Borg, Frank v South Pacific Tyres

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL LAW - UNLAWFUL TERMINATION - CONDUCT AND PERFORMANCE - SERIOUS MISCONDUCT - VALID REASON - OPPORTUNITY TO RESPOND - employee dismissed for biting another employee.

Workplace Relations Act 1996 (Cth) ss 170EA
Workplace Relations & Other Legislation Amendment Act 1996 (Cth) Sch 16.

Wadey v Y.W.C.A Canberra (unreported, Industrial Relations Court of Australia, Moore J, 12 November 1996)
Westen v Union Des Assurances De Paris (unreported, Industrial Relations Court of Australia, Madgwick J, 17 December 1996)
Cosco Holdings Pty Ltd v Thu Thi Van Do (unreported, Industrial Relations Court of Australia, Madgwick J, 30 June 1997)
The State of Victoria and Ors. v The Commonwealth of Australia (1996) 138 ALR 129
Ferry v Minister for Health, Western Australia (1995) 64 IR 28;  affirmed on appeal (unreported, Industrial Relations Court of Australia, Wilcox CJ, North and Madgwick JJ, 4 April 1996)

BORG v SOUTH PACIFIC TYRES
VI 1200 of 1997

BEFORE:                  MURPHY JR
PLACE:  MELBOURNE
DATE:  20 AUGUST 1997.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)  VI 1200 of 1997
)
GENERAL DIVISION	)

BETWEEN:	FRANK BORG Applicant
AND:	SOUTH PACIFIC TYRES Respondent

JUDGE:	MURPHY JR
PLACE:	MELBOURNE
DATED:	20 AUGUST 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)   VI 1200 of 1997
)
GENERAL DIVISION	)

BETWEEN:	FRANK BORG Applicant
AND:	SOUTH PACIFIC TYRES Respondent

JUDGE:	MURPHY JR
PLACE:	MELBOURNE
DATED:	20 AUGUST 1997

REASONS FOR JUDGMENT

Introduction.
This is an application under s 170EA of the Workplace Relations Act 1996(Cth) (formerly the Industrial Relations Act 1988 (Cth)) (“the Act”). It comes before the Court under the transitional provisions of Schedule 16 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth).  On 5 December 1996 the applicant was dismissed from his position as a Banbury operator at the respondent’s Somerton plant.  He seeks reinstatement.  The respondent alleged that it had a valid reason to dismiss the applicant because he was guilty of misconduct, namely biting another employee, Mr Elton-Bott.  It was the applicant’s case that he had not bitten Mr Elton-Bott, and that he had been dismissed as a result of an unfair and arbitrary application of the respondent’s “no fighting in the workplace” policy.

The respondent’s “no fighting” policy.
Mr Scerri, the business centre manager of the respondent, gave evidence that the respondent has a policy that there is to be no fighting in the workplace.  It is reinforced in various documents available to employees:  see Exhibits R1 and R10.  If there is an incident of physical violence between employees and the respondent is able to identify the aggressor, then that employee is dismissed.  A key factor in determining which party is at fault is the presence of witnesses.  Representatives of the National Union of Workers (“the union”) are often involved in…