Daryl Reginald Hibbs v BHP (Westernport)

[1994] IRCA 134

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA  VI 1696 of 1994
VICTORIA DISTRICT REGISTRY

B E T W E E N:

DARYL REGINALD HIBBS
Applicant

A N D

BHP (WESTERNPORT)
Respondent

Reasons for Judgment - delivered ex tempore

7 December 1994  PARKINSON JR
The applicant in this case is aged 39 years. He commenced employment with the respondent when he was 18 years of age and has been continuously employed by the respondent for a period of 21 years.

At the time of the termination of his employment the applicant was employed on the Steel Slitting Line at the respondent’s Hastings steel works.

The applicant is a member of the AWU/FIMEE Amalgamated Union and his employment was governed by an Award of the Australian Industrial Relations Commission. The applicant appeared in person in this proceeding.

The termination of the applicant’s employment arose from an incident on the Steel Slitting Line. The respondent alleges that the applicant, without provocation, punched another employee, Mr. O’Dwyer, in the mouth. This incident was alleged to have occurred during the night shift on 10 September, 1994.

The applicant denies that he either punched Mr. O’Dwyer or that he was unprovoked.  His evidence was that he approached Mr. O’Dwyer and a verbal exchange took place, at which time Mr. O’Dwyer threw his cup of tea in the applicant’s face.  The applicant said further that in so far as any physical contact occurred between him and Mr. O’Dwyer, it resulted from his safety helmet striking Mr. O’Dwyer as he lurched forward to protect his face from the hot tea. 

The evidence of the respondent’s witnesses was generally in accord with the allegation made by the respondent.  Mr. O’Dwyer gave evidence as to the circumstances of the assault upon him. His evidence was that he was sitting at his work station when the applicant approached him and  verbally abused him. Mr. O’Dwyer said that he responded with verbal abuse of a like nature and immediately thereupon the applicant punched him in the face and continued to punch at him.  His evidence was that he took action to restrain the applicant by attempting to hold his arms to his side.  At this time another employee on the slitting line arrived on the scene and intervened to assist him.  Mr. Niessen, being the other employee referred to, gave evidence which was substantially in accord with that of Mr. O’Dwyer.
Mr. Niessen’s evidence was that he had observed the applicant as he walked to Mr. O’Dwyer’s work area. His evidence was that he saw the applicant arrive at that work area and, within 30 seconds of arrival, punch Mr O’Dwyer.

His evidence was that he continuously observed the applicant and Mr. O’Dwyer during this time and that he did not see the tea being thrown by Mr. O’Dwyer at the applicant. His evidence was that the tea spilt out of the cup as a result of the blow struck by the applicant.  The evidence of both of these witnesses was in all substantive respects at odds with the applicant’s version of events.

Whilst it is apparent that Mr. O’Dwyer is actively hostile towards the applicant, and that this hostility stems not only from the incident but from other work related matters which were not in issue in these proceedings, I am satisfied that his version of events, being as it was corroborated by that of Mr. Niessen, is true and correct.

In view of this finding, I have decided that the respondent has established that at the time of the termination of the applicant’s employment it had a valid reason related to the conduct of the applicant for that termination of the employment which, after investigation, was summary.

S170DB(1)(b)
Having regard to the circumstances of the termination, I find that the respondent was entitled to act as it did in summarily dismissing the applicant and, consequently, there was no breach of S170DB(1)(b) by the respondent.

S170DE(2)
I turn now to consider whether, notwithstanding my finding in relation to the reason for the termination, the termination was nevertheless harsh, unjust or unreasonable. 

In this matter the evidence is that the applicant was given an opportunity to be heard by the employer, initially by the applicant’s immediate supervisor Mr. Burrows, and that this occurred in the presence of the local union delegate. The evidence is that the respondent, upon being informed of the incident, took immediate steps to investigate the matter and acted without  delay to terminate the employment summarily. The evidence is further that Mr. Burrows conducted an investigation of the circumstances of the incident by speaking to the witnesses and participants in the event.  The evidence is that the applicant was given an opportunity to inform the company of his version of the events and that he did not express any disagreement during this process with the version put forward by the respondents.  The evidence of the respondent was that the explanation given by the applicant in the present proceedings was not given to the respondent at the time of the investigation by Mr Burrows. Mr. Burrows also recorded the information he was given, and such record (Exhibit G2 )was signed by those witnesses. Those explanations are consistent with the evidence given by the witnesses in these proceedings.     

Having conducted the investigation, and having regard to the circumstances of the incident and the policy of the employer that any employee involved in fighting in the workplace is liable for dismissal, Mr. Burrows decided that the incident, being as it was an unprovoked assault, warranted dismissal. I am satisfied that in taking this decision regard was nevertheless had to the applicant’s long standing service with the company. 

I am also satisfied that this is a case where the applicant was well aware of the firm company policy in relation to fighting in the workplace. Not only did he know it was prohibited, but he was also on notice both verbally and in writing as to the company policy and the possible consequences of that policy (Exhibit G1).  The applicant acknowledged this in his evidence.

There was no evidence from the applicant in relation to the investigation procedure which was adopted which would suggest that he felt the process adopted was unfair although, having regard to his explanation before the Court as to the events and allegations against him, it was of concern to me that there was no documentation regarding the applicant’s version of events. 

I am of the view that in a case where a party is unrepresented it is necessary and appropriate for the Court to act of its own accord in questioning witnesses so as to be satisfied as to the various matters in S170DE of the Act, and to ensure that the case of the unrepresented party is completely before the Court. These steps I have taken in this proceeding. Whilst it was suggested by the applicant that he felt that his supervisor would prefer Mr. O’ Dwyer’s word over his, the evidence is that the applicant did not give a version of events to the respondent which was contrary to that given by Mr. O’Dwyer or Mr. Niessen.  The applicant’s evidence was that he did, however I am satisfied that he did not do so and that he was given adequate and sufficient opportunity to do so had he so wished. This opportunity was accorded in the presence of the union delegate and was again accorded two days later when a review of the decision to dismiss the applicant was undertaken by the respondent’s Production Manager in consultation with the Industrial Relations Superintendent.

The evidence was that the only issue raised on behalf of the applicant was the question of if, and when, he would be eligible to apply for re-employment by the respondent.  The response to this was that he was entitled to reapply if he wished, but not before the expiration of three months.

In this matter I am satisfied on balance that the termination of the applicant’s employment was not harsh, unjust or unreasonable. There was nothing in the evidence which would suggest that the assault was provoked in any way or that there was a mutuality of physical contact which would lead to a decision that to dismiss the applicant was harsh or unjust.  I have also had regard to the nature of the respondent’s operations, which involve employees being in close proximity to heavy machinery, and the necessity to ensure safety in those circumstances; the fact that there was a clear policy prohibiting fighting in the workplace of which the applicant was aware, and a history of consistent application of such policy. I have also had regard to the applicant’s age and his long standing employment history with the respondent and the apparent harsh effect of the termination upon him.

It is apparent to me that the effect of the termination on the applicant after 21 years of service  is harsh, and it is to be hoped that, having regard to the parties’ earlier discussions as to possible future re-employment, the respondent will look favourably upon such an application from the applicant.

However, whilst the circumstances of this case are in my opinion a tragic demonstration of the devastating consequences of thoughtless, stupid and bullying conduct in the workplace, the impact of the dismissal is not the only consideration for this Court in determining the issue raised by S170DE(2).

In these circumstances I am not satisfied on balance that the termination was harsh, unjust or unreasonable, and I so decide.

The application is dismissed.

I certify the this and the preceding seven (7) pages
are a true copy of the reasons for judgment of
Judicial Registrar Parkinson.

Associate:
Dated:  7 December 1994

Applicant in person

Solicitors for the respondent:  Blake Dawson Waldron
Representative for the respondent:            Ms. A. Gillis

Dates of hearing:  5 & 7 December 1994
Date of judgment:  7 December 1994