AWU-FIME Amalgamated Union and Queensland Alumina Limited
[1995] IRCA 32
•07 February 1995
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
NO.QI168 of 1994
BETWEEN:
AWU-FIME AMALGAMATED UNION
Applicant
AND:
QUEENSLAND ALUMINA LIMITED
Respondent
REASONS FOR JUDGMENT
(Delivered ex tempore - revised from the transcript)
BOULTON J.R.
In this case, I will refer to the employee, Mr. Merritt, as the applicant. Proceedings were, in fact, brought on his behalf by his union.
The applicant is aged 28. He is a diesel fitter by trade. More than six years ago he commenced employment with the respondent at its alumina plant at Gladstone. It is common ground that the terms of his
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employment were governed by a federal award.
As at June 1994 the applicant’s designation was as a refinery worker. He is a married man with three young children.
On 15 June 1994 at about 8 pm, the applicant and a fellow employee, one Robert Sonter, a heavier man than the applicant, were involved in an altercation in the respondent’s crib room, which resulted in bruising and a cut to Sonter’s face. I find that Sonter hit the applicant first, being provoked so to do by the applicant saying, “Go on, hit me.” Punches were exchanged with the applicant applying a head lock to Sonter. The background was words exchanged between the two about a book recording social club payments.
The respondent conducted a full and fair investigation of the incident the next day, including allowing union delegates to be present at interviews of the two men. Each was given the opportunity to present his version of events. Neither was initially truthful, but each later recanted. That day, each was dismissed. The applicant and Sonter have since made up their differences.
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I find that the applicant was aware that fighting with a fellow employee was regarded very seriously by the respondent and could lead to dismissal.
Peter McIntosh, operations manager of the respondent, gave evidence before me. It was he who made the decision to terminate the employment of the applicant (and Sonter). The reason given to the applicant for his dismissal was serious misconduct. Mr. McIntosh told me that his major concern was the employees’ loss of control. Such loss of control, if exhibited in the sometimes trying and dangerous conditions of the workplace, might result in an employee endangering the lives of others or the safety of plant. I can appreciate Mr. McIntosh’s concern in this regard.
Mr. McIntosh swore that what the applicant ought to have done after being hit was to walk away. I am not satisfied that precisely this response had been brought home to the respondent’s employees as being what was required of them in circumstances such as these.
I accept that fighting at the workplace is serious misconduct, which can justify summary termination of employment - The Federated Storemen and Packers’ Union v APD Snackfoods Pty Ltd QGIG
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15 July 1989 456 at 457. I accept also that each case must be judged on its merits. The respondent had a valid reason for terminating the applicant’s employment within the meaning of ss.170DE(1) of the Industrial Relations Act 1988 unless, having regard to the applicant’s conduct, the termination was harsh, unjust or unreasonable. It is this to which I now turn.
I must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this consideration are the circumstances which led to the decision and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered, such as the gravity of the employee’s misconduct - Bostik (Australia) Pty Ltd v Gorgevski (No.1)(1992) 36 FCR 20 at 28.
I am unable to conclude that the applicant deliberately flouted essential terms of his contract of employment Neal v Airlie Beach Hotel/Motel QGIG 1 June 1991 125 at 126. He reacted in a way I accept he now genuinely regrets. There was no evidence of any prior misconduct on his part. I find that he was generally a satisfactory employee.
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Since termination, the applicant has found only intermittent work and has also had periods of receipt of unemployment benefit. He plans to remain in Gladstone, where he has lived all his life. The knowledge of his loss of job with the respondent has not assisted him in obtaining other work.
I am satisfied that the termination of the applicant’s employment was harsh, unjust or unreasonable. This should not be taken as being critical of Mr. McIntosh, who was faced with a difficult decision. Equally and importantly it should not be seen as a condonation of the applicant’s behaviour. He is being given the opportunity to re-establish himself, despite a short period of thoughtless over-reaction on his part - AWU JB v Hermitage Research Station QGIG 18 June 1988 482 at 483.
It was not submitted to me that reinstatement of the applicant was impracticable.
The orders I make are:
An order requiring the respondent to reinstate the applicant by
reappointing him to a position at the same level if not necessarily
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in the same section in which he was employed immediately before
the termination, such reinstatement to operate from the date of
these orders.
That the period between the date of termination and the date of
these orders be treated as continuous employment of the applicant by the respondent for all purposes.
That the respondent pay to the applicant the remuneration lost by
the applicant because of the termination, such payment to be made within 21 days of the date of these orders.
I interpolate here that this calculation ought to take account of
the applicant’s earnings since termination, including unemploy-
ment benefit received by him.
Liberty to apply in the event that the parties cannot agree on the
remuneration ordered to be paid. (I expect that the parties will
co-operate in this respect and not need the court’s assistance).
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I certify that this and the preceding SIX (6) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.
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Judicial Registrar
DATED: 7 February 1995
Appearance for applicant: Mr. Crompton
Appearance for respondent: Mr. Turner
Date of hearing: 6 February 1995
Date of judgment: 7 February 1995
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