Ball v Tip Top Bakeris
[1996] IRCA 4
•12 January 1996
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - claim of UNLAWFUL TERMINATION - review of decision of JUDICIAL REGISTRAR - whether the employment was terminated for a VALID REASON - meaning of “valid reason” - whether the termination was HARSH, UNJUST OR UNREASONABLE - whether the employee was afforded PROCEDURAL FAIRNESS
Industrial Relations Act 1988 ss 170DC, 170EA, 170EDA
Mara Burazin v Blacktown City Guardian Pty Ltd, Industrial Relations Court of Australia, NI 1993 of 1995, Madgwick J, 15 December 1995, as yet unreported
Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199, 209-210
Senathirajah Selvachandran v Peteron Plastics Pty Ltd, Industrial Relations Court of Australia, VI 94/1322R, Northrop J, 7 July 1995, as yet unreported, 6
No. WIR 575 of 1994
CORAM: Marshall J
PLACE: Melbourne (heard in Perth)
DATE:12 January 1996 (order made ex tempore on 15 December 1995, in Perth)
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA )
)
DISTRICT REGISTRY ) No. WIR 575 of 1994
BETWEEN: SHANE BALL
Applicant
AND: TIP TOP BAKERIES
Respondent
JUDGE: Marshall J
PLACE: Melbourne
DATE: 15 December 1995
ORDER
THE COURT ORDERS THAT:
The order of the Court constituted by Judicial Registrar Wheeler be set aside.
The application under s170EA Industrial Relations Act 1988 be dismissed.
The applicant shall pay to the respondent the sum of $13,000 by 4.00 pm. on 29 December 1995.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA )
)
WESTERN AUSTRALIA )
)
DISTRICT REGISTRY ) No. WIR 575 of 1994
BETWEEN: SHANE BALL
Applicant
AND: TIP TOP BAKERIES
Respondent
JUDGE: Marshall J
PLACE: Melbourne (heard in Perth)
DATE: 12 January 1996
REASONS FOR JUDGMENT
ORDERS MADE AT CONCLUSION OF THE TRIAL
The Court heard evidence and submissions in this matter on 14 and 15 December 1995. At the conclusion of the respondent’s reply the Court announced that it was in a position to make orders in respect of the matter and that it would provide reasons for judgment subsequently.
The orders made on 15 December 1995 were as follows:
The order of the Court constituted by Judicial Registrar Wheeler be set aside.
The application under s170EA Industrial Relations Act 1988 be dismissed.
The applicant shall pay to the respondent the sum of $13,000 by 4.00 pm. on 29 December 1995.
What follows are the reasons why the Court came to the view that it was appropriate to make the orders set out above.
BACKGROUND TO THE REVIEW
On 24 November 1994 the applicant filed in the Western Australia District Registry an application under s170EA Industrial Relations Act 1988 (“the Act”). The applicant sought the remedies of reinstatement and compensation. The application revealed that the applicant’s employment was terminated on 11 November 1994 and that at that time he was employed as a loader/slicer supervisor at the respondent’s bakery at Canning Vale, an inner southern Perth suburb. Mr Ball was first employed by the respondent on 1 June 1990.
On 13 December 1994 the District Registrar referred the matter to a Registrar for an informal mediation. A mediation conference was chaired by Registrar Stanley on 9 January 1995. It was not fruitful. The matter was adjourned for directions on 11 January 1995. On 11 January 1995 Judicial Registrar Wheeler made certain directions for the conduct of the application. The matter was heard by Judicial Registrar Wheeler on 7 March 1995. The Judicial Registrar made the following order on 21 April 1995:-
“1.The respondent reinstate the applicant to the position in which the applicant was employed immediately before the termination within 14 days of the date of this order.
2.The respondent pay the applicant compensation (sic) in the sum of $13,000 within 14 days from the date of this order.”
Although the monetary amount referred to in the second paragraph of the order was expressed to be “compensation”, it was clearly intended to be and could only be, in the circumstances, “remuneration lost”.
On 3 May 1995 the respondent moved the Court for orders including an order that “there be a stay of execution of the orders made by Judicial Registrar Wheeler on 21 April 1995 until the determination of the application for review of this matter filed on 3 May 1995.”
The notice of motion was heard by his Honour Lee J on 5 May 1995. Lee J refused the stay application. However by an arrangement between the parties, the applicant did not return to work with the respondent but continued to be paid by the respondent as if he had returned to work with it.
The review was conducted on the following basis. Affidavits of witnesses were filed. With one exception, each such witness was made available for cross examination. One of the deponents of an affidavit filed on behalf of the applicant, a Mr Thong, was not available for cross-examination. The Court did not treat as part of the evidence that affidavit or an affidavit sworn by him which was used in the proceedings before the Judicial Registrar. The transcript before the Judicial Registrar and the other affidavits filed in the proceedings before her were treated as evidence on the review.
THE RELEVANT FACTS
At about 1.40 am. on 10 November 1994, Michael Grueter, who was then employed by the respondent as a loader and slicer in its bread room, returned to work late after a break. The applicant (Mr Grueter’s supervisor) according to Mr Grueter issued him with what is known as a “verbal-written warning”. This consists of a warning which is given orally, then the gist of it is reduced to writing on a plain piece of A4 paper and held on the relevant employee’s personnel file. It is to be contrasted with a mere verbal caution and with a more formal written warning at which a shop steward must be present. The applicant denies giving Mr Grueter a “verbal-written warning”. He claimed he merely gave him a verbal caution.
Mr Grueter complained to a deputy shop steward, Des Schuller, about being given the verbal-written warning. Mr Schuller gave evidence that at 1.45 am. on 10 November 1994, Mr Grueter said to him words to the effect that:-
“I have received a written warning from Shane Ball for being late back from my lunch break. I signed the warning. Could you please discuss it with him?”
Mr Schuller said that he then asked the applicant about the warning and the applicant said not to worry about it and that “I was only joking, mucking around with him”. Mr Schuller inquired as to whether Mr Grueter knew the applicant was joking and the applicant replied “no”.
The applicant denies that this conversation with Mr Schuller occurred. Having observed Messrs Ball, Grueter and Schuller in the witness box I have no doubt that the evidence of Messrs Grueter and Schuller should be preferred to that of the applicant. The applicant appeared to be evasive and when pressed on any issue in cross examination would resort to the stock answer that the events in question occurred a long time ago and he could not recall what had happened. Not one witness corroborated the applicant’s version of the crucial facts.
Mr Grueter gave evidence that shortly before his work break (ie. at about 1.00 am.) the applicant had been teasing him about being a slow learner. Mr Grueter suffers from dyslexia. After the warning, Mr Grueter says that the applicant continued to tease and taunt him, calling him a slow learner and laughing at him. Mr Schuller was approached by Mr Grueter about the applicant’s behaviour. At the time, Mr Schuller observed the applicant walk behind Mr Grueter and gesture with his hand making circles near his head and pointing to Mr Grueter. This is the well known “he’s a lunatic” gesture common to school children in the playground. The applicant denies this behaviour. I find his denial unconvincing. I do not believe him. I was particularly impressed by the evidence of Mr Schuller who appeared to be extremely straight forward in giving his evidence and impeccably honest.
As the applicant continued to taunt and tease Mr Grueter, Mr Grueter became increasingly agitated. At about 2.50 am, Mr Grueter asked Mr Schuller if he would be sacked if he hit the applicant. Mr Schuller replied “yes, if you do it on site.” At about 2.55 am, Mr Grueter asked the applicant to “come outside”. Accordingly to Mr Grueter the applicant said “after we finish production”. The applicant denies saying that. Where his evidence clashes with that of Mr Grueter I prefer that of Mr Grueter. Mr Grueter impressed me as a truthful witness. Mr Grueter said that at 3.00 am he finished work and clocked off. He then invited the applicant outside. The applicant laughed at him and said words to the effect:- “You can’t do anything to me. I am a supervisor” and “we will see who has got a job at the end of the week”. Mr Grueter then hit the applicant and kicked him when he fell to the ground. The applicant did not retaliate.
The respondent immediately began a detailed and thorough investigation into the incident. It commenced with Mr Maxwell, the Assistant Bread Room Manager, interviewing the applicant very soon after the end of the just completed shift. He also interviewed Mr Grueter and various other employees who either witnessed the altercation and/or the provocation that led to it. Mr Grueter was interviewed that morning. Most of the other employees went home and brought written statements to work that evening. Commencing at 6.00 pm that evening, Mr Bajada, the Employee Relations Manager of the respondent, interviewed the relevant employees. On 11 November 1994, Mr Bajada interviewed the applicant. Later that day the applicant was interviewed by the General Manager of the respondent for Western Australia, Mr Van Styn. The applicant alleged that he was only allowed to respond in a “yes” or “no” fashion to questions put by Mr Bajada. Mr Bajada denies that that was so. He gave evidence that he asked the applicant for his version of the events in question and for any comments about the allegations made against him. Another deputy shop steward, George Read, was present at the interview. Mr Read was the deponent of an affidavit on behalf of the applicant and was cross-examined upon it. Mr Read’s evidence mainly related to the practicability of the applicant’s reinstatement. He did not give evidence which corroborated the applicant’s evidence regarding the interview. Generally, where there is a conflict between the evidence of the applicant and all other witnesses, I am inclined to disbelieve the applicant having closely observed his demeanour whilst he gave evidence.
Mr Van Styn’s interview with the applicant occurred at about 5.00 pm on 11 November 1994. The applicant alleges that at that interview he was not given a proper hearing. However, I believe the evidence of Mr Van Styn that he gave the applicant a full opportunity to put his side of the story. Shortly before 6.00 pm Mr Van Styn met with Mr Bajada and informed him that he believed the applicant was not being truthful in denying the allegations made against him. Mr Bajada then met with the applicant and advised him that he intended to dismiss him but wanted to give him an opportunity to convince him that he should not do so. After having heard the applicant and having considered what he had said, Mr Bajada decided to terminate the applicant’s employment.
VALID REASON
Pursuant to s170EDA(1)(a) of the Act, the onus is on the respondent to prove that there was a valid reason for the termination of the applicant’s employment connected with the applicant’s capacity or conduct or based on the operational requirements of the respondent’s undertaking.
In my opinion the respondent has discharged that onus in this matter. The applicant’s employment was terminated for valid reasons connected with the conduct of the applicant. The relevant conduct consisted of the applicant’s misuse of his position of a supervisor by teasing and taunting a fellow employee over whom he was in a position of power and of misuse of that power by the giving of a warning which he required that employee to sign and then discarded. The relevant conduct was particularly serious because the fellow employee in question suffered from dyslexia. The relevant conduct also included the applicant subsequently giving less than frank and/or misleading answers to his superiors when interviewed about his conduct. The operational requirements of the respondent’s undertaking included a requirement for supervisors to supervise employees in a non-threatening way and for such supervisors to be honest and have the trust of managers within the respondent’s business. The applicant’s conduct did not sit well with these requirements.
In my view the respondent had “sound, defensible or well founded” reasons for the termination of the applicant’s employment. See Senathirajah Selvachandran v Peteron Plastics Pty Ltd, Industrial Relations Court of Australia, VI 94/1322R, Northrop J, 7 July 1995, as yet unreported, 6 and Mara Burazin v Blacktown City Guardian Pty Ltd, Industrial Relations Court of Australia, NI 1993 of 1995, Madgwick J, 15 December 1995, as yet unreported.
HARSH, UNJUST OR UNREASONABLE
Pursuant to s170 EDA(1)(b) of the Act, the onus is on the applicant to prove that the termination of his employment was nonetheless unlawful because it was harsh, unjust or unreasonable. The applicant did not attempt to discharge this onus. His case was conducted on the basis that all that was alleged against him in the evidence was not true. As I have indicated above, I do not believe his evidence where it clashes with that of other witnesses. Having regard to that evidence there is no basis whatsoever for any finding that the termination of his employment was harsh, unjust or unreasonable.
OPPORTUNITY TO RESPOND TO ALLEGATIONS
The applicant’s solicitor, whilst alleging that her client was denied procedural fairness, did not specifically address the Court as to whether or not s170DC of the Act had been contravened by the respondent. However lest there be any doubt about the matter, I find that no such contravention occurred. The respondent acted in a totally appropriate way and as a responsible corporate citizen. It conducted a full and urgent investigation into the matter. It gave the applicant a full opportunity to respond and defend himself against all the material allegations made against him. It satisfied itself on objective grounds that there were reasonable grounds for concluding that the applicant was guilty of misconduct. It allowed him to be heard on the question as to whether his employment should be terminated. It listened to his response but nonetheless decided on the evidence before it that it should terminate his employment. The respondent’s conduct was entirely proper. It was conduct that any responsible employer should engage in in similar circumstances. It meets the test for compliance with s170DC discussed by Wilcox CJ in Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199, 209-210.
CONCLUSION
The application herein must be dismissed because the termination of the applicant’s employment was:-
for a relevant valid reason;
was not relevantly harsh, unjust or unreasonable;
was effected in circumstances where the applicant was afforded an opportunity to respond to the allegations made against him.
I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment herein of his Honour Justice Marshall.
Associate:
Date: 12 January 1996
Counsel for the Applicant: H Dixon with D Sash
Solicitor for the Applicant: Jackson McDonald
Solicitor for the Respondent: V. Ponnuthurai
Date of hearing: 14 and 15 December 1995
Date of judgment: 15 December 1995
Reasons provided: 12 January 1996
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