Cordova v Ross Robbins Pty Ltd

[1996] IRCA 186

DECISION NO:  186/96

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - SERIOUS MISCONDUCT - employees dismissed for fighting - whether HARSH, UNJUST or UNREASONABLE TERMINATION

Industrial Relations Act 1988 s.170EA

CASES:The AWU-FIME Amalgamated Union v Queensland Alumina Limited, (Industrial Relations Court of Australia, Moore J, 14 July 1995, unreported)

MIGUEL A CORDOVA -v- ROSS ROBBINS PTY LTD

No. VI 5540 of 1995

AND

SEAN McKEOWN -v- ROSS ROBBINS PTY LTD

No. VI 5573 of 1995

Before:  Judicial Registrar Murphy
Place:  Melbourne
Date:  6 May 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5540 of 1995

B E T W E E N :

MIGUEL A CORDOVA
Applicant

AND

ROSS ROBBINS PTY LTD
Respondent

AND

VI 5573 of 1995

B E T W E E N :

SEAN McKEOWN
Applicant

AND

ROSS ROBBINS PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Murphy     6 May 1996

THE COURT ORDERS:

1. That the applications are dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 5540 of 1995

B E T W E E N :

MIGUEL A CORDOVA
Applicant

AND

ROSS ROBBINS PTY LTD
Respondent

AND

VI 5573 of 1995

B E T W E E N :

SEAN McKEOWN
Applicant

AND

ROSS ROBBINS PTY LTD
Respondent

Before:           Judicial Registrar Murphy
Place:              Melbourne
Date:              6 May 1996

EX-TEMPORE  REASONS FOR JUDGMENT

These two proceedings were heard together and each applicant seeks a remedy under s170EA of the Industrial Relations Act arising out of the termination of his employment on 26 October 1995. The applicant, Mr McKeown, was employed as the leading hand in the foundry, and the applicant, Mr Cordova, was employed as a process worker.

Mr McKeown had commenced with the respondent in 1991 as an apprentice and Mr Cordova had been working there for approximately 2½ years.  The circumstances giving rise to the termination of their employment were that on 25 October Mr McKeown was asked to clean the showers in the amenities section of the foundry.  When doing that, he had to move Mr Cordova's bag and shoes onto a chair.  Mr Cordova used the shower to change prior to working.  Some time that morning Mr Cordova ascertained that his lunch had been spilt.  It consisted of some soup.  The bag was wet as a result of the wet shoes apparently being placed on it by Mr McKeown.  He then raised the matter with another employee and subsequently raised the matter with Mr McKeown.

There was a significant dispute between the two applicants as to what happened immediately thereafter.  I am satisfied that there was an exchange of words between the two of them and that Mr Cordova was proceeding across the assembly area of the factory when Mr McKeown pushed him to the back as well as delivering various terms of verbal abuse to him.  Mr Cordova then turned and I am satisfied hit Mr McKeown to the jaw.  Mr McKeown then shaped up and was restrained by another employee, Mr Pace.   Mr Cordova returned to his work place.  That was the end of the incident on that day. 

On the following day, Mr Chester, who is the managing director of the respondent, returned from a business trip to Sydney and ascertained that there had been an incident the previous day.  He determined to investigate the incident.  Mr McKeown attended at his office uninvited and proceeded to explain what had happened to him.  In his explanation, Mr McKeown advised Mr Chester that he had in a sense provoked the applicant, Mr Cordova, and that the applicant had then king hit him with a clenched fist to the jaw.  Mr Chester gave evidence that he advised Mr McKeown that the matter was very serious, that he would not tolerate fighting in the work place due to the safety considerations of the nature of a factory that the respondent was operating.  Mr Chester then called in Mr Cordova, who advised him that Mr McKeown had delivered various abusive comments to him and that he had been very offended by those comments.  Mr Chester's evidence was that Mr Cordova said:

“I turned around and hit him.  I hit him in the jaw.”

He was then asked why he did this.  He said “I was deeply offended and he was causing me lots of trouble”.  Mr Chester's evidence was that he showed him the way he had hit him.  Mr Chester advised Mr Cordova that his story of the circumstances differed from that of Mr McKeown and in particular as to whether there had been any prior disagreements between them.  He proceeded to then invite Mr McKeown to further discuss the matter with him and, in particular, the issue as to whether or not water may have inadvertently got into the lunch bag of Mr Cordova.

When Mr McKeown saw him the second time, he agreed he may have inadvertently sprayed water into the bag and put the wet shoes on top of the lunch bag.  Mr Chester then interviewed various persons in the workplace, including Mr Pace, Mr McClow and Mr Amott.  Mr McClow essentially confirmed Mr McKeown's version of events in relation to whether there was a clenched fist. Mr McClow also confirmed Mr Cordova's version as to whether Mr McKeown was acting in a provocative manner.  Mr Chester then decided to reflect on the matter and consulted his business partner.  He decided that the matter required the dismissal of both of the applicants.  In coming to this decision, he was concerned about the safety considerations associated with fighting in the workplace.  He came to the decision reluctantly, due to various business plans that he had on foot that involved the use of both the applicant Mr McKeown, and possibly Mr Cordova working within a new business that he was about to acquire.  He gave evidence that as a result of his decision to terminate the employment of the two applicants, the respondent had to alter its business strategy in a way that was of considerable inconvenience to it.  Mr Chester gave evidence that he was of the view that the staff fully understood the seriousness with which he took safety considerations in the work place and that the staff understood that fighting would result in the termination of their employment.

Later that afternoon he called both applicants in, outlined the position to them and advised them that they were to be terminated.  The two applicants were remorseful, apologised for their behaviour, but did not apologise to each other.  Mr Chester's evidence was not challenged by either of the applicants, despite an invitation for them to cross-examine him in relation to it.

The two applicants gave evidence which in material respects was different from the evidence of Mr Chester.  Mr McKeown essentially admitted that he had provoked the applicant, Mr Cordova.  Mr Cordova's evidence was very significantly different from the account of Mr Chester, because he maintained that the applicant Mr McKeown had pushed him in the back before he had turned around and then pushed him back.

None of this material was put to Mr Chester by either of the parties.  Mr McKeown denied the applicant Mr Cordova's version of events and the Court is left in a difficult position in making a finding as to what, in fact, happened given that no eye witnesses were called by either of the parties.  It is unnecessary for the Court to make any particular findings as to what happened in relation to the particular incident, except to find that the applicant, Mr McKeown, in fact was the major provocateur of the incident.

I am satisfied, however, that Mr Chester formed the view on reasonable grounds and after a reasonable investigation that, in fact, the applicant Mr Cordova had hit the applicant Mr McKeown.  This exchange between them was the incident that gave rise to their termination. 

Valid reason?
It follows from this that I find that the respondent had a valid reason to terminate the employment of both applicants because I accept the evidence of Mr Chester that the respondent takes seriously its responsibilities towards its employees for safety in the work place.  This foundry work place was a hazardous work place in which fighting would place the employees involved and other employees at risk.  The respondent had a policy that it was not to be tolerated.  Such a policy is a reasonable one and one that prevails throughout the community.  It follows from this that Mr Chester, having formed the view that, in fact, there was fighting between these two applicants, and having formed the view that both parties were at fault, in that Mr McKeown had provoked Mr Cordova and Mr Cordova had responded in an inappropriate way by physically hitting the applicant Mr McKeown, then the response of the company in terminating them was the only option that Mr Chester saw open to the company.

His action, in terminating the applicants, was, I am satisfied, a valid one in the sense of being “sound or defensible or well founded” in all the circumstances.  The respondent has therefore discharged its onus of proof under s170DE(1) of the Act. 

Were the terminations harsh, unjust or unreasonable?
Each applicant carries the onus of proof to satisfy the Court that his dismissal was harsh, unjust or unreasonable.  Counsel for the respondent referred me to the decision The AWU-FIME Amalgamated Union v Queensland Alumina Limited, (Moore J, 14 July 1995, unreported), where the court dealt with a fight between two employees in an amenities room.  There are some similarities in the decision, in that Moore J held that:

“In my opinion, (the respondent) was entitled to both adopt and give effect to a policy that prohibited fighting with the sanction of dismissal if it was breached.  (The respondent's) need to maintain the integrity of the policy constituted, in the circumstances, a valid reason for the termination of both (applicants') employment.”

That comment from Moore J is on all fours to the position in relation to the respondent in these proceedings.  The policy adopted by the respondent in these proceedings is relevant to the onus that the applicants have in relation to whether their termination was harsh, unjust or unreasonable.  In the same decision, Moore J said that whether a dismissal for a fight in the work place is harsh, unjust or unreasonable will depend very much on the circumstances:

“However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable.  The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position.  As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence.” 

Turning to the circumstances of the fight, I am satisfied that the applicant, McKeown, provoked the fight.  In those circumstances, given his supervisory position, I am satisfied that his dismissal is not harsh, unjust or unreasonable and he has not discharged his onus of proof. 

In relation to the applicant, Mr Cordova, I am satisfied that while he did not provoke the fight, in the circumstances of this work place, his response in I find “king-hitting” the applicant, Mr McKeown, was an excessive response in the circumstances and so his termination for that reason could not be characterised as harsh, unjust or unreasonable. 

I am therefore satisfied that neither of the applicants have discharged their onus of proof in relation to s170DE(2) of the Act and that both applications must be dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the applications are dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:                   
Dated:  6 May 1996

Applicants in person.
Solicitors for the Respondent:  Rigby Cooke
Counsel  for the Respondent:  Mr M Caldwell
Date of hearing:  6 May 1996
Date of judgment:  6 May 1996