Cooper v Crushers Leagues Club Limited [1995] QIRC 508 (1995) 150 QGIG 887

886 QUEENS LA ND GOVERNMENT IN D US TRI AL GAZETTE f20 October. 1995 20 OcLOber , 1995) j l 155839 60 QUEENSLAND GOVERNMI.:.NT INDUSTRIAL GAZE'ITE 887 QUFFNSLAND INDUSTRIAi RELA'I IONS CO'-'1~11\<;JON lnd11Jtrial Rt'la11011s .-lu /9911 s. 295 application for rein,tutcmcnt AND Cru,hcrs Lea gue, Club I 1m1tcd (Xo BUrJ of 199./J -I O,tobcr 199.5 I cnninallon of Employment - Dbmi ,sa l - Rci ns ta1 e111cn 1 Applican1 Career Orientated - Staff R o\ lc" - Pos111on \1ade Rcdundant \elecuon ( ntcria lnadcquate and Lacl..cd I ormat - I mancial <;ituaiion D,sm,sscd \\ nhout Opportumt} to Respond llu,ines, Decision Procedural Faimc,, D ismis,111 Harsh. lln1u,1 and l Jnrcasonahlc • Compcn~aiion A,1,ardcd. Oy application li lcd on 30 Scpwmbcr 199-1 Gordon i\shlc} Cooper ,ough t relief a, lollo"s .. Appl) for a l kclaration or Unlawful Di-1111 ss al and w1 Order directing the re in statement of Gordon A sh ley Coo per in hi, fom1er emplo) mcnt as a Dut) M anager "ith Cru,hcrs I ea• uc, Club I ,mited. \\Ith full rc11nbursemcnt of remuncrat,on lo,t during the period bc t,, cc n the tcnnination of that cmplojment and su ch rcins 1a1c: mc111. or for ~uch o ther Order a~ the Commission ma, deem meet. ha\lng regard to the requirements ol \cl:tions 291 ,inJ 292. ,md pur>uJnt to Secllon 29~. of the Jbo,emcnt1uncd .\et·· Mr Cooper was appointed 10 the po,i11on of Co .o rd111ator. Crushers I cugues Cluh I united (the Crusher, Cluh) and cornmcnced cmplo}mcn t on 21 \I Jrch 199 -1 \1r Cooper hulJ~ a BJ,hdor ul 1! 01el ~lan agcment Imm Griffith t rmcrsit) CmlJ CoaM l ni\cr~it) College and a ccn ilicmc as a Leve l I Sport, Administrn101 Course /rum Au,1rnlian SociCt) of Sponi. Administrator Prior tn his emph1)mcnt \\ith ( ru,hers he \\J, emph1}cd at the lihcraton Mirage ,,h en he undcnool. ,tud ics wl11ch rc,ullcJ in the awarding ol the qualilic,1lions. He ,,,h dhmissed h) the Cru,hcr; on h1dJ) 9 September 199.t at "hich t11nc he was 111 s1 ructed to return his membership c,ml. The reason given for the di.missal \\ a, O\Cr,tafiing 111 the ad111in1Stration licld. l\lr Cooper was ,t c.trcer oricnl.ttcd person \1ho had und 1: nake11 studies ,~hrch were of ass i, 1ancc and benefit 111 cmplo1 mc111 in his d10-.cn car.:cr lle "a, J lo) al. tru,tcd and dcd1ca1..:J emplo, cc "ho ,1a, prepared to \\Ori. long hou~ to Jchie,c h1, goals. During the c,tahlishmcnt of the Cru,hers Le ague, Club I.1m111:d and the opening 1q;eks ol llad ing. the hou,, he worked were con~1dcrabl) more than rnntemplatcd but in line 11 ith the hours .:,pcued of a ~arccr orientated mJnagement pc"'on. Soon after the appo1111111c111 of Mr G.11 Kong as (ieneral r-.1anager an i,,ue aro,e rcgarding the ,taff ros1.:r, e,en though \1r (. ooper hJd been delegJtcJ author11) to arrange rn,ter., \, .i rc,ult \1r Cooper \,a, recalled to dut} I k complied ,~nh the 1n,1ruction. I he Commission is s a11 s licd that tl11 , in c 1d cn1 w.i, 1101 a con lributing foctor to the d1,rnissal 16751, I DOC -- 1 of 2 -- 888 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [20 October, 1995 The Commission accepts the evidence of Mr Cooper that prior t0 the dismissal there was no in d icat ion that his fu ture was insecure. In fact during his last weeks of employment plans were put in place fo r futu re even ts and activities and promotions. During those plrurning meetings the Commission accepts that as far as s taff were concerned the Club was performing beyond expectations of Directors with membership growing and it was on that basis that Mr Cooper understood the planning meetings progressed. Without prior knowledge Mr Cooper was called tO Mr Kong" s ofl'ice on Friday 9 September 1994 and infom1ed of his sepa ration from the Club. Mr Kong's recollection of the contents of the discuss ions d iffers to t ha t of Mr Cooper in a number of respects. The notes recorded by Mr Cooper and read into transcript by him in evidence clearly show that Mr Kong inforn1ed Mr Cooper that the Board had nuide Mr Cooper's position redundant. From the evidence there is no doub t that the Genera l Manager had the right to evaluate relative perfonnancc and other facwrs when seh:cting. a person for retrenchment. In this regard the Com mi ss ion accepts that any evaluation undertaken would be minima l on consideration of the fact that the General Manager did not have a great deal of contact with Mr Coope r prior to the separation. In th is regard the Commission acknow ledges that con tact is on ly one of the crite ri a th at would be available to management in making such a selection. So be it the evaluation mechanism is of utmost importance. The ev idence of Mr Kong and Mr Van de Vclde clearly reveals that the selection criteria used was inadequate and lacked format. Mr Kong and Mr Van de Velde outlined that prior to every Board meeting he had d iscussions with Mr Kong regard in g reports. Mr Van de Ve lde in ev idence stated:- ' ·And pr ior 10 this Board meeting on 6 September, I think - 8 September - yes, it was Thursday 8 September - you had some discuss ions with Mr Kong about this. d idn't you? - Well you <lo every - be fo re every Board meeting. lie does his - his report to the Board. And you discussed with him his proposa l. did you. that the number of duty managers should be reduced from three 10 t wo•) - Yes. we <lid d iscuss what - that was in part of the report so obviously \,e would have discussed it.". The report to which reference was made by Mr Van de Veldc was not made available during the hearing yet Mr Kong advised there was nothing in writing. The relevant part of the minutes of the Board meeting reveal the following;- "Three duty managers arc not justified at the present time. Mr Kong will reduce the number to two on Friday 9 September 1994 having regard lo industrial re lations advice from Hopgood and Ganim.". Mr Van de Vcldc also con finne<l the propo sa l of Mr Kong was unanimously supported by the Board without debate. I laving read the extract from the minutes of the 13oard meetings the Commission accepts thai the Board decided to reduce the number or dut) managers from three to Iwo with such decrease to be implemented by Mr Kong. In re lation IO the financial situation the evidence of Mr Van de Velde and Mr Kong shows that the club had embarked on a marketing campaign which flowered the actual situation. The Cornm1ss1on was show11 articles which indicat ed that the Club had exceeded a ll expecta ti ons wherea, Mr Van de Veldc out li ned in evidence that the Board was very concerned about unsatisfactory levels of profits generated with the Club s trugg ling from day one . The evidence revealed that as the Club had not fonnulated criteria fo r selec ting persons fo r redundancy and Mr Kong proceeded without consideration of a contemporary industrial re lations fr amework. The evidence of Mr Kong and Mr Van de Velde confl icLS in a number of areas including the provision of a report to the Board meeting. As such. whether Mr Kong discussed personally with Mr Van de Velde the nam e of the Manager pr ior to the Board meeting can only be given minimal weight in view or the minutes of the meet ing . Accordingly, the Commission has given em phasis to events between the board dec ision and the time of the dism issa l. Whi lst the criteria used lacked fo n na t the ev idence of Mr Kong indicated ihat many interesting thoughts passed through his mind - most o f tJ1em still stored there. Of concern was the evidence o f Mr Kong that he allowed the marital status of employees to influence his dec ision. In ev idence he stated:- ·'But ma ri tal cons iderations did have something 10 do with it ? - Th at was a thought that went t hrough my mind. Well , it must have been a consideration then, was it'! - Who knows? There was heaps of other considerations.". 111 making a dec ision on stalling a n-angemen ts for a Club in such a s tru gg li ng financial state one would expect that ap prop ri ate writte n review o f the managerial accounting aspecLS would ha ve been sought as a matter of urgency. Wh ilst Mr Kong may have been appointed for his practical hands on exper ien ce his kn ow led ge of important fact0rs in the Human Resources field is lacking. As a result a person with tertiary qualifications and ce rt ain expe ri ence was d is mi ssed without being given an opportunity to be interviewed or consulted on his kn ow ledge. He was d ism issed on the words of Mr Kong in evidence on the basis of heaps of considerations - cons iderations wh ich were not ou tlined to Mr Cooper prior to his d ismi ssa l but were in add ition to the reasons given. As such Mr Cooper was adv ised his work perfonnance had been satisfa cto ry ru1d that the terminat ion wa~ sole ly the result of a business dec ision. In giving the reason as a bus iness decis ion. the Club must acknowledge that it erred when determin ing staffing establishment at the time the Club was formed. The Crushers is a new c lub with the evidence revealing that membership and installation of poker machines proceeded at a level which exceeded all expectations. At the time of fonna tion good bus iness practice would be to de termine a staffing level which wou ld ca ter for budgeted figures. This Club from the record exceeded the budgeted figures in all areas except profi t. In the co ntemporary human rela tions environment the Commission would expect an employer to be fully aware of the in dus trial imp lications and employ staff within that framework. It appeared that the Crushers were not conscious of these responsibilities and employed personnel when the Club was uncertain of the ir fu ture trad ing patterns and did not advise staff of such concerns. These fact ors combined with the intent of the legislation to provide in certain c ircumstances for procedural fairness lea,·e the Commission with no doubt that it should intervene on thi s occasion. In arriving at the decis ion I make reference 10 the su bm issio ns o f Mr Steinitz who placed emphasis on the decision of Zeitz, P., o f the Employees Relations Commission of Victoria in the decision of the matter Tom Shearer v Ac/ton Merca111ile lirni1ed. (Decision E93/0 1 14 dated 15 July 1993) where it is stated:- " ln relation to the selection of the applicant for redundancy it appears that the respondent fa il ed 10 carry ou t any obj ective analysis of the comparative strengths and weaknesses of the applicant. no r did it establish any criteria that could be object ively assessed as fair or reasonab le.". 16756_1. DOC ·I \ • I t '• I I 20 October, 1995] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE On examination of the e ·d h • • . . vi encc, t e submissions and exh ib·1 • lh~ Co~1m 1ssion is satisfied that the employer has acted in a. ha~hs un_1us t ,md unreasonable manner. • • . ~ccep1 that re-employment or reinstatement circumstances would no t be po ss ible. m such f The f Commissi?n must therefore give consideration to other o rm s o re lie f availa ble. The dismissal occurred on 9 S b 1994 t · cptem er a a lime when there was no leg islat ive res triction amount that cou ld be awarded b)' the. Co • . on the mmiss1o n. In cons ider in g this mailer the Corn • _. h . -·d . mission as given con~1 erauon to the fai lure of the cmploy·er to 1· II d . I f; · . . o ow reasonable proce ura a1mess, the implications that mari lal s tatus was a facto en tering the n11nd of the I r . . emp oyer and there was not anv ob ·ect iv ana lySis as part ol the selection procedures. • -~ e Fact~rs that the Com mi ssion considers appropriate to d ·t • a leve l ol com pensation arc:- e enn ,ne fu ture ex pectation of employmen t; efforts to mi tigate losses wh il st available for emp loyment. reason for separa ti on. length of se rvice. On cons ideration of each of these factors the Commi- • detenn mes tha t an amount of $9 ,500 is appropriate . sswn . 1_ ~ercby orde r the amount of $9,500 to be pai d by the e d wnhm 21 days of the date o f this decis ion. r spon ent the In ;e la.tion to co_sts the Comm ission has g iven consideration to s s~ m1ss 1o~s. 1h1s ap_p lication proceeded in accordance with - tand,trd prac ti ce and par1ies were availabl · 11 I de!· • \"I ·1 · ' e wi 1 on v reasonable ays. v 11 st I acknowledge recent decisions in tl • • with the I · 1 • 11s area together d eg1s ation provided. the Commission is not persuaded lo awar costs. l order acco rd ing ly. K.l.. EDWARDS. Commissioner. Appearances:- Mr R. Ste in itz on behalf of the Applicant. M; ~ White for_ The Regi stered and Licensed Clubs Association of Q ecns land, Un ion of Employers on behalf of the Respondent. Operative Date: NIA Decision - Reinstatement - Compensation Awarded Released: 4 October I 99S 889 -- 2 of 2 --