Collins v Inn On The Park [1996] QIRC 861 (1997) 154 QGIG 61

tO hruary ! 497 QUEENSLAND GOVERNMENT INDUSTRJAL GAZETfE 61 QiJFLNSLAND INDUSTRIAL RELATlONS COMMISSION J:,d,1.~:rial R, f,:;/1N15 A'.·/ /091) :... 295 - applicatjon for fCHt.')lmernent PLCuilim AND Inn On The Park /No B57I u(i9'16J COMMlSS!ONER DEMPSEY 17 fkcrnir,er i 096 Oismi~s.,1! 1t·-l11stattnient ·- nesignru.lun ;Jr Dis1ni.ssal Alkguti0n of Si2xua! Harm;sment fJoctors Certificate - Warning Letter - Demeanour of Witness,,, - \Vlrnc.sser Cunfu,ef! re fr."ents - Difficulty of Makim, Decision b.1,..:d c>r. Ev,:le,,c, - Rernrnption in Ccnciliation Conkrenc,,. DECISION The at,,p1Jc.JnL i:J i.hi::. 1:1aucr is Paula Leigh Colhns wLo wa~ e1npleycd ,L, iront de,;k recep\ioni,t ai inn On The Park (!h~ rcsr,onden!). {):,teusibly the apphcant d}lims that she was dismissed by her en1ployer in cjrcun,~tance~ f01lowing her rnakmg a ccmplaml tin! <:h:, had hecn sexually hnr:l';sed by a.noth,.:s i.'.H~plJJL>:e :lf tlie resrx::mJent Tti,· n",fl'Jndent' s !:>O,ition i, th11t Ms Cullins resigned an,:! rnntends that undc:r tfl:-~s2 r:rcu7nstances the Queensland Industrial Re1at1ons C0H11nissicn <l1)f::. n.i:-,1 h~v..:: juri:,;{Jiction i~) JeJ.l ·with the matt~r pursuant to the p1o·vision,,; of Division 5 of th,; !n.dusma! reimions Au I 990 as a disrmssal from emp!nymt:nt h8_<:: r~)t 1akt·n place. t\.ls CvBms C\)!Wltenc.ed cn1ployn1eul a\ front 1,.,ffice rtc~ptioubt on 10 Janu'.IP; ! v')i, foiiowm)! an initial interview with Mr S;;tmtte, who sh,m !i,r~d <tit' ~p,.,irant fer '.l furth:-r interview with \1s Le~lie 'vfarks and the Gwr•c', 1-lr l·Lnc :::riJc 1 he ~pplicant allests that during the imtial interview Mr Schutte suggeqed th::t :1t :t s:Jbt;t'quent interview she not admit tc a Jack of computer skii!s a1., b: N..:uld ;each her .ill she ni..:ed.e<l to knov~1 before e1nployrrnmr CZJmrr.e.r,ced. Tilt: appiicani: aitt;nded a second intervicv,1 and was successful in obtaining tt1e j0b The week before wmmencing employmenl Mr Schutte did !each the applicant the ba_,ics of the employers computer and during rhis ffori0d s01n1;,ented on the way the applicant lool,eJ and dres,eJ The appfa.:am ailtsts to feeling uncomfortable about this remark and others such as Mr Sdmi!P gelling her the joh and making him proud of her, From thrrt thue 0n th.: apphcant' ~ ~vidence lt that ~he experienced vafious fonv:: {'t haras:;mer;t by l\1r Scll\1tt,;: as he frequtnt:y tekphontd her at home and :;uggested they haw dinner, coffee or go to the movies. Ou eacl1 :x:casion the _nppllcJnt declmed. There art: other incidents that occurred ove1 the pcnod (Ji emp!0y1nem that g1vf) the npplicant J heHef that she w2s being sexually hr,n:,;scd. it i;; the applicant', !:did :hat Yh Schut:e';; ges,!llJ'es uver her period of emμloyment crnmituted sexual har;.ssment !.hen as a ro,ult of her refusai to cooperate with these request, the apptic:m! contends that Mr Schutte MartPd lo make !hinF:s difficult for her, for examnle cliange~ were made to ;m:.;-Jei.~rlnined ;·oste~~ l1) caus.; tncvn '!'·e11icnce. ~ 1635 83-----6 The actions by Mr Schutte were discusc;ed with th.: applicant and her father where her father· s mitial advice was to ignore the advances of Mr Schutte and concentrate on her resrx1nsibHitie~. Tht: app.icam contends 1hat !he harassm;.;!ll cominued m the extent that on 28 February i 996. she complained to the employer and told Mr Strik of her helief that she w:,, being sexually harassed. lt i, the applicant', evidence that rvir Sltik wa;, on his way !o the races. Nonetheless they met and the complaint of sexual har:i;,smenl by Mr Schutte wac, funnaily m:i<le. On 29 Febmary l 996, the applicant was off duty nnd attests to having n.:cei,ed a telephone call from Mr Schutte atlvisrng that he had been inforrocd of the complamr \,exual harassment) and that Ms Collms was seeking kral adrn;e The appllcanl claims lo being infonned by Mr Schutte Lhat her cmnplninl would be cmmtered by a defamation action Lpun her arrival to commence Jury on 2 March the applicant wa, handed a memo dated l March. She was requcs1ed by Mr Strik to sign the letter (memo) !o acknow!e<lge receipt. Thi; request wac; refused an<l the applicant sought advice from her father, This was done by Ms Collins !elephomng her father. Por this action she received a written warning from her employer with respect to the use of the employer's telephone system as employees had been advised to use a pay phone which had heen installed in ihe motel. By this time the applicant was extremely upset and once again tclephons.:d her falhtr md this lime she wus advbed to go and see a oodor. The employer, Mr Stnk was informed of her mtenliom, to visit the doctor and it's at this pornt the applicant contends Mr Suik informed her that if she did so then she would be sacked on the spot The doctor was visited and the applicant returned to provide the employer with a doctor's certificate The appikant contends that .is a re,ult of these evcm, her emp!oymen! was ttrrninakd. l'nder cross-examination the applicant's evidence was tested with respect to the ad, ice she provided to Mr Strik alleging sexual hara;;sment and in this regard it would appear to me that the allegations were general. They were not specific and lacked detail, There was also an acknowleA.!gmcnt that ~,fr Stdk h:1d requc"sted n1ore dctaiL The appiicam's father. Mr Kevin Colims was called a~ a witness, His e,1idence wa~ that on '.! 11umher of occasions his daughter did raise with him hcor vi~w that ,,he fdt she was being harassed by Mr SLhutt,. lnitiaily his n<lHcc was to ignore the advam;es and concenuaie on her Job. Then on 29 February he received a call from his daughter advising of the phone call she had from Mr Schutte that pmvided a friendly warning not lo proceed with alle,!mion,, of sexual haras"ment otherwise defamation action wouid be cunsidered. On this advice Mi Collins decided to contact Mr Strik. When the conversation between them ! Strik and Collins) took place Mr Collins actvised 'vlr Strik that "he was not preparer:I w let Paula come hack to work there if she had !O associate with Mr S~hutte" (page l 3, lines 16 to 18 of tran&cript). During this conversation Mr S1rik requested Mr Cullins to give him specific details of the allega!ion~ .. there was also an exchange on the question of resignation to which Mr Collins atle,ts his daught<x w,:iuld not rc~ign. Under cross--examimiion Mr Collins acknowledges the request hy Mr Strik for further detail arKl ;;1dnUb that this request vvas not compJit!d with, Thi, wa, qualified by advice !O Mr Strik that the applicant al hi,; request had "started a diary with some time and oates in it that would he made available if required". (page 14, lines 56 to 59 of transcript). Then there is a farther acknuwkdgment that this informalirn1 was required bu! never provided, Later in this conversation Mr Collins advised Mr Strik that Ms Collins would be prepared to resume wurk on the next ,nift that she was rostered for. howevu a replacement would be needed for her shift on the 29th The r,:spondcnl', cvidena; w;,s provided by Mr Strik, Mr Donnc:r Andrews and Ms Marks. i\1r Smk's evidence wa, spedfic and nn,;hallengcd on the point tha! a, ru, employer (hm On The Park) there is a specific policy uf prov1dmg an employee whose cmpioymcm 1s tenninatcd with a letter rernunating the employment and providing rea<mis. 'With respect .o the gene.al attitude of !.he employer towafds !vis Collms, Mr Strik accepts that she was ymm/,! and required tramiog so that when err0rs wer!:: ma1e it was acceptr-,d '\VHh a viev"" to-v:ards providing training to -- 1 of 2 -- 62 QlJEENSLAND GOVERNME~'T INDUSTRIAL GAZETTE 10 January, I 997 prevent further errors. Furthermore with specific respect !O Ms Collins the employer was confident in Ms Collins future prospects as an employee. On the issue of terminating Ms Coilins employment, Mr Strik denies that her employment was tenninated and denies that he used words to the effect that should Ms Collins vi.sil the doctor on 2 March 1996 she would re sacked on the spot. Mr S,rik acknowledges the lodging of the ,exual harassment complaint and a! rhe tin-ie the complaint was made he was on his way to the races. However, the day after the complain! wa< lodged he did discu,s the matter with mr Schutte Vvho d~nied the allegations_ With respect to the letter he requested Ms Collins Sl!;'ll, he did so to obtain acknowll'A:lgm-ent that he had taken the matter up with Mr Schmte ~ir Strik s evidence JS clear on his reque~t to both Mr and Ms Collins on the need for specific detail m order to pursue the matter fmther, Just before the cross-examination of Mr Strik, Ms Prior, advocate for the applicant. requested a ,hort adjournment which was granted. However, when cross-examination commenced Mr Strik appeared nervous, was confused with the questions_ Early in cross-examination he suggested he had ar, excellenl memory then haif way through his evidence he was comradictory and would forget the answers he gave to previous questions. Mr Stnk acknowledged that he was given some detail by Ms Collins when she made the complaint on 28 February_ Then with respect to the memo acknowledging that Mr Strik had followed up on the applicant's complaint and the warning letter re use of telephones the witness wa, taken to his statement where he says, "On the muming of SatmJay 2nd 'vlarch 1996 in company with Mr Peter Dornier A.ndrews, I had a conversation with Ms Collins I had v.ritte;; two letters which I wished to hand to her on that day. One ierrer coneerned my response to her allegation concerning private use of hotel telephones hy staff" When pressed on this siatement Mr Stnk admits it, mi,,tali.e lo the extent i! should be that he had one letter and later another When the witness was questioned on who was pn:scnt when the letters were handed to Ms Col.lin, he was ut!erly confused. ln retrospec, l should have inquired a, to whether or not some medication had heen administere<l dming the ~hort break previously refor~ed lo. Peter Dornier ,\ndrews is a corn,ultant to lnn on the Pait His eviJence is that he was requested to w1tness the handing of the memo re mvestigat,on of sexual harassment complaint ta M, Collins He was prcSt,T\t when 'vlr Strik attempted 10 do su. Then follcwiag !'.h Collin:;' refm,al to sign the rnemo he and Mr Strik returned to the restaurant area where Mr Donner Andrews signed the memo as wiu1ess to Mr Strik', attempt, to deliver Following the telephone cell by 1\1, Collins to her father the \vi!ncs, then claims that Mi Stnk approached ,he applicant aud rcfem.;d to previou, warnings re telephone usage. Later he witnessed Mr Strik' s attempts to hand two letters to Ms Collins. the fits! re sexual harassment aUegations, the scc,inJ a wnt1er, ,1earning re tclephDrr; cJ~agc. This witness's accoum of what transpired iater is a bit different to that of Mr Strik to the extent that when Ms Collins informed of Iler intentian 10 sec a doctor Mr Strik informed her of his requirement that a do,;tur', certifkatc •muld need to r,c produced. He claims he wa, present when Ms Collins returned and delivered the doctor's certificate and left of her own free wlll The witness's testimony is that Mr Strik did not say she was fired. sucked, de. he u1sv dairrfi that ht wa) ptesent dt e,ery cvnversation :vtr Strik had with Ms Collms that morning. Under crnss--examination the witness acknowledged that there could have been an exchange or meeting between Mr Stnk and Ms Collins when he was no, presem L.:.slie Marks is employed m Inn vll the p;iik as the administrative manager_ Her evidence is that on Thursday 29 February Mr Hans Strik advised her of the allegations made the previous day by Paula Collins. The witness ,ays that Mr Strik enquired as to wheth,:r she was a\vare of :l.ll) problem, to which she replied in tht n.;gil!ive and claims that she was quite taken aback when infonned of the allegations_ Dunng the previous tweive months, office reception staff •ook thei< gnevances to Ms Marks and she had no Ulmplaint fnm1 Ms Collin~ Ms Marks !hen appmaoheJ Rickey Schuue who emphatically deme<l rn1y suggestion of sern~Jlv han<sing Ms Collins Further evidence of M~ Mark, 1s that the only time Mr Schutte and Ms Collins had ccmtact is at the change of shifts and as the administration r:nanager she made a point of being present at the change of shifts. Monday to Friday but was not present at weekends. On Monday 4 M:irch, Ms marks £Contacted Ms Collins to see if she was available for her nex, rostered ~hift at 3pm the next day. During this conversation Ms Collins advised that she could not discuss the matters with her and that Ms Marks musr !l!ke the matter up with her father. Ms Marks enquired again as to whether Ms Collins would aJTive for her next shift ard testilks that Ms Collins replied by saying yes, however, Ms Collins did not tum up for her shift. Furtht'r, on the morning of Monday 4 March, Mr Strik dictated a mtmo to Ms Collms concerning ca,h float shortages. The memo was typed by Ms Marks (exhibit 7) The memo commences as follows:- "This letter constitutes a written warning.''. Under cm~s examination Ms Marks appeared lo weaken her position that the phone call to Ms Coliins was on Monday 4 March. It could have been ~n earlier date ln answer to question, from myself thert' was little or no follow up lo detemnine exactly what Ms Collins intentmns were with respect to turning up for work CONCLUSIONS From my observation of the witnesses, Ms Collins and Mr Strik, it would appenr tha! tmt,11 were confused. 1 here is an aHegation oJ sexual harassment raised by Ms Collins to Mr Strik on Wednesday 28 February. Unfortunately Mr Strik dtd not have the time to deal with this matter immediately as he had a more pressing and ob,iously more important lOmmitmcnt ai the horse races. He was in a hurry to lca,e, 1 bere is no evidence tllat he 100k notes oft.he aHegations but raised the matter with Mr Schutte who denies any fom1 of sexual harassment. Then Mr Strik discusses the mat.ter with other ,lllff members On l March a letter to .:\.h Collins is drafted and in that letter the following paragraphs are incidcied:-- "! ha,,-e spoken tr. Rickey Schutte at length ahout the mJttcr and am salisficd that hotel p-olicy which Mr Schutte is awure of, being politeness and coopenllion bctwc.:n all staff members h:is been adhered to. As a condition of Mr SchLme's emnloyment he has been advis;ed ofthis policy in ,;,-·nting. Should you wish to 1Jke the matter turrher. could you please tumish me whh the circnnv~tances in writing.". From ,he evidence of Mr Strik and Mr Dom,er Andrew, it is clear that ali that was intended with respect to the letter mentioned above was that it wa, to he presented to Ms Callins fm;!ly to advise th:it the allegation, had been investigated and secondly to pmvi<le further idormation if she wished to pursue tile mat.er. l! JS tnen unfu,tuna.e !hat when Mr Slrik attempted on the second occa.si(m to present the letter that there was another letter warning Ms Collins not. to use hotel phone" for he private use. It is my opinion that the second lener was insern,itive particularly when l\ls Collins used the hotel phone to call ner father for advice. ·ouring rhe course of the~e events l arn dearly of:: vie\v from ohserving the ~vid<cm;e of Ms Collins ar,d Mr Strik that both p,inie, were nervous and fearli.JI of one another. On the one ham.I Ms Collins feared rhe events that might follow aml Mr Strik had come to realise rhat an allegation of sexual harassment was a serious one with conSe(Ji.lences that could tum nasty and affect his business The applicant's account of the events suggcs,s that her employment would be terminated if she attended the doctor. The respondell! says no such snggestion was made. With respect 10 these contentions l find it difficult to accept eii:hc:r of them. With respect to rhe appl ira111b comemion ! have rnken account of the sexual harassment allega!ion :mrl the fact that M, Collins' evidence on this is not cha!ienged as the respondent Jid not call l\fr Schutte who is alleged to have harassed Ms Collms, however, there 1, a statemem tendered a.s an exhibit in which Mr Schutte denies any fonn of hara~i.mcnt I have taken accoum of the ilemerunur of Ms Collins 'Nho appear, lD he ,hy, nervous and rs vcr)' eusily ups01 and quick to he cmburras,eJ ln all of these 1 ; 22220 I.DOC lO Lnuary, 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE circomstances l am satisfied that Ms Collins' accouni of ,he events of 29 February ar,d ;;ubs:.;quent days may not be accurate. In so far as the respondent is concerned lam of a view that Mr Strik wa, shocked an~, concemc-d ahout thc allegations, however, the allegation lodged by Ms Col,m,, took second place to the horse race. Then, under cross- exammatJOH Mr Smk_ was extremely nervous, confused by some of the questwn:, and coll!rndicted lus evidence in chief. l am satisfied that his account of the events of 29 February may nm be accurate _ .However, there is strong evidence hy Mr Strik of a po.licy !hat pllls in wntmg noucew any employee whose employmem is tenmnated by the ,,mployer. Takmg !hb policy into account together with the fact that no such letter _was given m Ms Collms, H would appear to me on the balance of prnbao111t1es that a duect and specific deci,ion to terminate Ms Collin:,' employment did not t.ike place. On th~ olher _harnl the manner 1n which Mr Strik conducted this who.le matter mt1m1dateo Ms Colhns to an extent where she certainly believed that her employment at Inn on the Park was in jeopardy. Her state oi mind 011 29 February requm;d her to visit the doctor and the accounts of whether she was rcqum,d '.o return with a doctors certificate conflict There is also the fact that her father became mvolved and his advice 10 Ms Col',·,. , t t . · . ,. , is no o go to work until matters had ocen resolved only served to cause greater confusion There is also th~ contention that Ms Collins abandoned her emp!ovment and wah respect t~ tnat l find this suggestion difficult to accept given that there is evidence by Ille respondent that a warning letter was dictated on 4 Mardi which would suggc:,st that Ms Collins still had her JOb a; least in the mind of the empleycron _1hat date. However, I believe it is rea,onable to assume that by thar pc,mt m tlme \1,. Collins' employment wa, m serious Jeopardy _ Given all of !llese circumstances it is difficult for me to come 10 a dchmte conc!usmn a~d find in favour of the applicant and make an order pursuant to the pro, 1~10ns of section 297 of the Industrial Relations act . _However, giwn comments l have made v:ith respect to the maJJner m which this wbnk· affair has he.en conducted l propose !o adjourn this matter mto a cr,nferenc:e for the purpose of providmg a forum for conciliation with a view to obrarnmg a resolution between the parties _A1 th:u conforence I will require th.,; presence of the a ticant Ms Co•lms tb·· T"S")C'Jd,•nc M s· ; M " . pp ' '·. '··, , , ~- 1 -, ,.,._, r , ,nK, r .'>cnmte and the representatives qf h(ith ~~- .. ~ The C0mmist;lon orders accordingly. H DEMPSEY, Commissioner. Ms K. Pm,r, with her Mr K Collins for the aprlicam. Mr G.R. Sidx·nhacsrn, witr, liim '°',r ". M Ph , " " ,c erson for the Re,pondent. Operative IJ;ire, N!;\ Decision - Reins!atemem Released. i8 December .1996 63 -- 2 of 2 --