Kelvin Michael Farrington v West Harbour Rugby Football Club Limited - [2003] NSWIRComm 270 - NSWIRComm 2003 case summary — Zoe

NSWNSWIRComm

Kelvin Michael Farrington v West Harbour Rugby Football Club Limited

[2003] NSWIRComm 270

Industrial Relations Commission (NSW)|2003-05-26|Before: Staunton J, Mr J, Mr P

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2003-05-26

Before

Staunton J, Mr J, Mr P

Catchwords

05/27/2003
05/28/2003
05/29/2003 DATE OF JUDGMENT: 09/05/2003

Source

Original judgment source is linked above.

Catchwords

05/27/200305/28/200305/29/2003 DATE OF JUDGMENT: 09/05/2003

Judgment (132 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Kelvin Michael Farrington v West Harbour Rugby Football Club Limited (ACN 000 377 337) [2003] NSWIRComm 270 APPLICANT: Kelvin Michael Farrington PARTIES : RESPONDENT: West Harbour Rugby Football Club Limited (ACN 000 377 337) FILE NUMBER: 4528 of 2001 CORAM: Staunton J CATCHWORDS : Contract of employment - application for relief - whether fight by applicant amounted to serious and wilful misconduct or misconduct justifying dismissal without notice as provided in the contract of employment - application of s109A raised in relation to part of the Summons as pleaded - misconduct justifying summary dismissal not established on facts and circumstances - finding that the contract between the applicant and the respondent became unfair - in considering grounds for relief, a finding as to irretrievable breakdown in working relationship between applicant and Board of respondent before incident giving rise to dismissal occurred - consideration as to what would be 'just in all the circumstances of the case' for making of a money order under s106(5) - matters taken into account - relief granted - respondent to pay applicant's costs. LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 AWU - FIME Amalgamated Union v Queensland Alumina (1995) 62 IR 385 HEARING DATES: 05/26/2003; 05/27/2003; 05/28/2003; 05/29/2003 DATE OF JUDGMENT: 09/05/2003

[9]

3 The applicant's claim for relief is expressed as follows: 1. An order declaring the contract of employment between the Applicant and the Respondent under which the Applicant performed work for the Respondent as Director of Coaching is an unfair contract pursuant to s106 of the Industrial Relations Act, 1996. 2. An order declaring void, in whole or in part, ab initio, or at some later date (except as to moneys and other benefits allowed already or due thereafter to the Applicant) the contract between the Applicant and the Respondent described in Order 1. 3. Further, and in the alternative to 2, an order varying from the commencement or at some later date, the contract described in Order 1 by inserting the following provisions: (a) The contract shall not be terminated without the consent of the Applicant except for serious misconduct before 31 October 1999. If the Respondent terminates the contract for reasons other than serious misconduct before 31 October 1999, the Respondent shall pay to the Applicant an amount of money equal to the amount of remuneration which would have been payable under the contract between the date of termination and 31 October 1999. (b) The contract shall not be terminated for reasons relating to the Applicant's conduct or performance unless: (i) The Respondent shall give the Applicant notice of any intention to terminate the contract and provide to the Applicant reasons for the proposed decision and adequate factual materials in relation to the reasons; (ii) The Respondent shall give the Applicant all relevant factual material in relation to the reasons for the proposed decision including an outline of information provided by any relevant witnesses interviewed by the Respondent; (iii) The Applicant has been given an opportunity to defend himself against all allegations made in relation to his conduct and/or performance after receipt of factual material referred to in paragraph (b)(ii) above; (iv) The Respondent has undertaken a thorough investigation of allegations made in relation to the Applicant's conduct or performance including properly testing any matters presented by the Applicant in his defence against factual matters referred to in paragraph (b)(ii) above; (v) The Respondent shall make any decision to terminate the contract fairly including having regard to: A. the Applicant's personal circumstances; B. the satisfactory (or otherwise) performance by the Applicant of his obligations under the contract. 4. An order that the Respondent pay the Applicant's such sums of money in connection with the contract as the Commission considers just in the circumstances of the case. 5. An order for payment of interest on sums of money ordered to be paid by the Commission. 6. Such further and other orders as the Commission deems fit. 7. An order that the Respondent pay the costs of these proceedings.

[10]

4 Further, the applicant stated that the contract as between him and the respondent was unfair in that: (a) At all material times, the Applicant was in his dealings with the Respondent in a position of inferior and unequal bargaining power and such position was taken advantage of by the Respondent; (b) Representations made to the Applicant by members of the Committee of the Respondent were untrue or became untrue; (c) The contract operated in a manner to enable the Respondent to avoid obligations to pay remuneration for a fixed period of the contract which was prima facie provided for in the contract; (d) In relation to the termination of the contract: (i) The contract operated in a manner to deny the Applicant an opportunity to defend himself against any allegations which may have been made in relation to the Applicant's conduct and/or performance of his duties prior to the decision to terminate the contract being made by the Respondent; (ii) The contract operated in a manner to deny the Applicant the right to have allegations which were made in relation to the Applicant's conduct and performance of his duties thoroughly investigated prior to the decision of the Committee to terminate the contract; (iii) The contract operated in a manner to deny the Applicant the knowledge of the intention of the Respondent concerning the future of the contract before the Respondent made the decision to terminate the contract; (iv) The contract permitted the termination of the contract without the Respondent being required to pay to the Applicant the balance of remuneration due under the contract between 10 September 1998 and 31 October 1999; (v) The contract operated in a manner to deny the Applicant the knowledge of the intention of the Respondent concerning the future of the Contract; (vi) The contract operated in a manner to defeat the Applicant's legitimate expectations to be heard in deliberations and negotiations about the termination of the contract; (vii) The contract operated in a manner to enable the Respondent to terminate the contract without any proper or valid reason; (viii) The contract operated in a manner to deny to the Applicant the real reason as to why the Respondent terminated the contract; (ix) The contract operated in a manner to enable members of the Committee of the Respondent who were invincibly biased against the Applicant to participate in the decision to terminate the contract; (x) The contract operated in a manner to enable the Respondent to carry out a 'sham' review of the Respondent's decision to terminate the contract in circumstances where the Respondent had pre-determined its position. (e) For such other reasons as the Commission considers fit.

[20]

15 Initially, the selection panel approached and interviewed Mr Ian Snook from New Zealand. He subsequently declined and, in doing so, 'highly recommended' the applicant. Subsequent enquiries of and discussions with the applicant led to him being offered the position of Director of Coaching with the Club. That appointment was confirmed in writing in October 1995. The initial offer of appointment was contained in correspondence dated 27 October 1995. That letter of offer of appointment essentially contained the contract of employment as between the Club and the applicant and included the following relevant conditions: Duties The position of Director of Coaching encompasses the duties and responsibilities set out in the attached job description. You will report directly to the Chairman of the Football Committee, currently held by Mr Geoff Harper. Remuneration Your salary will be A$60,000 per annum payable weekly, plus the relevant compulsory superannuation levy, currently 4%. In addition, you will receive one return family economy air ticket to New Zealand in each year of your appointment. Relocation Expenses The Club will provide you with a one-way family economy air ticket from New Zealand to Sydney upon commencement of your appointment and will reimburse you for your relocation expenses of up to A$1,000. Car You will be provided with a fully maintained Holden Commodore or similar motor vehicle. The vehicle will be registered in the name of the Club. The vehicle is to be returned at the end of your employment. Expenses The Club will also reimburse you for any directly related football expenses. Annual Leave You will be entitled to four weeks (20 working days) annual leave per annum, accrued and taken at such times as are mutually agreed between us. Term The term of this contract is for a period of two (2) years from the commencement date. Termination Your employment may be terminated at any time by you giving not less than three (3) months written notice. The Club has the right to dismiss you without notice for misconduct, or serious or persistent breach of your terms or conditions of employment, and in such case, your salary and other benefits will be paid up to the time of dismissal only.

[27]

22 In August 1997 the Board of the Club resolved to re-appoint the applicant as Director of Coaching for a further two years. The initial offer was for one year, the applicant wanted three years and the parties, presumably by way of compromise, negotiated a further two years. 23 The letter of offer extending the applicant's appointment was dated 22 August 1997. While in somewhat similar terms to the initial offer of appointment, it had some differences that reflected, if anything, the respondent's emphasis on continued performance, particularly of the First Grade team. The letter of offer stated: Offer of Employment - Director of Coaching Further to our recent discussions, we are pleased to offer to extend your term as Director of Coaching, West Harbour Rugby Football Club, for the 1998 and 1999 football season on the following basis: Duties The position of Director of Coaching encompasses the duties and responsibilities set out in the attached job description. You will continue to report directly to the President (currently Mr Geoff Harper). Remuneration Your salary will be A$60,000 per annum, payable weekly, plus the relevant compulsory superannuation levy (currently 6%). An incentive bonus of 10% of the prize money received by the Club will be paid in the event that the Club's First Grade team is the winner of the Hahn Cup pre-season competition conducted by the NSW Rugby Union in 1998 and 1999. An incentive bonus of $10,000, or the equivalent in kind by way of travel and accommodation, will be paid if the Club's First Grade team reaches the play-offs of the NSW AAMI Cup Competition (or any equivalent competition conducted by the NSW Rugby Union), in 1998 and 1999. In addition, you will receive one return economy air ticket to New Zealand in 1998 and 1999 for yourself and your family. Car You will be provided with a fully maintained Holden Commodore or similar motor vehicle. The vehicle is to be returned at the end of your employment. You will also be provided with a second motor vehicle in the form of the additional vehicle currently provided to you. The vehicle will be registered in the name of the Club with running costs, with the exception of servicing and repairs to be met by you. The vehicle is to be returned at the end of employment. Telephone The Club will provide you with one mobile phone for the purpose of performance of your duties, and will reimburse you the cost of the telephone account in respect of such phone. Expenses The Club will also reimburse you for any directly related football expenses. Annual Leave You will be entitled to four weeks (20 working days) leave each year, accrued and taken at such times as are mutually agreed between us. Term The term of this contract is for a period of two (2) years commencing on 1 November 1997. Termination Your employment may be terminated at any time by you giving not less than (3) months written notice. The Club has the right to dismiss you without notice for misconduct, or serious or persistent breach of your terms or conditions of employment, and in such case, your salary and other benefit will be paid up to the time of dismissal only. Early Termination It is an essential condition of this offer that West Harbour remains a participant in the NSW Rugby Union AAMI Cup Competition in 1998 and 1999, or in any equivalent premier competition for first grade rugby clubs in NSW, conducted by the NSW Rugby Union in the 1998 and 1999 football seasons. In the event that, for any reason, West Harbour is not invited to participate, or is not a participant, or ceases to be a participant, in such competition in the 1998 or 1999 football season, then the Club may terminate your employment upon one (1) month's written notice. Business Plan In preparation of the 1998 football season, you are requested to prepare and submit to the Board of West Harbour by 30 September 1997, a business plan for the 1998 season, outlining coaching plans, including lower grade coaches and support staff, and player recruitment plans and proposals. Kelvin, we are delighted to offer to extend your term with West Harbour. We look forward to you continuing your position with West Harbour and developing a successful First Grade team and rugby club. Please indicate your acceptance of this offer and the terms and conditions set out in this letter of offer by signing the duplicate copy, and returning it to us as soon as practicable. Geoff J Harper President

[38]

34 At the time of the applicant's appointment as Director of Coaching, the Club had commenced a formal system of player payments for its First Grade team. The budget allocation for player payments was made by the Board. As Director of Coaching, the applicant was directly and significantly involved in determining and negotiating the contracts with the players. On his own evidence, it was the applicant's view that, once the Board allocated the budget for player payments, he alone then determined what each player should get. Further, the applicant took exception to any suggestion that members of the Board had the right to ask him about individual player payments. He based this somewhat dogmatic view about that issue on his perceived view of the autonomy of his role in making those decisions as well as the need for confidentiality about such matters. Indeed, the applicant saw any questions about player payments as a direct criticism of him. As he said: Q. And the fact some people questioned how much certain players were getting, you took as criticism of yourself? A. Yes. Q. And you agree with me members of the Committee can ask questions about how much a particular player is getting or appropriate to get? A. No, that was the role of the coach to decide how much each player was paid. Q. Who determined that? A. The Committee. We had a budget. The Committee set a budget and then they appointed a coach to disburse that budget and they expect the payments to come from those budgets. So really it is the coach, his responsibility to make sure the money is spent the best possible way, if it is not, he is not going to be reappointed. Q. Sir, I put it to you it is the respondent's money? A. Yes. Q. And the Committee is charged with the management of the respondent? A. Yes. Q. And ultimately the Committee can say how much a particular player should get? A. No. and: Q. Sir, I put it to you it is totally and ultimately appropriate for the committee members to discuss player payments, the amount of player payments? A. No. Q. And what player is getting what sum of money? A. No. Q. And it was appropriate for that to occur in the Committee meetings? A. It wasn't our practice.

[43]

39 There was also evidence before me that supported Mr Patterson's view as to Mr Threlfo's general approach to dealing with matters that he was unhappy about. For example, in 1997, the Board received a formal complaint from the referees of a rugby game that Mr Threlfo had been involved in, alleging abuse of the referee by Mr Threlfo. That complaint was considered by the Board at it's meeting on 8 September 1997. In those minutes, as part of the Director of Coaching Report, the following entry appears: Complaint received from the referees about the behaviour of G Threlfo after the Parramatta game. Mr Threlfo to write a letter of apology. To be organised by Mr Farrington. 40 When questioned about this matter in cross examination Mr Threlfo could not remember the incident or whether he had written an apology. As his evidence disclosed: Q. A referee wrote a letter complaining about your abuse in a game did he not, in 1997? A. I don't remember. Q. You were asked to write a letter of apology to the referee by Mr Farrington? A. I could have been but I don't remember that. Q. Can the witness be shown exhibit 2; that is the minutes of the Club's Committee meeting held 8 September 1997. Can you go to page 2, about halfway down you will see the following words appearing: 'Complaint received from the referees about the behaviour ... Do you remember that now? A. I don't remember. Q. Do you remember that a referee wrote a letter of complaint to the Board about your abuse? A. I don't remember the specific details. Q. Is that because that was happening all the time in your football career? A. Not that I know of. Q. Mr Farrington asked you to write a letter of apology to the referee? A. If that's what's in the minutes. Q. You would not do it? A. Well it says here, 'to be organised by Mr Farrington' so I assume I would have. It would have been done. Q. You did not write the letter of apology? A. I don't know if I did. Q. You do not remember writing it? A. No. Q. But you remember the letter from the referee now, do you not? A. No.

[76]

74 Following the incident between the applicant and Mr Threlfo both protagonists went about their business on the day and nothing was further said between them. According to Mr Threlfo, later that day, when he was watching the First Grade game in the grandstand, he was approached by one of the then directors of the Board, Mr Steve Adams. According to Mr Threlfo, Mr Adams told him (Mr Threlfo) that he had heard about the confrontation between he and the applicant and asked him to put a letter in writing about the incident and to hand it one of the Board members. This Mr Threlfo did. In a handwritten letter dated 7 September 1998, Mr Threlfo set out his contemporaneous recollection of what had occurred between he and applicant on 5 September. That letter read as follows: To Secretary - West Harbour Rugby Club I wish to inform you of an incident which took place between myself (Geoff Threlfo) and the General Manager (Kelvin Farrington) on Saturday 4 September 1998 at Waratah Rugby Park. On arriving at the ground it came to my attention that the 4th grade game against Southern Districts may have to be forfeited as we could not field a team. I knew that this could possibly effect the 5th grade game because priority should be given to the 4th grade. Consequently I quickly organised a team made up of 3rd, 4th and 5th grade players and play began 20mins late. I was replaced at half-time as we were due to play 5th grade at midday. As I was leaving the field I confronted General Manager Kelvin Farrington and asked him why a 4th grade team hadn't been organised previously. His response was simply that most of the Colts had to work in the morning according to the Development Officer Mark Docking who had contacted them during the week. I again questioned him why a team was not organised especially in light of the fact 5th grade had games scheduled Thursday night, Saturday and Sunday. Kelvin retaliated by saying he had enough of myself and then wanted to fight me in the dressing rooms, he then walked up the player's tunnel. A couple of minutes later I followed saying to him that I didn't want to fight, we then continued to argue outside the dressing room when Kelvin took a threatening step towards me. I then pushed him away, Kelvin then threw a punch hitting myself in the face. Grant Fenn, Pat Hayes and Sean Kearns stepped in to calm us down but the arguing continued and I then threw a punch hitting Kelvin in the face. A moment later we both left the area. I believe I have the right to question Kelvin about the insufficient numbers as he is the appointed Club Coach, and I believe responsible for the organisation of the entire Club and not just 1st grade. I am not excusing my own behaviour but sincerely believe that a man in his position should not respond to questioning in such a manner and resort to fighting. Yours sincerely Geoff Threlfo

Kelvin Michael Farrington v West Harbour Rugby Football Club Limited

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Judgment (132 paragraphs)

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Cases Cited (3)

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