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 four union officials and the applicant present at that meeting.  I accept that the applicant well knew the purpose of the meeting, and that he was specifically informed that there was an inquiry into a reported assault by him on Mr. Frederick.  Mr. Weaver, then the operations manager of the respondent at Brisbane Airport, told the applicant the respondent was keen to hear his version of events.  In response, the applicant said he had taken advice from his solicitor that he should not answer any questions.  The applicant produced a statement his solicitor had taken from him on 16 July 1994, and Mr. Weaver read this aloud to the meeting.

The applicant was asked at the meeting whether he was aware of “company policy warning of instant dismissal for fighting”.  He replied, “No”.  He persisted in that denial at trial.

I accept evidence called by the respondent that the respondent’s policy in this respect was prominently displayed on a noticeboard near the time clocks at the applicant’s place of work.  I find the applicant knew that he faced at least the prospect of dismissal before he assaulted Mr. Frederick.  The meeting of 19 July 1994 was adjourned to allow the respondent to obtain a statement from Mr. Frederick.  This was done the following day while Mr. Frederick was at home recuperating from the operation performed on him to elevate his zygomatic arch.

The parties met again on 25 July 1994.  The same persons attended as before, with the addition of Mr. Bax, the employee of the firm of solicitors consulted by the applicant. Mr. Weaver read aloud to the meeting the statement taken from Mr. Frederick.  That statement became ex. R3 at the trial.  The applicant was advised at the close of the meeting that he was dismissed from the respondent’s employment.

At trial many criticisms were levelled at the respondent’s conduct of the investigation.  I will deal with those I consider merit attention.  The applicant submitted, in effect, that the respondent mistook the import of its own policy against fighting at the workplace.  The relevant words of that policy are, “fighting in the workplace will make those involved liable to dismissal”.  Both Mr. Weaver and Mr. Macdonald, the Human Resources Manager of the respondent in Queensland, who attended each of the 19 and 25 July 1994 meetings, took this to mean fighting in the workplace will result in those involved being dismissed.  In this approach, they were clearly wrong.  What the policy means is that such persons are subject to the prospect of being dismissed, not that they will be dismissed as a matter of course.

More importantly, what the respondent needs to realise, now and in the future, is that even if its policy meant what its managers contended for, it would still be open for a dismissed employee to attack it on the basis referred to by Sheppard and Heerey JJ in Bostik (Australia) Pty. Ltd. v Gorgevski (No. 1) 36 FCR 20 at 29 wherein their Honours said:

“Employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and - unreasonable”.

Mr. Weaver and Mr. Macdonald in their approach to the relevance of matters to be taken into account in the investigation were again wrong.  They each thought that provocation (if any) was irrelevant but grudgingly conceded the relevance of self-defence.  In any future investigation in which either is involved, he would be well advised to heed the remarks of Gray J. in Bostik at 34-5 wherein he said:

“An employer genuinely investigating an allegation of misconduct or neglect of duty, or some other act or omission which might provide a ground for dismissal, is required to carry out a proper investigation, and not merely to go through the motions.  The employer is required to ascertain whether there are any mitigating factors, either associated with the alleged ground for dismissal, or arising from the employee’s past record and future prospects”.

Next, the applicant’s Counsel submitted that procedural fairness required the respondent to make Mr. Frederick available for cross-examination at the meeting of 25 July 1994.  It is common ground that Mr. Bax, on behalf of the applicant, required the respondent so to do, this request being refused.  I do not consider that, in the present circumstances, procedural unfairness was occasioned the applicant by this refusal.  In reaching that conclusion, I have had regard to the remarks of Gibbs CJ in O’Rourke v Miller 156 CLR 342 at 353 wherein his Honour said:

“It was submitted that the appellant should have been given an opportunity to cross-examine, or, at the very least, to confront, the two girls who made the complaints...natural justice does not require the application of fixed or technical rules; it requires fairness in all the circumstances”.

The applicant also focussed attention on what was said to be the respondent’s failure to formulate any allegation against him.  My examination of the evidence leads me to conclude that the matter of the applicant’s assault on Mr. Frederick was put squarely to him, under circumstances where he had a fair opportunity to defend himself, at a relevant time, being close to the time of his dismissal - Nicolson v Heaven & Earth Gallery Pty. Ltd. 126 ALR 233 at 243-4.

I have previously referred to the statement obtained from Mr. Frederick (ex. R3) which was read aloud to those attending the 25 July 1994 meeting.  In it, he describes bending down near the urinal to pick up his glasses after having been struck.  In the process, and while dazed, he recalls a kitchen person walking out of the toilet cubicle and away from the toilet area.  It emerged in evidence that Mr. Frederick identified this person as a member of the kitchen staff from the colour of his trousers.  Despite some inquiries by the respondent before the applicant was dismissed, this person was never identified.  Much was made of this on behalf of the applicant.  It was submitted, in effect, that a more vigorous search ought to have been conducted by the respondent to ascertain his identity.  The argument went that the applicant had been deprived of a crucial witness who may have been able to corroborate the applicant’s version that he struck Mr. Frederick only after first having been assaulted himself.  In the present circumstances, I do not consider that the respondent’s failure to locate this potential witness resulted in procedural unfairness.

On balance, despite the wrong-headed views of the respondent’s managers, I conclude that the applicant did get “a fair go” as that is understood in terms of s.170DC of the Industrial Relations Act 1988- Nicolson at 243.

I am satisfied that the respondent had a valid reason connected with the applicant’s conduct within the meaning of ss.170DE(1) of the Act to terminate his employment.  I am not satisfied that the termination was harsh, unjust or unreasonable.

I am satisfied that the applicant was guilty of serious misconduct within the terms of para. 170DB(1)(b) of the Act, such that the question of notice or compensation instead of notice does not arise.

Finally, on the question of extension of time for filing of the applicant’s application, I am prepared to extend the time to the actual date of filing, namely 31 August 1994.  I am influenced in this by the respondent’s inability to point to any prejudice resulting to it from the applicant’s delay, and the fact that the delay was not great, the applicant having received written notice of termination apparently on 27 July 1994.

I order that:

1. the time for the filing of the application be extended to 31 August
              1994;

2. the application be dismissed.

I certify that this and the preceding FOUR (4) pages are a true copy of the reasons for judgment of Judicial Registrar Boulton.

........ ........ ........ ........ ........ ........ ........ .....
Judicial Registrar

DATED:  12 April 1995

Appearance for applicant:  Mr. Favell
Solicitors for applicant:  Baker Johnson
Appearance for respondent:  Mr. Guidice
Solicitors for respondent:  Freehill Hollingdale & Page

Dates of hearing:  28.2.95 and 1.3.95
Date of judgment:  12.4.95