Brown v Eagleby Civic and All Sports Club Inc [1995] QIRC 509 (1995) 150 QGIG 889

888 QUEE SLA D GOVER, ME T 11 D US TRIAL GAZ ETI ' l~ [20 October, 1995 20 October, 1995 J \. I QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 889 Qlll I 'JSI.AND INDI ISTRIA I RH.A TIO\JS C'OMMISSIQ:--; /11d11.11rial Rc/u/ums Ac1 I 99() s. 29~ ,1pplic a1ion for reinstatement AND Eaglch) ( 1, 1c and \II <;pons ( luh Inc (,\'o B5"9 of /995; C0 \1\11V,1O'.;FR 11\111 R 4 <ktoh~r I 1}95 /\pphcat ion for Rcinstntemcnt •· As.,auh -- Worl-. 1.:r, Compensation . • Di\rn1~~cd h: Leiter•· l·rcsh Contr,1~1 of Emplo)mcnt .. Full I 11nc: to Casual 1'1h1t ion - Oller Accepted •· ,o Opport,mll) to D.:lcnd .. D,smis~al (. omra, cned 1>1, ision ~ •· ( ase la\\ •· Vahd Rcai.on Found •· Rc1nstatcm1.:n1 lmpracticahlc -- Compcm,ation •· Sreps ·1akcn ro Mi ti gate Losses -- Notice Included in Gloha l '>um .. !ium to be Paid ,,11hin 21 da)'~ of Date of Reh.:a~ -- Fonnal Order'\•·, ~10 -- Apphca11on for Co~rs •• Rcpre:.ent,llllln -- Costs l>cn1cd DECl~ION Scou Gregory Hro,,n filed an application scd,mg rcmsrarcmcnt to his lonncr po~ition of Bar Man,1gcr "1th the I aglcb) Ci, 1c and All Sport, Club Inc Abo sought " the pa)mcnt of lm,t ,,age, hct,,cen the date the applicant conremh he ,,a, d1,mb~ed and the date of rcm,1aterncnt In the ahcm:ui,c the applican t ,ee l. , the pa)·mcnt ol ,111 amount ol compen ,at ion plus a rcli:rcncc Mr Bnmn comm enced em ployment with the Cl ub in a fu ll time cap:1cit) on I 0 Occemher 1994. 011 15 Fehruar~ 1995 \lr 11nm n \\as il!>!>Jultcd hJ a ( luh pJtron "h,l,t Jt worl. ·\, a re,ult ol the ,c,erc 10J11ncs sustained \lr Bro,,n \\J> ab,cnr lrom \\Ork and rccel\ 1:d ,,orl.crs compcn,.1t1on u1111I 12 Ap ril 199:, ll) lc11er da ted 14 March 199~ 'i.1r Bro,,n \\a, ad, i,cd of a change ro 111, empll>)mcnt c1n:um,1anccs h) l,111 Bo,,rc. the ~ecrcWI') \1,rnager ot the Club. l he letter \\J, 111 the follcm 1ng tcm,, ") ou arc no doubt a,,.1rc of the C'luh, pr.:senr tin.incial ,itua11on and the consequent tighr budget \\Cha, e had 111 ma,nr.iin 1 he Committee ha, ,ccn the need to appo1111 a har manager ,uit.ihl) ,l.1llcd and c,pcricnccd 111 handling disorder!} nr lroublc,omc cw,romcr'I tor the protection ol ,t,11 I and mcmh.:r, ah l. c. lherclore due to stall and budget rc,tnKtunnr 11 1, ,, nh regret I must ,11h 1,c that }mir pos11ton 1s no longer a,.111,thlc, I lo,,c,er. ,,e are ahle tn offer 16 hnur'I a ,,eel. on the door at a ca.,ual rate You "ill b.: pmd a \\l!ck in li eu ol notice, a, \\C II a, }illlr accumu lated aimual J.:,1,e. \V e hope 1111, ,,ill a,'!st ),1u In his evidence Mr Uow ic stated tlwt the intention ol the lt1tcr ,,as not 10 d1sm1ss \f r Br,mn from 111, po,it1on ol Bar \fan~ ~cr -- 1 of 2 -- 890 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [20 October, 1995 Apparent ly a number of concerns about Mr Brown's perfonnancc had been raised by various co mm illee members at me etings. Th e proposed restructuring was designed to im prove the operations of the Club whi le retaining Mr Brown in employment albeit in a different and reduced capacit y. Mr B<) wie contended th at th e co ntinuation of unsatisfactol) perfonnance would have resulted in steps being taken wh ich cou ld have culminated in the tem1 ination of Mr Brown's employmen t. Adv ice had been obta in ed by the Club from the Registered and Licensed Clubs' Association about the tern1ination proced ures in ligh t of the Indus 1r ia l Relations Ac! I 990. Mr Bo w ie also claimed th at th e Club's letter of 14 March 1995 was not an attempt to dismiss an employee wh ilst on workers' compensa ti on. Mr Brown ·s in it ia l medical advice to the Club was th at he would be unfit for duty until 14 March I 995. On that day he produced further medical advice that he remained un fi t for du1y unti l 12 Ap ril 1995. Mr Bro"~l said in evid en ce th at on producing the further med ical cert il icate io Mr Bowie on 14 March 19 95 no men tion was ma de of th e Club's intentions to alter his position. Mr Brown iook up the Club's offer of a casual door position on 18 April 1995 in t he be li ef that this would be necessary to obtain the one wee k· s pay in lieu of notice. On rea li sing after a day and a- hal f that the pa ymen t or notice was not go ing to be made, he left the Club ·s empl oy and fi led the dismissal applicati on . The week's wages in lieu of notice has not been pa id to date. Mr Bowie alleged that he had entered into an agreement with Mr Brown for th e wee k·s notice lo be wo rk ed out. Whe n it was not and Mr Brown lct1 his employment. Mr Brown was paid fo r t he tim e worked a nd payment for t he balance of th e week was forfe ited. In summary Mr Bro,,11 contended th at he had been dis mi ssed fro m his employment on 14 March 1995 bec~use 01· the injuries suffered on I 5 Febrnary, the peri od during which he was unavailable fo r work and the manner in which the injuries were sustained. CONCLliSIO ~S Despite Mr Bowie·s assertions to the contrary Mr Bro wn was dismissed from his position of liar Man ager through the veh ic le of th.: klter of 14 March 1995. The Club tenninated Mr Brown's contract of employment as a Bar Manager and offered a fresh con tra ct being. the casual door position. Th e dismissal ap pli ca ti on was lodged pursuant to Divis ion 5 of the Industrial Relar1011s Act /990. Howe ve r. m view of Mr Brow11·s submissions th at hi s d1sr111ssa l resulted in part from t he injuries he sustained from the assault it is relevant to li rstiy deal with th e application as if it had been lodged pursuant to Di vision 6 - Protection of Injured Workers. This Division of the Act provides protect ion fo r workers who arc dism issed from thei r em ployment as a result of unfitness for duly. I accept th e Club·s evidence th at the alteration to Mr Brown's employment contract did not occur for this reason. Given that I have found that Division 6 does not ap pl y th e dismissal must be considered in tenns of Division S of the Act. The Club a ll eged that Mr Brown ·s unsatisfactory perfom1ance in th e positi on of Bar Manager prompted a review of his employmen t. Scant evidence was presented to the Comm ission to underpin the a ll egations of deficient perfonnance. No witnesses besides the Secretary/Manager were called and minutes of meetings which may have attested to concerns raised by Committee m.::mbers were not produced. Mr Brow11 acknowledged that certain issues or in cidents had been raised with h im by Mr Bowie from time to time in a conversational manner but he d id not appreciate that his employment was the subject of such criticism that di sm issal was being contem pl ated. T he evidence is clear that at no time was Mr Brown given a reasonab le opportunity to defend against the allegations about hi s p crfo1man ce prior to 14 March 19 9 5. In t he res u lt the C lu b did not co mpl y with s. 292 of the Act. The effect of thi s is tha1 the dismissal contravened Div ision 5 of the A ct. Th is finding cannot be pu t as ide because the Club d id not in te nd to dismiss Mr Brown . Ignorance cannot absolve th e employer from the ramifications of i ts actions. I must now consider the matter in terms of s. 29 I of the Act. In Drake v Charlie 's Pty Ltd ( 14 9 QGIG 995) Bougoure. C.. sa id the following:- .. In detennining whether a valid reason ex ists. a two st age proce ss is involved. I mu st fir st ly determi ne w heth er the re was a valid reason for dism iss al pursuant lo s. 29 1(I ) of the Act. If that question is answered in the aflinnative [ mu st th en secondly detem1 in e, pursuant to s. 29 I (2) , whether the reason is not v alid having rega rd to the employee's conduct. capacity or perforniance an d the operational requirements of t he employer 's undertak in g because the dism is sal is harsh, unjust or unreasonable.". In relation to the fi rst stage I am sa ti s fied , de spi te the l imi ted mate ri al avai lable to the Commission, that a valid reason relating to pe rfonnancc in terms ors . 29 1( I) existed. Mr Brown's absence from work was fortu itous from th e Club's perspective in that i1 presented an opportunity to restructure its ope rat ions. The evidence re veal s however. that the basis of the dec isi on to fundamentally alter the contract of employment was Mr Brown 's performance especia ll y in re lati on to the C lu b's perce ption of the im pact of the pcrfonnance on its operational requirements. Althou gh the employer did not satisfy the requirements of s. 292 of t he Act it is evident fr om tl1e mater ia l be fo re me that the de ci s ion to alter Mr 13rown ·s em pl oyment status (and hence dismiss him ) was based on his perfonnance in the po sit ion of 13ar Manager. Given the nature of so me of the patrons of the Eagleby Civic and All Sports Club. the view was tak en th at a more imposing and effective Bar Manager was required in an endeavour to im prove the Club·s amb ience and ultimately its profitability. On its face the Club had a valid re ason fo r dismissing Mr Brown. The second stage involves th e question of whether th e di smissal is ha rsh. unjust or unreasonable given the ci rcumstances of th e case. The only conclus ion open to the Commission is th at the dismissal was unjust. This view is reached despite th e dismissal being for reasons of perfonnance and with the Club clearly having in mind t he operational requirements of its business. Concerns about Mr Brow11 •s pe rformance had not seriously been rais.ed wi th him. no opportunity to defend against the allegations re lating to his perform ance was given and th e tim ing of th e dism issal ( in i ti ally due to coinc ide wi th the ex pi ra ti on of workers' co mp ensa tion but ul timate ly occurring du rin g a further pe ri od of such leave) lacked ju dgemen t. The Club's neglect to mention its intentions to Mr 13rown on his auendance at th e Club on 14 March I 995 to sup pl y further medical certificates is a furth er demonstration of its unfa ir treatment of Mr lirovm. RE\- lf.D Y In 1he circumstances of this case I fin d that reinstatement wo uld be imp ra cticable. The Club re placed Mr Bro\,11 with a Bar Manager who has proved to be particularly effective in min imi sing d is rup ti on . In determining the practicability of r ei nstatement the Co mmi ss ion generally places limited weight on the alternative employ ment 16756_ 1. DOC I { I 20 October, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 891 arrangements an employer may ha ve made as a result of a di smissal. In the particular circumstances of thi s case thi s matter has assumed grea te r significance. Al though acknowledging the Club's preca ri ous financ ia l situation it is my view that compensation is the more practicable remedy. Mr Brown has sought compensation equivalent 10 the amount of wages lost since 12 April 1995 (the date workers· compensation benefits ceased) to the dale of the hearing less wages earned while em ployed as a casual kitchen hand. I be li eve that claim to be excessive. Mr Brown had only be en engaged for two months before the assa ult occurred. Ind ications we re th at even at that stage lo ng tenn employment in the posit io n of Bar Manager was doubtful. In deciding on the quantum of compensation T have adopted the ..global sum'' approach relying on the princi ples espoused in Chenery v Klem=ig (55 SA IR 545 ). Jn particular I have ta ken into acco un t th e leng th of Mr Br own 's emp loyment, his prospects w ith the Club and the finding that he was not afforded procedural fairness . Addi tionally I have had regard to the poss ib le duration of Mr Bro~111's employment given the Club's concerns about hi s perfonnancc and their proposal to pu t steps in place to resolve th e si tuatio n. Except for two matte rs to wh ich I will shortlv tum I would have awarded Mr Brown $2 300 compensat io n. • It has genera ll y been accepted in this ju ri sdiction w ith out ul timately detem1ining the matter that applicants have a responsib ility to act to mi ti gate their losses. In thi s ca se the Club offered Mr Bro"~l a fresh contract of employment as a casual door person. Approximately 16 hours per week were offered a lth ouoh Mr Bowie indicated the number of hours may have increased subj~ct to satisfactory perfom1ance. Mr Brown only performed duties in thi s posi t io n for a day and a-half before resigning. While Mr Brown had par ticu la r reasons for leav in g t he new po si tion th at he did not continue to miti ga te his loss shou ld be taken in to account. The amount of compensation has been reduced accordingly. Be cl!use ac count has been taken of t his I do not need to consider discounting th e s um of com pensation awarded fo r un e mp loymen t be nefits received during thi s period. I 110,v tum to th e question of notice. The parties agree that payment in lieu of notice was not mad e albeit a dispute exists over whether alternative an-angemcnts were agreed. In my view Mr Brown is ent it led to the one week's pay in lieu of notice offered in t he Club's letter of 14 March 1995 . The Comm ission has found that Mr Brow11 was dismi ssed and in accordance with s. 293( I) of the Act either a per io d of notice or compensat io n is to be given. Mr Br o\\-11's resignation on realising th a1 payment in li eu of notice was not going to be forthcoming does not indicate that any alternative arrangements were agreed. Adopting th e rea~on in g of Bougoure. C.. in 171o mpson 1, Envi sage Fmancial Services Pry Ltd ( 147(i) QGJG 727) I ha ve decided to incl ud e in the amount of compensati on finall y awarded the sum of$ 520.00 being co mpensation for notice not given. I order that Eagleby Civic and All Spo 1ts Club Inc. p ay an amoun t of $2 020 lo Scot! Brown within 21 days of the date or release of this decision. A fo nnal order accompanies the r el ease of th is decis ion . . Mr Brown also sought an order that the employer supply a reference. In this rega rd I would dr aw the parties' a tt en t ion to s. 51 O - Certificate of Employment on Termination and Industrial Re lat ions Regulation 102. Mr Brown has sought an order fo r co sts against the Club. Each of the parties represented themselves although Mr Brown was accompan ie d by a solici tor and Coun se l. Unti l a few days prior to the hearing the Club was represented by the Registered and Licensed Clubs Association. This representation ceased due to the financial circumstances of the Club. McKenzie. P.. in th e matte r of Goldmcm v Dara General ( 144 QGIG 379) outl in ed the ci rcumstances under which costs might be awarded by the Commission. As Hall, CC., pointed out in Barker 1· Park Regis l!o!els and Resom Croup (149 QG IG 368) thi s decision sh ou ld 11 01 be treated as a statute. Having considered all of the reasons advanced by the applicant I cannot find any abnonn al circumstances which would lead me to make an award of cos ts against t he responde nt. The application has been litigated in t he nonnal way: two pre-hearing conferences before the Commission are not uncommon an d a last minute co n fe rence between th e parties is also a frequent occurrence in this jurisdiction. Mr Brown alleges that he on ly lea rnt of the Club's object ion to his being legally represented three days prior to the hearing. Mr Bow ie pointed out that objection was taken by the Registered and Licensed Clubs Association to legal representation at the initial co nference and I am inclined to accept Mr Bowie's asse rtions given tha t thi s is typical of in dustrial organisations. It seems that it was on ly at the conference preceding the hearing did t he im pact of the objection reg iste r. In my view adequate time was available to find alternative representation given the Iimited issues between the parties. Alternatively a short adjournment could have been sought 10 allow alternative representation to be found. In the ci rcumstances of t his case primarily wh ere the applicant has misunderstood the nature of the objection I do not bel ieve it is appropriate for costs to be awarded. Order accordingly. G.K. FI SHER, Co mmi ssioner. Appearances: Mr S.G Brown (applicant) and wi th him Mr P. Sacre and Ms S. Stannett. Mr I. 13owi.: on behalf of lhe Respondent and wi1h him Ms S. Shernian. Opera ti ve Date: NIA Decision - Compensation. Released: 4 October 1995 ####################################################11#11 16756_1.DOC z::a:az:;;a -- 2 of 2 --