Edwardo Perez v Extruded Metals Pty Ltd and Klem Naumovski v Extruded Metals Pty Ltd
[1995] IRCA 129
•30 March 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1325 of 1994
VI 1296 of 1994
B E T W E E N :
EDWARDO PEREZ &
KLEM NAUMOVSKI
Applicants
AND
EXTRUDED METALS PTY LTD
Respondent
30 March 1995 Judicial Registrar Fleming
REASONS FOR JUDGMENT
Preliminary Application
In the matter of Perez, Number VI 1296 of 1994 fixed for hearing on 28 February 1995 and Naumovski, Number VI 1325 of 1994 fixed for 1 March 1995 an application was made by the Respondent that these two applications be heard together as they relate to the same incident with the same employer. The representative for Mr Perez did not object to the applications being heard together. However Mr Singh, Mr Naumovski’s solicitor and later his Counsel, Ms Frederico, objected to the same Judicial Registrar hearing the matter and further objected to the matter being heard together. In view of the concessions made by all representatives that the dismissal of both the Applicants arises out of the same alleged incident in relation to the same Respondent I rule that the two applications be heard together by the same Judicial Registrar and that the commencement of the proceedings will be on the 1 March 1995.
Circumstances Giving Rise to the Dismissal
Mr Perez
Mr Perez was employed as a production worker on press number 2 and he has been employed in that position since 1981. He was terminated on Thursday 28 July 1994 after being involved in an altercation with a fellow employee, Mr Klem Naumovski. Mr Naumovski was also terminated as a result of the altercation.
Mr Perez gave evidence that as he was clocking off at 3:20pm on 27 July 1994 he understood Mr Naumovski to beckon him over with a wave of his hand to his forklift. Mr Naumovski said something to Mr Perez which Mr Perez did not understand. Mr Perez went over to speak to Mr Naumovski and Mr Naumovski apparently complained to Mr Perez that he had been writing things about Mr Naumovski on the toilet wall. Mr Perez gave evidence that he said to Mr Naumovski “what are you fucking talking about” whereupon Mr Naumovski spat on Mr Perez and the spittle hit him in the face. Mr Naumovski allegedly also attempted to kick Mr Perez however Mr Perez did not see the attempted kick and the kick did not connect with Mr Perez. Mr Perez then gave evidence that while Mr Naumovski was seated in the forklift he punched him once or twice in the face. Mr Perez then gave evidence that Mr Naumovski got down from the forklift and there was some “dancing” around preparing to punch each other when other co-workers came and the fight ceased without any further blows. Mr Perez’s account of the incident is corroborated by Mr Abizu and Mr Stefanovski both of whom were eye witnesses. Both Mr Abizu and Mr Stefanovski gave evidence that Mr Naumovski also attempted to kick Mr Perez.
Mr Naumovski
Mr Naumovski gave evidence that on 27 July 1994 Mr Perez had been watching him “badly” like he wanted to fight. His evidence was that he was upset that Mr Perez began to walk behind him and Mr Perez said something but Mr Naumovski said “I no listen I am not sure what he say”. Mr Naumovski gave evidence that “he watched and make me more and more upset”. Mr Naumovski’s evidence was “I call him over come here I like to talk and before he come to me he start to talk badly to me and he come very close to me. I spit before he come very close to me. I don’t know where I spit floor or face and he come very close to me and punch me couple of times. I put head down like I going to talk to him I hold on forklift this made I fall because a lot of blood. Very hard punches. My right leg was on the brake”. When it was put to Mr Naumovski that Mr Stefanovski and Mr Abizu both saw Mr Naumovski attempt to kick Mr Perez Mr Naumovski denied it. Mr Naumovski gave evidence that he did not report the fight. Mr Naumovski conceded that Mr Stefanovski was present at the fight.
After the altercation Mr Naumovski worked until 5:00pm and Mr Perez left work shortly thereafter. Mr Naumovski gave evidence that he went to the doctor as his nose was bleeding and the following day he had black eyes.
Mr Ryan gave evidence that at about 7:00am on 28 July Mr Phung stopped him, Mr Phung being the leading hand of the number 2 press. Mr Ryan said that Mr Phung asked him if he had heard anything about the fight and Mr Ryan said no he had not heard about the fight.
Mr Ryan kept walking then and Mr Stefanovski approached and told him of the fight. Mr Stefanovski explained that Mr Naumovski was sitting on a forklift near the clock when Mr Perez was clocking off and that Mr Naumovski called him over. Mr Stefanovski told Mr Ryan there was an exchange of words, they were yelling at each other and then Naumovski spat on Mr Perez’s face and attempted to kick him and that Mr Stefanovski was not sure if the kick had connected but that Mr Perez responded with one or two punches to Mr Naumovski’s face.
Mr Ryan gave evidence that Mr Stefanovski is a shop steward and he made fairly strong assertions that the company would have to do something about this and if he did not then the union would have to do something.
Mr Stefanovski corroborated Mr Ryan’s when being cross‑examined by Mr Burchardt he gave evidence that:
“You then told Mr Ryan very strongly that the company would have to sack the two men, did not you? Yes. Because they were causing too much trouble ... ? Yes. And if the company did not act, then the union would be brought in? Yes. And what you meant by that is that there would be an industrial dispute if he did not sack them, or something like that? ... Mmm. That is right, is not it? ... Yes. Yes. And that is because fighting is not condoned by the union, is it? ... Not at work. It is a real problem when two workers start having fights on the floor? ... Yes.”
Mr Ryan’s evidence was that after speaking to Mr Stefanovski he sought out Mr Garcia, the union shop steward and said that he wanted an investigation and that if the allegations were found to be proven he would dismiss both employees. Mr Ryan said he believed that Mr Garcia was aware of the fight prior their discussion. Mr Garcia said to Mr Ryan that he was on his way to a training course and Mr Garcia commented in relation to the fight “you have to do what you have to do”.
Mr Ryan then called Mr Oram the deputy shop steward into his office and he spoke to Spiro Fideropoulos who was the supervisor and Mr Fideropoulos told Mr Ryan that Mr Naumovski was not at work but that Mr Perez was there.
Mr Ryan then gave evidence that in the morning of 28 July 1994 he spoke to Mr Bain, the Human Resources Manager, and that Mr Bain did not have any knowledge of the altercation and that he sought confirmation of the policy of the company in relation to this type of altercation. Mr Ryan gave evidence that it was Mr Ryan’s decision whether or not to terminate the employment of any workers. Mr Ryan gave further evidence that he did not decide to dismiss anyone on the day of the fight as he had not heard of the fight until the next day.
Mr Ryan convened a meeting on 28 July with Mr Oram, Igor and Spiro. Mr Oram and Igor are representatives of the union and they pleaded for leniency. It was at this meeting that it was the first time that Mr Ryan had heard of the altercation in the car park that occurred earlier that year wherein it is alleged Mr Naumovski threatened Mr Perez with a piece of wood and there was in fact a scuffle and Mr Perez was injured. Mr Ryan emphasised that the car park incident did not play any relevancy in his decision to terminate the employment of either Applicant.
When Mr Naumovski arrived for work Mr Ryan commented that he was badly bruised and his nose looked broken. Mr Ryan questioned him about the fight and Mr Naumovski said he had been sitting on his forklift minding his own business and that Mr Perez had approached him and without any provocation had attacked him. Mr Ryan told Mr Naumovski that he had heard a different story and Mr Ryan then went on to tell him the other version.
Mr Ryan said to Mr Naumovski that other witnesses had said that Mr Perez had been called over by Mr Naumovski that Mr Naumovski had started abusing Mr Perez and telling him that Mr Perez had been writing on the toilet wall. Mr Naumovski had spat on Mr Perez’s face and had attempted to kick him and at that time Mr Perez had struck him in the face. Mr Ryan said to Mr Naumovski that he did not believe his story and Mr Naumovski disagreed. Mr Naumovski maintained that he only fought when he had been attacked by Mr Perez. Mr Ryan said that Mr Naumovski had admitted to fighting.
Mr Ryan said to Mr Naumovski that as he had admitted to fighting that he was going to terminate his employment. Mr Naumovski had protested and said that he would seek legal advice. Thereupon Mr Naumovski was escorted from the Respondent’s premises. Mr Ryan commented that at no stage during the interview had Mr Naumovski made any complaint to Mr Ryan in relation to working two jobs or about his conditions of employment.
After Mr Ryan had terminated the employment of Mr Naumovski he called for Mr Perez. Mr Ryan’s evidence was that he had told Mr Perez that a fight had been reported and he asked him to tell him his version. Mr Perez said that Mr Naumovski was sitting on the forklift and had called him over and accused him of writing on the toilet walls and spying on him and that he spat at his face, as a result Mr Perez clenched his fist and hit him in the face. Mr Ryan told Mr Perez that as a result of his admission to fighting his employment would be terminated. Mr Perez said that it was a degrading and humiliating experience to be spat on and what did he expect him to do? Mr Ryan replied what Mr Perez should have done was to walk away. Mr Ryan explained to Mr Perez that he had a right of appeal. Mr Ryan explained that because both Mr Naumovski and Mr Perez had admitted fighting and as there was no justification for the fight that the two employees would be dismissed.
Mr Ryan gave evidence that if the two employees had not admitted fighting it would have been a different story and he would have been forced to suspend them possibly on full pay in order to have a more thorough investigation.
I accept the evidence of the independent witnesses namely Mr Stefanovski and Mr Arbizu in relation to the eyewitness account of the altercation on 27 July 1994. I accept the evidence of Mr Perez as to his version of what occurred on that occasion. Mr Ryan adopted the versions of Mr Arbizu and Mr Stefanovski and the version of Mr Perez in his determination as to what actually occurred.
Valid Reason for Termination
In the evidence before the Court both Applicants have admitted that they believed that if they fought at work it could lead to termination of their employment. Mr Perez had first hand knowledge of this having been dismissed once before for fighting at work. Having said that however it is clear from the evidence that the Respondent did not take into account Mr Perez’s history in relation to its decision to terminate his services on 28 July 1994.
Mr Perez, Mr Naumovski, Mr Stefanovski, Mr Garcia, Mr Arbizu and Mr Oram all gave evidence which was supported by Mr Ryan that fighting in the workplace was a “sackable” offence and that it would not be condoned by the employer.
Ms Manning for Mr Perez and Mr Burchardt for the Respondent both relied on clause 6V of the Brass, Copper and Non-Ferrous Metals Industry Consolidated Award 1991 which states:
“Notwithstanding the provisions of sub-paragraph 6(c)(i)(1) hereof the employer shall have the right to dismiss any employee without notice for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty and in such cases the wages shall be paid up to the time of dismissal only”.
Mr Burchardt in closing referred to “The Law of Employment” by Macken, McCarry and Sappideen at page 211 wherein he quoted:-
“unjustified assaults upon fellow workers come within the category of misconduct and assault upon a superior would be misconduct. It has been held that assault by a workman on the foreman outside working hours which affected the authority of the foreman at the workplace justified summary dismissal.”
Mr Burchardt then relied upon the decision In re Transfield Pty Ltd: Re Dismissal of Union Delegate (1994) AR NSW 596 wherein he quoted at page 599:-
“it is really not necessary to decide who used the bad language or whether they were both guilty on this score. I do not regard this as having any significance in itself and in favour of the union submission I am prepared to accept that Mr Giust offered some provocation to Mr Turner, either by his manner or what he said. However, this did not justify the assault and I consider that the quarrel was forced on Mr Giust by deliberate acts of Mr Turner who had been upset by the events of the day and was trying to get even in quite an unpardonable manner. Mr Giust was not the foreman at the switchyard but I consider that in Mr Turner’s mind he represented a management which was either not giving support to the unions in the switchyard dispute or which may have been actively cementing the trouble. There is nothing to suggest that this view could have been reached justifiably and Mr Turner’s attitude may have been aggravated by the eight beers or so he had consumed prior to the incident.
The assault took place before a number of persons, most of whom were workers at the Wallerawang Power Station construction sight and the evidence shows that the hotel was a place where it was customary for workers to gather. I consider that it would have become genuinely known at the sight that the foreman had been attacked by the union delegate and in the circumstances I consider that this would tend to undermine his authority and that of management. It would also lead to fear on the part of Mr Giust, another foreman that there could be further assaults on them unless the strongest measures were taken against Mr Turner. In my view it does not matter that the events took place beyond working hours and outside the working area and I regard Mr Turner’s actions as misconduct of such a nature as to justify his summary dismissal. I observed that in Hallsbury’s Laws of England, 3rd edition under the heading of “Dismissal of Service Without Notice” it is stated that at page 486:
‘a servant may also be summarily dismissed if he has been guilty of an offence outside his employment of such a character as to make it unsafe for the master to retain him.’
At the present case I would regard it as unsafe for the company to continue to employ Mr Turner, in a sense that his presence on the sight could embarrass Mr Giust or another foreman in the execution of their duties and give rise to a situation where the authority of management would be eroded”.
After the meeting between the two Applicants and Mr Melham and other union delegates in approximately June 1994 I find that nobody from the union spoke to Mr Ryan about whether there was likely to be any ongoing problem between the two Applicants. Mr Ryan did not know the extent of the animosity between the two Applicants and he did not believe any physical contact was likely between them. I accept his evidence that he did not know about the car park incident which goes to show the depth of animosity between the Applicants. Mr Ryan had only a very brief conversation with Mr Melham after this meeting wherein Mr Melham said he was not particularly happy with the outcome of the meeting but that there was no suggestion by Mr Melham that Mr Ryan should do anything.
It is reasonable for the Respondent, given that he had not been told by the union or anybody else that the animosity between the two workers was continuing and given that they were working the maximum distance apart that was possible in the plant, that being 80 or 85 meters, to assume that there would be no further mishap given that there had been some counselling by management and the union and it was understood by all that the fighting in the workplace would not be tolerated. I find that the employer in terminating the employment of Mr Perez and Mr Naumovski had a valid reason for the termination of the employment of the Applicants.
Employee to Have Opportunity to Respond to Allegations - Section 170DC
I accept the evidence of Mr Ryan that he did not know there had been a fight until 28 July 1994. I accept his evidence that he was first told by Mr Phung and had a later conversation with Mr Stefanovski and Mr Garcia in relation to the incident. I accept that he telephoned Mr Bain on 28July 1994. I prefer his evidence to the uncertain evidence in this regard of Mr Melham. I accept Mr Ryan’s evidence that he called Mr Oram the deputy shop steward into his office and he also spoke to Spiro who was the Applicants’ supervisor. I accept that after Mr Ryan’s meeting with Mr Oram, Igor and Spiro that he then had a meeting with Mr Naumovski and a further meeting with Mr Perez wherein he sought and obtained detailed accounts from both Applicants as to what occurred in the fight. I accept his evidence that both Mr Perez and Mr Naumovski admitted to fighting and it was upon that basis that Mr Ryan dismissed them. I accept that the Respondent has conducted an adequate investigation and given both Applicants an opportunity to defend themselves and to give their account of what occurred. I find therefore that the provisions of Section 170DC have been satisfied.
Harsh, Unjust & Unreasonable
I do not accept the submissions of the representative of Mr Perez that the proper procedures were not followed in order to prevent an escalation of problems between the two Applicants. The Applicants are mature men who had not been able to get along in the workplace together and one wanders what the Respondent could have done to avoid an escalation especially given the extent of the Respondent's knowledge visa vis the two employees.
When the problems between the two Applicants were known to the employer it called the two Applicants into its office to attempt to solve the problems. At that meeting on 3 June 1994, wherein the Respondent attempted to clear the air between the parties the Respondent was not told about the degree of the animosity between the Applicants. The Respondent was not told about the very serious altercation in the car park.
At the meeting on 3 June 1994 which was attended by Mr Ryan, Mr Perez, Mr Naumovski and Mr Garcia, all parties had an opportunity to voice their concerns. It was clear to Mr Ryan on his own evidence that there was a “level of deep animosity”. Mr Ryan conceded that the writing on the toilet walls was an “epidemic”. Mr Ryan heard the complaints of Mr Naumovski that he believed Mr Perez was writing things on the toilet wall about him and also that he believed Mr Perez was spying on him. Mr Ryan heard the denials of Mr Perez. I accept Mr Ryan’s evidence that he said words to the effect that “I am not a judge, I am not a Court of law, I could not decide who was right or wrong and I told them to go back to work and keep their noses clean”. I believe it was reasonable for Mr Ryan to hope that that was the end of the matter.
I accept the evidence of Mr Melham that there was a meeting subsequent to 3 June 1994 which was attended by Mr Melham, Mr Garcia, Mr Oram, Mr Stefanovski, Mr Perez and Mr Naumovski. I accept the evidence of Mr Melham that he first became aware of the problems between the two applicants in late May or early June and he was made aware of these problems as it was raised by Mr Garcia. Mr Melham suggested to Mr Garcia that the parties needed to be brought together and it was on that basis that the meeting was convened at some date after 3 June 1994. Mr Melham conceded that he foreshadowed an escalation of the problem between the two workers and that seems to be the reason why he convened the meeting.
At the meeting attended by the union both applicants had an opportunity to put their side of the story. Mr Melham, it would seem, came to a similar position as Mr Ryan which was that he could not decide the matter, however Mr Melham having seen the two parties together was able to say that he conceded the problem had not been resolved by the meeting. He gave evidence that Mr Naumovski had refused to shake the extended hand of Mr Perez. Mr Melham gave further evidence that Mr Naumovski was unable to substantiate any of his claims against Mr Perez. It does seem that Mr Naumovski’s allegations are bereft of reason and remain unsubstantiated.
Mr Melham gave evidence that he believed there may have been a third party involved and he voiced that view to Mr Garcia. I accept however the evidence of Mr Ryan that this was never raised with him by the union. Mr Melham had completed the meeting with a suggestion to Mr Garcia to “keep an eye” on the situation. Between that meeting and 27 July 1994 there was no further involvement by the union or management until the dismissal on 28 July 1994. Mr Melham did not suggest to Mr Ryan that the Applicants required supervision.
Both Mr Melham’s meeting with the Applicants and Mr Ryan’s meeting with the Applicants were counselling sessions and not sessions that were designed or intended to warn the Applicants that should they continue their feuding that their positions would be at risk.
It is clear however that all parties believed that the problems between Mr Naumovski and Mr Perez could escalate and that fighting was not condoned by the employer.
Mr Melham offered evidence that he anticipated the company would dismiss the Applicants if they kept fighting. Mr Melham said he could not point to any written policy that spelt out dismissal for fighting at work but he did believe they would be dismissed if they kept fighting and I believe this is a reasonable belief. In determining whether or not the dismissal of Applicants is harsh, unjust and unreasonable I do take it into account their long service however I accept that a valid reason has been given and I further accept that their dismissal is not harsh, unjust and unreasonable in the circumstances.
The Applicant’s have been accorded both procedural and substantive fairness.
Remedy
On the basis of my findings I dismiss both applications.
Order Of The Court:
That the applications be dismissed.
I certify that this and the preceding fourteen (14) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming.
Associate:
Dated: 30 March 1995
Solicitors for the Applicants:
Counsel for the Applicants:
AWU-Fime Amalgamated Union for Mr Perez.
Messrs Vincent Verduci & Associates for Mr Naumovski
Ms Manning for Mr Perez
Ms Frederico for Mr Naumovski
Solicitor for the Respondent:
Counsel for the Respondent:Messrs Phillips Fox
Mr BurchardtDates of hearing:
1, 6, 7, 17 and 20 March, 1995
Date of Judgment:
30 March 1995
C A T C H W O R D S
INDUSTRIAL LAW -
Industrial Relations Act 1988 ss.170
Industrial Relations Regulations - Regulation
CASES:In re Transfield Pty Ltd Re: Dismissal of Union Delegate (1994) AR NSW 596
EDWARDO PEREZ-v-EXTRUDED METALS PTY LTD
No. VI 1296 of 1994
and
KLEM NAUMOVSKI v EXTRUDED METALS PTY LTD
No VI 1325 of 1994
Before: Judicial Registrar Fleming
Place: Melbourne
Date: 30 March 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 1325 of 1994
VI 1296 of 1994
B E T W E E N :
EDWARDO PEREZ &
KLEM NAUMOVSKI
Applicants
AND
EXTRUDED METALS PTY LTD
Respondent
30 March 1995 Judicial Registrar Fleming
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The applications be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
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