Kelvin Michael Farrington v West Harbour Rugby Football Club Limited

APPLICANT: Mr J Pearce of counsel SOLICITORS: Mr P Murphy Paul Murphy & Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr A Britt SOLICITORS: Mr B Taylor Michell Sillar Solicitors

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 5/9/2003

Matter No IRC 4528/2001 Kelvin Michael Farrington v West Harbour Rugby Football Club Limited (ACN 000 377 337)

Application under s106 of the Industrial Relations Act 1996 JUDGMENT NSWIRComm 270

1 This application for relief under s106 of the Industrial Relations Act 1996 (the Act) arises out of the circumstances surrounding the termination of the applicant's contract of employment with the respondent in September 1998.

2 In terminating the applicant's employment the respondent cited misconduct on the part of the applicant.

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.

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.

5 As already stated, the applicant's employment was terminated in September 1998. Following that decision, there were negotiations between the respective legal representatives of the parties to try to resolve the issue. Those negotiations failed and on 19 October 1998, the respondent confirmed its earlier decision to terminate the applicant's services. 6 In November 1998, the applicant filed an unfair dismissal claim pursuant to s84 of the Act. That matter first came before Commissioner Neal on 12 November 1998. That claim was ultimately discontinued by the applicant in January 1999 primarily on the ground that the applicant 's remuneration exceeded the statutory limits then provided by s83(1)(b) of the Act.

7 On 6 July 2001, the applicant filed his Summons for Relief under s106 of the Act.

8 At the commencement of the proceedings before me, the parties identified the issues for resolution as follows: (i) Whether the Respondent was entitled to terminate the contract of employment with the Applicant for serious and wilful misconduct as a result of a physical altercation with a player of the Respondent on 5 September 1998; (ii) If the answer to (i) is No, whether the contract of employment was unfair in that it operated in a manner to enable the Respondent to avoid obligations to pay remuneration for the fixed period of the contract until 31 October 1999; (iii) If the answer to (i) is Yes, whether the contract was unfair for the reasons stated in paragraph 48(a), (b), (c),(d) and (e) of the Summary. (iv) If the answer to (ii) or (iii) is Yes, whether the Commission should exercise its discretion: (1) To vary the contract as sought in Order 3 of the Summons; and/or (2) To make an order under s106(5) of the Act; (v) If the answer to (iv)(2) is Yes, the quantum of the order under s106(5) of the Act.

Jurisdiction relevant to s109A of the Act 9 Counsel for the respondent conceded that the contract of employment between the applicant and the respondent was one whereby work was performed in an industry in and of New South Wales and thus the Commission had jurisdiction to determine the applicant's case subject to the application of s109A of the Act. In effect, counsel for the respondent submitted that the effect of the Summons in part, particularly that as pleaded in para [4] (d) (i), (ii), (iii), (vi), (vii), (viii) and (ix) above is to challenge the fairness of the decision of the respondent to terminate the applicant. It was submitted on this point: Although it is conceded, on its face, that these sub paragraphs in the Summons deal with the contract of employment, s109A requires that consideration be given to the substance of the Summons over the form of the Summons as to whether the complaint advanced in relation to the failures identified in sub paragraphs (d) particularly that as pleaded in para (d) (i), (ii), (iii), (vi), (vii), (viii) and (ix) are not ones for which an application could have been made for unfair dismissal. That is, in these aspects the Summons is in reality, an unfair dismissal claim in disguise (see Bell and Burg v Macquarie Bank Ltd and anor (2002) NSWIRComm 235 at para 20). Further, these aspects of the Summons are really complaints about inadequacies of the procedures adopted by the respondent in dismissing the applicant and such complaints along with complaints about the fairness of the decision to dismiss cannot be dealt with in s106 proceedings (see Lipman and anor v AG Lifestyle Management Pty Ltd and anor [2003] NSWIRComm 160 at para 124).

10 Before having to further consider that issue, the primary question remains to be determined. That is, whether the respondent was entitled to terminate the contract of employment with the applicant for serious and wilful misconduct as a result of a physical altercation with a player of the respondent on 5 September 1998. As to the need to determine that issue in the first instance, counsel for the respondent stated - ...if your Honour were to find no misconduct or no serious and wilful misconduct on the part of the applicant, we would concede your Honour we would have breached the contract and as a result of that, your Honour would be in a position to consider the making of orders under s106 (5).

11 By letter dated 27 October 1995, the applicant was offered and accepted employment with the respondent (the Club) as Director of Coaching.

12 At the time of accepting the position, the applicant, a New Zealand national, was employed by Nelson Bay Rugby Union as a Development Officer. As I understand it, that position involved him teaching rugby in local schools in the Nelson Bay area of New Zealand. In addition to that position, the applicant also held the position of Coach of the Nelson Bay Rugby Club and was a selector for the Canterbury Crusaders.

13 At the time of his appointment with the respondent the applicant had recognised rugby coaching qualifications in New Zealand. He had a New Zealand Level 3 Coaching Certificate, a Certificate in Coaching from Massey University and a Certificate in Coaching from the New Zealand Hilary Sports Foundation.

14 On behalf of the Club, it was not disputed that the applicant had been approached by members of the Club's Committee of Management (the Board) and the then General Manager of the respondent, Mr Ian Patterson, about the Director of Coaching position. It would seem that the Board of the Club had resolved to appoint a full time Club coach of high calibre. Representatives of the Board, together with Mr Patterson, commenced giving consideration to persons they considered suitable candidates to consider for the position. A three person selection panel was set up consisting of Mr Geoff Harper, the then President of the Club and Chairman of the Board, Mr Grant Fenn a member of the Board, and Mr Patterson.

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.

16 Evidence was given that the applicant did negotiate some changes to the offer of appointment, notably in relation to the provision of two motor vehicles instead of one as originally provided for. Subject to that, no issue was taken by him in relation to the overall terms of his appointment, particularly that relating to the termination provisions.

17 It was stated by the applicant before me that, at the time of taking up his position with the respondent in 1995, the Club was 'in crisis.' While there was evidence given that, at that time, there had been an exodus of a number of players from the Club, there was no evidence that the Club was experiencing what might be envisaged, on any objective consideration, a crisis situation. In other words, the Club had members and assets, its finances were secure and it was participating in the Sydney Club Rugby competition in all grades. It would seem that, on the playing field, the Club was having mixed results in its various grades and, on occasion, had difficulty fielding full strength teams for all grades of the rugby competition.

18 As far as the First Grade team was concerned, in 1995, the last full competition year before the applicant was appointed, the team made the semi finals. In 1996 they finished tenth in the competition and in 1997 and 1998 ninth and seventh respectively. Without any other evidence it does not appear as far as results were concerned that the First Grade team was in any particular crisis in 1995 when compared with the three subsequent years.

19 As I would describe the situation, the decisive factor in the applicant's appointment was because the Club believed it was necessary to take the step to a full time professional coach. As Mr Patterson described it: At the August 1995 Board meeting a discussion took place to the effect that the incumbent Club Coach was not performing up to player expectation. At that time there was considerable uncertainty in the game in New South Wales with indications being that there was a real possibility of a reduction in the numbers of participating Clubs in the Sydney Premier competition. Geoff Harper and I had discussed informally the idea of moving to a full-time Club Coach position in order to secure a stable future for the Club.

20 By all accounts the applicant did perform well as Club Coach. As Mr Harper, the President of the Club at the relevant time stated: It was the case that when Kelvin joined, the standard of rugby was not very good. The First Grade team's standard of rugby did improve under Kelvin.

21 Mr Patterson supported Mr Harper by stating that: Mr Harper's assertion that the standard of the First Grade team's play did improve under Mr Farrington is undeniable.

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

24 The job description for the position detailed the following duties and responsibilities: Duties and Responsibilities Director of Coaching West Harbour First Grade Coach Instruct, supervise and manage coaches, coaching assistants and coaching co-ordinators in the roles as Club Coach. Determine and implement team selection criteria. Promote and develop players to the highest possible limit. Development and implementation of training programmes for both pre-season and football season. Liaise with specialist technical and sports science consultants and decide on the timing and nature of their input to create a balanced programme. Develop West Harbour Rugby Club as a dominant force in NSW AAMI Cup Competition or equivalent. Chairman of West Harbour Football Coaching Committee. Assist in player retention and recruitment as required. Liaise with Club's sponsors as required. Spokesperson for West Harbour on all football matters. Participate in coaching sessions for West Harbour Colts. Juniors and local schools as appropriate. Attend meetings of and report to the West Harbour Football Committee and the Board of West Harbour Rugby Football Club as required.

25 On 7 September 1998 the Board of the Club resolved to terminate the applicant's contract of employment. That decision was confirmed in writing to the applicant in a letter dated 10 September 1998 in the following terms: Dear Kelvin Further to our discussion yesterday I confirm in writing that your contract of employment has been terminated for misconduct. I enclose your termination payment. You are requested to provide me with your provided motor vehicle, mobile telephone and all keys and other items to which the Club is entitled. As per our discussion we are prepared to allow you to use at your own cost the motor vehicle provided to your up wife until the 30 September 1998 on the basis it is managed and looked after in accordance with any provided motor vehicle and that the vehicle is voluntarily surrendered on or before the 30 September 1998. The Club reserves the right to withdraw this arrangement at its sole discretion at any time. Sincerely Geoff Harper President West Harbour Rugby Football Club Ltd

26 In citing the applicant's misconduct as the reason for termination of his employment, the Club was relying on an incident that occurred between the applicant and a member of the Club, Mr Geoff Threlfo on 5 September 1998. That incident occurred in the area outside the player's dressing rooms underneath the grandstand at Concord Oval, Sydney in the course of Mr Threlfo participating as a player in the Club's Fourth Grade team and the applicant attending in his capacity as Director of Coaching for the Club. In that incident, it was alleged by Mr Threlfo that the applicant had assaulted him by hitting him in the face. The applicant did not dispute the incident between he and Mr Threlfo but puts an explanation forward that alleges that his hitting of Mr Threlfo was in self defence and that it was Mr Threlfo who was the aggressor.

27 As the matter proceeded before me, it was central to the applicant's claim for relief that, in relying on the incident between he and Mr Threlfo as the basis for terminating his employment for misconduct, the Club had acted unfairly both as to the way in which they dealt with the complaint and the conclusions they came to in relation to the applicant's role in the incident - particularly given that that was the incident relied upon by the Club to dismiss the applicant. Accordingly, it is a necessary part of the conclusions I come to in this matter to determine whether, in all the circumstances, the incident that occurred between the applicant and Mr Threlfo amounted to misconduct such as to justify the applicant's summary termination of employment.

28 Having now had the benefit of hearing all the evidence in the matter, it is clear that any decision as to whether the applicant's actions on 5 September 1998 amounted to misconduct warranting summary dismissal has to be viewed in the overall context of the applicant's employment history with the Club up to the date of the incident.

29 During the time of the applicant's employment, the overall management of the Club was vested in the Board. That Board was made up of a President and an additional eight members of the Club. In addition to the position of President there was also a Treasurer and Secretary of the Board appointed from the nine members so elected. Those nine persons were elected by the members on an annual basis. At the relevant times involving the applicant and particularly the incident of 5 September 1998, the President of the Board was Mr Geoff Harper.

30 In addition to the Board there were a small number of full time employees appointed by that Board to run the day to day activities of the Club, including the position of Director of Coaching. The precise number of full time employees was not in evidence before me but it is clear that in addition to the applicant as Director of Coaching, there was a General Manager and a Development Officer. At the time of the applicant's appointment, Mr Ian Patterson was the General Manager and, for some time during the applicant's employment, Mr Mark Docking was the Development Officer.

31 Mr Patterson left the Club in October 1996. After his departure, the applicant gradually absorbed the duties of General Manager as well as continuing in his role as Director of Coaching. It is probably fair to say that problems as between the applicant, some members of the Board and, in particular, some members of the Club began to emerge and intensify once the applicant assumed the dual role of General Manager and Director of Coaching of the Club.

32 It is not disputed on behalf of the Club that the applicant did assume the dual roles. Exactly when that occurred is not entirely clear but given that Mr Patterson left in October 1996, it would have been some time shortly after that. There was no evidence before me that indicated that the applicant received additional remuneration for the extra responsibilities that he undertook as General Manager.

33 One of the issues giving rise to a source of tension involving the applicant and some members of the Club was the issue of player payments. It would not be overstating it, I believe, to say that at the relevant time, the game of Rugby was undergoing a transition from a club game with a tradition of amateur player participation to one of paid professionals. It would appear that that transition was not enthusiastically received by all supporters of the game and it was an issue that generated heated discussion within the membership of the Club.

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.

35 It should be said at this point that Mr Geoff Harper, the President of the Club did not entirely agree with the applicant's unequivocal assertion as to his sole role on the issue of player payments. As Mr Harper's evidence disclosed: Q. The Club had a budget in 1997? A. That's my recollection. Q. In that budget it was left to Mr Farrington to in fact negotiate the individual payments with the players? A. I am not sure that is the case. Q. Did he negotiate with the players? A. The negotiation was not exclusively with Mr Farrington. Q. Who else did it? A. I was involved in that in part. Q. You did it with Mr Farrington? A. Some of the time, yes. Q. Did you ever do it without Mr Farrington? A. Yes. Q. Was not the process that Farrington did most of the negotiation when he consulted with you and you and he were the final approval process? A. That was one of the processes, correct. Q. The individual payments made to particular players were not approved by the Board? A. At a player level? Q. Yes. The Board did not approve, say, Bill Young to be paid X did it? A. No. Q. That was the Board approved the local budget? A. Yes. Q. And then you and Mr Farrington sorted out who got what, is that right? A. No, that is not how I would describe it. Q. Well, you tell me how it worked. A. The players would be dealt with on a one-to-one basis and the team had to be funded out of the budget. Q. But at the end of the day who made the decision about which players and what amount of money? A. It was the process that you have just described, correct. Q. Normally Farrington would make a recommendation and consult with you and you would make the final decision? A. I would support his recommendation, correct. Q. And the individual payments, names of the individual players, never went to the Board for approval? A. At various stages, if the directors at the board meeting requested that information, they were advised quite specifically, as they had a right to know.

36 Not surprisingly, if the applicant took exception to members of the Board asking him about player payments, he took even greater exception to any member of the Club asking him questions about the issue. On the evidence before me, it was on this issue in particular that he had cause to cross swords on more than one occasion with Mr Threlfo prior to the incident involving he and Mr Threlfo on 5 September 1998.

37 At the time of the hearing before me, Mr Threlfo had been a member of the Club for about 21 years. During that time he played for the Club, predominantly, as I understand it, in the lower grades. By all accounts of those who gave evidence, Mr Threlfo was a man who was outspoken in expressing his views and according to some witnesses, doing so in a somewhat confrontational style. As Mr Patterson, the General Manager of the respondent from 1991 to 1996 said: Geoff Threlfo was often in disagreement with me during my time at the Club. He was highly opinionated and repeatedly questioned decisions made by the Board and Rugby management in a confrontational and sometimes physically aggressive manner. He seemed unable to accept any view except his own ...even before he was in the role of Club Captain, Mr Threlfo seemed to see himself as the champion of the lower grade players.

38 In cross examination Mr Patterson adhered to that evidence and by way of elaboration, he stated: Q. He never hit you, did he? A. No, he never hit me. Q. You never hit him? A. No, that is correct. Q. Paragraph 21, you say that Mr Threlfo questioned the decisions by the Board and rugby management in a confrontational (and) sometimes physically aggressive manner. What did you mean by confrontational manner? A. It was probably a lot of the time related to the kinds of blokes that would tend to take up issues with you. For instance, on match day and that, and even when you were performing other duties, you were trying to get on with these activities of the day, and just could be quite persistent with his questioning. By way of example, stepping in front of you to continue a conversation, not allowing you to move away, that type of thing, and generally just the tone of conversation. Q. What do you mean by physically aggressive manner? A. Well, stepping in front of people and that type of thing, getting fairly close, eyeball to eyeball, caused some concern.

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.

41 A further example of Mr Threlfo's propensity to aggressive responses when crossed occurred in 1996 when the applicant had substituted Mr Threlfo during the course of a game. It would seem that Mr Threlfo was unhappy with that decision and, in addition to his venting his spleen at the applicant, he caused considerable damage to the door of the changing room when he kicked it. Evidence about this incident was given by Mr Ian Patterson who was still the General Manager at the time. As Mr Patterson recounted: Upon being replaced I saw Mr Threlfo storm up into the grandstand and heard him abuse Mr Farrington before storming off to the changing room. I advised Team Manager, Dennis Woods, to get down there and open the changing rooms. He returned shortly thereafter to advise he was too late, that Mr Threlfo had kicked in the door and had caused considerable damage to the door and the jamb. The damage was consistent with the door being kicked inwards while locked. The cost of this damage was subsequently billed to the Club by the New South Wales Rugby Union. Mr Threlfo was approached by me to pay for the damage. He acknowledged that he had caused the damage but he refused to pay.

42 In his evidence before me, Mr Threlfo acknowledged the background to the incident but denied that he had kicked the door 'in.' His explanation was that he had simply kicked the door. Further, he denied any approach from Mr Patterson about the incident in the following exchange: Q. You caused considerable damage to the door and the jamb? A. As I said, I didn't see if I did do any damage. The door didn't open, so I just walked away. Q. You know that the cause of the damage was subsequently billed to the Club by the New South Wales Rugby Union? A. No, I didn't. Q. You were approached to pay for the damage were you not? A. Not that I know that I can remember. (sic) Q. You were approached by Mr Ian Patterson in his office and asked to pay for the damage? A. No, I can't remember. Q. You say it did not happen that you were approached? A. I can't remember being asked to pay for it. Q. It was in Mr Patterson's, in the rooms of the Club, he asked you to pay for the damage? A. I can't remember. Q. And Mr Farrington was there? A. I can't remember. Q. And you acknowledged that you had caused the damage? A. As I said, I didn't see what damage I had done. Q. But you acknowledged that to Mr Patterson, that whatever damage was there you had caused it? A. I can't remember. Q. And you refused to pay for it? A. As I said, I can't remember being there. Q. You did not pay for it, did you? A. I can't remember being asked to pay for it, so no, I wouldn't have paid for it.

43 In giving evidence, Mr Threlfo displayed what I would describe as feigned absence of recall of any matters except the events of 5 September 1998. While I can appreciate that the passage of time might well have blunted a person's memory as to certain events, particularly specific details of them, I found Mr Threlfo's inability to remember anything of any incident in which he was adversely involved as implausible. All in all, I found Mr Threlfo a most unimpressive witness.

44 On the evidence before me it was apparent that, apart from his long standing membership of the Club, Mr Threlfo had strongly held views about a number of issues, not least of all the belief that the club had a responsibility to support, both financially and otherwise, the lower grades of the Club's playing activities rather than just concentrating its energies on the First Grade team. To the extent he expressed his unhappiness with what to him appeared to be some overemphasis on the First Grade team at the expense of the lower grades, he clearly did so consistently and forcefully and in a way that could be described as intensely irritating at least. In other words, Mr Threlfo's propensity to speak his mind in the manner and in the way that I have described was, if anything, designed ultimately to clash heatedly with the applicant's perception as to his role and responsibilities as both Director of Coaching and General Manager of the Club.

45 In going about his dual role, it is apparent that the applicant did so with a degree of commitment and also strongly held views as to what was and what was not correct. I have already commented on his strongly held view about his sole right, as he perceived it, to make decisions about player payments and his extreme sensitivity to any questions or criticisms about any decisions he made in that area as well as others. There was certainly implicit criticism in the form of persistent questions coming from Mr Threlfo which would only have raised the tensions between them. While that did not prevent the applicant supporting Mr Threlfo for Club Captain in 1997, the way in which the applicant and Mr Threlfo chose to deal with problems that confronted them became something of a recipe for the events that tipped over into open animosity between them on 5 September 1998.

46 Prior to 5 September 1998 the applicant had also had cause to rue his propensity for reacting inappropriately in times of disagreement. For example, evidence was given that in 1997 at an after game social function he became embroiled in an altercation with a member of the Club, Mr Simon Lunn. It would seem that the First Grade team had played Newcastle that day and lost and, following the team's return from the game, a number of the team members including the applicant had gone to a hotel in Parramatta Road, Camperdown. It was described as an after game social function but not an official function of the Club. Towards the end of the evening, when it would be fair to say that the majority of persons present had had an amount to drink, the applicant became involved in the altercation with Mr Lunn. The background to the altercation is not necessary to detail at this point even though there are differences between the evidence of the applicant and Mr Lunn. What is not in dispute is that at a certain point, allegedly in response to a comment made by Mr Lunn, the applicant said to him words to the effect of - The Club is trying to get rid of soft cocks like you, you're useless.

47 The applicant also does not dispute that Mr Lunn's response was words to the effect - At least we won games when I was playing, maybe they should piss you off.

48 Following that exchange as well as other comments that passed between the applicant and Mr Lunn, Mr Lunn's fiancée, who was present with him that evening, was also verbally abused by the applicant in words that included coarse language. As well, there was further loud argument between Mr Lunn and the applicant involving other persons. That ultimately led to the applicant being asked by management to 'go outside and cool off.' It was put to the applicant in cross examination that he had been asked to leave the hotel. He denied that and only somewhat reluctantly agreed that he had been asked to go outside and 'cool off' and saw that as a distinction from being asked to leave. 49 On the applicant's own evidence, that incident required him to have to make amends on the following Monday by apologising to Mr Lunn and writing a letter of apology to Mr Lunn's fiancée. A copy of that letter was before me in evidence. There was also disputation between the applicant and Mr Harper, the President of the Club as to whether the incident involving the applicant and Mr Lunn ever officially came to Mr Harper's attention or to the Board's attention for formal consideration.

50 In recounting his evidence about this matter, the applicant flatly rejected any suggestion that his behaviour on that night had ever been the subject of a formal complaint to Mr Harper as President of the Club or had ever been considered by the Board or that he had been requested by Mr Harper to apologise to Mr Lunn and his fiancée. The applicant's evidence was that his verbal apology to Mr Lunn and the letter to his fiancée were done of his own initiative the following Monday after the incident. The letter to Mr Lunn's fiancée, Ms Megan Lett is dated 30 June 1997 which, by reference to the 1997 Rugby Handbook, can be identified as the Monday following the First Grade team's game against Newcastle listed in Round 10 of competition for Saturday, 28 June 1997.

51 Mr Harper's evidence is that he was made aware of the complaint, that it was raised and made the subject of a formal request at Board level that the applicant apologise to Mr Lunn. The applicant's letter to Mr Lunn's fiancée was produced by Mr Harper from the Club's records.

52 Much was made by counsel for the applicant about Mr Harper's evidence on this issue, centring as it did on the fact the Club could not produce any Board minutes of 30 June 1997, or any other date, to confirm that Mr Lunn's complaint had ever been raised and discussed by the Board as Mr Harper stated. In short, it was submitted, Mr Harper's evidence on this matter was a total fabrication.

53 While that latter assertion was put to Mr Harper and denied, what was not put to Mr Lunn was that a complaint had been made. Mr Lunn's evidence was that he had phoned Mr Harper on the Monday morning after the incident and complained. Later that day he said he got a phone call from the applicant, apologising to him followed up by the letter to his fiancée of the same day. His evidence of complaint was never challenged, only the time he received the phone call from the applicant.

54 I accept that the passage of time has blurred recollections of precise details of events that are alleged to have occurred many years ago. That statement applies as much to the applicant as to the Club's witnesses. While there are no Board minutes to support Mr Harper's assertion that Mr Lunn's complaint was the subject of Board consideration, I am not persuaded that Mr Lunn did not complain or that Mr Harper may not have informally spoken to the applicant about the matter. A copy of the letter to Mr Lunn's fiancée in the Club's records would suggest it formed part of the Club's formal records and therefore arose from some official action within the Club. If the applicant's evidence that his apology was of his own initiative and a private matter one would not expect to find a copy of his letter of apology in the Club's records unless there was some other way Mr Harper obtained that letter. That proposition was never raised or put.

55 Finally, it has to be noted, even after this complaint was allegedly dealt with by the Board in June 1997, later that year, the same Board was willing to extend the applicant's contract with the Club for a further two years. Hardly the sign of a Board who, in June of that year, according to Mr Harper, expressed their disquiet that: A person with a temperament that goes off whenever someone chooses to disagree with his line of thinking should not hold the position that represents the public face of our Club.

56 Taking into account all of the conflicting evidence about this issue I cannot come to a concluded view sufficient to satisfy the proper onus that Mr Lunn's complaint was dealt with as Mr Harper stated in his evidence. I am however satisfied that Mr Lunn did complain to Mr Harper and, more likely than not, Mr Harper did have an informal discussion with the applicant about it and the applicant's apology followed. What I cannot be satisfied about is that Mr Lunn's complaint reached the status of a formal complaint at Board level in the manner suggested.

57 What is clear from the above incident as well as the applicant's response in relation to certain issues raised with him is that he was not backward in forcefully rising to the occasion when he wanted to respond to matters, particularly when he felt under criticism. As I said earlier, I believe the applicant went about his respective duties with the Club with a great deal of zeal and commitment. If anything, if one had to express a view, having observed the applicant in evidence, and the nature of his responses on many occasions, it would be that the applicant, in his zeal and commitment, combined with his dogmatic view of many things and his extreme sensitivity to criticism, made it very difficult for him to cope with the 'slings and arrows' of criticism and comment from members of the Club or the Board who saw fit to express their views that may, from time to time, have amounted to a difference of opinion and maybe even implicit criticism. It is hard to imagine that in the world of Club rugby, persons in the applicant's position would be immune from individual members voicing their opinions from time to time, and inherent in those opinions would be some implicit or direct criticism. That, I would imagine, would be part and parcel of being in a position such as the applicant's. In many respects it would be expected that one would absorb those comments and/or criticisms simply as part of the job, acknowledging at all times the right to respond to those criticisms and comments in a measured and appropriate manner. If anything, the applicant seems to have dealt with matters in a way that did not assist him in responding equably to issues that were raised both by members of the Club and the Board.

58 In any event, by the time the incident on 5 September 1998 erupted, I am satisfied that there was a considerable level of antagonism as between the applicant and Mr Threlfo. On Mr Threlfo's part, it was because of his belief that the applicant was not devoting sufficient time or attention to the lower grades and had abrogated his responsibilities in that area. Mr Threlfo felt that that was to the detriment of the Club as well as to those players in the lower grades. On the applicant's part, he believed that Mr Threlfo had on more than one occasion stepped out of line in the manner and the way in which he continued to raise the issue of player payments and his criticism of the role of the applicant in relation to the lower grades.

59 On 5 September 1998 the respondent's Fourth and Fifth Grade teams were due to play. It was important that the Fourth Grade team take to the field because that was a pre-condition to the Fifth Grade team being able to take to the field later on. As I understand the evidence on this point, at that time of the playing season, the Fifth Grade team may well have been in contention for ongoing success in the Fifth Grade competition. Any failure by the respondent to field a Fourth Grade team that day would have precluded the Fifth Grade team being able to play and thereby ruin any chances the Fifth Grade team may have had in advancing further in that seasons competition. Whatever the circumstances, on 5 September 1998 the Fourth Grade team was having difficulties mustering sufficient numbers to take to the field with a full team. Accordingly, it became necessary at short notice, and undoubtedly with some degree of difficulty, to call upon a number of members of the Fifth Grade team and others to step into the breach to fill the numbers for the Fourth Grade game. One of the members of the Fifth Grade team to step into the breach was Mr Threlfo. Mr Threlfo was unhappy about that because he believed, probably rightly, that exposing a number of the Fifth Grade players to an early game with the Fourth Grade would deplete the strength and ability of the Fifth Grade team to properly compete at full strength for the subsequent Fifth Grade game that, to progress further in the competition, was important it be won.

60 Because Mr Threlfo had to back up and play in the Fifth Grade team on 5 September 1998 he played in the Fourth Grade game until half time. Just before half time there was at least one incident involving Mr Threlfo following which he was spoken to by the referee about his behaviour. That much is evident from the video of that part of the game that became an exhibit in the hearing before me.

61 At half time Mr Threlfo was leaving the playing field, still very unhappy with the circumstances that had led to him having to play in the Fourth Grade team and the implications that it had for the Fifth Grade team yet to play. He believed the applicant, in his role as Director of Coaching, was responsible for the problems that had occurred by failing to ensure that there were sufficient players for the Fourth Grade game.

62 As Mr Threlfo was leaving the field of play at half time, he encountered the applicant who had come either onto or near the field of play to speak to the referee about a matter in his capacity as Director of Coaching for the Club. At this point, Mr Threlfo, still simmering about the issue I have outlined, took it upon himself to confront the applicant near the edge of the playing field and immediately in front of the spectator grandstand. Exactly what was said was certainly not agreed upon before me but what was not disputed was that it was Mr Threlfo who approached the applicant in an angry manner and then verbally and loudly criticised him, blaming him for the failure of there not being enough players for the Fourth Grade team. It would seem that in verbally and loudly abusing the applicant, Mr Threlfo spoke robustly and somewhat forcefully. According to the applicant, Mr Threlfo said: You fucked our chances, you don't give a fuck about lower grades at all. Are you satisfied now? We were better off without you.

63 It was stated by the applicant that just prior to verbally abusing him, Mr Threlfo had spat on the ground adjacent to his (the applicant's) shoes. The applicant saw this as a deliberate act on the part of Mr Threlfo and a somewhat provocative one at that. Mr Threlfo denies such an action. Apart from the applicant, evidence was given that Mr Threlfo did spit on the ground in front of the applicant. That evidence was given by Mr Michael Debreczeni. Mr Debreczeni gave evidence before me. On 5 September 1998 he was the Coach of the West Harbour Fourth Grade team and he was also the linesman of the game that was taking place at the time of the incident involving the applicant and Mr Threlfo. Indeed, he was probably the closest person to the verbal altercation between the applicant and Mr Threlfo on that day. Mr Debreczeni gave evidence, which was not undermined in any way, that he saw Mr Threlfo spit on the ground in front of the applicant. The only qualification that he was prepared to make to that evidence was that Mr Threlfo did not spit on the applicant but that he spat on the ground in front of the applicant. I accept Mr Debreczeni's evidence on that issue.

64 I am satisfied that Mr Threlfo did do as was alleged by the applicant. That is, as he approached the applicant to take him to task about the issue that was important to him, he did spit on the ground and in the general direction of the applicant. Whether he did so deliberately or as part of Mr Threlfo's normal playing behaviour is not clear to me. The only conclusion I would come to is that, given the level of animosity between Mr Threlfo and the applicant at that time, it could not be discounted that Mr Threlfo was very conscious that by spitting on the ground at the time that he did and in the way that he did, would be a calculated insult towards the applicant. It was certainly viewed by the applicant as a deliberate and a very provocative act. It had much to do, in my view, with the subsequent events that flowed between the applicant and Mr Threlfo.

65 In his evidence Mr Threlfo denies using any of the rather coarse language attributed to him by the applicant and corroborated by Mr Debreczeni. Instead he suggests that he had a conversation with Mr Farrington in which he simply asked him 'why there were not enough players today.' According to Mr Threlfo, the applicant replied: The Colts players had something else on, so would you just shut up. I've had enough of your griping. I want to fight you at the back of the grandstand.

66 Whatever the precise words that were used as between Mr Threlfo and the applicant, I am satisfied that it did involve an exchange consisting of coarse language in which Mr Threlfo expressed his great displeasure to the applicant about his view of the applicant's behaviour and role as Director of Coaching. I am also satisfied that, by that time, the applicant was sufficiently incensed not only by the words spoken by Mr Threlfo but by what he perceived as Mr Threlfo's deliberate and contemptuous behaviour in spitting on the ground near him as he approached. There is no doubt that at that point the applicant stated to Mr Threlfo that it was necessary for them to resolve this matter once and for all, so to speak, and suggested that that be done 'out the back.' There was evidence given by Mr Threlfo and others that reference was made to the applicant inviting Mr Threlfo to settle matters between them 'at the back of the grandstand' as in some way intimating a free-for-all fisticuffs between the two in order to settle their differences.

67 I am satisfied on balance that the applicant did say words to Mr Threlfo whereby he indicated that he wanted to continue the argument between them 'out the back.' Whatever precise expression was used it is clear that the applicant wanted to pursue the matter further with Mr Threlfo off the field of play.

68 In any event, the applicant and Mr Threlfo went in through the players tunnel heading towards the changing rooms. It seems that the applicant was walking ahead of the Mr Threlfo. The changing room was locked and so the applicant and Mr Threlfo confronted each other in the area outside the changing room under the grandstand.

69 Apart from Mr Debreczeni who had heard the verbal altercation between the applicant and Mr Threlfo on the side of the playing field, and saw them walking into the players tunnel towards the changing rooms, the incident between them was also observed, amongst others, by Mr Sean Kearns and Mr Grant Fenn. Mr Kearns is a member of the Club and has been playing with the Club since about 1992. On 5 September 1998, he was due to play in the Fifth Grade game for the Club against Southern Districts. That was the game that Mr Threlfo was also intended to play in. He was sitting in the grandstand watching the Fourth Grade game awaiting the commencement of the Fifth Grade game. He saw the argument between Mr Threlfo and the applicant near the sideline of the field. He stated that the argument was very loud and that it was to the effect that I have already outlined, that is, Mr Threlfo expressing his anger towards the applicant about the applicant's seeming lack of concern about the lower grades. As a result of the verbal argument between the applicant and Mr Threlfo, Mr Kearns certainly heard the applicant propose that the two protagonists sort out this matter once and for all and that the applicant invited Mr Threlfo out the back for that purpose. Mr Kearns left his seat in the grandstand and made his way towards the dressing room to see what was going on. When he did so, he encountered the applicant and Mr Threlfo in the area outside the dressing room under the grandstand, arguing.

70 Apart from the applicant and Mr Threlfo, it would seem that Mr Kearns was the only person who actually was present at the time that the physical altercation erupted between Mr Threlfo and the applicant. What was critical in the hearing before me was to who had been the aggressor in starting that fight. According to Mr Threlfo, when he and the applicant reached the area outside the changing room, the applicant turned and approached him with a threatening stance and at this point, according to Mr Threlfo: I then shoved him away at which time Kelvin then hit me.

71 According to the applicant, when he turned to confront Mr Threlfo outside the changing room and to ask him what his problem was, Mr Threlfo grabbed him violently around the throat. He says, in order to make Mr Threlfo release his grip on his throat, he struck at Mr Threlfo, hitting him. At this point he and Mr Threlfo were restrained by Mr Grant Fenn, amongst others.

72 Mr Fenn has been a member of the Club since 1985 in the capacity of both a player and up until 1997, as a director. Indeed, he was one of the selection panel that appointed the applicant as Director of Coaching for the Club.

73 On 5 September 1998, he was also in the grandstand at Concord Oval observing the Fourth Grade games. He also recalled seeing the verbal argument between the applicant and Mr Threlfo, that it was one that involved loud yelling and that the applicant suggested that he and Mr Threlfo leave the field and sort this matter out 'out the back.' Mr Fenn observed the applicant and Mr Threlfo leave the field and enter the players tunnel. Mr Fenn left his seat and also made his way to the area below the grandstand, outside the changing rooms. When he arrived he recalls that he saw the applicant punch Mr Threlfo. It was at this point that he ran and intervened between the two men. Mr Fenn acknowledged in evidence before me that he arrived at the incident between the two men a minute or so after it had started and that he did not observe any initial action of Mr Threlfo of either touching, shoving or hitting the applicant.

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

75 Of all of the accounts as to what occurred between the applicant and Mr Threlfo on 5 September 1998 the one above was written only some two days after the event (reference to 4 September 1998 in the letter is an error) and accordingly, probably best represents Mr Threlfo's most accurate recollection of exactly what happened. In many respects also it accords with his statement sworn in June 2002. That fact in itself would not be surprising. However, it also accords with the statement of Mr Kearns to the extent that he was the only other person that I heard evidence from who arrived prior to the physical altercation erupting between the two men. What Mr Kearns observed was that he saw Mr Threlfo 'push' the applicant away with both hands raised outwards at about shoulder height. According to Mr Kearns it was his belief that Mr Threlfo did so because the applicant was standing close to Mr Threlfo and, presumably, in somewhat of a threatening stance. There was no suggestion that the applicant had his hands raised as part of any threatening stance but Mr Threlfo certainly raised both his hands and pushed the applicant away. It was at this point that the applicant himself agrees that he hit Mr Threlfo, he says in self defence. It should be said that the applicant says that Mr Threlfo did not just push him away but actually grabbed or purported to grab him around the neck. And that was the precursor to the applicant responding in the way that he did. Mr Fenn arrived as the applicant hit Mr Threlfo and pulled him (the applicant) away. Subsequently, Mr Threlfo hit the applicant in the head.

76 While I believe that the applicant's behaviour on 5 September 1998 was less than desirable on his part, I have to say, taking into account all the facts and circumstances leading up to the incident that one can understand perhaps why he behaved the way that he did. In other words, I am of the view that by the time the incident started between the applicant and Mr Threlfo on the playing field that afternoon, the relationship between the applicant and Mr Threlfo was already at a dangerously low ebb. I have already commented on the nature of Mr Threlfo's personality, evidenced by a number of incidents in evidence before me. The applicant himself was well intentioned, probably over zealous in his perception as to his role and responsibilities and excessively sensitive to criticism by anybody who questioned the decisions that he made. The characteristics of these two protagonists was destined sooner or later to erupt in one way or the other. Of the two, however, I am satisfied that Mr Threlfo was by far the major aggressor in his overall behaviour towards the applicant.

77 Further, I am satisfied that on 5 September 1998, Mr Threlfo was the primary aggressor in confronting the applicant in the way that he did in full view of the public grandstand on the playing field at Concord Oval. There was no doubt that Mr Threlfo not only angrily and verbally assaulted the applicant on that day, but he did so using coarse language and in full view and hearing of all those in the public grandstand. I am also satisfied that prior to abusing the applicant in the way that he did, Mr Threlfo did spit on the ground adjacent to the applicant. I am also satisfied that there is enough contextual evidence having regard to the relationship between Mr Threlfo and the applicant for the applicant to believe that that action was a calculated and deliberate insult by Mr Threlfo towards to the applicant in full view of all who were watching the game. I am satisfied therefore that that act, together with the way in which I believe it was perceived by the applicant, created a very provocative environment in which the subsequent discussions took place and erupted as they did under the grandstand.

78 There seems little doubt that the applicant did invite Mr Threlfo to continue their discussions under the grandstand. Whether the words 'out the back' were used is neither here nor there, it seems to me. They could well have been used in the vernacular sense because there is no doubt that the applicant proceeded to walk directly towards the changing rooms under the grandstand. There is no evidence that he sought to go anywhere else. It was only when the changing room doors were found to be locked that the applicant and Mr Threlfo confronted each other in the area under the grandstand in front of the changing rooms. There is no evidence that there were any significant number of other persons present at that time, apart from those members of the Club who gave evidence before me who went down to observe what occurred between the two men as a result of what they saw and overheard.

79 Given the background that I have outlined and the frame of mind that I believe the applicant took into his subsequent discussions with Mr Threlfo under the grandstand, I have no doubt that tensions were high between them. Relying as I do on Mr Threlfo's own evidence as to what took place, he acknowledges that he made the first physical contact between he and the applicant. He says that he 'pushed' the applicant with both hands. Observing the demeanour and the view that I have of Mr Threlfo's normally aggressive way of dealing with matters, I am satisfied that push, if it was a push, was not a gentle one. Indeed, I would go so far as to say that it probably was a very deliberate and provocative physical act of aggression towards the applicant. Equally, I have no doubt that the applicant, in the state of mind that I believe he was in given all that had occurred on the playing field immediately prior to this, saw this as a genuine physical assault on him and reacted accordingly. There is no evidence that the applicant made any other contact or attempted contact towards Mr Threlfo, but there is evidence, even on Mr Threlfo's recollection of events, that he further hit the applicant in the face.

80 Given the findings that I have made, it remains to be determined now as to whether the actions of the applicant on 5 September 1998 amounted to misconduct such as to warrant his summary dismissal.

81 Whether or not a particular situation involving fighting by an employee constitutes serious misconduct justifying the employee's dismissal is one that has to be considered having regard to all the facts and circumstances of the case: see Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 205 where Wilcox J stated: The employee may have been the victim of an unprovoked attack and have acted in self-defence. If a 'no fighting' policy is to be enforced fairly, the employer must look behind the fight itself and examine its causes. It is also essential to ensure there is nothing in the work environment, or the conduct of other employees, that might incite an employee to resort to violence.

82 The need to look at individual facts and circumstances as well as other relevant circumstances where fighting occurs involving an employee was also commented upon by Moore J in AWU - FIME Amalgamated Union v Queensland Alumina (1995) 62 IR 385 as follows: …whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence.

83 After careful consideration of all of the circumstances leading to that incident, and the place and circumstances in which it occurred, I do not believe, in the first instance, it amounts to serious and wilful misconduct.

84 Saying that does not mean that the applicant's behaviour on that day is to be condoned. Far from it. But I am satisfied that the applicant's behaviour on that day was in the context of circumstances in which he found himself genuinely under physical threat and reacted accordingly. He did so in a place removed from the general gaze of the public and in the limited way of defending himself as he saw fit at that time. I am also satisfied that the applicant's actions on 5 September 1998 towards Mr Threlfo has to be considered in the context of the overall relationship as between the applicant and Mr Threlfo coloured by the behavioural characteristics of Mr Threlfo when dealing with circumstances of disagreement.

85 To the extent that the applicant was in a senior and responsible position with the respondent is a matter that I have taken into account. I have found that on 5 September 1998 Mr Threlfo was the precipitating aggressor to the events that occurred between him and the applicant. It was Mr Threlfo that took it upon himself to aggressively and publicly confront the applicant in the way that he did. That confrontation was in full view of the public grandstand and the hearing of many sitting in the grandstand. To any person in the applicant's position that would have been embarrassing in itself. That is, being loudly and publicly abused by one of your players. The fact that Mr Threlfo had spat on the ground in the manner described would only have potentially increased that embarrassment in the applicant's mind. In some respects there was at least a modicum of restraint shown by the applicant in stating to Mr Threlfo that the issue should be resolved 'out the back.' By doing that the applicant removed an embarrassing situation out of the public arena. What later took place outside of the changing room was in a relatively private area removed from general public view and was observed only by those few persons, mostly members of the Club, who took it upon themselves to follow the protagonists off the field and under the grandstand. I am satisfied that while the applicant could have, indeed should have, simply walked away from Mr Threlfo that day, I am not persuaded that his actions were so deliberate or wilful or of such a nature as to strike at the essential element of the contract of service such as to amount to serious and wilful misconduct.

86 The contract of employment as between the applicant and the respondent relevantly states: The Club has the right to dismiss you without notice for misconduct…

87 Counsel for the Club submitted in the first instance that the applicant's conduct on 5 September 1998 amounted to serious and wilful misconduct. I have determined otherwise. In the alternative, does the applicant's behaviour amount to misconduct?

88 In the context in which the Club expressed its right to terminate the applicant's service without notice, it simply refers to the word 'misconduct.' On any view, the right to terminate without notice would carry with it the implied term that the circumstances relied upon were, at the very least, serious. While there may well be gradations of misconduct in an employees behaviour, it seems to me an inescapable conclusion that in order to justify its decision to terminate the applicant's services without notice, as it did, the Club would have to show that the misconduct relied upon was of such a kind and degree as to amount to serious misconduct. In all the circumstances and for the reasons earlier enunciated, I am of the view that the conduct of the applicant on 5 September 1998 was not such as to amount to serious misconduct to justify removal without notice for 'misconduct' as that word is expressed in the contract of employment between the applicant and the Club. 89 In accordance with the submission made by counsel for the Club, in the absence of any finding as to misconduct on the part of the applicant, the Club 'would have breached the contract and as a result of that, your Honour would be in a position to consider the making of orders under s106(5).'

90 I am of the view that the contract under which the applicant performed work became unfair in the way in which the Club saw fit to terminate the applicant's services on the grounds of misconduct relying as the Club did on the letter of Mr Threlfo dated 7 September 1998. I have concluded that the actions of the applicant on 5 September 1998, while they could not be generally condoned for a person in his position, having regard to all of the facts and circumstances, they did not amount to misconduct as generally understood for purposes justifying summary dismissal. Given the necessary unfairness that has been demonstrated, it is now necessary to consider what relief must flow to the applicant as a result.

91 In making any orders under s106(5) the Commission may make such order as to the payment of money 'as the Commission considers just in the circumstances of the case.'

92 On behalf of the Club it was stated that the decision made by the Board to terminate the applicant's contract of employment was based solely on the letter written by Mr Threlfo and handed to a member of the Board on the afternoon of 7 September 1998. It was based on that letter and that letter alone that the decision was taken. While that may have been the position adopted by the Board it became clear to me that that incident simply became the 'straw that broke the camel's back' as far as the relationship between the applicant and the Board was concerned.

93 What is clear is that by the time the Board came to consider Mr Threlfo's letter on 7 September 1998, circumstances between the applicant and the Board had reached a situation where, on any view, it was only a matter of time before they parted company. It is equally clear that, when a member of the Board heard of the altercation between the applicant and Mr Threlfo, it was rather foolishly seized upon as a reason for summarily terminating his services.

94 Animosity between the applicant and members of the Board had reached a critical stage by the time of the Board meeting on 10 August 1998. On the applicant's own evidence, by August 1998 there were at least four members of the Board that he was 'not talking to.' As well, for the best part of the 1998 season, the applicant communicated with the President, Mr Harper, solely by fax. The reasons for the breakdown in communications and harmonious working relationships were attributed by the applicant to diverse personal issues between he and the respective Board members. I heard no evidence from any of those people. However, relying on the applicant's own evidence and by way of example, he recounted an incident with Mr Tom Williams, a longstanding member of the Club and a member of the Board. As I understand the background, Mr Williams had for many years been the custodian of a number of old Club football jerseys. They were kept in a cabinet on the Club premises. Mr Williams' role in relation to them was never fully explained to me. As General Manager the applicant believed he should have the care and control of the jerseys as they were Club property. He asked Mr Williams for the keys. Mr Williams apparently refused the request for reasons never explained to me. The applicant then obtained a set of bolt cutters and broke the lock on the cabinet and removed the jerseys.

95 Not surprisingly perhaps, that action by the applicant was, by all accounts, greeted with hostility by Mr Williams. According to the applicant, angry words were exchanged between them with Mr Williams threatening to 'get rid of' the applicant.

96 Putting aside for the moment whether the applicant's role as General Manager did or did not involve responsibility for old football jerseys of the Club, it was clear from his evidence and demeanour before me that the applicant saw no fault on his part as to the way he handled the situation. He explains his view on this issue as follows: Q. He didn't give you a key, so you obtained bolt cutters? A. Yes. Q. Did you raise this with the Board? A. No. Q. It was your decision to break into the cabinets and steal the jerseys? A. Yes. They weren't on stock. They did not exist. Q. Sir, they did exist, didn't they? A. Yes they did. Q. They were in a cabinet on the respondent's premises that you broke into? A. Yes. Q. You broke into it without any permission? A. No. Q. Did you go to the Board and say 'I have discovered a heap of jerseys?' A. No, I was given keys to all facilities that the Club had. Q. You obviously did not have keys to that lock? A. No, the key wouldn't fit, so I got in to see what was in there. Q. My question was, did you get permission to do that, and you said 'yes.' Who gave you permission? A. In my role I had autonomy to - just to run the Club, to run the finances of the Club. It was not specifically stated I couldn't sell them.

97 On any objective consideration of the facts, the applicant's handling of the situation was, in all the circumstances, excessive and provocative. It was a matter ultimately for the Board to determine. Mr Harper's evidence on this matter was an indication of how the applicant's actions were viewed: Q. Mr Farrington broke into some filing cabinets where Mr Williams had some old jerseys which were not registered in the stock of the Club, and sold them off, do you remember that? A. I do remember that, I thought it was very disrespectful by Mr Farrington, because Mr Williams was a long term offer of services for free (sic). To manage that circumstance, all it required was a little thought. Q. Mr Williams was very upset? A. As I recollect, Mr Farrington may have got bolt cutters to get into the cupboards. Q. He should have had keys? A. Not necessarily. Mr Williams was responsible for the management of the jerseys and did so very honestly and diligently for a long period of time for free. Those people are very valued in these sort of environments.

98 The above matter occurred before August 1998. By the time of the August Board meeting, in addition to diverse individual circumstances such as that above involving the applicant and a number of Board members, the applicant was becoming increasingly annoyed by what he perceived as 'nitpicking' by members of the Board about some aspects of the Club's finances. As the applicant stated in relation to questions raised by Mr Williams at Board meetings: Q. He was asking you questions at Board meetings. You just took offence that you had to answer these questions? A. No. Q. You didn't think it was appropriate for him to ask these questions? A. I didn't think it was appropriate at the time. Q. You did not think it was appropriate for him to be questioning you about credit card or Visa card expenses? A. No, that is not correct. It was the items of the petty cash, which were already, as I say on file, and we are talking about, speaking about $5, $10 bills that were already on file, sent off to members of the Committee, cheques written out and these records are available to him at any time that he wanted to go into the office and look at them, and I felt that 11:30 at night was not the appropriate time to start talking about a bag of chips.

99 Matters generally clearly came to something of a head at the Board meeting of 10 August 1998. As the minutes of that meeting disclose: Mr Farrington was asked to outline the employment package (wages/expenses) for the Marketing Manager, M Botha. Mr Williams sought clarification on why Jim Hunter was not provided with a receipt for $500 paid for an advertisement in the networking booklet. Mr Farrington to check and provide a reply to Mr Williams on 11 August. Mr Williams expressed concern and sought clarification of Visa Card expenses for Mr Farrington. Mr Farrington to check and provide a reply to Mr Williams on 11 August.

100 Also, under General Business the following entry appears: Agreed by the Board that at future meetings the reports concerning the licensed premises and football would be presented by Mr White and Mr Farrington following which they would leave the meeting and the Board would discuss matters as required. Messrs Farrington and White be requested to provide a written report for the Board and be sent out with the Minutes prior to the monthly meetings. Messrs Farrington and White left the meeting and the Board discussed the a number of issues effecting the future of the Club. There was agreement that the Board needs to have a common goal and be united in its vision on where the Club is headed. There was general discussion on the expenditure incurred by the football side of the business with members indicating a need for more information. It was agreed by the Board that an audit of the Football Club expenditure be conducted in order to put more accountability in the processes - Messrs Harper and Bullock to arrange.

101 The above decisions taken by the Board at the August meeting were matters that angered the respondent. The respondent's view of the role of the Board and his perceived right to challenge members of the Board as to their ability and commitment was unequivocal to say the least. As he said in evidence: Q. I put it to you it is not your role to question the ability or the commitment of Board members? A. I disagree. Q. To question the merits or the abilities? A. If the Board is not functioning the football team can't function. Q. You report to this Board? A. Yes. Q. It is not your role to question the Board or who is on the Board? A. I never said I questioned who was on the Board. Q. You questioned the capability of people on the Board? A. Yes. Q. That's not your role? A. If that is affecting the performance of the football team I think it has to be raised. Q. That's something that you determine you should do? A. That's right, in my dual role as General Manager trying to look after football, those situations come up all the time. Q. And that is your dual role that reported to this Board that you are now questioning their capabilities. A. Yes. Q. I am putting to you ... A. Certain members of the Board and if the Board is not functioning surely the Club has to try and do something about it and work together. Q. Who determines that the Board is not functioning? A. The football performance, I suppose.

102 Following the August Board meeting the applicant faxed a three page letter to Mr Harper dated 12 August. That letter can only be described as the applicant venting his spleen at the Board on a wide range of issues. It is not necessary to set out all of that letter in this judgment. However, the following opening paragraphs are indicative of the tone and content of that letter: After last Monday's Board meeting and the continued lack of communication from the Board regarding the operation of the Football Office I believe it is time for a bit of honesty from all concerned. From my point of view I am going to be very forthright and am prepared to repeat my views to a full members meeting if necessary. I am very disappointed with the operation of the Board and especially some members on it. My feelings are shared by a very large section of the players. Conversely, contrary to what some may say, I have been told by the current 1st Grade Squad that I have 100% support. If Tom Williams is so concerned about the Club being ripped off then he should ponder the following:

· There is no record him having stock on hand in the financial accounts of the West Harbour Rugby Club. Does that mean the multitude of jerseys and perhaps other items belonging to West Harbour sitting in his attic have been stolen???

· Is the non payment of monies collected by Steve Adams relate to theft???

· Why were members of the Board not financial 10 months into the year???

· Why is the Licensed Manager not chasing up unpaid accounts and memberships???

· What business or company employs a person who can claim that they can give 20 hours of their current work time to another Department without increasing the number of hours that they work???

103 The letter continues for a further two pages in a similar vein. The letter ends with the following paragraph: Why was not my fax to all Board Members dealt with on Monday night. Is Steve Adams writing crap, as he did again last week in stating that Pierre Hola lacks skills, or has he 'got the word'??? Mark Docking heard the same 'word' at a General Manager's meeting last week. As I asked in my fax perhaps someone could enlighten me.

104 Whatever the applicant's views as to the abilities and commitment of the members of the Board, they were views that on any sensible consideration should have been best kept to himself. Given the circumstances of the applicant's position it is hard to conceive of a more offensive and inflammatory letter than the one he sent on August 12, a small portion only of which is set out above. On any view it was destined to be received with anger and animosity towards the applicant from the members of the Board, particularly by those mentioned in it. Tensions and antagonisms that had been rumbling on for some time would only have been greatly exacerbated by the applicant's letter. If anything, it only served to emphasise that the working relationship as between the applicant and the Club was totally dysfunctional and had irretrievably broken down. In my view, even if nothing else had occurred, such a letter would have indicated to any independent observer that the time could not be far off when consideration may have to be given, with proper notice, to terminate the applicant's contract of employment.

105 On the evidence of Mr Harper, all the members of the Board saw that letter before the Board meeting of 7 September when Mr Threlfo's complaint was considered.

106 It would be obvious in my view that, appraised as they were by 7 September of the applicant's letter of 12 August, members of the Board seized on Mr Threlfo's complaint as the basis for summarily dismissing him. In doing so and in the circumstances that they did and relied upon, the unfairness under s106 arises.

107 Because of the view I have come to that the applicant's behaviour on 5 September 1998 did not amount to misconduct, it is not necessary for me to determine whether the contract was unfair for those reasons claimed in the Summons that give rise to the jurisdictional point raised on behalf of the respondent directed to the application of s109A of the Act. They are matters that go directly to issues of procedural fairness in the way the Board dealt with Mr Threlfo's complaint. To the extent that the Board's actions on 7 September can be considered from that perspective it is not necessary for me to do so given my finding on the question of the applicant's misconduct. Notwithstanding that, the circumstances surrounding the Board's decision on 7 September only serve to demonstrate that the Board did not properly consider the facts and circumstances of the incident between the applicant and Mr Threlfo in coming to the decision they did that evening to summarily terminate the applicant's services.

108 There was considerable dispute between the applicant and Mr Harper, the President of the Club, as to whether or not the applicant was made aware of Mr Threlfo's letter on Monday 7 September 1998 before it was considered by the Board that evening. Mr Harper gave evidence that he rang the applicant on Monday 7 September and said: Harper: Kelvin, I have heard that you had a punch up with Geoff Threlfo on Saturday. Can you tell me what happened? Applicant: Geoff pissed me off with his griping about using fifth grade players and we ended up having a bit of a scuffle under the grandstand. It was nothing much at all. Threlfo was just beating it up because he is just a whinger. Harper: Kelvin, there's a Board meeting tonight and you know this matter will have to be addressed as Geoff (Threlfo) has put in a formal complaint. I expect that you will be able to clearly and calmly explain what happened. OK? We have discussed in the past what expectations the Club has of you in dealing with all the members and especially the players. Applicant: Threlfo is an idiot and deserved a smack in the mouth. Harper: I will see you tonight. Applicant: Yes, OK.

109 The applicant was adamant he was never spoken to by Mr Harper on 7 September. He stated he was at a sponsor's golf day all that day and continued to participate in that event by remaining for the social function that evening. Because of that, the applicant said he had tendered his apologies for the Board meeting on 7 September. The minutes of that meeting do not record his apology as having been tendered and the member of the Board the applicant said he gave his apology to was not called to give evidence. In any event, the applicant did not attend the meeting. The applicant gave evidence that the first conversation he had with Mr Harper about the incident with Mr Threlfo was on Tuesday 8 September 1998 when, he said, Mr Harper rang to tell him of the Board's decision to summarily dismiss him. At the very least he said Mr Harper is mistaken as to the day he spoke with the applicant.

110 Having heard the evidence I am of the view that, on balance, the applicant's evidence is to be preferred on this issue. In the first instance, the evidence was that the applicant regularly attended the Board meetings. Mr Harper's evidence on this issue was: Q. Were you surprised when Mr Farrington wasn't at the meeting? A. Yes, that was quite surprising. Kelvin had a very forthright manner of being there to defend himself. Q. I think you say if matters concerned Mr Farrington, he was at the meeting? A. Generally.

111 Given the applicant's propensity to regularly attend such meetings it is difficult to accept that he did not attend one that he knew was specifically intending to discuss a complaint about him from Mr Threlfo. As well, it is clear on the evidence that the applicant was not one to shy away from defending himself from the criticisms and complaints of others. This would particularly be the case, I would suggest, where a complaint from Mr Threlfo was in issue. While there is no mention in the minutes of the applicant's apology being tendered, there is equally no mention in the minutes that the applicant had been spoken with that day by Mr Harper to the effect that Mr Harper's evidence suggests. Indeed, the minutes of that meeting record the following item under General Business: Letter from Mr Threlfo outlining an incident between himself and Mr Farrington, General Manager, Football, that took place at Waratah Oval on Saturday 5 September was discussed at length by the Board. This was not the first incident involving Mr Farrington and a Club member and Mr Farrington had been counselled previously about this type of action. All members of the Board gave their views on the matter and it was approved that the President, Mr Harper, take action to terminate the contract of Mr Farrington for misconduct. Action to be taken on Tuesday 8 September.

112 While minutes such as those above do not record discussions held on a verbatim basis, it seems unusual to say the least that no record was made that the applicant had been spoken to that day, the general tenor of his alleged response and his intention to be present that evening.

113 Counsel for the respondent submitted that, on the evidence, the respondent had been spoken to on 7 September 1998 by Mr Harper and deliberately chose not to attend the Committee meeting that evening. Apart from Mr Harper's evidence that he did speak to the applicant on Monday 7 September, there was no other independent verification of that by way of note or diary entry made by Mr Harper as to the conversation he says he had, nor, apart from the applicant, was there any other witness who was able to corroborate Mr Harper's evidence on this matter. It is my view that the applicant did not attend that Committee meeting because he did not know that Mr Threlfo's letter of complaint about him was to be discussed.

114 Even if I am wrong in my conclusion of that issue, the Board's action in resolving to summarily dismiss the applicant simply on the basis of Mr Threlfo's letter of complaint offended every principle of procedural fairness. It is abundantly clear on the evidence that, in receiving Mr Threlfo's letter of complaint, no steps were taken before the Board meeting by Mr Harper or anybody acting on his behalf to make any independent inquiries of those persons Mr Threlfo mentions in his letter of 7 September 1998. Mr Fenn said Mr Harper spoke to him on Tuesday 8 September - after the Board had already resolved to dismiss the applicant. Further, in his evidence Mr Kearns said: Q. Did anyone ask you on the Monday what happened after the incident? A. I can't recall what day I was asked. Q. You cannot recall what day you were asked? A. Yes. Q. Did someone ask you what happened after the weekend? A. Yes. Q. Who was that? A. Tony Horrocks. Q. Mr Harper did not talk to you? A. No.

115 As a member of the Board at the relevant time, Mr Tony Horrocks gave evidence that he spoke with Mr Kearns some considerable time after 7 September 1998. When the applicant was advised of his dismissal on Tuesday 8 September, he strongly opposed the decision and sought legal advice. Mr Horrocks was asked by Mr Harper to represent the Board in those discussions and make inquiries of those persons said to have witnessed the altercation between the applicant and Mr Threlfo. One of the people he spoke to was Mr Kearns. On the evidence of Mr Horrocks that discussion more than likely took place in October and before the next Board meeting on 19 October 1998. The relevant extract from those minutes states: In relation to the matter of the termination of the contract of employment of Mr Kelvin Farrington, Ms Glass discussed with the Board the due process in relation to this matter. Ms Glass noted that there were specific clauses in the relevant Acts relating to the safety and possible or actual physical danger to other persons. (sic) T Horrocks gave an account to the Board covering all statements gathered either verbally or in writing relating to the incident at Concord Oval (WRS) that led to the Board's intention to dismiss Mr Farrington. Mr Farrington had been given time to respond to Board Members either individually or collectively before the notice of intention to dismiss was enforced. He detailed Mr Farrington's response(s) and subsequent meetings with parties concerned and responses from Mr Farrington's solicitors.

116 While there had been an understanding that the applicant would attend that Board meeting to address the members of the Board, when he was rung at 9:30pm or thereabouts and invited to come to the meeting he declined to do so and instead faxed a statement to the Board. Without canvassing the contents of that fax as it is unnecessary for the purposes of the matters I have to determine, I am satisfied that the applicant never intended to attend that meeting.

117 Whatever inquiries, verbal or otherwise, were undertaken by Mr Horrocks, they were undertaken after the Board meeting on 7 September 1998. By then it was all much too late to try to rectify the clear unfairness that had been visited upon the applicant by the peremptory decision taken by the Board on 7 September. Even if it was believed at the time that the applicant deliberately did not attend the meeting on 7 September, the Board should not have resolved to terminate his services for misconduct on the basis of Mr Threlfo's letter and what at best appear to be a number of second or third hand verbal accounts from the Board members present. In the applicant's absence, the matter should have been adjourned with steps taken to formally, in writing, advise the applicant of Mr Threlfo's complaint, and invite him to respond in writing. As well, formal statements should have been obtained from those persons who were present and who observed the altercation between the applicant and Mr Threlfo. It would then have been necessary to allow the applicant the opportunity to be heard as to his response after which an independent and objective consideration of all of the material obtained should have been made.

118 That the Board did not properly consider the facts and circumstances of Mr Threlfo's complaint on 7 September is obvious. As well, for the reasons I have already elaborated upon, it is highly unlikely, if not impossible that, by that date, the members of the Board would have been able to bring an objective consideration to bear to the matter before them.

119 The contract of employment as between the applicant and the respondent stated that: Your employment may be terminated at any time by you giving not less than three months written notice.

120 There is no notice provision within the contract as between the applicant and the respondent that allows the respondent to give notice to the applicant. As the applicant seeks in the Summons for Relief: 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.

121 In my view, having regard to all the facts and circumstances of this matter, it would not be 'just in all the circumstances' to pay 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 - that date being the date on which the applicant's two year contract would have expired. Given the circumstances prevailing in the contractual relationship between the parties as at September 1998, the Club was entitled, in my view, to terminate the applicant's employment by giving proper notice. Under the terms of his contract the applicant was obliged to give the Club three months notice of his intention to terminate the contract. While that may be the starting point for determining a period of notice on the part of the Club that would be 'just' in all the circumstances, the facts and circumstances surrounding the applicant's termination require further consideration in coming to a final view. In the applicant's view he still had nearly fourteen months of his contract left to run. Given the applicant's own perception as to his relationship with the Board which had soured dramatically by August 1998, let alone the events of 5 September 1998, it is objectively hard to conceive how he envisaged the contractual relationship continuing in any constructive manner until October 1999.

122 At the time of the termination of his employment, the applicant had been engaged in his position as Director of Coaching for some three years. He had been approached by the respondent for the position and this was the first time that he had occupied a full time coaching position. Following his termination, the applicant undertook some work as a paid rugby coach in 1999 by travelling to Sri Lanka. He was paid what I would consider to be a nominal amount of $1000 a month for four months with accommodation and meals provided. He also appears to have taken steps to try and involve himself in a business involving the manufacture and sale of tea tree products. There was no evidence before me as to how successful or otherwise that venture has been except to say that on the evidence that was given I would say that it has been relatively unsuccessful and the applicant received no income from that venture. I accept the applicant's evidence that, in his subsequent efforts to obtain employment as a rugby coach with clubs in Australia, particularly in New South Wales, he has been unsuccessful and that he believes that part of the reason for that is the widely known view within the rugby fraternity that he had been terminated for misconduct. Without knowing anything about the employment situation within that industry, it would be reasonable to assume, I believe, such opportunities would not be readily available.

123 In finding that the contract as between the applicant and the respondent became unfair for the reasons given, I am of the view that what would be just in all the circumstances is that the respondent shall pay to the applicant an amount of money equal to the amount of remuneration representing six months remuneration under the terms of the contract between the parties as at the date of his termination. In coming to that view I take into account the active recruitment of the applicant by the respondent, the period that the applicant was engaged by the respondent, the difficulty that the applicant would undoubtedly have had as a rugby coach in attempting to mitigate his loss following his termination, and the circumstances surrounding that termination. The fact that the applicant quite unfairly left under the cloud that he had been terminated for misconduct would have made his ability to mitigate his loss even more difficult.

124 The respondent is to pay the applicant's costs as agreed or assessed.

125 The parties are to draft orders to give effect to my findings within 21 days from the date of judgment.

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