AT MELBOURNE
Case No. A11715118
MATTHEW STYLES / Plaintiffv
RED ROOSTER FOODS PTY LTD / Defendant
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MAGISTRATE: / B. WRIGHTWHERE HELD: / MELBOURNE
DATE OF HEARING:
DATE OF DECISION: / 18 APRIL 2011
CASE MAY BE CITED AS: / STYLES v RED ROOSTER FOODS PTY LTD
REASONS FOR DECISION
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Catchwords:
Accident Compensation – Rejection of Claim – “Altercation” with customer - Whether injury attributable to serious and wilful misconduct – Accident Compensation Act s 82(4)
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APPEARANCES: / Counsel / SolicitorsFor the Plaintiff / Mr R Lawson / Galbally & O’Bryan
For the Defendant / Mr N Chamings / Thomsons Lawyers
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HIS HONOUR:
1 On 24 January 2009, Mr Styles was the acting manager of the “Wantirna Hills” Red Rooster fast food store situated in Boronia when he broke his right wrist in an “altercation” with a customer who was named in this case as “Fraser”. His claim for worker's compensation was denied in a Notice of Rejection dated 11March 2009 on the basis that his injury was attributable to serious and wilful misconduct; that is pursuant to s.82(4) of the Accident Compensation Act.
2 In its Defence, the defendant also raised an issue that the injury did not arise out of or in the course of employment, though this issue was not strongly put in closing submissions.
3 It was agreed between the parties that if Mr Styles is entitled to worker's compensation benefits for the injury, he had “no current work capacity” for 13 weeks from 26 January to 24 April 2009. There is also a claim for reasonable medical and like expenses.
4 Mr Styles was the only actual witness called as to the altercation itself. He is a 39 year old assistant trainee manager who was employed by the defendant since October 2008. As part of his initial eight week training program, he was trained in customer service which involved the “Employee Behaviour Standards” handbook. That handbook instructed, amongst other things, staff to not verbally or physically abuse customers, to ask unruly customers to "Please leave our premises", and telephone the police if they refuse. As part of his security training, he was also informed as to the use of panic buttons in the stores.
5 On Saturday 24 January 2009 Mr Styles was the acting manager in charge of the evening shift. He and a 16 year old girl known as “Steph” were the sole staff on duty. Two to three other staff failed to turn up to work. MrStyles was unable to contact the store manager who had refused to leave his after-hours telephone number. He did not contact the area manager but tried other possible store staff without success. Not surprisingly, there were delays in serving customers, especially in the driveway service area.
6 Silent CCTV footage was shown as to the driveway service area and the main store area on the night in question. Mr Styles substantially gave his evidence in tandem with the CCTV footage being shown.
7 The footage shows Mr Styles taking orders from people in vehicles, taking money and getting food for them. At about 8.04 pm a blue VW van drove up to the window with a female driver and a male passenger. There was an exchange of money to Mr Styles and shortly after that, money was handed back. Mr Styles was observed in the footage to bend over and apparently speak with the passenger.
8 Mr Styles said there was a comment from the passenger about whether the food would be ready today, whereas he replied to the passenger that if there were enough staff, then it would be ready tomorrow. This led to the order being cancelled and the money returned. Mr Styles said that the male passenger Fraser became very angry and abusive, stating that he knew people at Red Rooster and that he, Mr Styles, would get the sack. The Volkswagen then left the driveway area.
9 About a minute or so later, Fraser then walked up to the servery window. He was angry and drunk according to Mr Styles. The footage is consistent with that evidence. There was an apparent verbal exchange between the two men again. The servery window was closed and, according to Mr Styles, Fraser punched a window of the restaurant out of sight of the camera. Mr Styles said he leaned out the window and told Fraser to go away as he was calling the police.
10 It was put to Mr Styles that the other staff member Steph heard yelling from both of them at about that time. It was put that Fraser said, "I'm gonna find ya and kill ya", and Mr Styles called Fraser a "fucking clown and fucking maggot." Mr Styles said that those words might have been used, although no formal evidence was called in that regard. He agreed that Fraser threatened him. It was then put to him that Fraser asked Mr Styles to “come outside”. Mr Styles agreed that Fraser made that statement. He said that he told Fraser he would go and call the police.
11 Mr Styles said that he went to the office and then called 000. While he was listening to message menu on the phone, he heard Steph yell out "He’s coming in the door." The footage then cuts to the restaurant area and Fraser is shown inside the restaurant. Mr Styles then left the phone and went into the restaurant area. Fraser was in there and was "very aggressive" according to MrStyles. Mr Styles said Fraser called him “fat” and said "Come out and have a go", obviously inviting Mr Styles to come outside to fight. This is consistent with the footage shown.
12 The footage then shows Mr Styles pointing towards Fraser and the door. Mr Styles said that he told Fraser to get out. Again this is consistent with the footage. At this stage there were about four customers in the restaurant, including an elderly man with a young boy. Fraser then walked out the restaurant and Mr Styles walked to the door. At this stage he could have locked the front door but he did not do so. After a short time, Mr Styles goes out the front door. He said he then told Fraser to get out and leave. He said that Fraser remained just outside the door and was not leaving.
13 In the footage, Mr Styles then goes off to the left and then comes back into view with his hands raised as Fraser advanced towards him. Mr Styles is shown to be moving backwards and is seen to lift his leg. A struggle then ensued with a flurry of arms and both being seen to grab each other. It is difficult to see exactly from the vision what is happening outside. Both are seen to bend over. Mr Style said that Fraser has his arm over his shoulder which forces him, that is Mr Styles, down. He said that he then used his right hand “two to three times” to hit Fraser to break the hold. The footage is consistent with this as well.
14 Fraser then goes to the ground and Mr Styles moves back into the restaurant and rings the police and the area manager, Mr Hill. He agreed that he might have said to Mr Hill "He had done something wrong and had an altercation with a customer." It was put to him that there was blood from Fraser's nose on the forecourt area which Mr Styles said he did not see. Mr Hill arrived and the police and the ambulance were already at the store. He brought some extra staff with him, as Mr Styles had told him about the staff shortage.
15 When he got there, the police wanted to look at the CCTV footage. Mr Hill had to get the store manager, Dennis, in to access the CCTV footage. He said that he was "shocked" by Mr Styles' conduct in the footage. MrStyles was taken to the police station where he made a "no comment" interview and was later charged with various assault charges, including assault by kicking and intentionally cause serious injury. It appears that Fraser's nose may have been broken in the incident.
16 When Mr Styles woke next morning, he had a swollen right hand. He went to hospital and a broken right scaphoid was diagnosed and eventually a screw was put into place. Although it is agreed that there were 13 weeks' incapacity, Mr Styles has not returned to any employment.
17 He was called into a meeting at the defendant's office on 28 January 2009 which was conducted in view of the events on 24 January 2009. He handed in a statement setting out his version of the incident, which was not tendered in evidence. He was summarily dismissed at the end of that meeting.
18 I accept the plaintiff's submission that it is open for me to find that the statement must therefore not have been inconsistent with his evidence before me.
19 I largely accept the evidence of the defendant’s witnesses, Mr Hall and Mrs Tardaminis, as to the conduct of the meeting, including Mr Styles not bringing a companion to the meeting despite being invited to do so. I accept that after the meeting, a decision was made to terminate his employment forthwith and that this was open to the employer to do so. Mr Styles has not challenged the termination of his employment for misconduct in any court or tribunal, either on grounds of procedural fairness or otherwise.
20 The police charges against Mr Styles were dismissed later at the Ringwood Magistrates' Court. Fraser may or may not have been at court on the day. However, Mr Styles was represented and he said that Steph gave evidence on the day as well. Whatever may have been the reason, the court has not been satisfied as to the requisite criminal burden of proof in those proceedings. Of course, I am dealing with the lower civil onus in this case, that the defendant has the burden of proof as to satisfying me as to serious and wilful misconduct (see, Hall v. Brown 88 CLR 509).
21 Mr Styles specifically did not allege any serious and permanent disablement within the meaning of s.82(5). I accept that Mr Styles injured his hand when he hit Fraser in the course of the altercation. As stated, Fraser was not called to give evidence. In fact, the defendant's witnesses said that the defendant has not heard from him after the incident. He had not made any complaint or sought any compensation from them as a result of the altercation.
22 The first issue to determine is whether there is the requisite work relationship, disregarding the s.82(4) defence. This issue was raised in the Defence. As stated, the defendant did not push this defence strongly in its submissions.
23 On the evidence it is clear that Fraser was the verbal and physical aggressor, advancing in an aggressive mode towards Mr Styles on at least three occasions: at the servery window, in the restaurant area and in the outside forecourt area. Further, I accept that he punched a window in the restaurant area as well.
24 I also accept that Mr Styles did in fact use loud, aggressive and maybe even foul language towards Fraser. However, this was in the context of the threats both physical and verbal towards him by Fraser. Clearly the altercation had its origin in an employment-related matter; that is, arising out of the customer service and threats by Fraser on the employer's premises by a customer in the presence of other customers. I found that the injury did arise out of or in the course of the employment (see, Martin v. Bailey 2009 VSCA 263 at para. 22 and following).
25 Further, the injury is deemed to arise out of or in the course of the employment as well pursuant to s.83(2)(d) as well. The actions by Mr Styles were clearly for the purposes of any connection with the employer's business; that is, to remove a threatening and unruly customer, even if it was without instruction and in contravention of the non-legislative regulation, namely the employee's guidelines for handling unruly customers.
26 I now turn to s.82(4) as to the serious and wilful misconduct. Primarily the defendant relies on Mr Styles' non-compliance with his training and the requirements of the “Employee Behaviour Standards” as grounding that serious and wilful misconduct. The defendant says that there are a number of elements of such misconduct, namely:-
(1) Failing to use the panic button which Mr Styles admitted he knew about;
(2) Using foul and aggressive language towards Fraser;
(3) Failing to call the police;
(4) Failing to lock the front door when Fraser went outside;
(5) Going outside the front door when Fraser was there; and
(6) Being physically aggressive towards Fraser.
27 All in all, the defendant says that Mr Styles' overall conduct and physical force escalated the situation, making it "serious". It submitted his conduct was clearly wilful. As stated, it bears the onus of proof in this regard.
28 On behalf of Mr Styles, it was submitted that his conduct was warranted in the overall circumstances, especially in view of the fact that the only other staff member was a 16 year old girl and that there were other customers on the premises. It was put that any breach of the Employee Behaviour Standards were, at the most, an error of judgment or negligence on his behalf. Overall, it was put on behalf of the plaintiff that Mr Styles' conduct on the night should not be examined with the benefit of hindsight.
29 The defendant put Mr Styles' previous criminal record to him as a matter going to credit only. Most recently there were a group of charges, including assault police on 24 May 2006 in which he was convicted and received an aggregate fine of $2500. There were a number of other occasions in which he has been convicted of assaults of varying degrees, including other assaults on police over the years. He has received intensive corrections orders and suspended prison sentences on those charges. The police assaults appear to occur in the context of driving offences. There were no fraud or dishonesty matters alleged against him. I have taken those matters into account on credit, but find them of little overall benefit in that regard.