Borg, Frank v South Pacific Tyres
[1997] FCA 808
•20 AUGUST 1997
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
ApplicantAND: SOUTH PACIFIC TYRES
Respondent
JUDGE: MURPHY JR PLACE: MELBOURNE DATED: 20 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
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
ApplicantAND: 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 workplace incidents. On some occasions an incident may occur and the shop stewards intervene and discuss the matter with the participants. When the matter is brought to the attention of management, and neither party wishes to take the matter further, an incident becomes a “non incident”. This did not occur here.
The competing accounts of the incident.
The applicant was a health and safety representative at the respondent’s plant. On the morning of 4 December 1996 he attended a meeting at 7.00 am. He normally works on a Banbury machine, and is assisted by a batch builder, Mr Elton-Bott. The two had been working on the same machine for about twelve months. Although the applicant had more experience, the skills of the two individuals were essentially interchangeable and when the applicant was not present Mr Elton-Bott operated the machine. Mr Elton-Bott was operating the machine that morning when the applicant returned from his meeting at approximately 9.00 am. Mr Elton-Bott was being assisted by another batch builder, Mr Vince Degori, who, in the absence of the applicant, had been assigned to assist him by the supervisor, Mr Sam Symeoy. The machine’s output is forwarded to another section of the plant. In response to quality testing of the output, adjustments are often made to the machine’s controls. On that morning Mr Symeoy had advised Mr Elton-Bott to decrease the temperature to ensure that the product was being produced at the appropriate quality.
Mr Elton-Bott’s version of the incident commences when the applicant returned to the machine after the meeting. The applicant, without discussing the performance of the machine, proceeded to decrease the ram pressure and increase the temperature. Mr Elton-Bott asked him what he was doing. He received no response. The two were in the confined space close to the control panel. Mr Elton-Bott then pushed the applicant with his left hand. In evidence he said the two struggled in the sense of him trying to push the applicant out of the way to reset the controls. The applicant then “bit (him) on the nose”. Mr Elton-Bott said he felt a very sharp pain.
The applicant’s version was that he returned from the meeting and proceeded to check that the machine was set up correctly. He noticed that the pressure was too high and the temperature was too low, and adjusted the controls. He said at that point Mr Elton-Bott started abusing him. The applicant referred to an incident the day before when the rubber had been cold. Mr Elton-Bott then pushed him with two hands. He told Mr Elton-Bott to go and have a cup of coffee. The applicant moved away. Mr Elton-Bott took a few steps, came back and grabbed the applicant by the neck and put his head against his. He then did it again. The applicant put his head back so it would not get hit. Mr Elton-Bott’s head then hit his mouth. Mr Elton-Bott then screamed “why did you bite me?” The applicant also described what had happened as Mr Elton-Bott head-butting him twice. He denied biting Mr Elton-Bott. In a statement the same day (Exhibit R8) the applicant said that Mr Elton-Bott “put his face right up against mine then repeated and he contacted my teeth”.
Mr Degori’s version was that the applicant came back from his meeting and proceeded to set up the machine differently. Mr Elton-Bott asked the applicant what he was doing and pushed the applicant aside to set it up the way it was. The applicant bit Mr Elton-Bott and then Mr Elton-Bott grabbed him around the neck to push him away. In cross-examination he was unable to recall whether the applicant was grabbed with one or two hands. Mr Degori also gave conflicting versions as to whether the grabbing by the neck occurred before or after he observed the bite. Mr Scerri gave evidence that Mr Degori told him that after the applicant “bit, that’s when (Mr Elton-Bott) grabbed him by the throat and moved away”.
Events following the incident.
After the incident Mr Elton-Bott went to the supervisor, Mr Symeoy. He told him that the applicant had bitten him. Mr Symeoy sent him to the medical centre. When he attended at the centre he told the nurse, Ms Jenkins, that he had been bitten. He was upset and distressed. On examination red marks were observed on the righthand side of his nose and there were two small abrasions near the opening of the right nostril (see exhibit R11).
After the incident the applicant approached Mr Scerri and told him that he was in trouble. The applicant appeared upset and said he had been in a fight with Mr Elton-Bott. Mr Scerri told him to calm down and then arranged for the respondent’s internal auditor, Mr Zahra, to obtain statements from the participants. Mr Zahra then proceeded to take statements from the applicant, Mr Elton-Bott and Mr Degori. While Mr Elton-Bott was making his statement the senior union shop steward, Mr El-Hussan, became involved and asked to see him and Mr Degori. Both attended the union office where a number of shop stewards were present. Later Mr Elton-Bott completed his statement (Exhibit R7).
When Mr Degori gave his statement to Mr Zahra, Mr El-Hussan and another shop steward, Mr Muleta, were present, as was Mr Scerri. Mr Degori told Mr Zahra what had happened, and he wrote it down. In cross-examination Mr Degori, who does not write English, said that what was written down and read out was what he had told Mr Zahra. Mr Scerri said that questions were asked by the participants during the taking of Mr Degori’s statement. After these statements were taken both the applicant and Mr Elton-Bott were sent home.
Later that afternoon an organiser from the union, Ms Simone Hunt, arrived at the plant and met with the shop stewards, the applicant, Mr Elton-Bott and Mr Degori. She had copies of the statements. After this she had a meeting with Mr Scerri. She was accompanied by the shop stewards. At that meeting Ms Hunt put to Mr Scerri the proposition that the events had not occurred in the way that Mr Degori had previously indicated. She said that it: “was not actually a bite but unintentional contact was made”. Notes of the meeting (Exhibit R9) record that she suggested that there was no aggressor and that warnings be issued to both parties. Mr Scerri stated his view that from the statements there appeared only one aggressor - the applicant.
After Ms Hunt cast doubt on the version previously given by Mr Degori, Mr Scerri decided to clarify matters with him. Mr Scerri, with Mr Symeoy present, spoke again to Mr Degori. Mr Scerri demonstrated to Mr Degori what a bite looks like. He said: “I shirtfronted Sam Symeoy and I lunged at his face”. Mr Degori agreed this was what happened. Mr Scerri wrote a note of this conversation stating: “previous statement correct - Frank bit Richard” (Exhibit R5). Later Mr Scerri spoke to Mr Muleta. Mr Muleta agreed that the statement of Mr Degori contained what he said at the meeting with Mr Zahra. Mr Muleta said that he didn’t know why Ms Hunt had gone the way she had. Mr Scerri also had a similar discussion with Mr El-Hussan.
Mr Scerri then reflected on the events of the day with the acting Plant Manager, Mr Rowley. He reached the conclusion that the events pointed quite clearly that the applicant had been the aggressor. He took the decision that the applicant be dismissed. His evidence was:
“[i]t was a view that the bite was a very serious thing. The person was injured, a bite, and its my responsibility to make sure that people can be working in a very safe environment. In this case it was a bite.”
The next morning he attended at the applicant’s home and advised him that he was terminated. The applicant had asked whether Mr Elton-Bott had also been dismissed. A few days later Mr Scerri had a meeting with an elected official from the union, Mr Drago Ilich. Mr Degori was present. At that meeting Mr Degori said that he: “didn’t see the bites”. He further told Mr Scerri that he saw Mr Elton-Bott grab the applicant by the throat. At that time industrial action had occurred. Mr Scerri declined to reconsider the matter.
The issues to be resolved.
The Court heard evidence from Mr Scerri, Mr Elton-Bott, Mr Degori, the applicant, Mr Zahra, Mr Sam Symeoy, Ms Jenkins, and shop stewards Messrs Muleta, El-Hussan, Louis Karatzas and Chris Nikolakis.
The evidence presented at the trial was directed to two different forensic questions by each of the parties. The respondent led evidence to support its case that it had validly concluded on the material before it that the applicant was the aggressor in the incident, and that pursuant to its policy in relation to fighting in the workplace, it was entitled to dismiss him.
The applicant’s case was directed to the question whether the respondent could or should have come to the conclusion that the applicant was the aggressor. The primary thrust of the applicant’s case was that the applicant had not been the aggressor, and in particular did not bite Mr Elton-Bott. There was no basis for the respondent to dismiss him. At its highest the respondent believed that the applicant was the aggressor. It was submitted that this was not sufficient to discharge the onus of proof imposed on it. The second basis of the applicant’s case was that the respondent had not properly investigated the matter. It thus could not reasonably come to the conclusion that the applicant had been the aggressor and terminate him. Rather, the applicant submitted that this incident had sprung from Mr Elton-Bott taking the matter to management via the visit to the medical centre. Then management had to act, and contrary to what had happened on other occasions, the incident was not the subject of a negotiated resolution that involved both parties remaining employed.
The applicant relied on evidence from the shop stewards Messrs Muleta, El-Hussan, Karatzas, and Nikolakis that Mr Degori had, in a meeting in their presence, accused the applicant of starting the fight. These witnesses also corroborated the applicant’s version that he had a red mark on his neck that was a result of Mr Elton-Bott’s grabbing him. The respondent’s witnesses, and in particular Mr Scerri, denied that they observed any red mark on the applicant’s neck or had one brought to their attention. Further, Mr Scerri and Mr Symeoy confirmed with Mr Degori that in fact the applicant had bitten Mr Elton-Bott. This formed the basis of the conclusion that the applicant was the aggressor and thus was to be terminated.
Each party was relying on prior statements, consistent and inconsistent, as the basis to attack the credit of the respective witnesses. It is axiomatic that contemporaneous statement have strong probative weight. Events are likely to be fresh in the participant’s mind. Mr Degori, who was a very confused witness, conceded this. His account in Court was so contradictory that I place little weight on what he said. What I do accept, however, is the credible evidence of Messrs Scerri and Symeoy as to Mr Degori’s confirmation to them on the day of the account that Mr Zahra took from him.
Mr Elton-Bott’s statement is that he pushed the applicant. He further maintained that the applicant bit him. Mr Degori in his statement had Mr Elton-Bott also pushing the applicant and the applicant biting him. The applicant’s version was that Mr Elton-Bott had put his face up close to him twice and that Mr Elton-Bott’s head had contacted his teeth. In a statement written by his wife accompanying his application, but signed by him, the applicant said that “Mr Elton-Bott headbutted (me) repeatedly”. The applicant said that he told Mr Zahra that Mr Elton-Bott had headbutted him but Mr Zahra had said the description used sounded better. It is a matter of surprise that if the applicant did assert to Mr Zahra that Mr Elton-Bott had headbutted him that this was not recorded. Similar considerations apply to the applicant’s assertion that he had a red mark on his throat as a result of Mr Elton-Bott grabbing him. It was not recorded by Mr Zahra, and Mr Scerri denied that it was brought to his attention. It is a matter of surprise that if it did feature in the applicant’s account of his innocence in the exchange that it was not brought forcefully to the attention of Mr Scerri by Ms Hunt. I am satisfied that there was no red mark on the applicant’s neck.
In Court the applicant demonstrated how the incident occurred. He said that he had his head back with his mouth open and as Mr Elton-Bott attempted to headbutt him for a second time, Mr Elton-Bott’s nose came into contact with the applicant’s open mouth. The account was unconvincing. In his evidence Mr Elton-Bott denied that he had headbutted the applicant. He further denied grabbing the applicant by the throat. He said that he may have pushed him in the neck or chest area.
Respondent’s version preferred.
The respondent’s self-imposed policy, as articulated by Mr Scerri, requires it to satisfy the Court on the balance of probabilities that the applicant was the aggressor in this incident. That requires it, in the context of what occurred between the two protagonists, to prove that it was more likely than not that the applicant bit Mr Elton-Bott. As the allegation is serious the evidence must allow for comfortable satisfaction that the allegation is made out. The two protagonists each respectively denied the central allegation that he was the aggressor. Mr Degori was the only eye witness. The observations of the nurse, Ms Jenkins, were that the injury to Mr Elton-Bott’s nose was consistent with a bite. Resolution of the matter requires an assessment of the credibility of the witnesses and a conclusion as to the inherent likelihood of the competing accounts, with the onus always remaining on the respondent to prove its valid reason.
In determining the more probable version of what happened I give considerable weight to the evidence of both Mr Scerri and Mr Symeoy. Mr Degori, in their presence, confirmed that the applicant had bitten Mr Elton-Bott. Mr Degori had earlier given this version to Mr Zahra in the presence of Mr El-Hussan and Mr Muleta. Mr El-Hussan and Mr Muleta had been present when Mr Degori had allegedly recanted that version. They did not chose to corroborate his alleged recantation of that version when they had conversations with Mr Scerri later that day. On the contrary, the unchallenged evidence of Mr Scerri was that they expressed surprise as to the tack that Ms Hunt took in the meeting with Mr Scerri. A clear inference from their conduct on the day, unchallenged in evidence, was that they accepted the conclusion reached by Mr Scerri that on the account of Mr Degori, the applicant had bitten Mr Elton-Bott and thus was the aggressor in the incident.
The credit of both Mr Elton-Bott and the applicant suffered in cross-examination. The applicant suffered greater damage. Mr Elton-Bott has always maintained that he was bitten. It is an accusation that is not lightly made, but it was made at the time. He was supported by Mr Degori, who corroborated his contemporaneous assertion.
The applicant has given inconsistent accounts of what happened. The account written on his instructions by his wife is much more elaborate than what is recorded by Mr Zahra. He was forced to retreat from it in cross-examination. Further, his explanation in Court was unconvincing. It amounted to Mr Elton-Bott, in effect, jamming his nose into the open mouth of the applicant while in the act of headbutting him a second time. This account is inherently improbable and at variance with the comment made by Ms Hunt to Mr Scerri that “it was not actually a bite but unintentional contact was made”. The applicant’s explanation that the contact between himself and Mr Elton-Bott was accidental does not sit easily with Mr Scerri’s account that the applicant was upset when he saw him after the incident. The applicant denied this was his demeanour. Mr Scerri, however, was a credible witness who while obviously anxious to defend his own decision, was prepared to frankly acknowledge the sensitive industrial relations environment that accompanies incidents of this type.
Another consideration is the explanation given by the applicant as to why he was adjusting the controls of the machine. Although Mr Elton-Bott had been in charge of the machine that morning I accept Mr Elton-Bott’s version that the applicant proceeded to immediately adjust the controls when he returned from the meeting. He had no basis to do that without discussing the machine’s settings with Mr Elton-Bott. That he did so is consistent with Mr Elton-Bott’s evidence that the applicant had in the past adjusted the machine in order to reduce production levels. Mr Elton-Bott thus had some justification in pushing the applicant in order to reset the machine to the correct level in the course of what was then production of a batch of product.
I accept that Mr Elton-Bott pushed aside the applicant in an attempt to reset the controls, but it was the applicant who reacted to this justifiable action by an aggressive act in biting Mr Elton-Bott. I am unable to accept the applicant’s account that Mr Elton-Bott headbutted him twice, and that the damage to Mr Elton-Bott’s nose was as a result of accidental contact. Mr Degori observed this incident. He told Mr Symeoy that the applicant had bitten Mr Elton-Bott and made a statement to that effect. When Ms Hunt indicated to Mr Scerri that Mr Degori was recanting from that version, Mr Scerri reconfirmed with Mr Degori his version of events. In the witness box he also confirmed that he thought he saw the applicant bite Mr Elton-Bott. I am satisfied that the applicant did bite Mr Elton-Bott.
Was the respondent entitled to dismiss the applicant?
There was a volume of evidence as to the application of the respondent’s “no fighting” policy. I am satisfied that in the past there has been considerable informal resolution of incidents without the need for managerial intervention. The respondent did, however, have a policy that it applied when it was able to identify the aggressor in a fight. That policy was that the aggressor be terminated. Here the respondent concluded that the applicant had bitten Mr Elton-Bott, he was the aggressor in the fight and that the policy required that he should be dismissed.
Counsel for the applicant submitted that on the evidence the applicant was not the aggressor. My findings above as to the circumstances in the incident do not support this submission. It follows from Mr Elton-Bott’s version that the applicant engaged in an aggressive act which was disproportionate to what Mr Elton-Bott was doing. The respondent investigated the matter and involved the union. When the union raised the possibility that Mr Degori’s version was different from his earlier statement, Mr Scerri further checked with Mr Degori, who confirmed that statement. I am satisfied that Mr Degori’s statement was true. It confirmed Mr Elton-Bott’s account and provided a proper basis on which the respondent could act.
In Wadey v Y.W.C.A Canberra (unreported, Industrial Relations Court of Australia, Moore J, 12 November 1996) Moore J said:
“It is not for this Court to approach the matter as if it is to make a decision whether termination should occur or not. A range of rational and reasonable views may exist as to whether particular conduct warrants termination. If the view adopted by, or on behalf of, the employer is rational and reasonable then, in my opinion, the employer has established a valid reason for the purposes of s 170DE(1). In putting it this way I am not attempting to depart from the views expressed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373 which have been referred to, with approval, on a number of occasions since. Lehmann was entitled to view Wadey’s conduct with the gravity she did. Her decision to terminate was for a valid reason.”
An employer’s decision to terminate employment that is within “a range of rational and reasonable views” of particular conduct arguably refers to a band of unreviewable managerial prerogative that has been the subject of relatively little discussion in the application of the Act: cf 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).
Counsel for the applicant relied on AWU-FIME Amalgamated Union v Queensland Alumina Ltd. (1995) 62 IR 305 and Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 in support of the submission that dismissal of an employee based on a “no fighting” policy required that all the circumstances of the incident be investigated. That happened here. The union, the representative of the applicant in this workplace, was involved. Mr Scerri took up the matter that Ms Hunt raised. He confirmed his further inquiry with Messrs Muleta and El-Hussan.
Looking at the overall circumstances, the respondent has satisfied me that the applicant was the aggressor in the incident. He bit Mr Elton-Bott. The latter did not do anything that could be characterised as provocation because it was the applicant who I am satisfied unilaterally adjusted the controls of the machine which was then operating satisfactorily. The respondent applied a policy that was not the subject of real dispute in the evidence. The policy was that where the respondent was able to identify the aggressor in an incident that, after discussions involving the parties and the union, was not to become a “non incident”, the aggressor was terminated.
Counsel for the applicant raised a further argument based on an award provision binding the respondent that the termination of employment by an employer “shall not be harsh, unjust or unreasonable”: cl 22.6 of the Rubber, Plastic and Cable Industry - General Award 1996. Counsel argued that the termination of the applicant’s employment here contravened that criterion and was therefore unlawful. An unlawful termination could not be characterised as valid for the purposes of the Act. Counsel relied on 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).
I doubt, in the light of the line of authority in the Industrial Relations Court of Australia since The State of Victoria and Ors. v The Commonwealth of Australia (1996) 138 ALR 129, whether the award criterion assists the applicant here by adding anything to the concept “valid”. In Cosco (above) Madgwick J said:
“Prima facie, it would be odd if an unjust or unreasonable reason for terminating an employee’s means of livelihood could be regarded as a valid reason.”
Here, the conduct of the applicant fell within the conduct proscribed by the respondent’s no fighting in the workplace policy. A termination for that reason is valid. For the same reason the termination cannot be said to be “harsh, unjust or unreasonable”.
I am satisfied that the respondent has discharged its onus of proof that it had a valid reason to dismiss the applicant. Further, the respondent had accorded the applicant the opportunity to respond. There is no breach of the Act. The application must be dismissed.
ORDER:
The application is dismissed.
I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of JUDICIAL REGISTRAR MURPHY.
Associate: KAREN HALSE
Dated: 20 AUGUST 1997
Counsel for the Applicant: MS R DOYLE Solicitor for the Applicant: MAURICE BLACKBURN & CO Counsel for the Respondent: MR P BURCHARDT Respondent’s representative: METAL TRADES INDUSTRY ASSOCIATION Date of Hearing: 5 & 6 JUNE 1997 Date of Judgment: 20 AUGUST 1997
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