Bean v Milstern Retirement Services Pty Ltd - [1995] IRCA 274

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

NO. QI 183/94

BETWEEN:
PETER WILLIAM BLACKADDER

Applicant

AND:

ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY. LTD.

Respondent

REASONS FOR JUDGMENT

BOULTON J.R.

On 1 March 1993 the applicant commenced temporary employment as a scullery porter in the respondent’s catering department at Brisbane Airport. On 16 August 1993 his employment was made permanent. He is now aged 33.

On 16 July 1994 the applicant and a fellow employee, one Wayne Frederick, were involved in an altercation which led to the applicant being suspended on pay that day pending an investigation by the respondent. I will return to these events in greater detail later in these reasons. On 25 July 1994 the applicant’s employment with the respondent was terminated. He has since gained, and holds, other employment. It is in respect of the termination of his employment with the respondent that he has sought relief from this court.

At trial, three principal issues were canvassed. First, should the applicant be granted an extension of time for the bringing of this application; secondly, the circumstances surrounding the altercation involving the applicant and Mr. Frederick; thirdly, the nature of the investigation conducted by the respondent and, particularly, whether or not the applicant was accorded procedural fairness during that investigation, including the decision to dismiss him.

It is convenient I think to deal with the second issue first. I make it plain that I prefer the evidence of Mr. Frederick, the fellow employee, to that of the applicant. The acceptance of his evidence leads me to find that, following a petty argument between the two of them at about 9.15 am on 16 July 1994, the applicant followed Mr. Frederick into a toilet over an hour later and punched him three or four times to the face, causing Mr. Frederick to suffer a fracture of the left zygoma (cheek bone). At no time did Mr. Frederick raise a hand as if to punch or push the applicant prior to the assault on him. No question of self-defence arises.

As to provocation, the applicant is in difficulty also, in light of his denials in evidence that Mr. Frederick’s swearing at him earlier that morning caused him to become upset.

The applicant finished work at 3.00 pm on that day. That afternoon he consulted his solicitors, and provided them with instructions for the preparation of a statement. That evening he learned from his employer that he had been suspended with pay until further notice. Shortly thereafter, the applicant had several meetings with union delegates to discuss the matter. On 19 July 1994 the applicant attended a meeting arranged by the respondent to inquire into the altercation. Prior to the meeting he had received advice from a managing clerk, a Mr. Bax, employed by his solicitors not to comment on any matter put to him by representatives of the respondent at the meeting. Apart from three representatives of the respondent’s management and someone representing Mr. Frederick’s interests, there were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1995] IRCA 274
Decision Date: 12 April 1995

CaseChat Overview and Summary

In the Industrial Relations Court of Australia, Peter William Blackadder (the applicant) brought an application against Ansett Transport Industries (Operations) Pty Ltd (the respondent) seeking relief in relation to the termination of his employment. The applicant had been employed as a scullery porter at the respondent's catering department at Brisbane Airport. Following an altercation with a fellow employee, Wayne Frederick, on 16 July 1994, the applicant was suspended pending an investigation and subsequently dismissed on 25 July 1994. The principal issues in the case were whether the applicant should be granted an extension of time for filing his application, the circumstances surrounding the altercation between the applicant and Mr. Frederick, and whether the applicant was accorded procedural fairness during the investigation and dismissal process.

The court found that the applicant's version of events was not credible and preferred the evidence of Mr. Frederick, who testified that the applicant punched him without provocation. The court held that the applicant was aware of the company policy against fighting in the workplace, which stated that employees involved in fighting would be liable for dismissal. However, the court noted that the respondent's managers misinterpreted the policy, believing it meant automatic dismissal, rather than a prospect of dismissal. Despite the misinterpretation, the court found that the applicant was afforded procedural fairness during the investigation and dismissal process. The applicant was informed of the assault allegation and had the opportunity to defend himself. The court concluded that the dismissal was valid and not harsh, unjust, or unreasonable.

The court granted an extension of time for the filing of the applicant's application, considering the lack of prejudice to the respondent and the relatively short delay in filing. The court dismissed the applicant's application and certified the judgment. The case underscores the importance of employers correctly interpreting and applying their policies, as well as ensuring procedural fairness during investigations and dismissals.

Orders