Du v Sims Metal

[1996] IRCA 215

DECISION NO:  215/96

C A T C H W O R D S

INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - whether termination HARSH, UNJUST OR UNREASONABLE

INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE

DU -V- SIMS METAL

No. SA95/1722

JUDICIAL REGISTRAR:                   L FARRELL
PLACE:  ADELAIDE
DATE:  23 MAY 1996

IN THE INDUSTRIAL RELATIONS COURT          )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY          )

SA95/1722

B E T W E E N:

JIAN ZIN DU

Applicant

AND

SIMS METAL LTD

Respondent

MINUTES OF ORDER

BEFORE:                 JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  23 MAY 1996

THE COURT ORDERS THAT:

1. The respondent pay to the Applicant 1 week’s pay.

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

IN THE INDUSTRIAL RELATIONS COURT          )
OF AUSTRALIA  )
SOUTH AUSTRALIA DISTRICT REGISTRY          )

No. SA95/1722

B E T W E E N:

JIAN XIN DU

Applicant

AND

SIMS METAL LTD

Respondent

BEFORE:                  JUDICIAL REGISTRAR L FARRELL

PLACE:  ADELAIDE

DATE:  23 MAY 1996

REASONS FOR JUDGMENT

This is an application pursuant to the provisions of section 170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement or compensation.

The Applicant was employed as a labourer by the Respondent from September 1991 until his employment was terminated on 10 November 1995.   His duties consisted mainly of stacking batteries, however he performed other duties from time to time.

The Applicant had obtained his employment with the Respondent with the help of Mr Abakamov who was a labourer working for the respondent.   Mr Abakamov and the Applicant worked beside each other stacking batteries.   From about July 1994 their relationship deteriorated and their conduct towards each other was the subject of several warnings.

The Applicant gave evidence that on the day before his dismissal he had been absent from work. When he commenced work on 10 November 1995 a box belonging to him was not where he had left it.   He was told by another employee that it was in a shed.   When he found the box he discovered that the padlock had been broken.   Mr Abakamov advised him that Mr Harvey, Operations Manager of the Respondent, had broken the padlock and he was to go and see Mr Harvey.

He then went to see Mr Harvey and on returning to the battery stacking area had an altercation with Mr Abakamov.   Mr Abakamov then walked to the weighbridge with the Applicant following.   The weighbridge foreman summoned Mr Brown, Manager, who then summarily dismissed Mr Abakamov and the Applicant.

The Applicant maintained that no violence had occurred between he and Mr Abakamov before Mr Brown terminated his employment.   He gave evidence that they then returned to the battery stacking area where a fight ensued, Mr Abakamov throwing the first punch, and that he then returned to the weighbridge area for treatment.

He gave evidence that later a further fight ensued in the locker room, the police were called, he was locked in an office and eventually allowed to use the telephone.   A security guard let him out, the security guard spoke to police when they arrived and he was allowed to leave.

Mr Williams gave evidence that he witnessed a fight between the Applicant and Mr Abakamov.   Both threw punches and he broke up the fight.   He had seen both men approaching the battery stacking area before the fight, and they appeared to come from the weighbridge area.   He later learned that both the Applicant and Mr Abakamov had been dismissed.   Whilst he expressed the belief that the fight at the battery stacking area followed their dismissal, there was nothing in his evidence that demonstrated to me that the dismissal of the two men took place after their dismissal.   His evidence that the two men had come from the weighbridge area was not inconsistent with the two men approaching the battery stacking area after the Applicant had been to see Mr Harvey and after Mr Abakamov had completed his duties at the pump area.

Mr Clarke, weighbridge foreman, gave evidence that when the Applicant and Mr Abakamov approached the weighbridge, Mr Abakamov was bleeding from the mouth area and had a graze on the side of his face and the Applicant was bleeding slightly from his mouth.   Mr Abakamov asked him to summons Mr Brown.   He contacted Mr Brown by intercom, advising him that the two men had been fighting.   Mr Brown then came down to the weighbridge area.

Mr Brown gave evidence that Mr Clarke advised him that the two men had been fighting.   He came down to the weighbridge area.   He could see they had been fighting because there was blood on them, and he dismissed them and told them to come back for their wages later in the day.

Mr Abakamov gave evidence that only one altercation occurred at the battery stacking area, that it occurred after he walked to that area from the pump area with the Applicant who had come back from the office to the weighbridge area.   He gave evidence that the altercation arose over which pallets the two would use.   The fight consisted of a number of punches being thrown.   Mr Williams broke up the fight.   He went to the weighbridge area - he was bleeding, Mr Brown came down and dismissed him and he was taken to a local medical clinic.   When he returned he went to the locker room, where he was hit on the head by the Applicant with what he believed was a padlock in a bag.   He returned to the weighbridge area bleeding from the wound to his head and was again taken to the medical clinic.

Mr Harvey gave evidence that he was not present at the Respondent’s premises on the morning of 10 November 1995, and that he learned of the dismissal of the applicant and Mr Abakamov when telephoned by Mr Brown at the airport.

Mr Caccese gave evidence that he had attempted to swab the wounds of Mr Abakamov before contacting the Health and Safety Officer for assistance.   He had seen Mr Brown talking to the two men shortly before.

A letter from the Applicant to the Respondent dated 16 November 1995 was tendered into evidence.   It expressed the Applicant’s contriteness for fighting at work.

Whilst there were many discrepancies in the evidence before me, I preferred the version of events given by Mr Abakamov because of the manner in which he gave his evidence and the plausibility of his version of events.

I preferred the evidence of Mr Harvey, Mr Brown and Mr Clarke where it differed from that of the Applicant.   In each instance their evidence was inherently more plausible.

In my view the Respondent had a valid reason for terminating the Applicant’s employment. I do not regard the termination of the Applicant’s employment as harsh, unjust and unreasonable. In my view the Respondent did breach S170DC of the Industrial Relations Act by not first giving the Applicant the opportunity to be heard regarding both what had occurred and any mitigating circumstances. Given that the Applicant speaks very little English I expect that it may have taken a few days to ensure that the Applicant was properly heard prior to his dismissal. However, on the evidence before me I am satisfied that had the Respondent duly met its obligations pursuant to S170DC, the Applicant’s employment would still have been terminated.

I therefore order that the Respondent pay to the Applicant 1 week’s wages.

I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment.

DATE OF HEARING             :          19 & 30 April 1996
FOR THE APPLICANT         :          Mr Harrison
FOR THE RESPONDENT     :          Mr Short