Sacked... but Thai-sex chat never happened

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Sacked... but Thai-sex chat never happened

A Melbourne club manager who was accused of conversing with a patron about sex with underage girls has been awarded $27K for unfair dismissal.

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A Melbourne club manager was unfairly dismissed after he allegedly engaged in a conversation with a patron about paying for sex in Thailand and engaging in sex with underage teenage Thai girls. 

He was also fired by the club for allegedly:
  • telling the patrons that the club had no money
  • revealing confidential employment details without permission
  • speaking openly, negatively and disrespectfully about senior managers
  • disregarding instructions from senior managers, and 
  • engaging in aggressive and unprofessional behaviour toward the head chef.
The duty manager denied all allegations put to him bar one incident of disregarding a lawful direction, which he said had been dealt with.  

Background


The duty manager had worked at South Oakleigh Club since July 2012. Two more senior managers were appointed in mid-to-late 2016. These were general manager Peter Frost and operations manager Robbie Doyle. 

Both of these senior managers testified that other members of staff had approached them complaining about the behaviour of the duty manager. The duty manager was given guidance, counselled and verbally warned about various aspects of his alleged behaviour. 

The duty manager was later suspended from work and an investigation was carried out with the help of an external HR consultant. Particulars of complaints were put to him in a meeting to which he later responded in writing. 

He was ultimately fired. 

Operations manager Frost said in evidence at the Fair Work Commission that “based on [the duty manager’s responses], it was clear to me he was being dishonest in his responses and, with my knowledge of the witness statements, I found the allegations were confirmed.”

Frost said he had put forward an “amicable cessation” proposal to the duty manager, who declined the offer. The manager was then dismissed without notice on the grounds of serious misconduct.

The duty manager then subsequently made an unfair dismissal application to the Fair Work Commission. 

Club’s witnesses not believable


Commissioner Bissett was scathing of the witnesses for the club. 

“I found most of the evidence before me far from compelling. In particular much of the evidence given by witnesses for the [the club] was self-serving, inconsistent, non-specific, based on hearsay and in some cases just not believable.”

The Commissioner specifically pointed to two emails complaining about the behaviour of the duty manager. The emails were sent from two separate employees at exactly the same time on the same day, both of which had the bizarre email subject line “Green tea xr60 immune system boost review”. 

Both of the emails also had essentially the same opening sentence too. 

“No satisfactory explanation was given that might explain this quite extraordinary coincidence. The unexplained coincidence raises sufficient doubt as to the reliability of this evidence… given [the staff] met with Mr Doyle… I have concluded that they all participate[d] in the conversation together and that there was some collusion between them as to the content and sending of the emails. There is no other explanation for the similarity in emails,” the Commissioner said, and then went on to describe some of the staff evidence as “confused” and lacking in detail. 

Thai sex accusation


Some pointed comments were also made by the Commissioner about the evidence submitted by Gianni Mercuri, a bar attendant at the club, who complained about the conversation regarding Thai girls.

The Commissioner noted that Mercuri said the duty manager and the patron only talked about paying for sex in Thailand after the staff had moved away from them. 

“So it is difficult to know how he could have heard such a conversation,” the Commissioner commented. 

And, when pressed under oath, Mercuri agreed he had not actually heard the two of them talking about paying for sex.

Meanwhile, another bar attendant, who also complained about this conversation, could not give any specific details of this discussion that he found offensive.

The Commissioner held that, while there was a conversation about Thailand, it was not about paying for sex nor was there a discussion about sex with underage teens. It was held that the discussion about Thailand between the duty manager and the club patron were in the context of the club patron sending money to his girlfriend who lives there. 
 
“I do not accept that, on the balance of probabilities, they heard [the duty manager] discuss paying for sex or having sex with underage girls in Thailand,” Commissioner Bissett concluded on that point. 

Poor workplace investigation


Criticism was also levelled at the quality (or lack thereof) of the workplace investigation. 

For instance, the investigating manager, Frost, was criticised for having apparently acted on what others said to him with little investigation himself.

“He appears to have been prepared to accept second or third hand accounts of what [the duty manager] did or did not do. This is particularly the case of what [the duty manager] was alleged to have told [the club patron]”. Frost did not, for instance, seek to talk to the club patron who was the other party in the Thai conversation. 

Frost was also criticised for his investigation into the allegation that the duty manager inappropriately talked about the parlous state of the club's finances. The only evidence that the duty manager had discussed the club's money issues was an email from the club's karaoke operator to Frost. The operator complained about the duty manager disclosing financial problems to patrons – even though the club's money woes had already been publicly disclosed. 

“[Mr Frost's] reliance on the email [from the karaoke operator] as to what [the duty manager] may have said to two “lady patrons” to found an allegation, and [to find] that he was talking to patrons generally of the parlous state of the Club’s finances is not reliable. Particularly in circumstances where this was discussed at an Exceptional General Meeting... this raises doubt as to soundness of the finding and the overall approach taken by Mr Frost to the entire matter," the Commissioner said.

Held by the Commission


It was held that the duty manager was protected from unfair dismissal but that the club had dismissed him without a valid reason. Accordingly, the duty manager was unfairly dismissed. 

The duty manager sought reinstatement but this was declined as the duty manager no longer had the support of the senior managers, while several employees (from a small pool of 22 workers) had given evidence against him. 

“I recognise that there is no valid reason for the dismissal of [the duty manager]but, even so, I do not consider reinstatement to be appropriate,” Commissioner Bissett said. 

Compensation to the duty manager of $27,418 was instead ordered. 
 
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