Philip Brunt v The Continental Spirits Company

Philip Brunt v The Continental Spirits Company - [2005] NSWIRComm 1133 - NSWIRComm 2005 case summary — Zoe

[14]

5 The Applicant was employed from August 1986 by Seagrams Pty Ltd which changed its name to The Continental Spirits Company Pty Ltd. The shares in this company were acquired by the Fosters Group in or about November 1999. 6 In or about 2002, The Continental Spirits Company Pty Ltd underwent a restructure, arising out of which the Applicant became the Occupational Health and Safety Officer and Security Officer for the warehouse and Despatch Co-ordinator in the warehouse and distribution areas. 7 The Applicant alleged he could not cope with his new workload and had made numerous complaints about this with the Respondent. It was also alleged that all the workplace stressors suffered by the Applicant caused severe anxiety and led to a drinking problem for the last two years of his employment. 8 On Friday, 17 December 2004, the Applicant returned home from work intoxicated. He had drunk from a 375ml vodka bottle (a company product) after finishing work and had drunk the same at work. His wife telephoned the Applicant's supervisor, Mr Joe Carabetta, NSW Warehouse Manager. This conversation was the subject of dispute between the parties. The Applicant's wife claimed to have an assurance from Mr Carabetta that nothing untoward would come of her husband's employment as to his job security and that she obtained this assurance before divulging the drinking incident and drinking behaviour of her husband. Mr Carabetta denied the foregoing assertion. 9 Over the ensuing week, an investigation was carried out by management into the drinking incident, the Applicant was suspended on pay, two disciplinary meetings were held with the Applicant (with his wife in attendance) and the Applicant was summarily dismissed for breach of the Respondent's policy in respect of unauthorised consumption of alcohol and theft of company product. Prior to the dismissal and during the disciplinary meetings, the Applicant and his wife sought assistance for the Applicant's drinking problem and specifically referred to the company's Employee Assistance Programme Policy. SUBMISSIONS

[18]

(d) The Applicant is prone to telling lies about his drinking problem. He had written to the general manager of CUB that he is undertaking counselling for his drinking problem but this was not true. He lied to prospective employers in his applications for employment. (e) The Applicant shows no contrition. He had to be prodded in the witness box to concede that what he had done was theft. (f) The Respondent's Mr Jagger, Operations Manager, did not demean the Applicant at work as asserted by certain witnesses. Mr Jagger had only raised queries or questions about the Applicant's performance of only his occupational health and safety duties. (g) Mr Moses rejected the argument that stress at work caused the Applicant to drink and this excused the theft of the Respondent's product. And, in particular, rejected any argument that Mr Jagger was a cause for the Applicant's drinking problem. The first time that Mr Jagger has been raised as an issue for the Applicant's defence, has been during the evidentiary proceedings. (h) Any omission by the Respondent, during its investigation process, in respect of not following any of the Respondent's policies (the EAP and/or D & A policies) was only a procedural omission and in any event, would have no effect on the resultant action of the Respondent in dismissing the Applicant. (i) The Commission should give preference to the evidence of the Respondent's Mr Carabetta, as against that of the Applicant's wife. (The issue here being whether Mr Carabetta had given an assurance to the Applicant's wife about the security of the Applicant's employment before she divulged that her husband had a drinking problem. In any event, said Mr Moses, what was not disclosed by her to Mr Carabetta was the act of theft of the Respondent's product.) (j) If the Commission was to consider reinstatement (on the finding of an unfair dismissal), what would be the practicability of reinstatement - given that the Applicant said he had a drinking problem because of work related stress. (k) If the Commission was to consider re-employment (on the finding of an unfair dismissal), what position is available to the Applicant? The Applicant seeks re-employment to a dispatch position but with no occupational health and safety component - per the exhibit 13 correspondence addressed to the Respondent. But, Mr Moses said, no evidence was led that such a position exists. (l) Finally, the Commission has before it an issue as to the identity of the employer. This is only an issue if the Commission finds that the dismissal was unfair. As to who is the employer, Mr Moses said that CUB owns The Continental Spirits Company and therefore CUB is the employer. Applicant in Reply

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21 For convenience, the Commission will now set out the main events and identity of players for the period 17 December to 24 December 2004, inclusive. Later, the Commission will then consider: (a) the telephone conversation of 17 December between the Applicant's wife and Mr Joe Carabetta; and (b) the role (or otherwise) of the EAP and D&A Policies. 22 17 December (Friday) - The Applicant concluded work at 3.00 pm. He went to the Chatelle Room at work and drank from a damaged 375 ml Karloff Vodka bottle. He went to the Staff Entertainment Room and lay down. 23 A fellow worker, Mr Malcolm Griffiths deposed (exhibit 8) that he was asked by another employee (Barbaros) to come into the Staff Entertainment Room. This was about 4.00 pm. There, Mr Griffiths saw the Applicant asleep on the floor. Mr Griffiths could not wake the Applicant but smelt alcohol. They put the Applicant partly under the shower but he still remained unaware as to what was happening. They put him in Mr Griffith's car who delivered him home. The Applicant walked inside his house and Mr Griffiths explained to Mrs Brunt as to how Mr Griffiths had found him. 24 The Applicant's wife, Lisa Brunt, deposed (exhibit 1) that Mr Griffiths arrived at the home on that Friday about 5.30 or 6.00 pm. Her husband was drunk and he went to bed. 25 Later that evening, she telephoned Mr Joe Carabetta. It is this telephone conversation that is in dispute. Mrs Brunt deposed she had sought and was given an assurance by Mr Carabetta that her husband's job would not be affected by a difficult issue she wished to raise. Mr Carabetta deposed that such an assurance was not raised and that he said the company would have to carry out an investigation and determine whether a warning or further action was required. His witness statement makes no reference to Mrs Brunt's claim that she said that her husband wanted help under the Employee Assistance Program. 26 20 December (Monday) - The Applicant met with Mr Carabetta. No one else was present. The Applicant advised of his drinking problem and that he had drunk from the damaged vodka bottle after work in the Chatelle Room on the previous Friday - and that he had been give a lift home by Mr Malcolm Griffiths. 27 Mr Carabetta's witness statement confirm that the two of them met. He makes no reference to the vodka bottle, nor Mr Griffiths. There is also a dispute as to whether the Applicant went home of his own accord or was given permission by Mr Carabetta to go home. In any event, the Applicant telephoned his wife following the meeting. Both their statements confirm that Mr Carabetta would be taking the matter up with Mr Jagger (Operations Manager, CUB). 28 Mr Carabetta makes no reference in his statement as to the conversation he had with Mr Jagger, but the latter deposed (exhibit 20) that he met with Mr Carabetta around 8.30 am on that Monday to be told by Mr Carabetta of the conversations by Mr Carabetta with the Applicant's wife and then husband.

[50]

Secondly, he drank because of issues at work and one of those issues was his inability to cope with the occupational health and safety part of his position and this was linked with the Applicant's work relationship with his manager, Mr Jagger. 64 The Applicant deposed the following as to his stress at work: (a) He has a tendency to high blood pressure and takes tablets daily to control it. In September 2004, he was rushed to hospital via ambulance when his blood pressure was found by a local doctor to be extremely high (220/110). This was due, the Applicant said, to a requirement that he speak in public at a four day work training seminar; and (b) He found himself, he said, to be increasingly anxious in his work relationship with Mr Jagger who never had a kind word for his performance. He found himself drinking more and more. (exhibit 10 - paragraphs 16 to 19) 65 During cross-examination, the Applicant asserted that his stress at work was caused by the criticism that Mr Jagger made of him in relation to the occupational, health and safety part of his overall job; he said there was a relationship between his stress, his drinking and Mr Jagger's behaviour towards him; and he described Mr Jagger's approach to him as demoralising. (Tr 14/06/05 - pp 25, 26 and 30) 66 This claim of the Applicant of a relationship between his occupational health and safety duties, his stress, his drinking and Mr Jagger's attitude towards the Applicant, was a claim requiring deliberation beyond the Applicant's evidence on the point, because of the evidence of other witnesses. Thus: (a) Mr Carabetta, the former Warehouse Manager ( and witness called by the Respondent), deposed that he had been told by the Applicant in or about July 2004, that the Applicant thought Mr Jagger was picking on him (exhibit 17 - paragraph 10). He gave evidence that Mr Jagger treated the Applicant differently to other staff in respect of work related matters; Mr Jagger was frustrated with the Applicant; Mr Jagger's approach to the Applicant was not blunt but direct; the Applicant took Mr Jagger's criticisms personally; Mr Jagger's directions went to errors made by the Applicant; and Mr Jagger and the Applicant had contact with each other at meetings going to safety issues. (Tr 14/06/05 - pp 74 to 76) (b) Ms Cleverley (witness called by Applicant under subpoena), deposed from her observations that the Applicant became more anxious when given the additional duty of occupational health and safety. She observed Mr Jagger criticise the Applicant and always found some fault with the performance of the Applicant as a consequence of which the Applicant became increasingly anxious. (exhibit 4) Under cross-examination, she said the tone of Mr Jagger's criticism (as observed by her) of the Applicant's work performance was "demeaning" and that it was done in the year 2004, "over a period of time." Further, the Applicant told her that Mr Jagger was intimidating him in front of people in meetings. (Tr 08/06/05 - pp 45 to 48) (c) Ms Menzies (witness called by Applicant under subpoena), deposed that she had seen the Applicant's anxiety appear. She deposed that the Applicant told her (between late 2002 and late 2004) that since taking on the extra work as occupational health and safety officer, he increasingly could not cope with that work - and she told this to Mr Carabetta. (exhibit 6) Under cross-examination and re-examination, she identified Mr Jagger as the person named by the Applicant whom the Applicant thought he could not satisfy with his work performance. (Tr 08/06/05 - pp 55 and 57) During re-examination, Ms Menzies referred to a sort of big verbal conflict. When questioned to explain, she hesitated. It appeared to myself that she had a concern about answering the question and was directed, in effect, by myself to answer the question. She then referred to an incident between Mr Jagger and the Applicant. She said that Mr Jagger had called out to the Applicant by his first name but that he had a way of doing so that showed he disagreed with whoever was the recipient of his voice tone. Ms Menzies continued with the incident in question by saying that the Applicant stood up, in response to Mr Jagger, went bright red and just stood there. (Tr 08/06/05 - pp 57 and 58) (d) Mr Saywell (former employee called by the Applicant), deposed that he attended occupational health and safety meetings, which were chaired by the Applicant. He said Mr Jagger " denigrated the Applicant in my presence ." At these meetings, he observed the Applicant to be not only anxious but agitated. (exhibit 9) In examination-in-chief, "denigrated" was explained to mean the way Mr Jagger treated the Applicant at these meetings - that is, Mr Jagger spoke to the Applicant in such a way as to show up the Applicant as incapable of doing the job. Mr Jagger's tone with the Applicant was " short, sharp ." (Tr 14/06/05 - p 6) (e) Mr Griffiths (a witness called by the Applicant) deposed that he attended occupational health and safety meetings and said that at virtually every meeting Mr Jagger would "belittle" any suggestions made by the Applicant - and do so in front of other persons present at those meetings. (exhibit 8) Under cross-examination, he described Mr Jagger's criticisms of the Applicant as being given in a " very blunt " way (Tr 08/06/05 - p 63) 67 The claims of the various witnesses (Messrs Cleverley, Menzies , Griffiths and Saywell) contained in their witness statements about Mr Jagger's interpersonal dealings with the Applicant, were put to Mr Jagger. He denied treating the Applicant as deposed by them. 68 Despite Mr Jagger's denials, the weight of the evidence as deposed and the Commission's observation of the demeanour of these four witnesses is such, that the Commission finds that there is merit to the claims of these witnesses as to how Mr Jagger treated the Applicant at work about occupational health and safety related matters. Further to that finding, is the evidence of the Respondent's own witness, Mr Carabetta who gave evidence that Mr Jagger was direct in his dealings with the Applicant who also said to Mr Carabetta that he thought Mr Jagger was picking on him, the Applicant. This claim of the Applicant of being picked on, is supported by the statements of Saywell (denigrated the Applicant) and Griffiths (belittle suggestions of the Applicant). 69 In making that finding, the Commission returns to the claim of the Applicant of a correlation between his stress at work and his drinking behaviour. In considering that correlation, the Commission records that Mr Carabetta said he was told by the Applicant that the Applicant thought Mr Jagger was picking on him. This conversation was given as occurring around July 2004. The Applicant was hospitalised in September 2004 because of a stress attack that he had to speak in public at a work related seminar. Mr Jagger gave evidence that after that hospitalisation (and one week of sick leave), the company reduced the Applicant's role because he was struggling with structured meetings and ad hoc tasks. The structured meetings were the occupational health and safety meetings. (Tr 14/06/05 - p 118) This evidence of Mr Jagger returns the Commission to the depositions of the witnesses and the finding of the Commission that at these meetings, Mr Jagger denigrated and belittled the Applicant. The Applicant, himself, gave evidence of his anxiety at work.

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