Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cascade Hotels Queensland Ltd, Trading as The Vale Hotel, Townsville [1991] QIRC 173 (1991) 137 QGIG 119

11 8 QUEENSLAND GOVERNMENT lNDUSTRIAL GAZETTE [25 May, 199 1 11 / [ 119] The Queensland Government Industrial GazettePUBLISHED BY AUTHORITY Annual Subscription $260 ISSN 0155-9362 Vol. 137] SATURDAY, I JUNE, 1991 [No. 6 QUEENSLAND INDUSTRI AL RELATIONS CO MMISSION Industrial Relations Act 1990- 199/ s. I I.I I - application fo r re instatement Federated Oerks' Union of Australia, North Queensland Branch, Union of Employees AND Cascade Hotels Queensland Ltd, Trading as The Vale Hotel, Townsville (No B90 of 1991) CLER.KS A WARD - HOTELS AND REGISTERED CLUBS - STATE CO MMISSIONER SWA N 21 May 1991 Termination of Em ployment - Summary Dismissal - Insubor- dination - Procedures - Manuals - Time and Wages Records - Accounting Records - Falsification of Books - Allegations - Conflicting Evidence - Credibility - Harsh, Unjust or Unrea- sonable Dismissal - Employer/Employee Relationship -·- Appli- cation Granted. DECISION This matter is before the Commission by way of an application by the Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees (the Union) for the reinstatement of Ms Anita Bean to her formerly held position as clerk at The Vale Hotel, Townsville (the Hotel). The appropriate Award under which Ms Bean had been employed was the Clerks' Award - Hotels and Registered Clubs - State. Ms Bean was represented by Mr L. Hauff for tbe Union, and Mr P. Mc Kendry, for the Queensland Hotels Association, represented the Employer (the Cascade Group). Ms A. Bean had been employed as a clerk by the Cascade Group at the Val e Hotel from 19 June 1990 until th e date of her dismissal on 23 Fe bruary 199 I. Prior to this period, Ms Bean bad worked at the Hotel as a bar a ttendant from December 1989 to April 1990 wh en she resigned. After her resignation, Mr P. Sadler, Assistant Duty Manager, asked her to reconsider employment at the Hotel in the capacity of a clerk. This offer was accepted by Ms Bean. Whilst there was some confusion between the parties as to whether Ms Bean had been summarily dismissed, the evidence suggests this to be the case, despite the fact that the Employer paid Ms Bean, on termination, two extra days pay . The Manager of the Hotel, Mr W. Jones, confirmed in evidence that this payment was inadvertent and due to inaccura te advice. The ground given for Ms Bean's dismissal was insubordination. The eviden ce leading to Ms Bean's summary dismissal centred upon her discussions with the Regional Manager of the Cascade Group, Mr B. Muir, in Townsville on 25 February 199 I. It was claimed by Mr Hauff that Ms A. Bean had reason to be concerned about a series of events which had occurred at th e Hotel and she had sought to bring these matters to the atte ntion of Mr Muir. Mr Muir, having investigated the concerns and deeming them to be unfounded, left the final determination of the matter in the hands of the Hotel Manager, Mr W. Jones. Mr Jones chose to dism iss Ms Bean. Mr W. Jones felt that the concerns expressed by Ms Bean amounted to allegations against himself which, if proved to be true, would warrant his dismissal from his position of Manager of the Hotel. Further, Mr Jones believed that Ms Bean should have discussed her concerns with him first , before going to see his su perior, Mr Muir. Mr Jones was of the view that (a) contents of the allegations and (b) Ms Bean 's discussions with Mr Muir to the exclusion of Mr Jones, amounted to insubordination wbjch warranted summary dismissal. The definition of"insubordination" by the Oxford English Dictionary is as follows: - "The fact or condition of being insubordina te , absence of subordination or submission; resistance to or defiance of authority; refusal to obey orders; refractoriness; disobedi- ence; rebelliousness.". In considering the claim by the Union that Ms Bean's dismissal was so harsh, unjust or unreasonable as to warrant interven ti on by this Tribunal, the Commission must consider whether Ms Bean's actions (as outlined in (a) and (b) above) amounted to insubor- dination as claimed by the Manager, Mr W. Jones, sufficient to justify her dismissal. (a) The content of the allegations I 111 : Iii f11:;· .. : ...:·:; ·, -: ; ,· t 't ;_ : : . •• . :. ·, ••• •. · - :•::: • . .. •• . ; : ·: •••• '·:· : · :.: : -:: :-•:; - ·. i ;::·,·.· •• :: i:-:~.f:··: :i'::.·• ;;:; •. •;··~: 1.'.": :· . :;.. :: 1·- .: =>:,;:n;s;., -- 1 of 3 -- 120 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [1 June, 1991 The concerns expressed by Ms Bean were as follows:- ( l) Staff members complaining about their wages; (2) "Back stabbing" amongst staff; (3) The disappearance of money which had occurred on three occasions; (4) Attitude of management to staff; and (5) Money "overs" and "unders" in tills not being processed in accordance with Company procedures. In all of the above, the most contentious "allegation" was (5). Evidence adduced confirmed that it was company policy that a failure to comply strictly with this policy in this regard would lead to dismissal. ( 1) Staff complaining about their wages Most witnesses, including the person responsible for calculating staff wages, Manageress Ms L. Bowles, agreed that there had been a number of mistakes made concerning wages. Ms Bowles admitted to receiving no training in this regard, however, subsequently the Employer had instituted a form of training. It was stated by Ms Bowles that Ms B. Walsh, Organiser for The Australian Workers' Union of Employees, Queensland, had visited the Hotel and conducted a "spot check" of the wages books and had claimed to the Employer that, despite a few minor discrep- ancies, the records were in order. Ms Bean stated that she had borne the brunt of the complaints regarding incorrect wages because she had the responsibility of dispensing the wages and that staff always confronted her first with their complaints. From all the evidence regarding this matter, I am of the view that the concern expressed by Ms Bean was genuine and that there was substance to the claim that wages had been incorrectly calculated on many occasions. The efforts by the Employer to rectify this problem by way of appropriate training for persons calculating wages is to be com- mended, however, the system was clearly not in place at the time of Ms Bean's dismissal. (2) "Back stabbing" amongst staff There appeared to be evidence of some degree of discontent amongst the staff. Ms Bean referred to instances where staff mem- bers seemed to have been unduly critical of their work colleagues. In all, however. I believe that this did not represent an uncon- trollable situation for management. The industry, generally, is a difficult one and management and staff often work long hours. The evidence suggested that. whilst there was some disharmony between certain staff members, this was not so out of the ordinary as to warrant grave concern. Ms Bean's assessment of the situation was subjective, however, in conjunction with her other concerns. seemed to have painted a picture in her view of an unsatisfactory work situation. (3) The disappearance of money which had occurred on three occasions Some witnesses recalled three occasions upon which money had disappeared from safes at the Hotel. others only recalled two occasions. Be that as it may, its significance in this hearing is that all witnesses conceded it occurred which clearlv shows that it was not a fabri- cation on the part of Ms Bean. • :'lo allegations were made by any witnesses as to who may have taken the money, nor were inferences drawn. What was clear was that Mr Jones had, in fact, instituted procedures for staff to follow aimed at eliminating a recurrence of these events. I do not intend to deal with this matter any further. suffice to say that it was an agreed upon fact between the parties that the events occurred. (4) Attitudes of management to staff Ms Bean had recounted to Mr Muir an event which involved Ms Bowles and one of the bar staff. Ms Bean viewed this "event" as representative of a deteriorating attitude of management towards staff. It should be noted that Ms Bean was not present when this event occurred and afforded commentary to the Commission by way of hearsay. Despite some discrepancy between the evidence of Mr Jones and Ms Bowles, who were both present on the occasion, the event seemed not to be out of the ordinary for this type of industry. An employee was reprimanded by an Employer regarding dress standards. It had been alleged by Ms Bean that this "reprimand" occurred in front of Hotel patrons, much to the distress of the employee. Even if this had occurred, the event was the only one recounted to Mr Muir in this vein and it would be difficult for me to see this as constituting a pattern of behaviour by the Employer which could have the capacity to unduly distress Ms Bean. Once again, her response was a subjective one. (5) Money "overs" and "unders" in tills not being processed in accordance with company procedures By far this matter was the most contentious between the parties as it constituted an allegation by Ms Bean that Mr Jones was failing to comply with Company policy with regard to the correct recording of "unders" and "overs" from the various tills at the Hotel. Ms Bean alleged that Mr Jones required her to hand him. in cash. any "overs" in excess of ten dollars, which he would then use to reimburse tills which were "under". Ms Bean claimed that on one occasion she had checked to see if the monev had in fact been rung up on another till and had discovered· that this had not occurred. She claimed that she was then required to falsify Com- pany records to reflect this artificial "balancing out" of the tills. Ms Bean stated that on some occasions she merely used "white out" to falsify the records, but, on other occasions the pages became so "messy" that she rewrote them. It was claimed by Ms Bean that she expressed her discomfort with this procedure with Mr Jones and had said:- " 'Why do I have to make up all this money all the time without making it in the record or anything 9 ' and he had said to me 'Because of the stock.'.". Further, to a question by Mr Hauff:- "Why did vou believe that you needed to raise them [i.e. the issue of falsifying records] with Mr Muir 9 ". Ms Bean responded:- "I was worried about myself personally. I was the one that was actually changing the figures and I wasn't too - I'm not too up to date with what the auditors or whatever do and I thought what if anything happens and I change figures, it will fall back on me and look as if I am doing something wrong." The Commission had the opportunity to inspect the "daily read sheets - January to February 1991 for the Vale Hotel" whereupon the alleged falsifications occurred and stated during the hearing:- "The Commission makes the following commentary; that attention has been specifically drawn to the following dates in evidence from Ms Bean and referred to by Mr Brown. 11 January, 20 January, and 2 l January (although my recollection is that Mr Brown didn't specifically address that date). The Commission clearly notes that there have been corrections (white-outs) made on the 'unders and overs' column on the dates so referred to. On each of those specific dates, the Commission further notes that, from a perusal of the documents, there have been sporadic white-outs through- out other dates and read sheets contained in that document, and by using the word ·corrections', the Commission is not making any inference as to whether this would constitute mistakes made by the writer, and therefore mere corrections in that sense or, alternatively, whether they were in fact alterations. The Commission merelv notes that there is a clear indication of white-out on some· of the figures contained therein.". Evidence was adduced from Mr G. Brown, Property Administration Manager and Company Secretary for the Cascade Subsidiaries including the Vale Hotel, to the effect that he had found, upon inspection of the read sheets, "nothing suspicious". l June, 1991] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 121 Mr Jones was emphatic that he had never instructed Ms Bean to engage in the alleged conduct and, apart from a reference by Mr K. Brook. former employee of the Hotel, to the effect that:- and "It was understood that unders and overs were balanced out.". "but Anita did on the odd occasion - mavbe once or twice - comment to me that things weren't quite as she expected them to be, as for the bookwork.". there was no other evidence adduced from any witness to corro- borate either Ms Bean's or Mr Jones' version of events. From the evidence, it appeared that it would be impossible, so late after the event, to attempt to corroborate any of the evidence with individual operators of the tills who may have been able to tcst;fy as to whether, on a particular day, the till was ··over" or "under". Mr Hauff raised the following question with Mr Muir:- ·'J'.iow. if, say there was problems with the overs and you had concerns about what was happening to the money, that wouldn't actually be reflected in the daily read sheets, wouldn't it be reasonable to ask the people who originally drew up a rough daily read sheet detailing what the overs and unders were before it actually went in the bag to the office 9 ". To which Mr Muir responded:- "Yes, l could have done that. yes.". and further. by Mr Hauff to Mr Muir:- '"That wasn't done 9 ". to which Mr Muir answered:- "I didn't do that. no.". Ultimately. the question for determination by the Commission on this point (i.e. (5) Money "overs" and "unders" in tills not being procnsed in accordance with company procedures) goes to the credibility of the witnesses. Having observed the demeanour of each of the witnesses in the witness box and having considered the testimony of each of them m the context of all the circumstances of the case, I find that Ms Bean is the most credible of the witnesses and her version of the facts is. in my view, more likely to reflect the reality of what occurred in this instance. Further, Ms Bean alleged that she was not accusing Mr Jones of stealing. but rather. she was concerned about her involvement m activities which she believed might impinge upon her employment m some way. She stated that she had made this point clear to Mr Muir. Further, she claimed. in her discussions with Mr Muir. that she would not want to see Mr Jones lose his job as a result of these concerns. (b) .\1s Bean's discussion wi1h Mr Muir to the exclusion of Mr Jones Ms Bean claimed to have discussed all the aforementioned issues with Mr Muir some three days prior to her dismissal. She believed that she had been encouraged to discuss any difficulties that arose in her employment with Mr Muir if she saw fit, from comments Mr Muir had made to her on a previous occasion. In response to the following question from Mr Hauff:- "Can you recall ever mentioning to Anita Bean not long after she was employed that if she had any problems with the manager, if at the time it was Col Sullivan or any manager. that she should come and speak to you regarding those problems because it was part of your job?". Mr Muir stated that:- "I could have said that. yes.". Further, Mr Hauff inquired of Mr Muir:- "Did you believe that Anita Bean had any reason for concern about things happening at the Hotel as regards to vourself that she didn't believe conformed with company, policy? Did you believe she had a concern; that that was the case 9 ''. and Mr Muir replied:- "Yes, I do." Mr Muir asserted, however, that Ms Bean should have raised these matters with the Manager first before coming to see him. Following Ms Bean's discussion with Mr Muir, Mr Muir undertook an investigation of her commentary and allegations. He claimed to find her concerns to be unfounded and further and more significantly, her allegations regarding Mr Jones' handli~g of "overs" and "unders" to be untrue. On that basis, he discussed the issues with his superior, and was told to let Mr Jones handle the matter as he saw fit. As stated earlier, in my examination of the matters which had caused Ms Bean concern and which she claimed to have raised with Mr Muir, I have formed the view that the evidence shows these matters to have occurred, albeit to varying degrees of senousness. To state that these claims were totally unfounded, with the excep- tion of the "unders" and "overs" matter, is in direct contrast to the evidence adduced from some or all of the witnesses. However, on the question of the alleged procedures adopted by Mr Jones with regard to the "unders" and "overs", I have expressed a view that I accept Ms Beans' version of events. In saying this, however, I did not form the impression that Mr Jones was stealing money. Indeed, it was Mr Jones who had on occasions, to pay out of his own personal money in order to c~ver for not insubstantial deficiencies in cash held in the safes in the office. Conclusions At the outset, I believe that the intervention of this Tribunal is warranted in that the dismissal of Ms A. Bean is harsh, unjust or unreasonable. Section I l.11(2) states that:- "(2) On an application made under subsect10n (I J. if the Industrial Commission 1s of the op1mon that m all the circumstances the applicant should be reinstated or re- employed. the Commission - (a) may order that the applicant be reinstated bv the employer in the applicant's former position without prej- udice to the former conditions of employment.". and as such I order Ms Bean's reinstatement to her formerlv held position of Clerk at the Vale Hotel and reimbursement as from 23 February 1991. Mr McKendry, for the Employer. placed great emphasis on the alleged .breakdown of the Employer-employee relationship and felt that remstatement would constitute an unworkable and chaotic situation. Further. Mr McKendrv referred the Commission to the fact that Ms Bean's formerly held full-time position had since been reduced to one of part-time employment. Ms Bean had indicated. in evidence, her willingness to accept a part-time position in lieu of full-time employment at the Vale Hotel were she to be successful in her application. The Commission further notes that the Cascade Group owns and operates a number of Hotels in Townsville. Whilst I have ordered Ms Bean's reinstatement to her formerl-v held position of full-time clerk at the Vale Hotel. I would place on record the following comments:- the Cascade Group might consider offering Ms Bean equiv- alent employment at one of their other Hotels in Townsville -- 2 of 3 -- 122 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE [I Jun e, 199 1 or an arrangement with regard to the position currently oper- ating at the Vale Hotel (i.e. the part-time position in lieu of Ms Bean's fom1erly held full -time position as clerk) may be reached between the parties. However, either of the above scenarios could only occur by mutual agreemeni between the parties. These co mments are made by the Commission in light of the flexibility expressed by Ms Bean during the course of the hearing. I have given consideration to the stated grounds for Ms Bean's dismissal. I'm not convinced that Ms Bean's actions fall into the category of insubordination, nor do her actions, in a more general sense, warrant her dismissal. The evidence indicates that her concerns we re real, although in some cases, possibly exaggerated. This concern was conceded by the Regional Manager; it was conceded that Ms Bean should not have fe lt that her actions in going to see Mr Muir were untoward as she claims Mr Muir offered her this course of action upon appointmen t and further, Mr Muir felt he may well have told her that such a course of action was acceptable. I fail to see how Ms Bean's behaviour constituted insubordination. She stated that she had raised the major issues of concern with her immediate Employer, Mr Jones, but to no avail. It appears that her only recourse was to confer with Mr Muir. W ith reference to the alleged irretrievab le breakdown of the Employer-employee relationship raised by Mr McKendry, I did not gam the i mpression that a good worldng relationship was incapable of resurrection. In fact, evidence adduced from other witnesses indicated that Ms Bean had the capacity to maintain a good working relationship with her colleagues. Ms Be an felt she could continue working fo r her form er Employer provided there was a clear understanding between them as to guidelines to be followed and adhered to by the parties. Th e Commission has given detailed consideration to this point and believes that with good-will and co-operation of the parties, a satisfactory working relationship could be restored. It would seem ap propriate on this po int for the Commission to re-endorse the comments of Sheldon J. in re: Loly and Holloway and Australian Workers' Union 1971 A.R. 95 at 106: - "An award of re instatement is not a guarantee of permanent employment. It is a restoration of the status quo where a dismissal is regarded by an arbitrator as having been unfair. Th is point needs speci al e mphasis in this case. If I make an award of re instatement in this case, it would be an order to put the parties in the position where they would have been as from 8th February if the dismissal had not taken place. The future would depend on events but if co- operation proved impossible either through Miss Holloway's fault or, after a fair trial, because of invincible incompatibilities in temperamen t and outlook the Commission could not inter- vene again. It has no right to try and run the branch office by remote control. Its sole right is to require the parties to start again from the point where an injustice occurred.". In light of the above comments and in accordance with the provisions of s. 1 I.I 1 of the Industrial Relations Act 1990, the Commission orders the reinstatement of Ms A. Bean to her formerly held position of clerk at the Vale Hotel wi thout prejudice to her former conditions of employment. Ms Bean has indicated during the hearing that she has not been, since her dismissal, in other employment nor has she received monies by way of unemployment benefits. Ms Bean had been paid an amount on termination which incor- porated two days pay in lieu of notice and her statutory entitlement of annual leave with loading and, whilst she is requlfed to repay th is to her Employer, I will leave it to the parties to de t enn ine how this is to be rectified. Order a ccordingly. D.A. SWAN, Commissioner. Appearanc es:- Mr L. Hauff for the Fede rated Clerks' Union of Australia, North Q ueensland Branch, Union of Employees. Mr P. McKendry for the Q ueensland Hotels Association, Union of Employers and wi th him Mr G. Brown for and on behalf of Cascade Hotels Queensland Limited. Operative date: N/A Decision - Reinstatement I June, I 99 I] QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 123 ' J ii -- 3 of 3 --