 and the (3Jn1plajnant returning by car frotn tht: ht:t~:h 1 u.nfi..)[1unatdy, was not c:·llled to give evjdeneeo 11ns J)f:fSOll, a pMln0r nf one of the Club's exc,;;11tive, may have been able !o shed som:: turthe-r light on the ~ituation, Given the extent of r,.unour and imm.1;,ndn and particularJy aJtcr weighmg !he evid,'nce, it is not beyond the bound, of possibi!it y that Mr Egan and 1hr, ;complainant had a brie! r0lationship. I believe however that had mch r,,Jationship existed, ii. had concluded by the time lhe complaint was n:w,de. I accept },.,fr Egan'i mggesti,)n of 14 June w,1s unweloon1e but the othr,r hehaviour curiiplained of n1ay not have. cort\tjtute.d sexual hara~srne.nt if lt tXC'1JITed in the context of a relationship, Such b{:haviour in my vicvl would still be unacceptable in thf'. \VtJtkplace C-:'>}--:t:~iaHy frotn a person in the p(rnlion c,f bar m;;nager, Trir. main alkgation of the secoud ,,,mp.laina.nt con<:em,,d the lewd com.n1ents on the _poker ffJ:a(hint; dockett;. Ibe co.mplain.anl agreed in e.vid~~IK'e. that imtiaH_y sht· bad treated the r.:onunents a.s a joke a.s they wt:re inoft{'11;frve. Ho,veve.r. their tone progressively degenerated and she. w2s uncertain of how to rt".spoud. She decided to continm, to go along witb them but was actually <1ffend.ed by such corntnent,; as "sit on ray faci:r and ''lick rne", ''cry ne 1• and ''nice fit". }i,fr Egan would then .arnenJ. the coxnrr1ent to <'>omcthing relatively innocw:_\us and the co1nplainant Wits then expected lc1 .si.go a~ per the arncuded "name·•, lJldn1atdy 1 she bel.--.an1e hXl di~tressed and d~ide:d to reporl the ff..iatter. By tins tirne she -i,.,v~ av.rare another cornpiaint h&d been made agams! ,\llr Egan, The third cornplaint was confirmed hy the bar attendant involve<l) fo.1wever_ she 1,.va3 a reluctant cornplainant. She had nu intention of n1rtking ;_;t comp!aini until contacted by Mr Shaw :rnd despite being: scared by the incid.:,nt.. The evidenc~ reveaJe-d this co1np!ainaxrt had becor.ne tired c,f l\:fr Egan·., suggestive comments during !he day and had responded by ,ayi!lg '·Mkha.d, you're fiJU of shit", Tius eorrunent goaded Mr Egan rnto hi, atiions lhat night after the Club had closed. Ffo referred to his J.ctions as foreplay. Once he realised the woman had been scare4 he apologis<¾l. Tbe comp1amant, Mr Egan and his partner Juve remained on friendly te1ms in spite of this incident. Evidence was given of varinus social interactions which have occurred suhsrquemly induding the exdiange Cl{ Christma,, gitb. Evjdence wa., also given of horseplay between Mr Egan and ll:ie wmplarnam which invohed ~exuai rr:ferences. !n my view despite the !hird complainam having had her comp!aim s,)iicite,:J hy !he Club, l am satisfied thar no pressure was placed upon her to cornp!ain. Although ,haken at Liie tim,::, !he' friendly rdatmnship whKh olherwitc: existed between her. Mr Ega.n and hi!! partner, l ,teec-pt w~s the reason for not comp!ainilig at the farie. SoJne atten1f)t ..-vas niade by !vfr ()1 Gormani repres~.J.1ting the a_-ppiica.nt~ to suggest eollusio11 between th,o three wmp!aina.nls. l do 1101. accept this 10 be. the .:.:ast> based on the evidence, a.nd espedaHy as the last rwn cor!li,\ialn~nts weni not -:spec1ally friendly with the first. In addition, l¾e third ,,ornplainant had tn have her ,:.,mpl:.mt invited hy tiw Club. 1n all of the circurrista!lCds cc,Jh.1sl.on cannot be substantiatc-d. I am satisfied that the Club had a va.!id reason to terminate MY Egan's employment having regard to his conduct In reganis to lhe first complamt, ii~mfficient grounds may IHvc been present m warrant termination if the complaint 'V>las r.uu-ro\ved to ?vfr Egan's behaviour of 14 June, ho\vever, 1 tnn satisfied that the Ciub had grc~u1ds to disrni:;5; f;;.)f n:llsconduct on eithe.r of the seccnd nr !hird complaint The combination of both of thc~se compiailli.s provides :ir.ore than ample gmunds fc<r dismissal. As tvfa C;Jlaghan, representing 111<: Club said, Mr Egan was indeed fortunate to fa,t find hirnsdf on assault charges in view of 1lle natme of the third complaint. On .reaching my condusion Uli!l a valid rea.son ex1m:.e,d for the dismissal I hav2 found each nf the complaints to be genuine, st.d~ject to ff(i earlier eonunt>nt~ n.:garding the fir1t complaint lvforeov,!r, Nfr Egan did not deny that the incidents Jud oco.1rred but only that mitigatiog fa.et.ors $hould ~ taken into ac.::01..m.t. M, Egan had been told aJh,r 1he first complam1 had heen made of U>.e seri•)U,'>Ilt"\St of the isstk., yet, his unacceptable behavloor continued ~~- aot toward !he first corr:.pla.inanl but the second complainauL De.spite he1ng aware !hat a sexual harassment claim was to he filed in the Anti· ItisC:rimination Cornm1ssion, ;\1r Egan continued to write progrcsslvei~v rnore. le.-v;d 'l'nnun~uts on the poker rnachin.e dLx.:.ket-;. It \Vu.S evident during the. <·ti!Jrse. <)f the hearmg that Mr Egan. had no ~:onception of the seriousness of hi:.; misconduct o:r the iinpact of lb.at conduct on thcn.L He continued t-J v.ie-w thb latter t,vo con1_piaints ?i$ a jok~- In n1y view e·ven had ·!vfr Egan been warned about his conduct it was unlikely k" have ha.J any impact given llis evidence. Ivfr Egan was given the tJpportunity to dt:fend aga.iust the aHegatlon.s hut was unable to provide acceptable explanations for his ct,nduc! either to the Ex,;:;.cuti.vc 1ne,1;;tl11g or to the Cornrnl:;,sion. Having said that I ~:m of the view that some dcficlem:it:s in the pro-.:ess used by the (Jub to n1vestlgatt\ thi: ;natters are evide-11.t 1 find it surprising given the- .nature of the aHegatiL•ns ultimately raised by the firnt comp!aman! that the Club wa, pri.>pared to let matters take- their coursi.~ in the A.nti~•Discrin:rinatiou Cor.mnissi.on. The complainant had informed the Club of her coii,cerns and had advised tha! she was no Jo.nge.r wiHing to rn.ake herself available for work. ;\Jrhough the C]ub had put !he a!!t,gations to Mi Egan and .illowed hirr, to respond, it inknded to rern;ijn inen. Fro1u one perspective. j_t is ;;1s \Vell forth.;. other con1r1Ldnts to have been n:1ade.; Oik"- 'tvonders hco;.v long _matters wo1.dd ha.ve- he~n allowed tn ccmtinuc pcnc:hng the re.solution of the Ami-i)i':K'rinfruation Comrni::;sion c.lairns, l alse> contra.ST the Club's approach to Mr Egan ;,i th rcspe,t to the firs! cotnpJai:nt ~1.nd the latter tw·o, "l\fter the fi.r5t cornplaint h2~d bct\n rc-ceived !vir Egan was able to nhu,in legal adv;,,;e. yd wh,;n tli~ Club had remived the next two cornphints it decided to hoid a 1neeting with 1\,-fr Egan to have hirr.l respond then. }-.. sinrilar opr;>t_-:.rtunity to obtain .legal advice \Vas n.ot given; nor .:.k;es it seein to ha•.te heeu sought. (frven the se.riousrn;.:-s of the aHegations and tl:e sev;::rity of th:e punishn1ent ultima1dy dehve-red~ it is of concern iliut a 16836_1.DOC -- 1 of 2 -- L -- 2 of 2 --