Alleged harassment by company director found to be 'one-off'

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Alleged harassment by company director found to be 'one-off'

Two hospitality workers who alleged they were forced to resign due to harassment by a company director have lost their case after the AIRC found the director's actions were a 'one-off' and that the employees' responses were 'quite extraordinary and utterly unwarranted'.

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Two hospitality workers who alleged they were forced to resign due to harassment by a company director have lost their case after the AIRC found the director's actions were a 'one-off' and that the employees' responses were 'quite extraordinary and utterly unwarranted'.

Commissioner Grainger said the director's allegedly threatening behaviour did not 'constitute a pattern of conduct particularly when contrasted with his past unimpeachable behaviour to the [employees] at work and outside of work'. He said the employees understood through gossip that the director had some past history of nervous disorder and, not based on any past conduct of his that they had ever witnessed, had allowed their 'fear of the unknown' to cause them anxiety about what he might do in the future.

Background

Two hospitality workers applied under section 170CE of the Workplace Relations Act for relief in respect of the alleged unlawful termination of their employment by Minabar Pty Ltd trading as Venom Nightclub. Each of the employees stated that the reason for termination was 'constructive dismissal - I resigned due to harassment'.

The club manager and bar manager had been employed for four and two years respectively. They said that until recent incidents of alleged harassment by one of the two working directors of the nightclub, they had all enjoyed friendly relations and regularly met for social functions.

One of the employees put her reaction to the alleged harassment in context by saying that she understood the director 'had a previous psychiatric history' and that she believed 'that this, combined with drug use, made him volatile'. The director noted that the club had been experiencing business difficulties, causing him concern. He was concerned that everyone needed 'to work harder and to be more conscientious'.

In the first incident, the club manager alleged the director hung around staring at her then asked her if she wanted to quit in a tone she said was 'annoyed or kind of threatening or maybe angry'. Later that night, the director came into the office where the two managers were counting takings and again seemed agitated. They alleged that his demeanour was threatening and that he swore at the club manager and waved his finger close to her face to make his point.

The next day the two managers met with the second director and discussed some measures that would make them feel safer while they were at the club. The second director did not discuss this meeting with the first because he hoped it was 'just a one-off incident'. Neither manager resorted to the club's staff complaints system.

Three weeks later the director phoned the club manager and allegedly said: 'I have been thinking and you have been with us a long time now, I think maybe it's time you gave notice' to which she responded 'Fine, I resign. Fine goodbye'. The director gave evidence that he asked the manager whether she had 'had enough' because he was concerned as a long time friend who believed that she was under pressure from the nightclub environment. He said she immediately responded by saying 'you'll have my resignation during the week'.

The bar manager said that after she heard about this phone interchange, she 'knew things weren't better and ... I couldn't see things improving'. She said she knew that if the club manager left Venom 'I would have to be opening [the club] by myself' and 'I wasn't prepared to do it ... I didn't want to be on my own ... the unpredictability ... the fear of not knowing what would happen or could happen'.

The two met with the second director and resigned from Venom saying that neither of them were willing to put up with the first director's conduct any further. He tried to persuade them to stay on, but said he could not deliver on their condition that they would only work if the first director was not in the building. The first director gave evidence that he would have both managers back working as employees and had not considered giving them notice.

Findings

Commissioner Grainger said the threshold issue was whether the terminations were genuine resignations or terminations at the initiative of the employer.

The commissioner said the director's conduct should be considered in the light of what a reasonable person would have thought in the context that existed. The reaction of the managers should also be considered in relation to context - a busy nightclub in which drinking, loud music and disorderly behaviour were constant factors and which anyone employed on the premises would be expected to be able to handle.

Given this he found that the director's tone and language was not abusive, particularly taking into account that the managers were aware that he normally never swore and that he had always previously been courteous to them. The director's conduct should not have caused a reasonable person in the situation to feel unsafe or threatened. He indicated no intention to do any evil or mischief to either of them and both their evidence referred to the fact that it was not his conduct but their uncertainty as to what might be going to happen which caused them to feel upset. The commissioner said he did not find it inappropriate that the director should be in his own office in his own nightclub overseeing his own employees to ensure they were handling money correctly. If he watched the managers or pointed his finger at them without touching either of them and did so on a single occasion and after a long history of cordial employment and social relations such conduct was not 'inappropriate to the circumstances which existed'.

Commissioner Grainger found the resignations were not at the initiative of the employer within the meaning of the Act because 'there must be a real and reasonable nexus between the action of the employer and the consequent action of the employee in resigning their employment'. He said in this instance 'the conduct of [the director] was, cast in its very worst light, ambiguous. However, there is no ambiguity in the clear evidence that [the second director] told the [employees] he did not wish them to leave'. He said that, on the balance of probabilities, the first director had no intention of bringing about the resignation of the managers. He concluded the actions of the managers to be 'quite extraordinary and utterly unwarranted by any of the actions or conduct of [Venom] or its directors, particularly bearing in mind the long history of good employment and social relations'.

See: E Manteit v Minabar Pty Ltd trading as Venom Nightclub, L McMahon v Minabar Pty Ltd trading as Venom Nightclub (PR925239), AIRC (Grainger C) (29 November 2002).

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