G.2.1 The First Serious Misconduct Contention
473 LOR contended that the primary judge did not properly consider Mr Haley's conduct during the night in question. It further contended that the primary judge failed to consider the fact that Mr Haley was the most senior attendee at the gathering during which the Incident occurred, and that Mr Haley had failed to set an example for his subordinates. It was submitted that the primary judge did not explain why Mr Haley's conduct did not give rise to serious misconduct warranting summary dismissal. LOR contended that the primary judge should have found that the circumstances in which Mr Haley said the Offensive Words were sufficient to constitute serious misconduct warranting summary termination, and that I should so find.
474 The primary judge's consideration of Mr Haley's conduct on the night in question was framed by reference to the three ways in which LOR had put its case as to Mr Haley's alleged serious misconduct. It was only LOR's first ground of misconduct that centred upon Mr Haley's conduct on the night in question. The entirety of LOR's written closing submission in support of this ground of misconduct was as follows:
First ground - misconduct
137. The first ground is that, by his conduct in becoming intoxicated and saying the Offensive Words to Mr and Mrs Pointon, Mr Haley committed "misconduct" within the meaning of clause 2 in Section 4 of the Employment Contract. On the evidence that is before the Court, there can be no doubt that Mr Haley said the Offensive Words on 3 July 2020. His language was obscene, highly offensive, and was directed to two members of the public whose property was being rented by LOR and used by its employees in connection with their work on the Bushfire Project. Mr Haley's conduct was entirely unbefitting of someone who was employed in a senior management role at LORAMS. His behaviour plainly comprised "misconduct" that was sufficient to warrant summary dismissal.
(Emphasis and additional emphasis added)
475 Other than the inclusion of the word "intoxicated", this submission was consistent with LOR's pleaded case as contained in its Response: see PJ [529].
476 As is evident from LOR's closing submission, LOR's first ground of misconduct contained the following integers:
(a) Mr Haley had become intoxicated;
(b) Mr Haley had said the Offensive Words;
(c) Mr Haley had said and directed the Offensive Words to the Pointons;
(d) Mr Haley's language was obscene and highly offensive;
(e) the Pointons were two members of the public whose property was being rented by LOR and used by its employees in connection with an important project; and
(f) this conduct was unbefitting of someone occupying Mr Haley's senior management role.
477 The irreducible minima of LOR's first ground of misconduct required it to establish not only that Mr Haley had said the Offensive Words, but that he had said them to, and directed them towards, the Pointons. It was this conduct that LOR contended was inconsistent with the senior management role held by Mr Haley. And, it was this case that the primary judge addressed at PJ [534]-[539]. At PJ [534], the primary judge extracted the entirety of LOR's written closing submissions in support of its first ground of misconduct. At PJ [538], the primary judge identified the "difficulties" with LOR's case before concluding at PJ [539] that LOR had not established that Mr Haley had relevantly engaged in serious misconduct.
478 In concluding that the first ground of misconduct had not been established, the primary judge accepted that Mr Haley had said the Offensive Words but found that the Pointons had not complained that Mr Haley had said the Offensive Words and, accordingly, reasoned that they had not heard the Offensive Words. The primary judge reasoned to these latter conclusions by examining in detail the actual complaints the Pointons had made and placing them in context of his analysis of the Audio Recording including as to the sequence of the exchanges that were there recorded as between a number of people and the fact that the Offensive Words were only audible on that Recording with concentrated effort and when one's attention is consciously directed away from the foreground noise.
479 The primary judge's findings that the Pointons had not heard or did not complain about hearing the Offensive Words did not dispose of LOR's case. That is because LOR had contended that Mr Haley had said and directed the Offensive Words to the Pointons. In argument before me, LOR contended that it was beside the point that the Pointons did not hear the Offensive Words.
480 It is true that the way in which LOR put its case below did not hinge upon the Pointons having heard or complained about hearing the Offensive Words. Its case was also that Mr Haley had said the Offensive Words and directed them to the Pointons and that this, in the context of having become intoxicated and being in the presence of subordinates, was conduct that was inconsistent with his senior managerial position. It was submitted that the primary judge did not deal with whether Mr Haley had said or directed the Offensive Words to the Pointons, irrespective of whether they heard them. However, in my view, these findings may be implied from aspects of the primary judge's reasoning. For example, the primary judge found that amongst the "difficulties" with LOR's case was that it (PJ 538):
… [did] not identify the evidence on the basis of which it submits that Mr Haley's uttering "the Offensive Words" was "directed to" the "two members of the public".
481 Later, at PJ 563, in the context of determining the third ground of misconduct (regarding dishonesty), the primary judge stated:
… First, it is not a "fact" that Mr Haley said "the Offensive Words" "to" Mr and Ms P. Mr and Ms P did not allege Mr Haley said "the Offensive Words" to them; and I have found that Mr and Ms P did not hear "the Offensive Words".
482 Further, the primary judge also considered at PJ538 and (e) whether LOR had established its case assuming that Mr Haley had directed the Offensive Words to the Pointons and contrary to his findings that the Pointons had not heard them.
483 These various parts of the primary judgment disclose that the primary judge was not satisfied that LOR had established that Mr Haley had said or directed the Offensive Words to the Pointons, though it is correct that the primary judge did not say so in express terms. Even if the primary judge erred in not making an express finding to this effect, for the reasons set out below, LOR did not establish that Mr Haley had said or directed the words "Go home you fucking silly old cunt" to the Pointons.
484 As a starting point, it is necessary to observe that LOR tied itself to a case that Mr Haley had said and directed the Offensive Words to the Pointons. However, its case in this regard needs to be unpacked. The expression "Offensive Words" was used to denote the full words "Go home you fucking silly old cunt . . . Go home old man, old lady. Go home, go home, go home, go home": PJ [142].
485 It was no part of LOR's case that Mr Haley had engaged in misconduct by uttering, saying and directing to the Pointons only the words "Go home old man, old lady. Go home, go home, go home, go home." Rather, LOR's case was that it was the combined effect of Mr Haley saying those words together with saying "Go home you fucking silly old cunt" that gave rise to misconduct. Consistently with this, the primary judge observed that LOR did not contend that Mr Haley's conduct in saying the words "Go home old man, old lady. Go home, go home, go home, go home" were of themselves sufficient to amount to misconduct: PJ 538 and [539]. LOR did not contend otherwise in the appeal.
486 The primary judge reasoned at PJ [152]-[153] that it was misleading to represent the Offensive Words in the way that expression was defined because it did not account for the actual sequence of discussions and commotion as recorded in the Audio Recording. This accords with my own assessment of the Audio Recording.
487 The primary judge also found at PJ [137], the particularly offensive comments "Go home you fucking silly old cunt" are only audible on the Audio Recording with concentrated effort. The primary judge's assessment of the Audio Recording in this respect also accords with my own assessment.
488 It followed from the above that, in the way that LOR advanced its case, LOR had to establish that Mr Haley had said the words "Go home you fucking silly old cunt" to, and directed them towards, the Pointons. LOR did not establish this aspect of its case.
489 The evidence which Mr Haley gave in cross-examination did not establish that he had said the words "Go home you fucking silly old cunt" to the Pointons or directed it towards them. At its highest, Mr Haley's evidence was that he could not recall doing so. As a result, his evidence did not establish the necessary fact. It is convenient to set out relevant portions of Mr Haley's cross-examination on this topic, which was as follows:
COUNSEL: Mr Haley, you're able to recognise your own voice on the recording that was just played, aren't you?---On that particular recording, just about, yes, Mr Jedrzejczyk.
Yes. The answer is yes, isn't it? You recognise your own voice, yes?---Yes.
…
All right, and do you admit that you said those words to Mr and Mrs Po[i]nton, Mr Haley?---No.
You don't?---I admit that I said the words.
All right. So let me just understand, to make sure that I understand correctly. You admit that you said the words, "Go home, you fucking silly old cunt. Go home, old man, old lady." You admit that you said those words?---The only words I heard on that voice recording and that was audible to me was "silly old cunt", just then.
…
THE WITNESS: So I got the second part and - the "go home, go home" and "silly old cunt" in the middle. I couldn't recognise the rest of it, Mr Jedrzejczyk, or it's not audible to me.
COUNSEL: All right, all right. Now, I understand what you're saying about what you could hear, Mr Haley. I understand that. My question is slightly different in that as a - independently of what you heard on the recording, do you understand, do you admit that you said those words to Mr and Mrs Po[i]nton?---I don't remember saying those words to Mr and Mrs Po[i]nton.
So you don't recall saying those words?---I don't recall saying those words.
All right. So when you say that, does that mean that you might have said them, but you cannot now recall whether you did?---It means I don't remember what was said at that particular moment, Mr Jedrzejczyk.
And the recording hasn't been able to assist you in refreshing your recollection about that matter, is that right?---The recording has assisted me in recollecting the words "silly old cunt" and "go home, old man, old lady" and that's all.
All right. So does - - -?---Beyond that, I don't recall that particular exchange.
All right. So I think I understand you correctly, Mr Haley, that you accept, at least, you said the words that you were able to hear on the recording, which you just relayed just then. Is that right?---Yes, Mr Jedrzejczyk.
All right, and do you accept, Mr Haley, that you said those words to Mr and Mrs Po[i]nton?---I don't recall, Mr Jedrzejczyk.
You don't recall. All right. So again, just so that everybody is clear, does that mean that you agree that you may have said them but you just can't remember now whether you did or not. Is that right? Sorry, I should rephrase that question to be fair?---Yes, please, yes.
You - I should put it this way. You are saying that you may have said those words to Mr and Mrs Po[i]nton but it's just that now you can't remember whether you did or not?---No. The same answer applies. The recording helps me identify certain words which are me and but, beyond that, I don't accept that - sorry, can you repeat the question and I will give straight answer.
Yes, Mr Haley. So I asked you whether you accepted that you said those words to Mr and Mrs Po[i]nton and you said I don't recall. And then I said does that mean, by your answer, that you may have said the words to Mr and Mrs Po[i]nton but you now cannot remember one way or another whether you did or not?---I don't remember the particular point and who was there. I don't remember what was said and why I said it. I accept that Mr and Mrs Po[i]nton were two of the people there and they may have been the recipient of that, but there were also 10 other people there. There was a lot of discussion and argument, you know, mini-arguments going on, and I don't recall the - every interaction that was going on, Mr Jedrzejczyk.
I think you've agreed that you used the words "old man, old lady." You accept that, don't you, Mr Haley?---Yes.
Yes. And Mr and Mrs Po[i]nton, without being unfair to them, were the only persons present that night who could plausibly be described as "old man" and "old lady." That's right, isn't it?---No.
You don't accept that?---No…
…
What I'm putting to you, Mr Haley, is that there was no one else at the party that you were referring to when you were saying, "old man, old lady," was there, Mr Haley?---There could have been, Mr Jedrzejczyk.
There could have been?---Yes.
There could have been?---There was at least one person.
And who was that, Mr Haley?---Definitely Mr Grearson who was older than Mr Po[i]nton and possibly one of the temporary admin - there was a number of females there and so there were males and females there of different ages, so - yes.
Who were the same age as Mrs Po[i]nton. Is that what you're suggesting?---I - I'm not sure how old Mrs Po[i]nton is. I remember seeing Mr Po[i]nton so I can roughly gauge his age. But I'm not sure how old Mrs Po[i]nton is.
And on your case, Mr Haley, when you said "old man, old lady" together, that was intended to be a combination of Mr Grearson and some other female attendant at the party. Is that your evidence?---I don't recall what I said and why I said it. "Old man" and "old lady" means mum and dad where I come from.
Mr Haley, do you understand that - - -?---It's not an offensive term, by the way.
…
I should say, when you said:
Go home, old man, old lady -
you were not directing those words at Mr and Mrs Po[i]nton. That's your evidence, is it?---I said I may have directed them to Mr and Mrs Po[i]nton.
Well, you did, didn't you, Mr Haley?---I don't recall.
Well, now you say you don't recall?---I don't recall.
Well, which is it, Mr Haley? Is it that you don't recall or is it that you may have?---I don't recall.
HIS HONOUR: Well, they're not inconsistent. When you don't recall, you don't recall. And asking a witness, everyone does it, whether you put it, well, of course, he's not saying he didn't do it. So when he says, "I don't recall," the possibility is open that he did and that's for me to determine. It's really a rare relevance that a witness says he could have or could not have. He doesn't recall. He's not positively saying he didn't say it. So they're not inconsistent, what you're putting to him.
COUNSEL: Yes, your Honour.
…
And so I think, would you accept, Mr Haley, that the offensive words that you said - you said them intending that they were directed towards Mr and Mrs Po[i]nton. You would agree with that, wouldn't you?---I don't recall, Mr Jedrzejczyk.
You can't remember one way or another; is that right?---That's right.
Mr Haley, can I ask you this: the language that you used - and I've already subjected everyone to it multiple times, so I won't unless it's necessary - but the language that you used towards Mr and Mrs Po[i]nton was offensive, wasn't it, Mr Haley?---I accept - I don't accept that it was directed at Mr and Mrs Po[i]nton or that they heard it, but I acknowledge that those words on their own are offensive, and that's a momentary lapse of judgment on my part to use that kind of language. So I do accept that, Mr Jedrzejczyk.
…
(Emphasis and additional emphasis added).
490 A few matters emerge from this evidence.
491 First, Mr Haley repeatedly said he had no independent recollection of saying the Offensive Words. Rather, his evidence was that he had been assisted by the Audio Recording and had relied upon it to recognise he had said the Offensive Words. He accepted that the words were offensive and said that this was a momentary lapse of judgment. However, Mr Haley's acceptance that he had said the Offensive Words did not amount to an admission that he had said them to or directed them towards the Pointons.
492 Second, Mr Haley was repeatedly pressed about whether he had said the Offensive Words "to" or directed them towards the Pointons. He was also pressed about the fact that he intended the Offensive Words to be heard by the Pointons. These questions did not discriminate between which parts of the Offensive Words were directed to the Pointons, but Mr Haley's consistent evidence was that he could not recall.
493 Third, and relatedly to the second point, Mr Haley accepted that he "may" have directed the words "Go home, old man, old lady" to the Pointons. He sought to explain away his conduct by suggesting that there may have been other older people present at the time to whom these words were directed, but the primary judge found that this evidence lacked credibility: PJ [149]. However, even allowing for the lack of credibility of that evidence, it did not follow that Mr Haley had said the words "Go home you fucking silly old cunt" to the Pointons.
494 In relation to these matters, the primary judge reasoned as follows:
[148] LOA also submits that "[r]emarkably, Mr Haley also stated in cross-examination that he could not recall whether he said the Offensive Words . . . to [Mr and Ms P]". Given I am not satisfied Mr Haley was false in his evidence that he does not have a recollection of saying "the Offensive Words", and that I have accepted that Mr Haley does not have an independent recollection of uttering "the Offensive Words", I do not accept as remarkable Mr Haley's evidence that he does not recall whether he said "the Offensive Words" "to" Mr and Ms P. Quite apart from this, the audio recording suggests that Ms P perceived that Mr Haley was not directing to her or to Mr P his chanting "go home old man, old lady, go home, go home, go home, go home". When she first noticed Mr Haley chanting, Ms P asked "And what's that one's name?" That question was not directed to Mr Haley, but appears to have been directed to Mr Grierson. Ms P first addressed Mr Haley when she asked Mr Haley his name twice; and Mr Haley first addressed Ms P when he responded to the second time she asked that question; and it is at that time that Ms P and Mr Haley engaged in what can reasonably be characterised as a "conversation", although a very short conversation.
[149] It is the case that Mr Haley's evidence that there could have been some person, other than Mr and Ms P, to whom he directed the words "old man, old lady", lacks credibility. But the answer Mr Haley gave was to a question calling for his opinion or speculation about whether words he says he did not recall saying could only have been directed to Mr and Ms P. Mr Haley's opinions on that question are irrelevant, it being a matter for me to determine, to the extent it is relevant, whether "the Offensive Words" were directed to Mr and Ms P. In any event, I am not prepared to infer from Mr Haley's incredible opinion or speculation that it could have been some person, other than Mr and Ms P, to whom he directed the words "old man, old lady", that Mr Haley is not a witness of credit. As I have already noted, Mr Haley's account of the events that occurred during the Incident is to a significant degree corroborated by the accounts given by other employees.
495 The primary judge had the advantage of viewing and observing Mr Haley give evidence and being cross-examined. With that benefit, whilst the primary judge considered an aspect of Mr Haley's evidence to be lacking in credibility, his Honour otherwise accepted that Mr Haley had no recall of having said the Offensive Words "to" or directing them "towards" the Pointons. The primary judge rejected that Mr Haley's evidence was evasive and ambiguous. LOR did not articulate the basis upon which I could, or should, disturb these findings based on the primary judge's assessment of Mr Haley as a witness.
496 Despite these findings, LOR invited me to draw the inference that Mr Haley had said and directed the words "Go home you fucking silly old cunt" to the Pointons. LOR bore the onus of establishing this fact. The fact that Mr Haley did not recall saying these words to the Pointons did not assist LOR in establishing the fact. The highest the evidence went was Mr Haley's admission in the Reflection Email that he used offensive language "in the vicinity" of members of the public, but did not delineate as to which words were offensive. Further, LOR adduced no evidence from the Pointons or any other witness of fact that they saw and/or heard Mr Haley say the words "Go home you fucking silly old cunt", let alone that they saw or heard these words being directed to the Pointons. Moreover, having reviewed each of the Witness Accounts, LOR's investigation team led by Mr Curnow-Rose did not ask any of the witnesses whether they heard the words "Go home you fucking silly old cunt". Nor were the Pointons asked this question. As I have already stated, this is all the more remarkable in circumstances where LOR was in possession of the Audio Recording on and from 6 July 2020.
497 Undeterred by all of these fundamental problems with the way in which it advanced its evidentiary case, LOR invited me to infer that Mr Haley had said and directed the words "Go home you fucking silly old cunt" to the Pointons from two facts. The first being that Mr Haley had admitted saying those words and the second being that Ms Pointon had asked for Mr Haley to be identified shortly after those words were said. As to the first contention, as I have set out above, the fact that Mr Haley admitted saying the Offensive Words did not mean that he was saying or directing them towards the Pointons. These words were clearly about the Pointons. However, it does not follow that they were conveyed in some form to the Pointons, which is the premise that the primary judge rejected. I do not consider that the primary judge erred in rejecting that premise on all of the evidence. As to the second contention, for the reasons set out at [199]-[200] I am not satisfied that Ms Pointon made the enquiry as to Mr Haley's name upon hearing the words "Go home you fucking silly old cunt".
498 Returning to LOR's other submissions, I reject the contention that the primary judge did not consider Mr Haley's conduct on the night in question. LOR's contention misses the point that the primary judge considered Mr Haley's conduct on the facts as found by the primary judge and in the context of the events that occurred during the Incident. The matters set out at PJ 538-(c) disclose that the primary judge considered that there were a number of contextual matters that militated against a finding that Mr Haley had engaged in misconduct as advanced by LOR. Those contextual facts included that the Pointons were not merely two members of the public but were the persons from whom the Pambula Property had come to be leased, the Pointons had exhibited verbal and physical aggression including by demanding all the occupants to leave (albeit that his Honour incorrectly considered this was a demand they had no right to make) and had made physical contact with Mr Adam Neely. The primary judge concluded that, having regard to all these contextual facts, Mr Haley's conduct (on the facts as established by the evidence) did not amount to misconduct. For these reasons, I reject LOR's contention that the primary judge did not consider Mr Haley's conduct on the night in question or, alternatively, did not explain why that conduct did not give rise to misconduct warranting summary termination.
499 LOR nevertheless contended that the primary judge erred by making erroneous findings of fact along the way to his conclusions, including by finding that the Pointons had no right to demand the occupants of the Pambula Property leave. For the reasons set out at in Part F.2, I have found that the primary judge erred by finding that the Pointons had no right to demand the occupants leave the Pambula Property, but it did not follow that they had such a right or that this would make any difference to the ultimate conclusion reached by the primary judge.
500 LOR contended that I should review all of the evidence and correct the primary judge's conclusions by finding that Mr Haley engaged in serious misconduct warranting summary termination having regard to the following circumstances:
a. the Respondent was a very senior employee, travelling for work and the most senior employee in attendance at a gathering of employees in accommodation paid for by the employer;
b. the premises were rented for the use of employees in a region where accommodation was scarce;
c. the premises were subject to a strict "no party" policy;
d. the owners of the premises were "old" in the assessment of the Respondent;
e. the owners of the premises had twice earlier on the evening in question asked that the noise cease as it was disturbing their mother who lived on the premises; and
f. it was an express term of the Respondent's employment that he treat everyone with respect and set an example for fellow employees.
501 LOR's contentions in this regard entirely ignored the balance of the evidence it adduced in the form of the Witness Accounts. It also entirely ignored the primary judge's rejection of LOR's assertions as to what occurred during the Incident at PJ [205], his Honour's evaluation of the actual evidence before him at PJ [207]-[209] and his ultimate findings about those matters at PJ [215].
502 Critically, LOR sought to establish its case without calling evidence from any witness of fact as to the events leading up to, during and immediately after Incident. Mr Haley had admitted some matters, but contested others. LOR simply relied upon the contents of the Investigation Report and Witness Accounts, together with the accounts given by the Pointons. Neither in the proceedings below nor on appeal did LOR seek to assist the respective Courts as to how it expected findings of fact to be made in its favour in the absence of direct evidence that could be challenged and tested in the usual course of cross-examination. On appeal, LOR's contentions appeared to proceed on the basis that it could make out its case entirely upon the admissions made by Mr Haley and the Audio Recording. However, this did not address those matters in respect of which Mr Haley disputed aspects of LOR's factual assertions. As to the use that could be made of the Witness Accounts, Senior Counsel for LOR submitted as follows:
HIS HONOUR: Okay. So your submission is I should have no regard to any of the records of interview?
COUNSEL: Yes, your Honour. For this purpose.
HIS HONOUR: Including the complaints from [the Pointons]?
COUNSEL: Yes, your Honour. It's not direct evidence. It's not been challenged in Court. It's admitted under the business records as the investigation report, which is part of the business records. That doesn't make it credible. It just makes it part of the evidence supportive of the case.
503 Counsel for Mr Haley pointed out that the evidence contained in the Witness Accounts was in fact relied upon by LOR in its closing submissions in the proceedings below. The submission made by Mr Haley's Counsel is correct. LOR's closing submissions in the proceedings below relied upon the Witness Accounts in support of various aspects of its case. More critically, there was no challenge made in the appeal to the primary judge's admission into evidence of the Witness Accounts, or the primary judge's reliance upon those Accounts. In those circumstances, I reject the contention advanced by Senior Counsel for LOR that no weight should be given to the Witness Accounts. It is contrary to the way LOR conducted its case below, and it is contrary to the fact that LOR did not challenge the primary judge's reliance upon the Witness Accounts.
504 I have undertaken a detailed review of the evidence and submissions made by the parties, and I am not satisfied that the primary judge erred in ultimately finding that LOR had not established that Mr Haley engaged in misconduct warranting summary termination by reason of his conduct on the night in question.
505 It is necessary for me to set out the relevant aspects of the evidence. But again, the primary judge has set this out in detail at PJ [215]-[217].
506 First, as I have already mentioned, there was no evidence before the primary judge as to the terms upon which the Pambula Property was occupied. Accordingly, there was no evidence as to what, if any, rights the Pointons had as the owners of the property to enter the Pambula Property or demand that that all the occupants, including the temporary residents, leave immediately without prior notice. However, irrespective of their legal rights to enter the Pambula Property, the fact that the Pointons did so and the manner in which they did, and the way they then behaved thereafter, was significant to the objective context within which Mr Haley's conduct was to be assessed.
507 Second, contrary to the assertion made by LOR, and also the Pointons, that there was a strict "no party policy", at least two witnesses, who were temporarily residing at the Pambula Property, gave evidence that they had been authorised by Ms Pointon to hold a BBQ and make noise. Mr Byrne made Ms Pointon aware that he would be holding a BBQ with work colleagues. Ms Pointon informed Mr Byrne that they could make "as much noise as [they] wanted" at the front of the house but not on the back balcony. Mr Adam Neely also said that Ms Pointon had said that the residents could hold a BBQ. LOR never sought to verify this fact from the Pointons. Mr Byrne's and Mr Adam Neely's accounts were uncontradicted other than assertions made by the Pointons as to the no party policy.
508 Third, before the Pointons entered the Pambula Property, they had complained about the noise being made at the Property. The evidence is that at about 12:10 am, upon being informed by his elderly mother about the noise, Mr Pointon drove to the Pambula Property and spoke to a person and told them to shut down the party. The evidence suggests that this may have been Mr Field who said that he had spoken to a man who asked for the noise to be turned off and said that he then conveyed this to Mr Byrne. Mr Pointon then continued to observe the Property, but there was no change. He then contacted Mr Byrne and told him that there was a no party policy, and that the party needed to cease immediately and this was a "first and final warning". When Mr Pointon returned home around 12:46am, Ms Pointon got up, spoke to Mr Pointon and then contacted Mr Byrne. At this point, she could still hear noise in the background, so she told Mr Byrne to stop and he apologised and said he would sort it out. At or about 1:05am, the Pointons attended the Pambula Property and could hear the party was still ongoing and that is when they decided to enter from the rear doors where they could see the LOR attendees gathered in the lounge room.
509 It is evident from these matters, and the events that followed, that Mr Pointon at least was, by this stage, understandably perturbed. I say understandably given that at least in the way Mr Pointon viewed the situation, nothing had been done to address his concerns about his elderly mother being affected by the noise and the gathering.
510 Fourth, there is no evidence that anyone other than Mr Field and Mr Byrne were notified about the Pointons' complaints, and no evidence was adduced from Mr Byrne that he had conveyed the fact of the complaints to anyone else present at the party. In his statement prepared for the purpose of his interview on 6 July 2020, Mr Byrne stated that he had spoken with Mr Pointon earlier in the evening but was "not certain that everyone in the group was aware of this".
511 Fifth, there is no evidence that prior to the Pointons entering the Pambula Property, Mr Haley knew that they were the owners. Nor was there any evidence to support the fact that Mr Haley had any knowledge of the complaints that the Pointons had made earlier in the evening.
512 Sixth, the overwhelming weight of evidence before the primary judge was that the Pointons' entry into the Pambula Property was sudden and unannounced. By this time it was 1:10am in the morning. The evidence indicates that there were various states of intoxication of those who were present. It might be inferred that these were matters known to the Pointons given later complaints made about the level of drinking at the gathering.
513 Seventh, upon entering the Pambula Property, the weight of the evidence indicated that the Pointons walked aggressively towards Mr Adam Neely. Mr Haley claimed that upon entering, Mr Pointon barged past him, knocking him to the side. During the course of the investigation, Mr Haley alleged that this was an assault, but later recharacterised it as being a push or nudge. There were other accounts that supported Mr Haley's evidence. Mr Shaun Boyle's account said that he was seated on a sofa and when he looked up, he saw Mr Haley being "pushed to the side" by a man he did not recognise and later described this as "they [the Pointons] barged through [Mr Haley]" to get the remote off Mr Adam Neely. There was evidence that at this point Mr Haley and Mr Adam Neely were using TV remotes as microphones to perform karaoke. Mr Byrne's account was that when the Pointons entered the Pambula Property unannounced, they "forcibly removed the TV remotes from two people participating in the Karaoke", while Mr Grierson stated that "[t]hey bowled in [and] snatched the remote control off someone".
514 For their part, the Pointons did not deny that they had walked into the house and headed towards the person who was using the remote control as a microphone to perform karaoke. The Pointons' accounts sought to identify the LOR employees as the aggressors and as behaving in a threatening way. However, this was denied by all of the Witness Accounts. This was LOR's problem to contend with in the proceedings below. It failed to address how the Court on appeal was to resolve these factual controversies in respect of which the primary judge had made unchallenged findings.
515 Eighth, at or about this time, the Pointons were telling all the occupants to leave. Mr Pointon was described variously as being verbally aggressive, demanding that all the occupants "fucking get out" and, on some accounts, was continuing to repeat these demands to those present. Various accounts also indicated that at or about this time Ms Pointon was also telling those present that she had called or would be contacting the police.
516 Ninth, there was evidence (which LOR did not dispute) that during the period that the Pointons were telling those present to get out, and, in particular, Mr Pointon was telling them to "fucking get out", Mr Haley said "you can't do that" to which Mr Pointon said "I can do what I fucking want", and to which Mr Haley said "You can fucking leave". It was said that at or about this time there was commotion and profanities being used by those present. This evidence was consistent with Mr Haley's evidence that there was a commotion and those present were telling the Pointons that they had no right to be there. Mr Haley accepted that:
I contributed to the commotion by saying things like you are out of order and you need to leave. I felt it was necessary to speak up for myself and others in the group, who I believed were in danger. I was still a bit startled and in disbelief at what was happening.
517 For their part, the Pointons appear to have accepted that they told those present to leave, but then a group of four or five persons gathered around them and they felt threatened.
518 Tenth, at one point, Mr Pointon grabbed or shoved Mr Neely and this led to further commotion, though the accounts of this incident differed. Some accounts indicated that Mr Neely had been grabbed "aggressively". Mr Adam Neely said that Mr Pointon became "very heated" towards him and grabbed him by the shirt. This account was corroborated by Mr Grierson and Mr Shane Neely. Mr Pointon said he "shoved" a "bald-headed guy" who was "right in my face" and "very aggressive" and that it was "self-defence", and Ms Pointon said that Mr Pointon had pushed someone "because he was surrounded by 4-5 staff". Mr Byrne recalled that Mr Pointon had grabbed Mr Adam Neely by the arm.
519 Ms Pointon also asserted she had been struck, or accidentally struck at the point in time that she sought to wrest away the remote control from a karaoke participant, most likely Mr Adam Neely. That assertion was not supported by on the Witness Accounts.
520 On balance, at least on my review of the evidence, it appears that all of the occupants of the Pambula Property were in a state of surprise and shock as to the events that were unfolding. There were profanities being used by all present, and encroachment on personal space.
521 Eleventh, thereafter, some of the LOR employees and the Pointons went out to the back area of the Pambula Property to continue the discussion. On the Third Version of the Pointon Complaint, Ms Pointon "left [Mr Pointon] in there" and went out into the backyard to call the police because there was limited phone reception inside, then "[t]hey [LOR employees] followed us out the back of the house". On the Fourth Version of the Pointon Complaint, the Pointons had to "push at arm's length to get out of [the] space" and then "walked outside all surround[ed] by the guys". Based on the other witness accounts, it appears that Mr Byrne and Mr Grierson accompanied the Pointons outside to the back area to talk to them, telling everyone else to stay inside.
522 Twelfth, there were further discussions and a commotion outside. While the Pointons alleged that Mr Haley had to be "restrained", the evidence contained in the Witness Accounts was that Mr Haley largely remained inside, about 15-20 yards away. He attempted to go outside but was shepherded back in. For example, Mr Grierson indicated that "Tom was sort of further back than most people".
523 Thirteenth, based on the Audio Recording, and before the Offensive Words were uttered, it is clear that Mr Grierson and others were apologising to the Pointons and politely requesting that they leave. Indeed, Mr Grierson had told the Pointons that the Pambula Property Residents would be gone in the morning. The following exchange occurred between Mr Byrne and Ms Pointon:
AB: … and I accept that and I apologise and we will be gone in the morning if we have to, that's fine.
[Ms Pointon]: No they need to go now. I'm not having it. You can all get out now.
[Ms Pointon]: The police are coming now.
[Ms Pointon]: This is not ok
AB: The thing is, there is nowhere else for us to go.
[Ms Pointon]: Well that's your problem.
524 This exchange makes it clear that the Pointons were insistent, to the point of intransigence, that all the occupants of the Pambula Property, including the Pambula Property Residents, had to leave and do so immediately. Even when it was pointed out that the occupants had nowhere else to go, it was met with the riposte that this was not the Pointons' problem.
525 Fourteenth, it was after these steps were being taken and the Pointons having remained in the back area of the Property, that Mr Haley uttered "Go home you fucking silly old cunt" and a short time later uttered the words "Go home old man, old lady, go home, go home, go home, go home".
526 Fifteenth, the evidence also included a Video Recording, which Ms Pointon indicated in an email to LOR had commenced after the Audio Recording ended. This records the Pointons insisting that all the occupants leave. A representative of LOR can be heard saying "I do genuinely from the bottom of my heart apologise. I'm just thinking how to settle this now…" and "… we don't, we have no other place to go".
527 Ms Pointon responded to these entreaties by stating "I'd get something warm, because you're gonna be sleeping in your cars by this look of it" and "No. I'm not having. I'm not having people like that stay in this house. This is a luxury home".
528 My strong impression from the evidence was that there was no amount of pleading, apologising or seeking to be conciliatory that was going to persuade the Pointons to stop demanding that all present leave immediately, including the Pambula Property Residents.
529 Sixteenth, in the event, the police arrived and the Pointons did ultimately leave, not the Pambula Property Residents.
530 Seventeenth, on the next day and the days that followed, the complaints made by the Pointons about Mr Haley were that he had:
(a) been aggressive and threatening;
(b) said he would "f-up the old man and old lady";
(c) chanted "go home old man, old lady"; and
(d) needed to be restrained.
531 As I have noted a number of times, the Pointons did not allege that Mr Haley had uttered the Offensive Words. Indeed, no other witness said that they had heard the Offensive Words. The question was not put to any of the witnesses, including the Pointons. Nor did the Pointons at any time say or allege that they had played the Audio Recording and heard the Offensive Words.
532 Critically, as noted above, LOR elected to call no direct evidence to contradict Mr Haley's evidence where it conflicted with LOR's assertions as to the facts of the Incident.
533 The facts are to be considered objectively. The subjective understandings and perceptions of the various participants in the commotion contributed to the way they behaved. It is undoubtedly the case that the conduct of all persons involved in the Incident was exacerbated by the time of evening, the consumption of alcohol (by those attending the BBQ) and their respective perspectives about the Pointons' unannounced entry into the Pambula Property. On the Pointons' part, it is entirely understandable that, having received a complaint from Mr Pointon's mother and raised complaints earlier in the evening, they expected the party would cease, or at least that the noise would abate. This did not occur. They were clearly frustrated. On the part of the LOR employees that were present and, in particular those who had no knowledge of the earlier complaints, including Mr Haley, the entry of the Pointons was indeed akin to being set upon by unannounced intruders.
534 Despite these rival perspectives, it is nevertheless the case that the question of misconduct called for an objective determination. That objective determination is not, however, acontextual. It is fact-dependent and fact-intensive: Willis at [88]-[89] and Eldridge at [289]. The evidence which I have reviewed comfortably established that it was the Pointons who instigated the Incident by their unannounced entry into the Pambula Property and their immediate provocative act in walking to Mr Adam Neely and taking the TV remote out of his hand. The subsequent conduct on their part to demand that everyone leave, including Mr Pointon yelling to everyone to "fucking get out" created an atmosphere that was confrontational. Mr Pointon's subsequent conduct in grabbing Mr Adam Neeley added to that atmosphere.
535 There was also evidence indicating that Mr Haley did at least initially seek to diffuse the situation. On the evidence, his initial response was to tell the Pointons that they could not demand the occupants to leave. He was the most senior employee present and at that point in time he did not know that the Pointons were the owners or had complained earlier in the evening. In my view, this response was consistent with the role of a senior manager in seeking to attend to the demands being made at that time from Mr Pointon and also seeking to look out for the interests of his subordinates in the extraordinary circumstances that were then playing out. Mr Haley's attempt was met with a response from Mr Pointon that he could do "whatever the fuck [he] want[ed]".
536 Thereafter, Mr Grierson and Mr Byrne took on the role of seeking to placate the Pointons, whilst Mr Haley largely remained inside. From this point onwards, Mr Haley's conduct may be characterised as having been less than ideal and imprudent. Mr Haley attempted to go outside when others were already seeking to placate the Pointons, he uttered the words "Go home you fucking silly old cunt", and then said to the Pointons "go home old man, old lady, go home, go home, go home, go home". By this time, on Mr Haley's own account, he realised the Pointons were likely the owners of the Pambula Property. Although I am not satisfied that LOR established that he said the words "Go home you fucking silly old cunt" to or directed them towards the Pointons, those words were offensive and vulgar, and there was at least a risk that someone would hear those words being uttered. It was imprudent for Mr Haley to have done so. It was also imprudent for him to have told the Pointons to "go home old man and old lady". All of this conduct had to be considered in light of the fact that the conduct was occurring in a private home, in the very early hours of the morning, and after a sequence of events that led to that point in time. Although the gathering was one of work colleagues and at premises ultimately paid for by LOR, the context is nevertheless important. In the Reflection Email, Mr Haley did ultimately accept that he had used offensive language in the vicinity of members of the public and apologised for that.
537 Whilst Mr Haley's conduct was not ideal, and it was imprudent for him to be using profanities, at least in the vicinity of subordinate employees and members of the public (albeit in a private home well after midnight), it had to be considered by reference to all of the objective contextual facts that I have set out above. This is what the primary judge did.
538 In Jupiter General Insurance Co Ltd v Shroff [1937] 3 All ER 67 at 74, the House of Lords stated:
Their Lordships recognise that the immediate dismissal of an employee is a strong measure, and they have anxiously considered the evidence with a view to determine the question whether the trial judge was right in his finding that the respondent was guilty of gross negligence, which, coupled with his conduct at the interview of December 21, was sufficient to justify his dismissal. On the one hand, it can be in exceptional circumstances only that an employer is acting properly in summarily dismissing an employee on his committing a single act of negligence; on the other, their Lordships would be very loath to assent to the view that a single outbreak of bad temper, accompanied, it may be, with regrettable language, is a sufficient ground for dismissal. Sir John Beaumont, CJ, was stating a proposition of mere good sense when he observed that in such cases one must apply the standards of men, and not those of angels, and remember that men are apt to show temper when reprimanded.
(Emphasis added).
539 The passage has been cited with approval in this Court: see Pryde v Coles Myer Limited t/as K-Mart Auto (1990) 33 IR 469 (Keely J). As dated as it is, the underlying principle stated by the House of Lords remains relevant. It is in line with Gillard J's observation in Rankin at [250], cited with approval in Willis at [92], that "[i]solated conduct usually would not suffice" to establish serious misconduct warranting summary termination and that each case must be considered in the light of its particular circumstances. The circumstances include Mr Haley's senior position with LOR and that his conduct occurred in the presence of subordinate employees. However, taking all of the context into account, although Mr Haley's conduct may be regarded as not being ideal or prudent, it was, to that extent, a lapse in judgment. More relevantly, I do not consider that the primary judge erred in concluding that LOR had not established that it amounted to misconduct warranting summary termination.
540 For all of the above reasons, I reject the First Serious Misconduct Contention.