AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal against decision and orders
issued by Commissioner Hodder on 10 December 2002
Jupiters Limited trading as Conrad Jupiters Gold Coast
(C2002/6192)
s.170CE application for relief in respect of termination of employment
G Atfield
and
Jupiters Limited trading as Conrad Jupiters Gold Coast
(U2002/1949)
JUSTICE GIUDICE, PRESIDENT |
|
VICE PRESIDENT LAWLER |
|
COMMISSIONER FOGGO |
MELBOURNE, 19 MARCH 2003 |
Appeal against decision and order for reinstatement - whether termination harsh, unjust or unreasonable - contractual term prohibiting gambling - breach - finding of ignorance of prohibition - whether dismissal for breach harsh .
DECISION
[1] This is an application by Jupiters Limited trading as Conrad Jupiters Gold Coast (Jupiters) for leave to appeal and, if leave is granted, an appeal from a decision made by Commissioner Hodder on 10 December 2002.1 In that decision the Commissioner granted an application by Mr Atfield pursuant to s.170CE(1) of the Workplace Relations Act 1996 for relief in relation to the termination of his employment by Jupiters and ordered Jupiters to reinstate him.
[2] Mr Atfield commenced employment with Jupiters as a dealer/floor manager at its casino on the Queensland Gold Coast in December 2000. Jupiters has a strict policy prohibiting staff members from gambling at its casino and associated establishments. On 16 March 2002 Mr Atfield placed a bet on a football game at the TAB outlet in the Prince Albert Hotel. Although physically a separate building the hotel is within a group of buildings which were described as the Jupiters complex. Upon being asked by the person attending to him whether he was a staff member and being warned by that person of the prohibition on staff gambling at the TAB, Mr Atfield immediately cancelled the bet. The incident was reported to management and Mr Atfield was summarily dismissed on 19 March 2002. Mr Atfield made an application pursuant to s.170CE of the Act, an application which was granted by Commissioner Hodder in the decision under appeal.
[3] In order to properly understand the basis upon which Jupiters contends that the Commissioner's decision was wrong it is necessary to traverse some events which occurred at the time Mr Atfield's employment commenced. By letter dated 16 November 2000 Jupiters offered Mr Atfield employment. The letter stated that his date of commencement would be 11 December 2002 and then set out the hourly rate and loading on which his wage would be calculated and the mode of payment. It continued:
"You will receive a staff handbook on your first day of work, detailing the remainder of your terms and conditions."
Then followed a list of matters which were described as " important matters you need to be aware of immediately." The list did not include the prohibition on gambling.
[4] Mr Atfield attended an induction course on 8 December 2000. The course lasted about two hours. At the end of the course Mr Atfield signed a document entitled "Induction Checklist" which included the following certification:
"I hereby certify that I have read and fully understand the contents of the Conrad Jupiters Staff Handbook and agree to abide by all conditions of employment outlined herein (sic)."
[5] In fact there were no conditions of employment outlined in the Induction Checklist. Numerous conditions of employment were, however, outlined in the Jupiters' Staff Handbook and in fact the Staff Handbook was the major focus of the induction course. The handbook contained 23 pages of text. On page 13 this passage appeared:
The following behaviours are regarded as serious misconduct and will result in disciplinary action, which may include losing your job:
· Theft
· Drunkenness
· Consuming liquor or drugs at work
· Immoral conduct, soliciting for purposes of alcohol, drugs or immoral reasons
· Wilfully damaging customers', employees' or company property
· Rudeness to customers
· Ignoring a lawful or reasonable order given by a manager or supervisor
· Intimidating or threatening other employees or customers
· Making false statements about any employee member, the company or the company's products
· Giving unauthorised information to the media
· Leaving work before completion of your shift without permission
· Sleeping while at work
· Physically hurting another person
· Provoking, starting or being involved in a fight at work
· Removal of articles from the complex without authorisation
· Collecting and soliciting contributions for any purpose
· Possession of firearms, explosives, illegal items or publications at work
· Accepting any advantage in relation to the company's affairs or business without prior consent from management
· Breaking any safety rules or practices at work
· Severe swearing or the use of profane language
· Dishonesty
· Falsification of attendance records
· Insubordination
Note the following behaviours will lead to dismissal:
· Gambling on the premises (including Casino TAB, Jupiters Statewide Keno throughout Queensland and Centrebet)
· Gambling at Conrad International Treasury Casino
(Emphasis in original)
[6] It will be noted that the terms of this extract and, in particular, the underlined and bold emphasis in the original and the contrast between the categories of conduct that "may" lead to dismissal and the breach of the prohibition on gambling that "will" lead to dismissal underscore the importance placed on the prohibition on gambling.
[7] Mr Atfield acknowledged that he had been told at the induction course that it was a specific requirement that he read the handbook prior to signing the acknowledgement on the Induction Checklist.
[8] The Commissioner accepted the evidence of Mr Atfield that he was in fact unaware of the prohibition on gambling at the TAB in the Prince Albert Hotel at the time he placed the bet. In particular the Commissioner concluded as follows:
[51] However, given the nature of the evidence of certain employees of Jupiters in relation to their knowledge of the Casino and TAB situation, I am satisfied that there existed some confusion amongst staff as to the full extent of the employee gambling prohibition as it related to certain activities and locations within the Jupiters complex and that it would not be unreasonable to accept that the applicant's action on 16 March 2002 was a genuine or honest mistake.
.........................
[74] Based on the evidence and the demeanour of the applicant I have concluded that he made a genuine error when he placed the bet at the TAB and was not in fact aware that the policy for employees extended to the TAB located within the hotel at the casino complex on or before 16 March 2002 but in effect became aware after he had placed the bet on that day after his conversation with Mr Ashdown.
.............................
[86] I find that based upon my observations of the applicant and of the evidence presented, that he was genuine and did not know that he could not gamble at the TAB within the hotel but that he was unreservedly clear that staff could not gamble within the main gambling area within the casino. ... The cancellation was voluntary on the part of the applicant and from my observations of the evidence was a sincere attempt to rectify a genuine error in absolute contrast to the actions of a foolhardy or irresponsible individual who was simply being rebellious or taking risks. The applicant was a responsible, licensed casino employee who appeared to highly value his career and was off duty for approximately a further seven hours. There is no doubt that the applicant could have proceeded elsewhere to make the wager and I find that he certainly would have adopted this course of action if he had have been aware of the TAB policy at the time.
[9] The Commissioner went on to find that the termination was harsh, unjust and unreasonable. Jupiters does not challenge the Commissioner's findings of fact including the ones we have just set out. It contends, however, that despite these findings the Commissioner failed to accurately ascertain the mutual obligations and duties of the parties to the contract of employment. The primary ground of appeal is that the Commissioner erred in giving insufficient weight to the fact that Mr Atfield's contract of employment contained a strict prohibition on employee gambling of which Mr Atfield was under a duty to inform himself. It follows, in Jupiters' submission, that the termination was neither harsh, nor unjust nor unreasonable.
[10] There can be little doubt that the prohibition on employee gambling was a term of Mr Atfield's contract of employment and that the prohibition extended to the TAB in the Prince Albert Hotel. To the extent that a contract is wholly or partly written, the express terms arising from the written part of the contract are determined by construing the documents which constitute the writing in accordance with the usual canons of construction. The subjective knowledge or belief of the parties as to those terms is irrelevant in that process: Codelfa Construction Pty Ltd v State Rail Authority (NSW).2 The prohibition on gambling is prominently and unambiguously stated in the Staff Handbook. The letter offering employment and the certification in the Induction Checklist expressly and unambiguously impose compliance with the requirements specified in the Staff Handbook as a term of the contract of employment. The contention that Mr Atfield was under a duty to obtain and maintain a full knowledge of the rules in relation to the prohibition on employee gambling adds little to the argument.
[11] Further, Jupiters called compelling evidence as to the cardinal importance of the prohibition and its strict application to the proper operation of its business. In our view, to the extent that Mr Atfield breached the policy by placing a bet, his conduct involved a breach of an important term of his contract and thus amounted to a valid reason for his termination within the meaning of s.170CG(3)(a) in the sense that the reason was "sound, defensible or well-founded."3 Of course there is a question as to whether the mere placing of a bet that is cancelled before the risk crystallises amounts to gambling within the terms of Jupiters' policy. This question was raised by the Commissioner but not decided. It was not argued before us and, given the conclusion we have reached, it is unnecessary to decide. In the balance of these reasons we assume that what Mr Atfield did amounted to gambling, involved a breach of an important term of his contract and thus provided a valid reason for his termination.
[12] The fact that Jupiters regarded the prohibition on gambling as absolute and enshrined the prohibition in the contract of employment is not determinative. In each case all of the circumstances must be taken into account. In Bostik (Australia) Pty Ltd v Gorgevski (No. 1)4 Sheppard and Heerey JJ observed:
"Employers can promulgate polices and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable."5
[13] That principle has been adopted and applied by the Commission.6 Furthermore, it is well established that the mere fact that there is a valid reason for termination does not mean that termination cannot be harsh, unjust or unreasonable within the meaning of s.170CE(1).7
[14] In the circumstances of this case we are of the opinion, notwithstanding that Mr Atfield was in breach of an important policy and that there was a valid reason to terminate his employment, that the termination was nevertheless harsh. The most important circumstance is the Commissioner's finding that Mr Atfield was unaware that the prohibition on gambling extended to the TAB in the Prince Albert Hotel where he placed his bet. Perhaps Mr Atfield's prompt cancellation of the bet influenced the Commissioner's finding but, whether that is so or not, the finding was not challenged before us. On any view, Mr Atfield's breach of the prohibition on gambling was at the minor end of the scale. It was a breach by someone who was ignorant of the prohibition, a factor that, in the circumstances, is truly exceptional, and the bet was cancelled within about one minute of it being placed - as soon as the prohibition was brought to his attention. Although the precise amount of the bet does not appear from the evidence, there is no indication the bet was other than a modest amount. There was clearly no collusion or attempt at collusion between Mr Atfield and the staff member who initially accepted the bet and the bet was placed in the hotel rather than the casino proper.
[15] It is also relevant that there was no evidence of Mr Atfield engaging in any other misconduct and he apparently had "unblemished employee standing with Jupiters." Moreover, for Mr Atfield the personal consequences of the termination were substantial. It seriously prejudiced his capacity to obtain work in an industry in which he seeks to make a career and thereby involved the likely waste of the, what for him must have been significant, funds expended in undertaking specialist training.
[16] In our opinion it was open to the Commissioner to conclude that the termination was harsh and, as noted, in the exceptional circumstances of this case, we would have come to the same conclusion. It is therefore not necessary that we examine the Commissioner's further conclusion that the termination was also unjust and unreasonable.
[17] We have carefully considered the Commissioner's conclusions as to the appropriate remedy and we have concluded that the Commissioner made no relevant error.
[18] Before concluding we think two additional comments are appropriate. Firstly, we note that the Commissioner made a number of criticisms of Jupiters' induction and training practices in relation to the prohibition on gambling. It is only fair that we record our view that we regard those criticisms as unwarranted. Because of the central importance of the prohibition on gambling, its prominence in the Staff Handbook and the nature of the induction training, a casino employee would ordinarily face almost insurmountable difficulties in persuading the Commission that he or she was ignorant of the prohibition. The fact that the Commissioner was so persuaded makes this case an exceptional one. It is a matter for Jupiters whether it modifies its induction procedures to provide for an express written acknowledgment by prospective employees of a fundamental policy the slightest breach of which is to be regarded as warranting instant dismissal.
[19] Secondly, on one reading of the decision, the reasoning of the Commissioner appears to have imposed an obligation on the employer to prove "serious misconduct" sufficient to justify summary dismissal at common law as a prerequisite to establishing a valid reason within the meaning of s.170CG(3)(a).8 Such an approach, if adopted, would be incorrect. Proof of misconduct justifying summary dismissal at common law is a sufficient but not a necessary condition to establishing a valid reason within the meaning of s.170CG(3)(a).9 Nevertheless, since for the reasons we have given we have concluded that the termination of Mr Atfield's employment was harsh, it is not necessary to take that matter further.
[20] For these reasons we think that, again, in the exceptional circumstances of this case, the Commissioner reached the correct result and accordingly we do not regard this as a case where leave to appeal ought be granted. In the exercise of our discretion we refuse leave to appeal.
BY THE COMMISSION
PRESIDENT
Appearances:
J Murdoch SC for the appellant
J W Nolan of counsel with J B Spreckley for the respondent
Hearing details:
2003.
Brisbane
February 4.
Printed by authority of the Commonwealth Government Printer
<Price code C>
2 (1982) 147 CLR 337 at 352 per Mason J
3 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373
6 Fearnley v Tenix Defence Systems Pty Ltd Ross VP, Polites SDP and Smith C; Print S6238
7 Windsor Smith v Liu & ors Print Q3462
8 See paragraphs [49], [61], [62], [67]
9 Annetta v Ansett Australia Pty Ltd Print S6824 at [9] and [10]