Crozier v Palazzo Corporation Pty Ltd, 98 IR 137 - [2001] NSWIRComm 109 - NSWIRComm 1999 case summary — Zoe

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Crozier v Palazzo Corporation Pty Ltd, 98 IR 137

[2001] NSWIRComm 109

Industrial Relations Commission (NSW)|1999-07-29|Before: Sams DP

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Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1999-07-29

Before

Sams DP

Catchwords

03/13/2001 DATE OF JUDGMENT: 05/25/2001

Source

Original judgment source is linked above.

Catchwords

03/13/2001 DATE OF JUDGMENT: 05/25/2001

Judgment (82 paragraphs)

[1]

CITATION : Herbert and Warrah Ltd [2001] NSWIRComm 109 APPLICANT PARTIES : Bill Arthur Herbert RESPONDENT Warrah Ltd FILE NUMBER: 5355 of 2000 CORAM: Sams DP Termination of employment - unfair dismissal - misconduct - breach of standards and policies - rights of disabled person - unrepresented litigant - procedural fairness - principles considered. CATCHWORDS : Held, applicant's admissions - applicant in breach of Disability Service Standards and employer's policy - no mitigating circumstances - procedure fair and reasonable - dismissal warranted - application dismissed. Industrial Relations Act 1996 LEGISLATION CITED : Community Services (Complaints Appeals and Monitoring) Act 1993 Disability Services Act 1993 Crozier v Palazzo Corporation Pty Ltd, 98 IR 137 Thornton v Happy Hours Pre School Kindergarten (unreported) Sams DP, Matter IRC5333 of 1998, 29 July 1999 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Franklins v Webb, 72 IR 257 Shop Distributive and Allied Employees' Association v Jewel Food Stores, 22 IR 2 Bigg and Anor v New South Wales Police Service, 80 IR 434 Federated Municipal and Shire Council Employees Union of Australia, New South Wales Division, on behalf of Steven Wardle, and Blue Mountains Council (unreported) Sams DP, IRC4727 of 1998, 21 May 1999 Taggart and Bell Sports Australia (unreported) Sams DP, IRC5224 of 1998, 10 September 1999 CASES CITED : Electricity Commission of New South Wales t/as Pacific Power v Crump, 48 IR 296 Busways v Johnson, 55 IR 255 Hollingsworth v Commissioner of Police (No 2), 88 IR 282 Foster and Woolworths Limited (unreported) Sams DP, IRC6385 of 1999, 27 October 2000 Wang v Crestell Industries, 73 IR 454 Rapp v Wauchope RSL Club Limited (1995) 81 IR 116 Bigg & Anor v New South Wales Police Service, 80 IR 434, Burke v McGirr (1995) 87 IR 54 Antanakopoulos v State Bank of New South Wales (1999) 91 IR 385 Nicholls and Central Sydney Area Health Service (unreported) Sams DP, Matter IRC4131 of 1999, 25 August 2000 HEARING DATES: 03/12/2001; 03/13/2001 DATE OF JUDGMENT: 05/25/2001

[9]

THE EVIDENCE 6 Little of the factual background or circumstances leading up to, and after, the dismissal is in dispute. The Commission has extracted from the evidence an abridged chronology of the key events. 7 Sometime in 1997, the respondent's then Residential Services Manager, Wendy Newman, was made aware of a number of photos that had been taken of a resident of Bush Rose Cottage, Mr Robert Tay. Mr Tay is thirty-one years of age and has a severe intellectual disability. The applicant was one of the employees who was caring for him and had taken the photos. Mr Tay was naked in the photos and a young woman, in a bikini, appeared to be leading him in, and around, a swimming pool. Other photos were said to be of unknown women and children in various states of undress. 8 Ms Newman discussed the matter with the residential house co-ordinator, Ms Nathan, and in her presence, telephoned the applicant. He did not deny taking the photos. Ms Newman told him that she would not dismiss him provided all the photos and negatives were destroyed. Ms Newman made no notes, or file record of the incident. There appeared to be no follow up of the incident and there the matter remained dormant for about two years. Ms Newman has since retired and lives in North Queensland. 9 On Friday, 13 October 2000, the photos were discovered again by a staff member in an unmarked cardboard box found in a cupboard in a common staff room. The cupboard was used for general storage and for storing the staff's regular belongings during sleepover shifts. It was able to be accessed by all of Warrah's employees. 10 Warrah's CEO, Patrick McDonald, called a meeting on the same day involving himself, Toni Russell, Residential Services Manager (Cluster Houses); Karen Gall, Bush Rose House Co-ordinator; Del Bustos, Residential Care Worker; Joan van den Burg, Day Services Manager and Milan Telford, Administrative Services Manager. 11 The meeting decided to refer the photos to the Police (which Mr McDonald did that day), suspend the applicant and convene a further meeting on Monday, 16 October, involving the applicant, the Management Committee, and two outside persons known as "community visitors". The role and functions of "community visitors" is determined by the Community Services (Complaints, Appeals and Monitoring) Act 1993 and is detailed in para 23 of this decision.

[53]

DECLARATION ON THE RIGHTS OF DISABLED PERSONS … 3. Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever the origin, nature and seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow-citizens of the same age, which implies first and foremost the right to enjoy a decent life, as normal and full as possible. … 9. Disabled persons have the right to live with their families or with foster parents and to participate in all social, creative or recreational activities. No disabled person shall be subjected, as far as his or her residence is concerned, to differential treatment other than that required by his or her condition or by the improvement which he or she may derive therefrom. If the stay of a disabled person in a specialized establishment is indispensable, the environment and living conditions therein shall be as close as possible to those of the normal life of a person of his or her age. 10. Disabled persons shall be protected against all exploitation, all regulations and all treatment of a discriminatory, abusive or degrading nature. DECLARATION ON THE RIGHTS OF MENTALLY RETARDED PERSONS … 4. Whenever possible, the mentally retarded person should live with his own family or with foster parents and participate in different forms of community life. The family with which he lies should receive assistance. If care in an institution becomes necessary, it should be provided in surroundings and other circumstances as close as possible to those of normal life. 5. The mentally retarded person has a right to a qualified guardian when this is required to protect his personal well-being and interests. 6. The mentally retarded person has a right to protection from exploitation, abuse and degrading treatment. If prosected for any offence, he shall have a right to due process of law with full recognition being given to his degree of mental responsibility. 40 In my opinion, the applicant's conduct was a grievous and fundamental breach of an employee's duty of care to protect a completely vulnerable person and ensure Mr Tay was not dispossessed of his right to privacy and dignity. Not only was this a breach of the employee's duty of care, but was, in my estimation, a violation of Mr Tay's basic human rights to be treated with dignity and respect. It exceeded all bounds of common decency.

[56]

Mr Tay's disabilities are profound, he can neither verbally communicate, or understand what is happening around him. To suggest that smiling is a sign of consent is errant nonsense. Ms Ridyard's evidence, which I prefer, is that individuals with Mr Tay's severity of handicap can be smiling when they are behaving violently or reacting to violence. Smiling may have nothing to do with happiness. 46 The main area of evidentiary conflict was whether the applicant was told to destroy all the photos and negatives in 1997 when the photos were brought to the attention of Ms Wendy Newman, the applicant's then supervisor. 47 Ms Nathan gave evidence that she witnessed the phone call by Ms Newman to the applicant when he was told to destroy the photos. Ms Newman told the applicant that destroying the photos was a condition to keeping his job. 48 The applicant conceded that he had a meeting with Ms Newman where the photos were discussed and he was warned about them. He strenuously denied being told to destroy them. This evidence is curious when taken in the context of his other submission that there were two sets of photos. 49 It is troubling that there are no notes, file record, indeed, any record at all of this meeting or what happened in 1997. Ms Newman is an elderly lady, now retired and living in North Queensland. She did not give evidence. Perhaps even more surprising is that there is no evidence of any follow up by Ms Newman, or anyone else, as to whether the photos had been destroyed. Perhaps this can be explained by Mr McDonald's recollections of Ms Newman's management style. Mr McDonald's evidence was that Ms Newman was a person who didn't keep written records, preferring instead to deal with people face to face. She was an "old style" employer who found paperwork tedious. 50 The best evidence on this matter is that of Ms Nathan. In my opinion, Ms Nathan was a witness of considerable presence and credit. Despite saying she never had a problem with the applicant, she regarded this incident as highly improper. I accept her evidence as to Ms Newman's instruction to destroy the photos and negatives. 51 I am fortified in this conclusion by the unlikelihood that Ms Newman simply had a "chat" with the applicant and took no further action. This was a very serious matter. It would be inexplicable if she had not taken some steps to remove the offending photos; indeed insisting that the applicant's job was at risk, if he didn't destroy them. It seems completely plausible in the circumstances. 52 Why is there no written record of any of this? It also seems logical, having regard for Ms Newman's management style, that she may well have wished to give the applicant the benefit of the doubt by not blemishing his record with any reference to this incident. 53 If this be so, then it displays, I should say, a very sympathetic and sensitive approach to the matter. Had the applicant taken her warning and instruction seriously, he may well be still employed by Warrah. 54 Despite this explanation, the applicant's claim to have not been told to destroy the photos is completely shot to pieces by what he wrote in his originating application dated 3 November 2000. At p3 of his chronology he says: I agreed at the meeting I was willing to destroy the photographs of any residents and I also agreed to sign a statutory declaration confirming that I do not have the negatives in my possession. This disclosure proves the applicant did not tell the truth in the later proceedings before the Commission. 55 In view of my findings in this case, it is unnecessary to take into account the other photos tendered in evidence, of the applicant and unknown persons, including children. In many of these photos the subjects are completely naked. Nevertheless, it is sufficient to observe that it was totally inappropriate to keep such photos, unsecured, in the workplace. The photos were found in an unmarked cardboard box in an area frequented by other employees and accessible to other residents. Anyone could have found them. While the photos might be innocent enough, they would obviously be offensive to many people.

[69]

Having been to the Police himself, the applicant called Mr McDonald on Monday morning expressing concern that his private property had been seized and emphasising that nothing was found to be pornographic. Ms Nathan again invited the applicant to the meeting, but he refused. 65 The meeting on Monday, 16 October, decided that the applicant should not be offered any more shifts and he could not enter Warrah property. Ms Nathan rang the applicant and advised him of the decision and invited him to contact Mr McDonald who would explain the reasons for the decision. 66 The applicant visited Mr McDonald on two subsequent occasions, 17 and 24 October. On both visits, he protested his dismissal, claiming he had done nothing wrong and the matter had been dealt with, and resolved two years ago. 67 The applicant complained that he was given no details of the misconduct alleged against him, nor given any opportunity to explain his actions. He was neither warned, nor given any proof of the allegations. 68 In my view, the applicant's complaints of being unfairly treated do not sit comfortably with the short chronology of events just described. 69 It is unclear why the applicant chose not to attend the meeting of 16 October. He was invited to do so on at least four occasions. He had an obligation to do so. It is ludicrous to now claim that a decision made without his input, is unfair. The applicant, for whatever reason, denied himself the opportunity to defend his position and explain his actions. He can hardly blame the employer. 70 Notwithstanding the applicant's complaint, the evidence discloses that he spoke to Mr McDonald on at least two occasions between 13 and 16 October. He gave an explanation for his actions and defended his position. Indeed, he spelt out why he believed he had done nothing wrong. 71 This was an opportunity to state his position and defend himself, which he initiated himself. Viewed in this context, I am at a loss to understand how his complaint of being given no opportunity to defend himself could have any basis.

Crozier v Palazzo Corporation Pty Ltd, 98 IR 137

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