Plaintiff v Defendant

Plaintiff v Defendant - [2005] VSC 466 - VSC 2005 case summary — Zoe

[17]

21 Thereafter the plaintiff sought and obtained medical assistance for his drug problem. A condition imposed by his treating doctor was that he provide weekly urine samples in order to confirm he was continuing to stay clean. He successfully undertook this regime and remained drug free at the time of his sacking.

22 Again, perhaps not surprisingly, this change was accompanied by a dramatic improvement in his performance at work. Evidence from actors and crew describes both a change in character and a direct engagement and consequent improvement in his work.[1] The evidence further indicates that his work during the following months was of high quality. There is corroboration of this evidence in the video tapes tendered to me of performances in September 2003. In the latter he is animated, engaged and gives controlled performances demonstrating a range of emotions. In the tapes from the earlier parts of the year all of these qualities are to a greater or lesser extent lacking.

23 There is also corroboration in the defendant's late book which records 13 episodes of absence by the plaintiff in the months of January to April and one only in the subsequent five months.

24 It might have been hoped in these circumstances that the plaintiff would successfully complete his two year contract. In September 2003, however, he became involved in some conflict with other cast and crew members. One of these incidents led to a complaint to Dodds, who made inquiries of a limited number of employees and crew selected by him, uncovering other complaints. Dodds reported his understanding of these complaints to Pellizzeri, who in turn reported them to members of the defendant's senior management in Sydney. A decision was made to terminate the plaintiff's employment and he was summarily dismissed on 27 September 2003 at a meeting at which Pellizzeri and Dodds were both present.

25 At this meeting the plaintiff stated that he disputed the complaints made about him, but he was given no opportunity to answer them.

26 Following the meeting he was sent written confirmation of his dismissal in the following terms:

[50]

16. Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim de minimis non curat lex) is of general application.

...

19. The question specifically raised by this appeal is: what is the necessary quality of a final straw if it is to be successfully relied on by the employee as a repudiation of the contract? When Glidewell LJ said that it need not itself be a breach of contract, he must have had in mind, amongst others, the kind of case mentioned in Woods' case [1981] IRLR 347 at 351, [1981] ICR 666 at 671 where Browne-Wilkinson J referred to the employer who, stopping short of a breach of contract, 'squeezes out' an employee by making the employee's life so uncomfortable that he resigns. A final straw, not itself a breach of contract, may result in a breach of the implied term of trust and confidence. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term. I do not use the phrase 'an act in a series' in a precise or technical sense. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence. It must contribute something to that breach, although what it adds may be relatively insignificant.

20. I see no need to characterise the final straw as 'unreasonable' or 'blameworthy' conduct. It may be true that an act which is the last in a series of acts which, taken together, amounts to a breach of the implied term of trust and confidence will usually be unreasonable and, perhaps, even blameworthy. But, viewed in isolation, the final straw may not always be unreasonable, still less blameworthy. Nor do I see any reason why it should be. The only question is whether the final straw is the last in a series of acts or incidents which cumulatively amount to a repudiation of the contract by the employer. The last straw must contribute, however slightly, to the breach of the implied term of trust and confidence. Some unreasonable behaviour may be so unrelated to the obligation of trust and confidence that it lacks the essential quality to which I have referred.

21. If the final straw is not capable of contributing to a series of earlier acts which cumulatively amount to a breach of the implied term of trust and confidence, there is no need to examine the earlier history to see whether the alleged final straw does in fact have that effect. Suppose that an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence, but the employee does not resign his employment. Instead, he soldiers on and affirms the contract. He cannot subsequently rely on these acts to justify a constructive dismissal unless he can point to a later act which enables him to do so. If the later act on which he seeks to rely is entirely innocuous, it is not necessary to examine the earlier conduct in order to determine that the later act does not permit the employee to invoke the final straw principle.

22. Moreover, an entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in his employer. The test of whether the employee's trust and confidence has been undermined is objective ..."

[51]

58 In the present case the plaintiff was under an express duty to perform his part of the agreement in good faith and to the best of his ability. The defendant did not fully articulate the application of the last straw concept as formulated in Omilaju in these circumstances. As I understand it, however, the defendant seeks to contend that by analogy with the reasoning in Omilaju even if the plaintiff's September 2003 conduct did not in itself amount to negligence or misconduct and may have been "relatively insignificant", it nevertheless contributed to a cumulative breach of the plaintiff's express duty of good faith. If this framework of analysis were to be accepted such conduct would, however, in accordance with the observations in Omilaju as a minimum still necessarily involve unprofessional behaviour which was not of an utterly trivial nature before it could operate in the manner contended.

59 Moreover, whether this refinement of the defendant's case is open to it or not, it is apparent that the question whether the plaintiff's conduct in September cumulatively demonstrated negligence or misconduct justifying termination of his engagement is critically concerned with whether he performed his duties in good faith and to the best of his ability and complied with all of the defendant's reasonable directions and requests. The defendant's case would still require it to establish a factual basis and it is the facts of the matter which will crystallise the relevant questions of law. I turn then to the case on the facts.

Evidentiary Considerations

60 The defendant's case as to the events of late September 2003 turns on proof of the objective facts of the matter. The Court is not concerned with a review of the reasonableness of the decision of management having regard to the material before it. The Court is concerned with whether in fact the plaintiff was guilty of the acts relied upon to establish negligence or misconduct within the meaning of the agreement.

61 The defendant is entitled to rely on the cumulative force of the evidence in support of its case as to the happening of individual incidents.[15]

62 The defendant's case is put forward in part on the basis that it is supported by the following contextual considerations:

[60]

(a) The plaintiff's evidence that he had successfully remained free from drug use for almost five months up to his dismissal is uncontested.

(b) It is also uncontested that he performed his duties in a professional manner at least until the very end of this period and in a manner which contrasted dramatically with his prior behaviour. The evidence of a number of the defendant's witnesses directly supports this fact.

(c) There is no evidence of behaviour in September having the florid quality shown in the videos during the period he was taking drugs.

(d) There is in fact no video film evidence directly demonstrating poor performance during the September period, despite the fact such film constitutes an extended record of his daily work.

(e) It is apparent that neither the principal actors nor the directors were intended to be free of ego in the performance of their jobs. The plaintiff's role was one which he was called upon to perform with personal initiative and a degree of drama was acceptable in his behaviour.

(f) The plaintiff was to a significant degree at the time of events in issue cast in an antagonistic role, i.e. one which called upon him to portray emotions in conflict with his on-screen wife Lyn and his on-screen son Jack. In particular, he was required to portray a degree of abrasiveness and a substantial lack of enthusiasm over many hours of repeated takes.

(g) The plaintiff was also expected to voice opinions as to the script and in particular the continuity of his character's story line and the consistency of his character's presentation. He was expected to make suggestions as to possible refinements of the script in order to improve it.

(h) There is no confirmation whatsoever by way of contemporaneous records made in the course of the usual operations of the defendant that the great bulk of the alleged behaviour on which the defendant relies occurred.

(i) There is no evidence of actual delay in completion of any schedule or any other consequence causing the defendant commercial loss as a result of the plaintiff's alleged behaviour.

(j) The plaintiff was given no opportunity to answer the allegations now made. He made no relevant admissions in September as to any of the matters now in issue and the failure to give him an opportunity to answer the allegations made against him raises the possibility that he had answers to them which he was not permitted to give.

(k) Ms Russ, the casting director for Neighbours since 1983, gave evidence that after the plaintiff was given the final warning and confessed to drug taking in 2003, directors and other staff were instructed by the defendant's management to be aware of the plaintiff's behaviour. Further, she recollects a meeting in the boardroom with Pellizzeri and Dodds at which Pellizzeri stated of the plaintiff: "I want him out." This conversation was denied by Pellizzeri and Dodds and in cross-examination Ms Russ conceded she could not be sure of its definite date. Nevertheless, the evidence raises the real possibility that the reaction of management to complaint about the plaintiff in September was motivated by pre-existing animus. This possibility is also supported by the evidence of Pellizzeri that at the time of first complaint in September he regarded complaints from Dodds with scepticism because Dodds' tolerance of the plaintiff "ended last time".

(l) It is apparent that the chain of reports upon which the defendant relied in making the decision to terminate was flawed by very serious exaggeration. Thus, the report forming the basis of the sacking stated in part of the plaintiff's recent performance in September 2003:

[78]

78 The afternoon in question involved a series of scenes shot on a building site location. A central theme of the scenes was continuing tension between the plaintiff's character Joe and his son Jack played by Jay Bunyan. Jack had commenced working for his father as a builder's labourer a few days earlier. This course had his mother's support but Joe remained ambivalent. The story line on 23 September included the following elements: a scene demonstrating that Jack was not yet one of the boys but had an aptitude for interpreting and appreciating the architect's plans for the development; a scene in which Jack demonstrated no enthusiasm for rendering; a scene in which Jack is complimented for rendering work which has in fact been done by his co-worker Jim; and a scene in which Joe dismissed the other workers on site but required Jack to stay on and pick up sharp rubbish in a bucket thereby emphasising his menial role as a labourer. There were multiple takes of each shot in each scene including five takes of each of a sequence of shots in which the plaintiff was involved.

79 Walker gave evidence that on the morning of 23 September before the crew went out on location, the plaintiff stated to him "Have you read the shit that we've got to do this afternoon" and that thereafter they had a brief discussion.

80 Subsequently on location at the building site the plaintiff said that he hated the story line, that he was only there really to service the Jack character and that the story line and dialogue were terrible. Walker was concerned because he didn't feel it was a two-way conversation, the plaintiff was aggressive and swore. Walker felt intimidated and undermined as a director. Walker's response was to commence a line run (first rehearsal) during the course of which he says the plaintiff made a mockery of lines by putting on a voice and changing lines without discussing the relevant changes. Walker further says that at one point in the afternoon shoot the plaintiff missed a cue and failed to come out from behind a wall when required. Walker says the plaintiff was reading a newspaper at the time.

81 In cross-examination it was put to Walker that the plaintiff suggested that lines be changed in order to provide a better excuse for getting the co-workers off screen at the conclusion of the working day when Joe and Jack had their final conversation about picking up sharp objects. Walker agreed there was a conversation about this but had no recollection of what was said about this change.

82 The tape demonstrates that a change was made from a reference to battening down sarking which would have required further work by the crew, to an invitation by Joe for them to retire and enjoy some drinks he had provided at the back of the site.

83 It was further put in cross-examination that the plaintiff took substantial issue with a story line which required Jack in the first days of his job as a labourer to express detailed opinions about architect's plans. Walker agreed the plaintiff took this stance but said that he remained of the view that the script was appropriate.

84 The video tape demonstrates that the script was not changed.

85 Walker also agreed that at the end of the day's filming he said "Well done all round."

86 Evidence was also called from the first assistant director Adam Noel. He observed the plaintiff having an animated discussion concerning the script with Walker prior to the commencement of shooting. He also says that at one point during rehearsals the plaintiff was absent for five minutes which required Noel to substitute briefly for the plaintiff and read some of his lines during on site rehearsal. He does not corroborate the other allegations of conduct during rehearsal made by Walker.

87 The plaintiff admitted in evidence that he did complain to Walker about the script but denied that he did so in an offensive manner. He gave details of the nature of his complaint which was fundamentally that the proposed discussion between his character and Jack was unrealistic. The plaintiff gave evidence (consistent with other evidence in the case) that it was part of his job to make suggestions about the script and indeed such suggestions were regularly made. He agreed that during rehearsal he emphasised lines which he thought were inappropriate, but denies that he was sarcastic or encouraged other actors to change their lines. He further denies that he changed lines without Walker's approval.

88 The plaintiff said it was his habit to take a newspaper on set to read to relax when appropriate. Other people did likewise.

89 In answer to questions as to whether he was absent from the set he said that at one stage on the afternoon in question he left the set to go to the toilet and was walking back as he was called.

90 He denies that he missed a take because he was reading a newspaper off set (as alleged in the defence) but agrees he missed a cue at one point due to the noise of the wind.

91 Jay Bunyan gave evidence that it was part of the job for actors to create their characters by giving and taking bits and pieces during the course of production. He recalls the plaintiff suggesting changes to the script for reasons relating to his character on the afternoon in question. He does not recall the plaintiff being rude. He says that the fast turnaround in programs such as Neighbours inevitably results in some degree of frustration and complaint. He says that on one occasion the plaintiff missed a cue when he was waiting on the other side of a wall. It was very windy and this was why the plaintiff missed the cue. The plaintiff apologised and there was another take. The plaintiff had a newspaper but was not reading it during filming. In cross-examination he conceded that he developed a close relationship with the plaintiff while working with him and that the plaintiff became his friend. He said that his memory of the events in issue is good. He agreed there was an occasion when the plaintiff was called for and was off set.

92 I am not satisfied the plaintiff acted in bad faith or unprofessionally or breached his contract either in the manner in which he made suggestions as to script changes or by reason of absence from the set as alleged. Insofar as script changes are concerned:

[81]

(b) The video film available of shooting on the afternoon shows that one of these suggestions was accepted and one was rejected. The outcomes reflect the scheme described in evidence by Fletcher (an actor) and O'Shaughnessy. This was that suggestions which assisted in delivery of the story would be accommodated in rehearsal but suggestions which interfered with the scripted story line would not.[22] The video film simply does not bear out any suggestion that the plaintiff overbore the director with respect to the plaintiff's principal complaint. It demonstrates the reverse.

(c) The video film shows that each of the shots in the four scenes filmed on the day involved multiple takes and that the plaintiff performed consistently and in an engaged manner through a very extended series of shots. This does not support the view that he failed to apply himself other than to the best of his ability.

(d) The plaintiff's language used to express initial dissatisfaction with the script may have been robust but I accept the unchallenged evidence from a number of witnesses that robust language was not uncommon in the industry.

(e) The plaintiff's role was that of the boss on the work site. It is inherently likely that during the course of the afternoon he did appear assertive both during and between the repeated takes in which he was required to play an assertive role.

(f) Walker was a young and relatively inexperienced director[23] and may have felt some adverse emotions, including feeling "belittled", but the defendant must do more than prove subjective emotions on his part. The defendant's case requires the establishment of objectively unsatisfactory offensive behaviour by the plaintiff.

(g) Not all those on set were called by the defendant including "Jim" the other principal actor involved in the core scenes of discussion between Joe and Jack. The defendant's failure to call relevant witnesses was again unexplained.

(h) Bunyan's evidence supports the plaintiff and was relatively circumstantial and detailed although I found him overassertive as to some matters.

(i) Noel's evidence does not materially corroborate Walker. Its substance as to the fact of an animated discussion is conceded by the plaintiff. The fact that he went off set at one point is also conceded.

(j) There was no contemporaneous record made of any incident in the log book, nor did Walker reprimand the plaintiff on set, nor did Walker complain to management after the event (until complaints were subsequently elicited by Dodds).

[82]

93 Insofar as the allegation that the plaintiff missed a "take" because he was off set reading a newspaper without permission is concerned, the evidence is unpersuasive. The video film of takes does not allow this event to be identified. There is evidence from Walker that the plaintiff read a newspaper on set and missed a cue. This is directly contradicted by Bunyan. I am not satisfied Walker's evidence should be accepted (noting that it is in any event at odds with the precise terms of the pleading).

94 The explanation put forward on behalf of the plaintiff that he may have missed a cue at one stage because he was behind a wall on a windy day is inherently plausible. In the absence of any circumstantial evidence that provides a satisfactory basis for preferring Walker's account, I am not persuaded that I should do so.

95 [12CC(iv)] further alleges that on 23 September 2003 the plaintiff became abusive towards another actor, Jay Bunyan, for keeping him waiting for their lift home. Mr Bunyan was in the wardrobe bus getting his makeup and costume off.

96 This allegation is based on the evidence of a wardrobe assistant one Robertson. She says that the plaintiff hurried Bunyan up because they were sharing a lift home. She says the plaintiff yelled at Bunyan to hurry up and get out of his costume in an "angry and aggressive" manner.

97 Both the plaintiff and Bunyan agree that the plaintiff urged Bunyan to get into the car in forceful terms, but both maintain this was done in a jocular not aggressive manner. Bunyan recalls the plaintiff urging him to "get his vain bum in the car." The plaintiff recalls calling out "Come on Jay, get a move on" and swearing but says he was laughing at the time. This evidence is entirely consistent with the evidence as to their relationship generally and does not in my view demonstrate behaviour which could reasonably be regarded as offensive in the circumstances.

98 I should add I do not regard Robertson's evidence in other respects to which I shall return as particularly reliable.

99 I do not accept the account of the plaintiff and Bunyan should be rejected. It is of course again possible that there was an element of misunderstanding in Robertson's reaction and that her evidence is based on an honest impression. Her evidence does not, however, persuade me of the objective fact of offensive or unprofessional behaviour.

24 September 2003

100 [12DD] of the defence makes allegations firstly, with respect to behaviour during the course of rehearsals on set in the morning of 24 September 2003 and secondly, with respect to behaviour during the course of on location shooting that afternoon.

101 The director in the morning was O'Shaughnessy. The defendant alleges the plaintiff:

[84]

102 O'Shaughnessy gave evidence of a scene rehearsed on the morning of 24 September in which the plaintiff and his on screen wife Lyn had an extended conversation about a competition application. The scene was a pick-up scene i.e. picking up work which should have been completed the week before. As such it was initially rehearsed that morning and then shot. I interpose the script provided for Lyn to enthuse by way of relatively long speeches and for the plaintiff to demonstrate lack of enthusiasm by way of short statements.

103 O'Shaughnessy said that actors were not expected to know their lines at the start of the rehearsal process but only to have read the script and know the story line. By the stage of the camera rehearsal, however, she says actors would be expected to know their lines.

104 The initial rehearsal on 24 September was a line run, that is a rehearsal in which the characters went through their lines. The next rehearsal was a camera or technical rehearsal in which the characters' actions and the proposed placement of cameras and booms were co-ordinated. O'Shaughnessy gave evidence that the plaintiff had a newspaper on set during this rehearsal and was reading it. She says that when she cut to him to say a line "he would not know the line, reach over and grab his script, recite the line, put the script back and continue reading while Janet (playing Lyn) was reading from hers." This interrupted procedure prevented a proper rehearsal process. She says that at the end of the technical rehearsal she asked the plaintiff "if we could get the newspaper off the set." The plaintiff wanted to say something but she cut him off by saying "You need to show a bit of professionalism" or similar words. He responded with something like "You need to be very careful saying something like that." She then asked for another rehearsal. The paper was removed from the set and they did another technical rehearsal during which the plaintiff was still struggling with his lines. After a continuation of rehearsals they shot the scene. When the scene was completed the plaintiff came across and said something to O'Shaughnessy which she did not hear because she had headphones on. He then walked off. She followed him and asked what he had said. He said "Calling me unprofessional that's rich coming from you." She continued to follow him and they stopped at a point out of the view of other persons. She said "Name one time I've ever been unprofessional with you?" He said "Just now. Anyway you name one time I've ever been unprofessional." She said "Where do you want me to start?" and he walked off.

105 In cross-examination O'Shaughnessy agreed that none of the video film of a series of extended takes from that morning demonstrates any unacceptable behaviour by the plaintiff. She further agreed that it was she who raised the question of unprofessionalism and that the use of this term might be taken as an insult. She agreed that she spoke in a raised voice and that it was she who followed the plaintiff off set. She agreed that an independent observer might think she got the better of the exchange.

106 Andrewartha gave evidence that:

[86]

107 Andrewartha says they then got on with the job and finally got the scene shot. (She does not say the plaintiff continued to miss his lines). After the scene was shot the plaintiff went over to the director's area and she heard shouting from the plaintiff about professionalism. She focussed on the baby on set. She further says that the morning had not gone well and she did not feel good as a result of stress from the events of the morning. I interpolate that the late book shows her late or absent on five occasions between May and October 2003 including 19 and 26 September.

108 In cross-examination she said the plaintiff was in a very dark mood that day. She said that it was not uncommon for actors to require further rehearsals for pick-up scenes. Nor was it uncommon for actors to read books or newspapers between takes and during breaks such as lighting tweaks if they were lengthy. She said there were problems with the actual filming of scenes earlier that day in that the plaintiff stopped at the same point in the script on five or six takes in a row. It was put to her that the video film of some 15 takes involving her does not show this happening. She maintained that it happened five times in a row.

109 Andrewartha said that after O'Shaughnessy spoke to the plaintiff "We just got on." She agreed that to a person of the plaintiff's experience an accusation of unprofessionalism was a significant insult. Andrewartha said that contrary to the evidence of Dodds she never threatened to quit if the plaintiff did not go. She agreed that her relationship with the plaintiff was for some time quite tense.

110 The plaintiff says that on the morning of 23 September he was not having more trouble than anyone else remembering his lines. He had a newspaper on set to read during breaks. He was sitting at a table with the newspaper and a script alongside each other in front of him. He was sitting looking at a newspaper during a lighting tweak when O'Shaughnessy came to him and said to put the newspaper aside and told him to show a bit of professionalism. He said "Don't go there now Jo." He was not loud or aggressive. He meant this was not the time to argue. He thought she was being unreasonable because there were other people on set with newspapers. They then went on to shoot the scene. Later, however, as he was leaving the set and because he was hurt that O'Shaughnessy had said what she had in the presence of others, he said to O'Shaughnessy "You're the last one who should be talking about professionalism." O'Shaughnessy then took off her headphones and asked him what he had said, but he continued walking out of the studio.

111 In cross-examination he confirmed that he had a newspaper and script on the table at which he and Andrewartha were seated for the purpose of the rehearsal. He disagreed that he looked at his newspaper when the camera cut away from him and said that the camera was not operating during the rehearsal. He denies that during the rehearsal he continued reading from his newspaper. He denies that he said to O'Shaughnessy "I would be very careful about saying that if I was you." He said "I wouldn't go there now if I was you Jo."

112 It was not put to him that he continued to fail his lines when the rehearsal recommenced.

113 When he walked over to O'Shaughnessy after the end of the scene he said "You're the last one who should be talking about professional." After he walked away, O'Shaughnessy asked "What did you say?" He then may have said "Calling me unprofessional that's rich." He left the studio and kept walking. He could hear O'Shaughnessy yelling. He does not recall what she then said.

114 The defendant's daily log book records:

[89]

(a) It was on the evidence generally acceptable for the plaintiff to have a newspaper on set.

(b) There is a conflict of evidence as to whether it was also generally acceptable for the plaintiff to both have a script with him and refer to that script during rehearsal. Evidence was given both by the plaintiff and other witnesses that he usually learnt his lines during the rehearsal process including the camera rehearsal.[25] The plaintiff said he learnt his lines by fitting them to his movements and dialogue. O'Shaughnessy and Woodburne assert that by the camera rehearsal stage the plaintiff should have known his lines. It seems to me that on a pick-up day (and bearing in mind that the plaintiff's lines in the scene in question were quite limited) the extent to which unfamiliarity with his lines at the camera rehearsal stage would be acceptable, would be a question of degree. I am not, however, persuaded that he was materially less well prepared on this morning than was his practice over the preceding five months of entirely acceptable performances.

(c) The scene includes long uninterrupted shots of extended speeches by Lyn Scully which provides a credible context for the defendant's allegations.

(d) There is, however, no video film evidence of lack of application or preparation on the plaintiff's part over an extended sequence of takes that morning. O'Shaughnessy further expressly agreed that there was nothing in the plaintiff's behaviour during the actual takes which she found objectionable.

(e) Andrewartha's account asserts a repeated failing of takes which is not verified by the videos.

(f) There is unanimity that after O'Shaughnessy first spoke to the plaintiff the shoot went on. There is no evidence that conduct of the plaintiff materially delayed the shoot.

(g) The defendant's evidence was expressed by Andrewartha and O'Shaughnessy in part in terms suggesting the relevant rehearsal was being filmed, when it is clear that it was not. There was no take to cut although the camera moves were being worked out.

(h) There is no apparent reason why O'Shaughnessy would go through a period of extended dissatisfaction with the plaintiff during a camera rehearsal without intervening.

(i) Other witnesses present were Ray Lindsay, the first assistant director, and Danielle Zvirdanis, the director's assistant.[26] They were not called to give evidence by the defendant and no explanation was given as to why not.

(j) There is no doubt an argument occurred nor that that argument centred around the question of professionalism. The weight of the evidence is that it was O'Shaughnessy who instigated the argument and that it was she who made the initial accusation of unprofessionalism.

(k) O'Shaughnessy herself says that she cut the plaintiff off from responding to her initial direction before accusing him of unprofessionalism.

(l) There is a conflict between O'Shaughnessy and Andrewartha on the one hand and the plaintiff on the other as to whether the plaintiff's response was then to the effect "You need to be very careful saying something like that" or as the plaintiff says "I wouldn't go there now if I were you Jo." The difference is essentially one of emphasis.

(m) I accept the plaintiff's evidence that he initially sought to avoid confrontation on set, then spoke to O'Shaughnessy after the scene and then walked away seeking to avoid further confrontation. I accept O'Shaughnessy's evidence that after the scene the plaintiff said words to the effect "Calling me unprofessional that's rich" and that a further exchange occurred as to the relative professionalism of O'Shaughnessy and the plaintiff in which she had the last say.

(n) The evidence that the plaintiff failed lines after the initial confrontation with O'Shaughnessy is weak.

(o) I do not regard Andrewartha's evidence as being as credible as to matters of detail as that of either O'Shaughnessy or the plaintiff. She is wrong as to repeated failure of lines leading to repeated takes.

(p) The differences between the accounts of the plaintiff and O'Shaughnessy and Andrewartha as a whole are of emphasis and degree.

[90]

117 On the whole of the evidence it is probable the plaintiff did, during one of Lyn Scully's speeches in the course of the camera rehearsal, appear to refer to a newspaper next to his script. I cannot, however, be satisfied that he did in fact so refer unprofessionally or as is asserted repeatedly and in conjunction with missing lines.

118 The plaintiff was then reprimanded by O'Shaughnessy and it seems more probable than not that this did occur in a break such as a lighting tweak as the plaintiff says. It was O'Shaughnessy who made the initial allegation of unprofessionalism and did so after cutting the plaintiff off when he sought to respond to a direction about the newspaper. She asserted her position as director and again reasserted that position when the plaintiff took issue with her at the end of the scene.

119 I am not satisfied of the particularised allegation that the plaintiff responded in an aggressive and abusive tone when O'Shaughnessy asked him for his co-operation. The weight of the evidence supports the view rather that he took brief issue with her reprimand on the set and then followed this up when leaving the set. I cannot be satisfied that either what was said on set or subsequently by the plaintiff, was said in unjustifiable defiance rather than in legitimate defence. This is not because I reject outright the evidence of O'Shaughnessy and Andrewartha but rather because I am not persuaded that their evidence that the plaintiff responded in a particular way is sufficient to outweigh the plaintiff's evidence that what he first said was to the effect "I wouldn't go there now if I were you Jo." The weight of the evidence favours the view that the plaintiff made a short and controlled response. The shoot then continued and the plaintiff did not come back and confront O'Shaughnessy until he was leaving the set. When he did so I accept it was from a sense of genuine grievance. Moreover, the manner of the plaintiff's complaint did not unreasonably confront O'Shaughnessy's authority. In summary I am therefore not satisfied either that the plaintiff acted unprofessionally by reading the newspaper or of the terms with which he initially took issue with Ms O'Shaughnessy. It is again not unlikely that there was an element of misunderstanding between the parties and it is quite clear that the relevant parties were operating under pressure to complete the pick-up scenes quickly.

120 I also do not accept the weight of the evidence establishes the subsidiary allegations made in the pleading that the plaintiff was uncommunicative and refused to make eye contact with Ms Andrewartha with whom he was acting in the scenes or that he repeatedly failed his lines.

121 The essence of the incident on the morning of 24 September 2003 is described in the daily log book. The entry does not record unprofessional conduct in fact nor does it record behaviour amounting to a breach of the plaintiff's contract. What it records is that O'Shaughnessy asked the plaintiff to remove a newspaper from set calling this conduct unprofessional and the plaintiff did not take this well.

122 [12DD] of the defence further alleges the plaintiff :

[94]

123 These allegations relate to the filming of an auction scene in "Ramsay Street" the fictional street in which Neighbours is based. The scene was directed by Walker with Noel as the first assistant director. It featured a guest actor as auctioneer, guest bidders and the purchasers of the house at auction.

124 Some 14 core cast members and a further group of extras made up the crowd at the auction. The plaintiff was one of the crowd members.

125 The plaintiff had no speaking part although at one point he is seen to greet another cast member played by Jacqueline Woodburne. Although it is not entirely clear, two cameras appear to have been used. There is extensive video film footage of the shoot.

126 It also appears filming commenced on location on the morning of 23 September 2003 when the plaintiff was still at the studio doing the pick-up scene.

127 Noel gave evidence that there was a crew of approximately 25 and a cast of approximately 25 on location. During the afternoon he observed the plaintiff sitting and lying on the nature strip diagonally opposite the house at which the auction was staged. He says that sometimes the plaintiff had his eyes closed. He cannot recall the plaintiff's role but believes he had a speaking part. The plaintiff was also required to be part of the auction crowd and to be part of the group providing an eye line for the auctioneer.

128 Noel says that the plaintiff was lying on the nature strip at times when he should have been providing an eye line. (An eye line is the providing of a focus for another actor who is being filmed while engaged in dialogue). Whenever the plaintiff was required for his shots, however, he was there.

129 In cross-examination Noel agreed that the plaintiff may have had no dialogue. The video films of the auction scene took some five hours to shoot. There were no chairs provided for most of the cast and crew. It was permissible for the plaintiff to sit on the nature strip. Noel did not speak to the plaintiff concerning his conduct on either 23 or 24 September. Noel is not saying the plaintiff refused to do eye lines. When he was required to do them he did.

130 Ms Woodburne, an actor, also gave evidence concerning the plaintiff's conduct at the auction scene. She said she had one or two lines of dialogue with the plaintiff that day, just a greeting basically. She was otherwise required to participate generally in the scene. She stood and provided an eye line for other actors but the plaintiff was not there during the greater part of the time in which these shots were taken.

131 In answer to cross-examination she agreed that normally the focus of eye lines for the auctioneer would be the actors doing the bidding. She also agreed the lack of chairs for cast and crew was at some stage a point of contention. Her memory is that she and the plaintiff greeted each other and that eye lines would be necessary to do this authentically. She said the scene was shot with one camera which was used in different set-ups. If the plaintiff was required for a shot he was there. But he was not there when required for eye lines.

132 Robertson says the plaintiff was late for scenes that day and she saw him lying on the nature strip at one point.

133 The plaintiff says that he remained on set through the afternoon. He had no dialogue but was there for a "reaction shot". He was present when shots were taken of him. He says further that:

[97]

(c) There is no evidence the plaintiff failed to present himself when required for extensive shots of crowd scenes rather the evidence is to the contrary;

(d) There is an obvious explanation for Robertson's allegation that the plaintiff was late for scenes that day, namely that he had to travel from the studio to the location. Neither Noel nor Woodburne say the plaintiff was absent when he was required for shots.

(e) The plaintiff's role involved no recorded dialogue and both Noel and Woodburne, the principal witnesses with respect to the matters under consideration, initially gave evidence on the basis the plaintiff had a speaking part. The video films demonstrate that this was not the case;

(f) There is no evidence the plaintiff disobeyed any direct instruction;

(g) It is apparent an inadequate number of chairs were provided and it cannot in these circumstances be regarded as surprising that the plaintiff sat or indeed lay on the nature strip when he was not required (noting that in so doing he remained on set);

(h) The only specific incident of which there is evidence of his actions off-scene is that he urged other actors to provide an eye line when required. This is not indicative of a man showing no interest in proceedings;

(i) The plaintiff acknowledges that both he and others of the main actors absented themselves from the crowd when they were not in the shot, but I do not accept that this establishes that he acted unprofessionally or in breach of his contract;

(j) The effect of the defendant's evidence was not put to the plaintiff in cross-examination. In particular he was cross-examined on the basis he absented himself when required for shots not eye lines;

(k) The evidence upon which the defendant relies is unsatisfactory and key allegations were not put to the plaintiff in cross-examination.[27] I find it inherently improbable that if the plaintiff had defaulted in his duties this would not have been observed by Walker, the director, on the afternoon;

(l) A number of main actors present at the auction were not called to give evidence.

(m) The extended video film evidence does not show any lack of application on the part of the plaintiff.

[98]

138 The last matter alleged is that the plaintiff approached other actors including Marisa Siketa, who were waiting in a car and chastised them aggressively for not participating in eye lines. This allegation is put on the basis of the evidence of Robertson. She gave evidence of observations made from the wardrobe bus area. She initially said she could hear the plaintiff "yelling at Marisa about how unprofessional she was, that he needed her for a sight line". This took about five minutes. Marisa was in a car with two other female cast members.

139 In cross-examination Robertson said the weather was cold. She does not believe the plaintiff was asking for an eye line for the guest actor, but a sight line for himself.

140 The plaintiff says that he requested a group of actors in a car to give the guest actor auctioneer an eye line in the terms to which I have previously referred.

141 I accept the plaintiff's evidence. He had no dialogue and did not require a sight line himself. The closest he came to dialogue was to greet a fellow resident of the street in terms which were not recorded. His evidence is entirely credible given the circumstances in which the actors involved in the crowd were required to remain on the site in the cold for many hours without chairs during extended takes.

142 I find it extraordinary if this last allegation was being seriously pursued by the defendant, that none of the actors to whom the allegedly offensive remarks were directed, were called as witnesses.

143 [12EE] of the defence alleges during shooting (but not during actual filming) in the morning of 25 September 2003 the plaintiff chastised crew members in an abusive and defensive tone for a short delay in arranging for him to do a voice over. This allegation was not supported by evidence.

144 [12FF] of the defence alleges, inter alia, that the plaintiff was either late or failed his call on 11 July 2003, 23 September 2003 and 24 September 2003. The defendant's late book records that the plaintiff was one and a quarter hours late on 11 July 2003. The circumstances were not explored in evidence and the defendant's case was opened on the basis nothing of significance occurred between May and September. It is apparent the defendant did not regard the incident as a material breach of the final warning as no response to it was described in evidence. In any event I do not regard one incident of lateness in five months as self-evidently unprofessional. I note for example that repeated lateness by other actors such as Delta Goodrem and Janet Andrewartha recorded in the late book appears to have been accepted by the management. Insofar as the allegations relating to 23 and 24 September 2003 are concerned there is no evidence of lateness or failure to attend calls save that which I have already addressed.

145 The defendant goes on to allege that by reason of the matters to which I have referred including the conduct prior to May 2003, the sequence of warnings given during this period, and the alleged conduct in September 2003, the plaintiff breached cls.2 and 4(a) of Schedule B of the agreement by conduct constituting:

[100]

146 For the reasons I have elaborated I am not satisfied the plaintiff's conduct in September 2003 either regarded in itself or cumulatively with his prior conduct up until the end of April 2003 did amount to a failure to perform in good faith and to the best of his ability the services required of him. Nor am I satisfied that after May 2003 the plaintiff failed to comply with all of the reasonable directions and requests of the defendant or that he failed to make himself available as directed for the purposes of attending production of the program.

147 The evidence does not demonstrate conduct on the part of the plaintiff capable of amounting to a "last straw" even if it is accepted such conduct need not in itself evidence negligence or misconduct and may in itself be relatively insignificant.

148 Likewise the evidence does not demonstrate a refusal or failure to perform the plaintiff's role in accordance with the agreement even if cl.6 to Schedule C is given an expansive construction.

149 I have reached these conclusions having regard not only to the particular matters I have referred to in relation to each incident but also to the contextual considerations set out by me before my analysis of the evidence relating to the individual incidents alleged. I have further considered the weight of the evidence as a whole with respect to all the conduct alleged before reaching my conclusions as to individual incidents. The evidence simply does not as Dodds asserted demonstrate a "pattern" of unsatisfactory conduct over the last days of the plaintiff's employment.

150 The defendant had grounds to summarily dismiss the plaintiff for misconduct at the commencement of May 2003 but it elected not to do so. It was not entitled to summarily terminate the plaintiff's employment almost five months later unless the plaintiff again acted unprofessionally and breached the terms of the employment agreement (including his obligation to perform in good faith and to the best of his ability) in a manner which was not utterly trivial.

151 A number of allegations made in the defence were simply not pursued in evidence. Contrary to the defendant's contentions with respect to those allegations which were pursued I am not satisfied the plaintiff performed the services required of him other than in good faith and to the best of his ability on 16, 23 and 24 September 2003. I am also satisfied that he made himself available at such times and places as he was directed to on those days. I am not satisfied that he failed to comply with all the reasonable directions and requirements of the defendant on 23 and 24 September 2003, and I am further of the view that the non-compliances alleged would in large part in any event be properly characterisable as trivial in all the relevant circumstances even if they did occur.

152 Accordingly, the primary basis of the plaintiff's claim for wrongful dismissal succeeds and the counterclaim fails.

153 It is strictly unnecessary to consider the alternative basis on which the plaintiff put his case but I record that in my view the terms of the Enterprise Agreement preserve and do not derogate from the defendant's right to summarily terminate the employment agreement in the event of negligence or misconduct as stipulated.

154 The quantum of the plaintiff's claim has been agreed in the sum of $196,709.

155 I will hear counsel as to questions of interest and costs.

At a glance

Court

Decision date

Before

Source

Judgment (103 paragraphs)

Parties

Cases Cited (10)