Harkirat Singh v Crown Melbourne Ltd [2020] FWC 1927

Fair Work Act 2009

Harkirat Singh v Crown Melbourne Ltd [2020] FWC 1927 | Case summary | Zoe

[11]

[15] On 2 November 2018 Mr Singh was rostered on a shift starting at 8 pm on a table in Pit 6, in the Central area. The senior manager rostered on that evening was Ms Leahy, Casino Manager. Mr Singh was dealing baccarat. Another Dealer, Mr O'Brien was dealing at the table next to Mr Singh and a second Dealer, Mr Healey, was dealing at the table next to Mr O'Brien. Mr Healey and Mr O'Brien engaged in conversation with Mr Singh. Mr Singh alleges that in the course of this conversation Mr Healey called him "prawnstar".[12] Mr Healey denies calling Mr Singh prawnstar.[13] In the circumstances of this matter it is not necessary that a finding be made as to whether Mr Healey made the alleged statements, as regardless of what might or might not have been said by Mr Healey, it is uncontested that Mr Singh was upset by Mr Healey's conversation[14] and at around 8.10 pm called for a manager to attend. It is also uncontested that Mr Ash, Area Manager, attended Mr Singh. Mr Healey and Mr O'Brien say that prior to Mr Ash arriving Mr Singh said to Mr O'Brien, "things were going to get very serious" and that Mr Singh left his gaming table and walked over to Mr Healey's table and wrote Mr Healey's ID number down on his hand.[15] I accept that evidence. Further, Mr Singh agreed in cross examination that he left his live table, walked over to Mr Healey's table and wrote down Mr Healey's ID number on his hand.[16] Mr Singh said he did this because "it was so [sic] stressful situation and I became so upset because he said prawnstar."[17] It is undisputed that at this stage Mr Singh had stopped performing his duties.[18]

[16] Mr Singh told Mr Ash that he was being provoked by Mr Healey.[19] There is then some contest as to what was said by Mr Singh and Mr Singh appears to seek to make a distinction between whether he told Mr Ash that he was too stressed and couldn't deal or whether he told Mr Ash that he was too stressed to deal. In the Statement of Agreed Facts Mr Singh disputed that he said he was too stressed to deal,[20] however his evidence is that he did say he couldn't deal at that moment as he was very stressed[21] and further, he agreed in cross examination that he said he was very stressed and would not be able to deal at that moment.[22] Mr Ash's evidence under cross examination was that Mr Singh said he was too stressed to deal.[23] I consider nothing turns on whether Mr Singh said he was too stressed to deal or was stressed and couldn't deal. Further, I also consider nothing turns on whether, at this point, Mr Singh said he couldn't deal at that moment or simply, that he couldn't deal. Whatever the precise language used may have been, the salient point is that Mr Singh informed Mr Ash that he could not then perform his duties due to being stressed.

[17] Mr Ash's evidence is the he also briefly spoke to the two Dealers and asked them to say nothing more to Mr Singh.[24] Mr Ash's evidence under cross examination was that he could see that Mr Singh was agitated and stressed[25] and his primary focus at that time was Mr Singh's welfare and trying to diffuse the situation.[26] I accept that evidence.

[27]

[26] Mr Ash says that Mr Singh was then again asked if he was able to deal for the rest of the night and Mr Singh said "no". Ms Wilkinson then reiterated that if Mr Singh was unable to perform his duties and was going home due to stress, that was sick leave.[45] Mr Ash says that Mr Singh was by this stage becoming agitated that a formal meeting was occurring on the gaming floor and was becoming uncooperative.[46] It was explained to Mr Singh that the discussion was not a formal meeting but a welfare discussion.[47] Mr Singh insisted that the discussion was a formal discussion and that he did not want to have a formal discussion.[48] Mr Ash says that Mr Singh was then offered a support person to sit in on any subsequent discussions.[49]

[27] Ms Wilkinson's evidence is that Mr Singh told her that he was too stressed to deal.[50] She says he was visibly upset.[51] In her witness statement she says she then said, "okay, I understand. Why don't you go have a break for 20 minutes to give yourself some time and we can discuss it when you get back" (First Break). Mr Singh said he would not go on a break and that he wanted to go home.[52] Under cross examination Ms Wilkinson said that her "first instinct was to send [Mr Singh] on a break to give [him] an opportunity to de-stress..."[53] Mr Singh said he did not want to do that. He said he wanted to go home several times and that he did not want to continue dealing.[54] Ms Wilkinson says she sought clarification from Mr Singh as to whether he was fit to perform his duties. Mr Singh responded, "Oh, I am very fit to perform my duties but I'm too stressed to deal".[55] Ms Wilkinson then again sought clarification as to whether Mr Singh was saying he was too stressed to deal and wanted to go home. Mr Singh said "yes". Ms Wilkinson then informed him that he would be sent home on sick leave and would need to attend Direct Health Solutions (DHS) and provide a medical certificate. Mr Singh refused to go home on sick leave.[56] Ms Wilkinson's evidence is that she then reiterated to Mr Singh that if he was unfit to perform his duties due to being stressed he would be sent home on sick leave and would need to provide a medical certificate.[57] She says that Mr Singh repeatedly interrupted her, told her that she was not allowed to talk to him and that "we will be talking to HR".[58] She says Mr Singh then said several times that he would not talk to Ms Wilkinson on the gaming floor as everyone could see them.[59] In response, Ms Wilkinson says she asked Mr Singh if he would prefer to have the discussion in the office. She denies that she requested a meeting with Mr Singh and says it was at Mr Singh's request to make him more comfortable.[60]

[28] Ms Wilkinson says that as they proceeded to the Mezzanine escalators to go up to the office, Mr Singh stopped and said "I want someone with me."[61] She denies he asked for a Union Delegate.[62] She reassured Mr Singh that the discussion was not formal but she would get him a support person if he wanted one and asked him whom he would like. He asked for Christopher Ball.[63] Ms Wilkinson says she checked and found that Mr Ball was not rostered on that night. She suggested some other persons to Mr Singh but he refused them and said that the meeting would need to be postponed. Ms Wilkinson says she again reiterated that there was no formal meeting so there was nothing to postpone. She says she repeated that Mr Singh was either fit to perform his duties or he was not, in which case he would be sent home sick.[64] She says Mr Singh then asked her if this was usual policy and was assured it was. Under cross examination, the following exchange occurred between Ms Wilkinson and Mr Singh:

[31]

[29] Ms Wilkinson says Mr Singh then said condescendingly "okay, I'll make this really easy and simple for you. I'll make this really simple, I will deal. I am now okay to deal." Ms Wilkinson says she then asked Mr Singh to confirm that he was now saying he was fit to deal. He confirmed he was. Ms Wilkinson says that in light of his conflicting statements, Ms Wilkinson directed Mr Singh to take a break (Second Break) saying "I'm going to have to insist on you taking that break now", which he did.[67] It is not disputed that at this point Ms Wilkinson directed Mr Singh to take a break,[68] and that he did so.

[30] I have already found that Ms Wilkinson directed Mr Singh to go home on sick leave and that he did not comply with that direction. As to other contested matters, where there is conflict between the evidence of Ms Wilkinson and Mr Singh as to the content of the conversation, I prefer the evidence of Ms Wilkinson for the following reasons. Firstly, Ms Wilkinson gave forthright, credible and consistent evidence. I consider her a witness of truth. She had a clear, detailed and considerably more comprehensive recollection of events than that of Mr Singh. Secondly, her evidence is generally supported by that of Mr Ash. Thirdly, on his own evidence Mr Singh was very upset and stressed at the time. In those circumstances, I consider Mr Singh's recollection of events to likely be less reliable than that of Ms Wilkinson. Fourthly, Mr Singh's evidence and materials disclose that prior to 2 November 2018 he had a strained relationship with Ms Wilkinson and a lack of trust in[69] and disdain for his managers generally.[70] For example, in his materials he makes reference to managers "showing him their position" when they take or initiate action against him that he disagrees with,[71] of suspecting the mangers of supporting "the bad activities of staff"[72] and asserts that "they" tried to prove he was sick "so that they could get me out".[73] He considers Ms Wilkinson to have victimised him by issuing him with the final warnings[74] and he considered the escalation of this matter to her by Mr Ash unnecessary.[75] His comments that Ms Wilkinson "tried her best to prove he was sick" and that "she did the same thing in 2017", not only display Mr Singh's failure to understand the consequence of informing Ms Wilkinson that he was stressed and unable to perform his duties (a matter to which I return later) but also clearly indicates that he considers Ms Wilkinson's actions to be objectionable or somehow improper. Under cross examination Mr Singh asked Ms Wilkinson if she tried to "entrap" him while he was explaining to her what had occurred that evening.[76] Based on the above, I consider Mr Singh's view of his managers generally, and in relation to this conversation, Ms Wilkinson specifically, to have likely coloured his recollection of events such that it ought not be preferred. Further, I consider the statements Ms Wilkinson alleges were made to her by Mr Singh and his alleged conduct towards her to be consistent with Mr Singh's lack of regard for Ms Wilkinson.

[31] Accordingly, in light of the above, I make the following specific findings of fact:

Mr Singh told Ms Wilkinson that he was stressed and could not deal, although I find that in the circumstances nothing turns on the precise language used by Mr Singh;

Ms Wilkinson directed Mr Singh to go home on sick leave (Wilkinson Direction);

Mr Singh did not comply with the Wilkinson Direction and he did not do so because he did not consider that he was sick;

Mr Singh repeatedly interrupted Ms Wilkinson and told her she was not allowed to talk to him;

Mr Singh did not want to continue the discussion on the gaming floor and in response Ms Wilkinson asked if Mr Singh would like to continue their discussion in the offices on the Mezzanine floor;

Mr Singh asked for someone to attend the discussion off the gaming floor with him; and

the discussion with Ms Wilkinson was not disciplinary in nature but was a welfare discussion.

[32] In relation to the other factual matters in dispute arising from Ms Wilkinson's interaction with Mr Singh, I accept Ms Wilkinson's evidence as to those matters.

[32]

[33] It is agreed that upon return from the Second Break, Mr Singh returned to the gaming floor and was met by Ms Leahy, who asked him to go to the Mezzanine offices with her.[77] Under cross examination Mr Singh agreed that upon return from this break he was still not calm enough to resume his duties.[78] It is agreed that Mr Singh attended the Mezzanine offices area and on arrival sat on the chairs outside the Mezzanine office doors in the lift well area.[79] The CCTV Footage of the evening demonstrates that while this area is a back of house area and not accessible by the public, it is subject to a significant amount of foot traffic and is a thoroughfare for employees.[80]

[34] Ms Leahy says that Mr Singh requested a support person and accordingly, she arranged for Mr Cameron, Union Contact Officer and Health and Safety Representative to be relieved from his table and attend to support Mr Singh.[81] Mr Singh says Ms Leahy promised him a Union Delegate would be in attendance as she escorted him to the Mezzanine floor.[82]

[35] It is uncontested that Mr Cameron attended the Mezzanine office area at around 9.00 pm.[83] It is also uncontested that upon determining that Mr Cameron was not a Union Delegate Mr Singh rejected Mr Cameron's assistance.[84] In his Outline of Argument Mr Singh says that "At this point, I realised that my mangers have started lying about the positions of the people to set me up for termination as I was already on the first and final warning given to me by Virginia Wilkinson only in Feb 2018."[85]

[36] Under cross examination Mr Singh said that Ms Leahy "played tricks on me, mind games on me, so I felt that there will be disciplinary action on me because I have already done a breach on the table",[86] referring to him leaving his live table to write down Mr Healey's ID number. Mr Singh says that these tricks and mind games are visible on the CCTV Footage.[87]

[37] Ms Leahy says she informed Mr Cameron that the conversation with Mr Singh was a welfare conversation.[88] Mr Cameron's evidence is that Ms Leahy informed him that the discussion was an occupational health and safety matter and that Mr Singh's welfare was the most important issue.[89] It is uncontested that Mr Ward joined Ms Leahy at the Mezzanine office area while Mr Cameron was speaking with Mr Singh. Mr Ward's evidence is that Ms Leahy told him he was required to assist her to conduct a welfare check on Mr Singh.[90]

[38] It is uncontested that following Mr Singh's rejection of Mr Cameron's assistance, Mr Cameron attempted to re-engage with Mr Singh. Mr Singh considered that by doing so Mr Cameron was trying to provoke him and voiced this view.[91]

[39] It is uncontested that following Mr Cameron's unsuccessful intervention Ms Leahy and Mr Ward returned to Mr Singh in the Mezzanine lift well area. Further, it is uncontested that Mr Cameron remained in the Mezzanine lift well area with Mr Singh, Mr Ward and Ms Leahy but did not participate in any subsequent conversation.

[40] It is uncontested that there was then a conversation between Mr Singh, Ms Leahy and Mr Ward.

[41] It is also uncontested that during this conversation Ms Leahy asked Mr Singh to move inside the back of house Mezzanine glass doors out of the lift well area away from the open thoroughfare area and Mr Singh refused to do so.[92] Mr Singh also agrees that he was offered, but refused, the option of moving into the Mezzanine offices.[93] Mr Singh's evidence is that he felt that Ms Leahy, Mr Ward and Mr Cameron were "ganging up" on him and that they were trying to "push" him to participate in a meeting.[94] Under cross examination he said that Mr Cameron's presence created "an environment of interrogation" and that the mangers were playing "mind games with him to get him inside the glass doors".[95] Mr Singh says that the CCTV Footage demonstrates this.[96] He denies that Ms Leahy and Mr Ward told him the discussion was a welfare discussion.[97] He says Ms Leahy ordered him to leave the premises and instructed him that he was to go home on full pay.[98] Mr Singh says she also told him that she did not consider he was well and that she was concerned for his welfare.[99] Finally, he says Ms Leahy told him that Mr Ward would escort him outside. Mr Singh says that he then said that he was happy to leave if they provided him with something in writing as to why he was not well and was required to leave the premises. He says Ms Leahy said she could not give him confirmation in writing, but he was required to leave. Mr Singh then says that "they then again started trying their best to prove I was sick so they could get me out but they failed."[100] Under cross examination Mr Singh agreed that Ms Leahy told him she was sending him home and he would need to provide a medical certificate.[101] It is uncontested that Mr Singh disputed that he was sick and that he refused to leave the premises. He denies that he again said he was too stressed to perform his duties.[102] He says that Ms Leahy and Mr Ward then left him unattended for 30 minutes. [103]

[42] Ms Leahy's evidence is that on returning to the lift well area Mr Singh demanded a Union Delegate.[104] This is consistent with the evidence of Mr Ward[105] and Mr Cameron.[106] She says that she attempted to explain to Mr Singh that the conversation was a welfare conversation.[107] Under cross examination she maintained that it was stated multiple times to Mr Singh that the conversation was a welfare discussion.[108] She denies that she was "pushing" Mr Singh for a meeting.[109] She says she explained to Mr Singh that if he was too stressed to continue work he would be required to attend DHS and obtain a medical certificate.[110] It is uncontested that Mr Singh disputed that he was sick.[111] Ms Leahy says that Mr Singh refused to continue his duties.[112] Ms Leahy says that she then directed Mr Singh to conclude his shift on full pay and advised him that Mr Ward would escort him to wardrobe.[113] Mr Singh refused to leave.[114] Ms Leahy denies that Mr Singh demanded anything in writing at this stage. She then left Mr Singh until a Union Delegate had been obtained.[115]

[43] Mr Cameron's evidence is that he heard Mr Singh say he wanted a union representative but otherwise could not hear the remainder of Ms Leahy's conversation with Mr Singh.[116] Mr Cameron also gave evidence, which was not contested, that he went to the Union desk to source a Union Delegate for Mr Singh.[117] Mr Ward says that Mr Singh was told a number of times that the conversation was a welfare discussion and not a disciplinary meeting.[118] Under cross examination he confirmed that the purpose of the discussion was a welfare conversation.[119] He says Mr Singh said there was nothing wrong with him.[120] Mr Ward gave no other evidence about the content of this conversation. Mr Ward says that the meeting was then put on hold until a Union Delegate could be found.[121]

[44] Mr Singh's own evidence is that during this conversation Ms Leahy "ordered" him to conclude his shift on full pay and leave the premises. There appears to be no contest that he did not do so. I therefore find that Ms Leahy directed Mr Singh to conclude his shift on full pay and leave the premises and that this direction was not complied with. Where there is otherwise a dispute between the evidence of Mr Singh and Ms Leahy in relation to this conversation, I prefer the evidence of Ms Leahy for the following reasons. Firstly, I found aspects of Mr Singh's evidence to be implausible. For example, his assertions that Ms Leahy was playing mind games to get him inside the glass doors in the Mezzanine area and sought to trick him. Further, I have carefully reviewed the CCTV Footage and find no support for such assertions in that footage. Secondly, in contradiction to Mr Singh's evidence, I found Ms Leahy's evidence to be credible. I consider that she gave considered, honest and forthright evidence. Thirdly, aspects of Mr Singh's evidence are inconsistent. For example, he says that Ms Leahy and Mr Ward did not inform him that the conversation was a welfare conversation but also says that Ms Leahy informed him she was concerned for his welfare. Fourthly, where relevant, Mr Ward and Mr Cameron's evidence corroborates Ms Leahy's evidence. Fifthly, I refer to my comments regarding Mr Singh's view of his managers generally set out at paragraph 30 above and consider they apply equally here. Finally, Mr Singh's own evidence is that he knew that he had engaged in a "breach" in leaving his table when it was live.[122] His evidence is that he suspected disciplinary action on 2 November 2018[123] and that he was being set up for termination. He says he knew he had been issued with a first and final warning.[124] Under cross examination he said that he considered the discussion was a formal meeting because the Casino Manager was involved.[125] Accordingly, I consider that Mr Singh approached his interactions with Ms Leahy assuming that he would be the subject of disciplinary action and that this was the motivation for her actions. I consider this has distorted his perception of the events that occurred on 2 November 2018 and that his evidence is not to be preferred.

[45] Accordingly, in light of the above, I make the following specific findings of fact:

Ms Leahy informed Mr Singh that the conversation was a welfare conversation;

Ms Leahy told Mr Singh that if he was too stressed to continue work, he would be required to attend DHS and obtain a medical certificate;

Mr Singh disputed that he was sick;

Ms Leahy directed Mr Singh to conclude his shift on full pay and to leave the premises (First Leahy Direction); and

Mr Singh did not comply with the First Leahy Direction.

[46] In relation to the other factual matters in dispute arising from this conversation, I accept Ms Leahy's evidence as to those matters.

[35]

[50] In the Statement of Agreed Facts Mr Singh agrees that Ms Leahy instructed him to conclude his shift on full pay and that he refused to leave.[136] Under cross examination he confirmed that Ms Leahy told him that she was sending him home with pay[137] and said that he asked for this in writing.[138] He says Ms Leahy then went inside to the Mezzanine offices with Mr Ward and typed a document. Mr Singh then says when she returned with the document to give to him, it was not on Crown letterhead.[139] It is uncontested that the document had a Benestar (employee counselling service) card attached to it[140] and that Mr Singh refused to accept the document as it was not "official" due to the absence of letterhead.[141] There was some contest as to whether the document included Ms Leahy's signature. However, in his own materials Mr Singh says that the document "had no company seal but just her writing and signature on it."[142] Under cross examination he said that the signature was electronic not manual and was therefore not acceptable to him.[143] He says he verbally objected to the document as it was not official and also to the fact that a meeting had been held in a public place and without a support person. He says he then said that he was going back to the main gaming floor as Ms Leahy and Mr Ward had performed "unauthorised acts".[144] Under cross examination he said that "they made me very upset so then I went to the gaming floor."[145]

[51] Ms Leahy's evidence is that she identified to Mr Singh that he had said he was too stressed to continue his duties, but he was also refusing to leave. She says that she told Mr Singh that it was important that he listen to reasonable instructions and that as managers they had a duty of care to employees. She says Mr Singh told her that they "had no idea what they had done" and had made this "really big". He accused Ms Leahy and Mr Ward of "smearing lies in his face."[146] She says that she told Mr Singh that managers were able to have informal discussions with employees around their welfare and behaviours and that if he had a grievance there were appropriate channels and processes to follow. She says Mr Singh "shushed" her and Mr Ward a number of times. She says to conclude the conversation she told Mr Singh that she was sending him home with pay. Mr Singh requested this in writing. Ms Leahy's evidence is that she agreed to this to emphasise that the action was not disciplinary. It was now approximately 10.00 pm.[147]

[52] Ms Leahy prepared the letter. She denies reading out the letter but says she talked through the contents with Mr Singh and in the presence of Mr Ward and Mr Pham.[148] It is uncontested that Mr Singh refused to accept the letter. Ms Leahy says she then told Mr Singh that Mr Pham and Mr Ward would escort him to wardrobe as his shift was concluded.[149] She says Mr Singh then said if she wanted to remove him it would need to be done by security. Mr Singh then stormed out of the Mezzanine lift well area and returned without permission to Pit 7 on the gaming floor.[150]

[53] Mr Ward's evidence is that he, Ms Leahy and Mr Pham went back out to the Mezzanine lift well area. Ms Leahy told Mr Singh that they had concerns for his welfare and that they were sending him home sick with pay. Mr Singh refused to accept this and required this in writing. Mr Ward, Ms Leahy and Mr Pham then left to prepare the letter.[151] When they returned Ms Leahy read out the letter and Mr Singh continually interrupted her.[152] It is uncontested that Mr Singh refused to accept the letter. Mr Ward says that there was further discussion with Mr Singh about the letter and he was then told that he was being sent home and needed to leave the premises. Mr Ward says that Mr Singh said security would need to remove him and he left the area.[153] Mr Ward says that Ms Leahy did not raise her voice at Mr Singh. Ms Leahy did say to Mr Singh that he had to listen to her, or words to that effect, as Mr Singh was continuously talking over Ms Leahy.[154]

[54] Mr Pham's evidence is that he, Mr Ward and Ms Leahy went back out to Mr Singh and Ms Leahy told Mr Singh that she was sending him home with pay due to concerns for his welfare.[155] Mr Singh was very defensive and said he was not sick. He says Ms Leahy repeated that she had concerns for his welfare and was sending him home with pay. He says this went back and forth for some time and then Mr Singh asked for this to be put in writing. All three left to prepare the letter for Mr Singh.[156] After preparing the letter, they returned to Mr Singh and Ms Leahy explained what was in the letter.[157] Mr Singh refused to accept the letter as it was not on letterhead.[158] He says Mr Singh became very angry and said "You haven't given me a reason why you are sending me home, if you want to get security to remove me then so be it."[159]

[55] He says Ms Leahy did not raise her voice and remained calm. He says that Mr Singh accused Ms Leahy of raising her voice, of being victimised at work and objected to these conversations having been conducted in a public place.[160] Mr Singh then pointed at Mr Pham and said "you should say something in this situation."[161] Mr Singh then stormed off onto the gaming floor.[162]

[56] As to this conversation, it is conceded by Mr Singh that Ms Leahy again told him that he was being sent home on full pay. It is also agreed that he requested this in writing and then rejected the letter prepared by Ms Leahy. Accordingly, I find that Mr Singh was again instructed to go home on pay and did not do so. I find that he requested this instruction be confirmed in writing and that Ms Leahy prepared a document for this purpose. I find that the document was rejected by Mr Singh. It is agreed and I find that Mr Singh told Ms Leahy and Mr Ward that they had performed unauthorised acts.

[57] Where there is otherwise a dispute between the evidence of Mr Singh and Ms Leahy, I prefer the evidence of Ms Leahy for the following reasons. Firstly, Ms Leahy's evidence was credible, clear and consistent. It is considerably more comprehensive and detailed than that of Mr Singh. For example, Mr Singh does not include in his evidence in relation to this conversation the further instruction given to him by Ms Leahy to go home on full pay but agreed in both cross examination and the Statement of Agreed Facts that his had occurred. Accordingly, I consider that Mr Singh's recollection of this conversation is not complete, and Ms Leahy's is to be preferred. Secondly, Mr Singh, on his own evidence, was "very upset". In those circumstances, I consider Mr Singh's recollection of events to likely be less reliable than that of Ms Leahy. Thirdly, Ms Leahy's evidence as to this conversation is, generally, supported by the evidence of Mr Ward and Mr Pham, although Mr Ward's evidence is general in nature and I accord it less weight. However, I give particular weight to Mr Pham's corroborative evidence. Mr Pham gave credible, forthright evidence. He is not a member of Crown's management team. He is a peer of Mr Singh and a Union Delegate. He had not met Mr Singh prior to the evening of 2 November 2018.[163] I can discern no reason why Mr Pham would not give truthful evidence.

[58] Accordingly, in light of the above, I make the following specific findings of fact:

Ms Leahy again instructed Mr Singh to conclude his shift on full pay and leave the premises (Second Leahy Direction);

Mr Singh did not comply with the Second Leahy Direction and requested this be confirmed in writing;

Ms Leahy prepared a document for this purpose, which was rejected by Mr Singh because it was not on letterhead;

Ms Leahy then told Mr Singh that his shift was concluded, and that Mr Ward and Mr Pham would escort him to wardrobe;

Mr Singh informed Ms Leahy that security would need to remove him;

Mr Singh left the Mezzanine floor and returned to the gaming floor.

[59] In relation to the other factual matters in dispute arising from this conversation, I accept Ms Leahy's evidence as to those matters.

[36]

[60] It is uncontested that Mr Singh then went to Pit 7 on the public gaming floor.[164] The CCTV Footage indicates that Mr Singh arrived at Pit 7 at approximately 10.30 pm.[165] The CCTV Footage shows Mr Singh standing in front of a closed gaming table in Pit 7. The table is roped off from the public.[166] He says he was waiting for a document on letterhead. He says that after about 20 minutes, Ms Leahy and Mr Ward entered Pit 7 and asked him to leave. He says he asked for a Union Delegate, which was refused and Ms Leahy again "confirmed me sick and asked me to leave the premises." He says he asked about the document and was told that Ms Leahy couldn't give that to him anymore. She told him that she was the Casino Manager and Mr Singh had to listen to her. In response he alleges that he said, "Are you trying to show me your position again?" Ms Leahy then said, "Ok just wait then." Mr Singh says that Ms Leahy then called security and around eight to ten security officers surrounded him. He says that Ms Leahy then called First Aid without his permission.[167] It is agreed that Mr Singh was assessed by the First Aid Officers.[168] He says that he was then suddenly approached by a Security Officer and there was then a verbal exchange between him and this officer. He says the Officer was rude, aggressive and had dominant body language.[169] He says two Security Officers then stood next to him and he told the Officer whose tag read "Sanjiv" that he would go home and leave once he had the document on letterhead but that he wouldn't be going anywhere with security as he didn't now feel safe. He says Sanjiv assured him that if he went with him, he would get the document. He then went with the Security Officers to an interview room.[170] The CCTV Footage indicates that Mr Singh left Pit 7 at approximately 11.13 pm.[171]

[61] Mr Singh says Ms Leahy came to the interview room about ten minutes later and provided him with a suspension letter. He says he accepted that document, complied with the directions of the Security Officers and was ultimately escorted from the building. The CCTV Footage indicates that Mr Singh left the building at approximately 11.30 pm.

[62] Under cross examination Mr Singh agreed that when Ms Leahy arrived at Pit 7 she asked him why he was refusing her reasonable request to go home.[172] Mr Singh also agreed under cross examination that at Pit 7 Ms Leahy told him that she had concerns for his welfare.[173] He agreed that Ms Leahy told him that because she was concerned for his welfare she was going to get First Aid to assess him,[174] however, he was not sure if she also said that First Aid would make the determination as to whether or not he was fit to work.[175] He agreed that Ms Leahy told him that First Aid said he was fit to continue his duties.[176] He denied that he said he wanted to get back to work,[177] that Ms Leahy directed him to take a break and that he was then to resume his duties.[178] He denied Ms Leahy asked him if was well enough to continue his duties[179] or that she again directed he take a break and resume his duties upon his return.[180] He denied he refused to resume his duties.[181] He agreed that Ms Leahy told him that he was failing to follow reasonable management directions.[182] Under cross examination he said he understood this comment referred to his refusal to go home.[183] He agreed under cross examination that Ms Leahy told him she was suspending his employment with pay, effective immediately,[184] for failure to follow reasonable management directions.[185] He also agreed under cross examination that Ms Leahy then told him to leave the premises.[186] He says that he requested a document in writing from Ms Leahy at this point saying "why cannot you provide me the document in writing?"[187] and that Ms Leahy didn't want to provide that and she then called security.[188] He says that he was seeking the original offered document on letterhead, not a document confirming his suspension.[189]

[63] Ms Leahy's evidence is that once Mr Singh had been located on the gaming floor, she went to Pit 7. It is uncontested that Ms Leahy asked Mr Singh why he was refusing her reasonable request to go home.[190] Ms Leahy says he said that she "didn't have the authority" and was "abusing her power" as a manager. It is uncontested that Ms Leahy told him that she had concerns for his welfare and because of those concerns she was going to get First Aid to assess him.[191] Ms Leahy says that Mr Singh then raised for the first time that he "just wanted to get back to work". She says that in response she compromised and said that First Aid could make that determination.[192] Mr Singh says he isn't sure as to whether Ms Leahy said this or not but does not deny it. It is uncontested that Mr Singh was assessed by First Aid Officers. Ms Leahy says that the view of the First Aid Officers was that Mr Singh was disgruntled but was physically fit to resume his duties.[193]

[64] Ms Leahy then says that she informed Mr Singh that the First Aid Officers considered him fit to work and asked him if he felt the same. She says Mr Singh said he just wanted to get back to work. She says she then requested that Mr Singh take a break and when he returned, he would be placed on a table. Mr Singh replied "no". Ms Leahy queried whether Mr Singh felt well enough to continue, to which he again replied he just wanted to get back to work. Ms Leahy repeated that Mr Singh was to take a break and upon his return he would be placed on a table.[194] She says Mr Singh again replied "no". In response, Ms Leahy says she informed Mr Singh that he was failing to comply with a reasonable direction from management. Mr Singh does not contest that Ms Leahy made this statement. Ms Leahy says that Mr Singh replied saying, "you're just a little girl in a suit" and she didn't have the authority.[195]

[65] Ms Leahy says she then said that she had reasonably requested that Mr Singh continue his duties and asked him again if he would take a break and return to a table. Mr Singh refused. Ms Leahy says she then informed Mr Singh that she was suspending his employment, with pay, effective immediately for failure to follow a reasonable direction from a manager. She told Mr Singh he was required to leave the premises. He refused.[196]

[66] Ms Leahy says she then engaged with security. She told Mr Singh again he was to leave. Mr Singh requested this in writing. Mr Singh refused to leave the public gaming area while Ms Leahy prepared the document.[197] She says that Security Officers then tried to talk to Mr Singh while she returned to the Mezzanine floor to source a suspension letter. Mr Ward stayed on the gaming floor with Mr Singh.[198] She was advised that Mr Singh was in an interview room. She attended the interview room and provided Mr Singh with the letter of suspension. Ms Leahy explained what was included in the letter. The suspension letter provides that "[t]he issues surrounding your suspension relate to allegations of breaches of the Appropriate Workplace Behaviour Policy and failure to follow reasonable management direction."[199]

[67] Mr Singh was then escorted to wardrobe and eventually out of the building.[200] It was by this time approximately 11.30 pm.[201]

[68] Mr Ward's evidence is that he and Ms Leahy approached Mr Singh in Pit 7 at around 10.40 pm. Mr Ward says that Mr Singh kept saying "What is the reason you believe I'm unfit" and refused to leave. He says First Aid was contacted to assess Mr Singh's mental state.[202] He says that he and Ms Leahy were told by the First Aid Officers that Mr Singh seemed fine, but it was difficult to assess his mental state as they didn't have specialist expertise. Ms Leahy asked if Mr Singh had capacity to stay at work and the First Aid Officers said that physically he could continue. He and Ms Leahy then went back to Mr Singh and advised him of this.[203]

[69] He says that Ms Leahy asked Mr Singh if he felt he could be at work. Mr Singh said "no". Mr Singh was asked to confirm that he had just said he could not be at work. Mr Ward says Mr Singh then said that his words were being twisted and asked again why he was considered unfit. Ms Leahy then asked Mr Singh again if he could be at work. Mr Singh replied that he was fine to be at work, it was Ms Leahy and Mr Ward who said he was unfit. Mr Ward says that Ms Leahy then directed Mr Singh to resume his dealing duties. Mr Singh refused to do so.[204] He says that Ms Leahy then told Mr Singh that he had been told to resume his duties and his refusal to do so was a refusal to comply with a reasonable directive from management. Ms Leahy then told Mr Singh he was suspended.[205] Ms Leahy then told Mr Singh that if he did not leave the gaming floor, security would have to remove him. Mr Singh refused to leave. They then left Pit 7 and Ms Leahy went to speak with security. Mr Ward could not hear that conversation.[206]

[70] Mr Ward says he spoke to some of the Security Officers separately and informed them that Mr Singh had been suspended and was refusing to leave. Mr Ward saw Security Officers speaking to Mr Singh and about 15 minutes later Mr Singh left the gaming floor with security. Mr Singh waited in a security room for a couple of minutes and then Ms Leahy arrived with Mr Singh's suspension letter. Ms Leahy explained the suspension letter to Mr Singh who then went with Mr Ward and two Security Offices to wardrobe and then left the premises at approximately 11.30 pm.[207]

[71] Mr Pham's evidence is that once they found Mr Singh in Pit 7, Ms Leahy started talking to Mr Singh. He says he could not hear fully what was said.[208] He says he was, however, present when Ms Leahy spoke to the First Aid Officers following them assessing Mr Singh and heard that conversation. He says that the First Aid Officers advised Ms Leahy that they believed Mr Singh was physically able to go back to work but were unsure as to his mental state. However, their overall assessment was that Mr Singh was fine. He says that Ms Leahy then said that if that was their view she would put him back on a table.[209] He says Ms Leahy then approached Mr Singh but he could not hear the conversation.[210] He says that after Ms Leahy's conversation with Mr Singh, Mr Ward came over to him and told him that Mr Singh had been asked to go back to a table and perform his duties and that he had refused to do so. As a consequence, Mr Singh had been suspended.[211]

[72] Mr Pham says he then left to go to the Mezzanine to write a statement.[212]

[73] As to what occurred following Mr Singh going to Pit 7, I accept the evidence of Ms Leahy over that of Mr Singh for the following reasons. Firstly, Mr Singh's evidence as to what occurred at Pit 7 is incomplete and appears to be somewhat selective. Under cross examination Mr Singh agreed that Ms Leahy asked him why he was refusing her request to go home, told him she was concerned for his welfare, told him that because she was concerned for his welfare she was going to get First Aid to assess him, told him that First Aid had said he was fit to resume his duties, told him that he was failing to follow reasonable management directions and told him she was suspending him with full pay. None of these matters are included in Mr Singh's evidence in chief. Secondly, Mr Singh's account of the unfolding and sequencing of events in Pit 7 is not consistent with the CCTV Footage. Mr Singh says that after an initial discussion Ms Leahy called security and around eight to ten Security Officers surrounded him. He says that Ms Leahy then called First Aid. The CCTV Footage demonstrates that Mr Singh entered Pit 7 at approximately 10.30 pm and stood in front of a closed, roped off gaming table. Ms Leahy went to the table to speak with Mr Singh at approximately 10.40 pm. That conversation lasted until approximately 10.48 pm, after which two First Aid Officers can be seen engaging with Mr Singh in front of the gaming table. At that time, the CCTV Footage demonstrates that only one Security Officer is present, and he is outside the roped off table area in which Mr Singh is standing. After the First Aid Officers leave Mr Singh, the CCTV Footage demonstrates that at approximately 10.54 pm there is a further conversation between Mr Singh and Ms Leahy in front of the gaming table. That conversation lasts until approximately 10.57 pm, during which time four more Security Officers join the Security Officer already present in the area outside the gaming table. Ms Leahy leaves Mr Singh to speak to the Security Officers and then returns to Mr Singh. She leaves the area at approximately 11.02 pm. At this time there appear to be seven Security Officers in attendance in the Pit 7 area. Mr Singh is escorted from Pit 7 at approximately 11.15 pm at which time there may, possibly, be eight Security Officers in attendance. The CCTV Footage therefore does not demonstrate that events unfolded in the sequence asserted by Mr Singh. Further, whilst it may be that there are eight Security Officers present at the time Mr Singh is ultimately escorted from Pit 7, it is not the case that eight to ten Security Officers attended to Mr Singh in the manner asserted nor does the CCTV Footage, in my view, demonstrate that Mr Singh was surrounded by Security Officers at any time. Further, the CCTV Footage appears consistent with Ms Leahy's evidence as to the sequence of events and the number of conversations that were had with Mr Singh, First Aid and security. Thirdly, Ms Singh agrees that Ms Leahy told him that the First Aid Officers had assessed him as fit to continue with his duties. In that circumstance, and in light of Mr Singh's continued refusal to go home, I consider Ms Leahy's evidence that she then directed Mr Singh to take a break and subsequently resume his duties to be entirely credible. Further, it is consistent with Mr Pham's evidence as to what Ms Leahy told him she intended to do and is corroborated by Mr Ward.

[74] Accordingly, in light of the above, I make the following specific findings of fact:

Mr Singh was assessed by First Aid Officers due to Ms Leahy's concerns for his welfare;

First Aid Officers assessed Mr Singh as fit to perform his duties;

Ms Leahy advised Mr Singh of the First Aid Officers' assessment of his fitness;

Ms Leahy asked Mr Singh to take a break and then resume his duties upon his return;

Mr Singh refused;

Ms Leahy told Mr Singh he was to take a break and then resume his duties (Final Leahy Direction);

Mr Singh again refused;

Ms Leahy suspended Mr Singh's employment on pay effective immediately for refusal to comply with a reasonable direction from management;

Ms Leahy told Mr Singh to leave the premises;

Mr Singh refused to leave the premises;

Mr Singh ultimately left the gaming floor with security.

[75] In relation to the other factual matters in dispute arising from events after Mr Singh went to Pit 7, I accept Ms Leahy's evidence as to those matters.

[40]

[77] On 9 November 2018 Ms Butterworth wrote to Mr Singh requiring he attend a formal meeting with her and Mr Egan, Casino Manager, on Wednesday 14 November 2018. The purpose of the meeting was stated as being "to discuss [Mr Singh's] poor professional behaviours on Friday 2 November 2018, in addition to your failure to follow reasonable management directives."[214] In addition, the letter advised Mr Singh that he would be given an opportunity to respond to the above at the meeting, he could bring a support person and that the meeting may result in disciplinary action and/or the termination of his employment.[215]

[78] It is uncontested that Mr Singh was then absent from work and unfit to attend the meeting until medical clearance was provided from Mr Singh's psychologist on 24 May 2019.[216] On 12 June 2019[217] Mr Singh attended a meeting with Ms Butterworth and Mr Christie. It is uncontested that Mr Singh was provided with the opportunity to have a support person present but did not do so.[218] It is also uncontested that this meeting went for approximately one hour.[219]

[79] Ms Butterworth's evidence is that prior to the meeting Crown undertook a full investigation into the allegations and the Singh Complaint. This included facilitating interviews, obtaining statements and reviewing surveillance footage.[220] She says that in the meeting Mr Singh provided a full account of his recollection of the events of 2 November 2018 and that she put the following allegations to Mr Singh for response:

Mr Singh's refusal to take a break as directed by Ms Wilkinson;

Mr Singh's refusal to go home on sick leave, notify DHS and obtain a medical certificate;

Mr Singh's refusal to accompany management and his support person to a more private area so that a welfare check could be undertaken without it being in earshot of other employees;

Mr Singh's refusal to conclude his shift on full pay;

Mr Singh's refusal to participate in a welfare conversation after a Union Delegate had been provided and his alleged refusal to then recommence his duties or go home;

Mr Singh's request for written confirmation of the direction to conclude is shift on full pay and then refusing to go home after Ms Leahy provided him with written confirmation of that instruction; and

• Mr Singh's refusal to take a break and resume his duties following assessment by First Aid that he was fit to resume his duties.[221]

[80] Ms Butterworth then says that the meeting was adjourned, during which time she and Mr Christie considered Mr Singh's responses.[222] She says it was determined that Mr Singh had failed to follow reasonable management directions, his conduct had not met Crown's standards and was inconsistent with his contract of employment.[223] Mr Singh was advised that his employment was terminated, effective immediately, for refusing to carry out lawful and reasonable management directions on 2 November 2018 and he was provided with a hard copy of his termination letter.[224]

[81] Mr Christie's evidence is that prior to the meeting with Mr Singh on 12 June 2019 he reviewed the CCTV Footage of the evening and spoke with the relevant managers involved in the matter.[225] Under cross examination, however, and in response to a question from the Bench, Mr Christie said that he had only interviewed Ms Leahy.[226] Mr Christie's evidence is that at the meeting Mr Singh provided a full account of his recollection of the events of 2 November 2018 and that each of the allegations set out above were put to Mr Singh for his response.[227] He says he listened to Mr Singh's responses and considered them.[228] He says he considered all the evidence and determined that Mr Singh had failed to follow reasonable management directions consistent with his contract of employment on 2 November 2018.[229] He determined to terminate Mr Singh's employment for serious misconduct on this basis.[230] In response to a question from the Bench, Mr Christie said that the reasonable directions with which Mr Singh had failed to comply were:

to take a break as directed;

to go home on paid leave;

to participate in a welfare check;

• on two occasions, to perform his duties after being assessment by First Aid as being fit to do so.[231]

[82] Mr Christie also says that Mr Singh went onto the gaming floor when advised or requested not to do so by management.[232]

[83] Under cross examination Mr Singh agreed that at the meeting Ms Butterworth put a number of allegations to him[233] and that he provided a response to those allegations.[234] In addition, Mr Singh agreed in the Statement of Agreed Facts that at the meeting allegations were put to him and that he was given an opportunity to respond.[235]

[84] I accept the evidence of Ms Butterworth and Mr Christie as to the content and conduct of the meeting on 12 June 2019. I also accept Mr Christie's evidence as to the reasons for Mr Singh's dismissal.

[46]

[91] The specific management direction with which Mr Singh did not comply is not articulated. It is also not articulated in the suspension letter issued to Mr Singh on 2 November 2018.[243] Whilst in the termination letter the word "direction" is singular, I note the absence of the indefinite article "a" in the sentence before the word "lawful". Accordingly, the syntax of the termination letter is difficult, and I consider it to be unclear from the termination letter as to whether Mr Singh is said to have refused to carry out a singular direction or more than one direction.

[92] In their final written submissions Crown submits that the direction with which Mr Singh did not comply was the Final Leahy Direction[244] (First Submission). Crown submits that this direction was given after nearly three hours of discussion during which Mr Singh refused:

to take a break when first requested to do so by Ms Wilkinson;

to go home on sick leave;

to go home on full pay;

to engage with management to enable them to conduct a welfare discussion; and

• to take a break and resume his duties.[245]

[93] Crown appears to rely on these matters as matters which go to the reasonableness of the Final Leahy Direction.[246]

[94] However, Crown also submits in their final written submissions that Mr Christie determined to terminate Mr Singh's employment for refusing to follow reasonable management directions. Crown submits that Mr Christie determined that Mr Singh refused to take a break, refused to go home on paid leave, refused to participate in a welfare check and went on the gaming floor when advised not to and after the first aid welfare check, more than once, refused to perform the role of a Table Games Dealer on the gaming floor (Second Submission).[247]

[95] Accordingly, it is unclear from Crown's final written submissions, precisely what it contends was the reason or reasons for Mr Singh's dismissal. The First Submission is not consistent with the evidence given by Mr Christie, which I have accepted, as to the reasons for Mr Singh's dismissal.[248] Mr Christie was the decision maker. I consider he is the best source of evidence as to the reasons relied upon for the decision to dismiss Mr Singh. The First Submission must therefore be rejected. I find that the reasons for Mr Singh's dismissal that were relied upon by Crown are those articulated by Mr Christie and advanced in the Second Submission. I consider each of these reasons below.

[96] Mr Singh submits that there was no valid reason for his dismissal because he was, in fact, terminated for exercising his workplace right to make a complaint and was then victimised by the managers involved in the handling of his complaint.[249]

[56]

[105] I have found that during the course of Ms Leahy's interaction with Mr Singh in Pit 7 Ms Leahy asked Mr Singh to take a break and then resume his duties at a table and that he refused to do so. I have also found that she then repeated that Mr Singh was to take a break and then resume his duties at a table and that he refused to do so for a second time.

[106] Ms Leahy does not say that she instructed or directed Mr Singh to take a break and then resume his duties. Her evidence is that on the first occasion she asked Mr Singh to take a break and told him that when he returned, he would be placed on a table (First Statement). On the second occasion she says she repeated that Mr Singh was to take a break and upon his return he would be placed on a table (Second Statement). In isolation, I consider there may be some doubt as to whether these statements, most particularly the First Statement, constitute a direction. The First Statement requests that Mr Singh take a break. A request, ordinarily, it not a direction. However, in the present circumstances Ms Leahy's request that Mr Singh take a break is followed by a statement as to what will, positively, then occur; that is, upon return from the break Mr Singh will be placed on a gaming table. In those circumstances, I consider that the First Statement, properly considered, was a direction by Ms Leahy. The Second Statement is expressed as an active statement as to what Mr Singh is to do and is also followed by a statement as to what will, positively, then occur. I consider the Second Statement to constitute a direction. Further, the statements must be considered in context and with particular reference to Mr Singh's conduct and behaviour over the preceding almost three hours. I consider the Final Leahy Direction to be sufficiently compulsive as to constitute a direction with which, subject to it being lawful and reasonable, Mr Singh was required to comply.

[107] To be lawful the direction must be consistent with Mr Singh's contract of employment.[255] Mr Singh was employed as a Table Games Dealer. There can be no doubt that a direction for Mr Singh to go back to a gaming table is consistent with his contract of employment and therefore a lawful direction. I also consider the Final Leahy Direction to be reasonable. Discussions with Mr Singh had ensued for a period of almost three hours, primarily directed at him either returning to his dealing duties or going home. He had refused to go home on sick leave asserting that he was not sick, at least twice refused to go home on full pay and refused to leave the premises. He had most recently been assessed by First Aid Officers as being able to resume his duties. Given his consistent refusal to go home and leave the premises, his assertions that he was not sick and finally the assessment by First Aid Officers that he was able to resume his duties, I consider a direction at that point in time that he resume his dealing duties following a break to be reasonable. Accordingly, by not taking a break and resuming his dealing duties as directed, I consider Mr Singh twice failed to comply with a further lawful and reasonable direction.

[108] I reject Mr Singh's submission that the reason for his dismissal was that he exercised his workplace rights to make a complaint. Mr Singh's exercise of his workplace rights was overtaken by his subsequent behaviour, over a period in excess of three hours, during which he failed to comply with multiple lawful and reasonable directions. In my view, the evidence does not support a conclusion that the reason for Mr Singh's dismissal was other than his conduct on the evening of 2 November 2018.

[109] I consider the failure by Mr Singh to comply with the Wilkinson Direction, the First Leahy Direction, the Second Leahy Direction and the Final Leahy Direction to constitute a valid reason for his dismissal.

[60]

[111] In his final written submissions, Mr Singh submits that he was not notified in writing of the reasons for his dismissal before the termination date nor on the termination date itself. He submits that at the meeting on 12 June 2019 Ms Butterworth and Mr Christie only asked questions and almost nothing was said about the allegations.[261]

[112] Crown submits that the reason for dismissal was provided verbally at the meeting of 12 June 2019 and followed up in writing by the letter dated 12 June 2019.

[113] The matter which section 387(b) requires be taken into account is whether Mr Singh "was notified of that reason". The use of the word "that" in section 387(b) requires consideration of whether Mr Singh was notified of the reasons for dismissal which I have been found to be a valid reason for the purposes of section 387(a).[262]

[114] The reasons for dismissal which I have found to be a valid reason are the failure by Mr Singh to comply with the Wilkinson Direction, the First Leahy Direction, the Second Leahy Direction and the Final Leahy Direction. In his Statement of Agreed Facts Mr Singh agreed that at the meeting on 12 June 2019 Crown put "the allegations" to him.[263] The precise allegations this agreed fact is in respect of are not articulated in the Statement of Agreed Facts. Ms Butterworth and Mr Christie's evidence, which I have accepted, is that seven allegations were put to Mr Singh at the meeting of 12 June 2019, including the failure to comply with the Wilkinson Direction and the Final Leahy Direction. Their evidence, which I accept, is that Mr Singh's refusal to go home on full pay was also put to him. It is unclear as to whether this relates to the First Leahy Direction, the Second Leahy Direction or both directions. However, in circumstances where Mr Singh does not dispute that these directions were made and that on both occasions he refused to comply with them, I am satisfied that no unfairness arises from any lack of clarity which may have existed.

[115] I have considered whether the failure of Crown to show Mr Singh the CCTV Footage and put to him the specific content of the witness statements it had obtained affects the question of whether Mr Singh was properly notified of the allegations. For the reasons set out above, I am satisfied that it does not and that he was notified of the reasons for his dismissal.

[116] Under cross examination Mr Singh's evidence was that the meeting on 12 June 2019 went for an hour,[264] 50 minutes of which comprised matters being put to him and him responding[265] and that Ms Butterworth put a number of allegations to him in the meeting.[266] As already set out, Mr Singh also agreed in his Statement of Agreed Facts that the allegations were put to him in the meeting.[267] In light of this, Mr Singh's submission that almost nothing was said about the allegations made against him in the meeting of 12 June 2019 is rejected. As to Mr Singh's submission that he was not notified of the reasons for his dismissal in writing, this is uncontested. It is plain there is no requirement in section 387(b) that an employee be notified of the reason for dismissal in writing.

[64]

[120] In his final written submissions Mr Singh concedes that he was given an opportunity to respond at the meeting on 12 June 2019 and notes that the emails he received in relation to the meeting informed him that the meeting may result in disciplinary action and/or termination of employment.[272] He also submits that his termination was preplanned and that after adjourning the meeting for ten minutes Ms Butterworth and Mr Christie came back with the quick decision to terminate his employment.[273]

[121] Crown submits that Mr Singh was provided with an opportunity to respond at the meeting of 12 June 2109 and further submits that Mr Singh concedes this in the Statement of Agreed Facts.[274] It submits that in accordance with procedural fairness Mr Singh was informed that a possible outcome might be termination of employment.[275]

[122] I am satisfied that Mr Singh was given an opportunity to respond to the Wilkinson Direction, the Final Leahy Direction and also to an allegation that he refused to go home on full pay as directed and that opportunity was reasonable. Firstly, Mr Singh set out his version of the events of 2 November 2018 in the Singh Complaint. Secondly, the evidence of Ms Butterworth and Mr Christie, which I have accepted, is that at the commencement of the meeting Mr Singh provided a full account of his recollection of events of the evening of 2 November 2018, prior to responding to the specific seven allegations that were put to him. As to whether Mr Singh was given an adequate opportunity to respond to both the First Leahy Direction and the Second Leahy Direction when he responded to the allegation that he refused to go home on full pay as directed, in circumstances where Mr Singh does not dispute that these directions were made and that he refused to comply with them I am satisfied that even if an adequate opportunity to respond was not provided no unfairness arises from this. Accordingly, I am satisfied that Mr Singh was given an opportunity to respond to the valid reasons for his dismissal and to put forward anything in his defence.

[123] Again, I have considered whether the failure of Crown to show Mr Singh the CCTV Footage and put to him the specific content of the witness statements it had obtained affects the question of whether Mr Singh was afforded an opportunity to respond. For the reasons set out above, I am satisfied that it does not and that Mr Singh was afforded an opportunity to respond and that it was reasonable.

[124] As to Mr Singh's submissions that his termination was preplanned based on the email correspondence referred to above, this is misconceived. That correspondence was putting Mr Singh on notice of the seriousness of the matter and the possible consequences. It is clearly appropriate and accords procedural fairness. In my view, it does not indicate pre-judgment.

[74]

[131] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[132] Mr Singh submits that there are a number of previous matters which are relevant to the question of fairness of his dismissal.[280] In summary, Mr Singh submits that over a number of years he has been victimised by management and human resources. Mr Singh's witness statement is almost exclusively dedicated to these historical employment matters, which span the period June 2015 - October 2018.[281] In particular, but not exclusively, Mr Singh relies upon a matter at the Crown College graduation party in 2017, for which of which he was issued a verbal warning, the final written warning issued by Ms Wilkinson for posting the Pornostar video link which he says was a "baseless allegation",[282] and the online "bullying" and social media posts which he says occurred in relation to the "Pornostar" video.[283]

[133] Mr Singh also submits that due to the hostile work environment he has developed irritable bowel syndrome and cannot enjoy normal food. He also says that due to having no income for almost a year and one half, he was not able to settle on his apartment and suffered financial loss as a consequence.[284]

[134] Crown submit that none of the historical employment matters are relevant to the question of whether Mr Singh's termination of employment was harsh, unjust or unreasonable. It submits further that the matters raised by Mr Singh were investigated and outcomes determined.[285]

[135] I do not find any of the historical employment matters relied upon by Mr Singh are relevant to whether his dismissal was harsh, unjust or unreasonable. In my opinion, the events of 2 November 2018 stand on their own and the previous matters are unrelated to Mr Singh's dismissal. I therefore consider they are not required to be taken into account. Accordingly, I give no weight to the evidence of Mr Yadav, Mr Zappia, Mr Overman or Ms Cubillo as to these matters.

[136] I have considered whether the ten-minute adjournment between receiving Mr Singh's response to the allegations put to him and the decision to terminate being communicated affects the fairness of Mr Singh's dismissal. In particular, I have considered whether the period of the adjournment indicates that Mr Singh's dismissal was pre-determined, and that Crown was simply "going through the motions." Mr Christie's evidence is that he listened to Mr Singh's responses and considered them in the adjournment.[286] He says he considered all the evidence and came to the conclusion that on the balance of probabilities, Mr Singh had failed to follow reasonable management directions on 2 November 2018.[287] Under cross examination Mr Christie's evidence was that he considered all of the available evidence, including Mr Singh's responses, before any decision to dismiss Mr Singh was made. Further, Mr Christie's evidence is that having listened to Mr Singh's responses he did not have confidence that Mr Singh would not repeat his behaviours. He says that Mr Singh did not take ownership of his conduct and did not seem to understand that he is required to follow reasonable direction from his managers. I have accepted that evidence. I am satisfied that no unfairness arises from the period of the adjournment. I am also satisfied that Mr Singh's dismissal was not predetermined.

[137] Another consideration I have taken into account is that I have found that two of the allegations put to Mr Singh were not made out. The Act requires me to consider whether there was a valid reason for dismissal. Where several reasons for termination are invoked, it is not necessarily the case that all must be substantiated. The fact that some of the reasons for dismissal are not made out does not necessarily affect the fairness or otherwise of a dismissal. In my assessment, this consideration does not have a bearing on Mr Singh's dismissal given my finding that there were four lawful and reasonable directions given to Mr Singh on the evening of 2 November 2018 with which he did not comply.

[138] Mr Singh was summarily dismissed. The proportionality of the dismissal to the conduct that is the subject of a valid reason is a matter to be considered in connection with section 387(h). Summary dismissal embraces termination of employment arising from a breach of an essential term of the employment contract, a serious breach of a non-essential term, or conduct manifesting an intention not to be bound by the contract in the future.[288] The obligation on an employee to comply with the lawful and reasonable directions of an employer is a fundamental term of the contract of employment. Over a period of more than three hours Mr Singh failed to comply with four lawful and reasonable directions of his employer, including a direction which was given twice that he perform the duties for which he was employed. In my view, Mr Singh's refusal to comply with these directions repudiated his contract of employment with Crown and justified the summary termination of his employment.

[139] I have considered Mr Singh's submissions as to the effect he says his employment with Crown has had on his health and his ability to settle on his apartment. These matters did not appear to relate to Mr Singh's dismissal and accordingly do not render his dismissal for those reasons harsh, unjust or unreasonable.

[140] Finally, I have taken into consideration that Mr Singh has not at any stage, including during the hearing, demonstrated any understanding that it is a fundamental obligation of an employee to comply with the lawful and reasonable directions of his employer. He has steadfastly held to the view that he has been victimised for making a complaint. I consider his behaviour on 2 November 2018 to be not only repudiatory but also baffling and unreasonable.

At a glance

Court

Decision date

Source

Judgment (160 paragraphs)

Harkirat Singh v Crown Melbourne Ltd [2020] FWC 1927 (14 April 2020)

Parties

Legislation Cited (2)

Cases Cited (7)