Galinac v Liberty Meat Exports (Aust) Pty Ltd
[1997] IRCA 206
•19 June 1997
DECISION NO:206/97
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
VALID REASON - whether employee acted in a manner which threatened supervisor with harm - whether misuse of knife - whether employer investigated allegations of employee’s CONDUCT - whether reasonable to to require deny OPPORTUNITY TO RESPOND - REMEDY - whether REINSTATEMENT impracticable -
Workplace Relations Act 1996 ss170DC, 170DE(1), 170EA, 170EE
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
GALINAC -V- LIBERTY MEAT EXPORTS (AUST) PTY LTD
VI 2567 of 1996
Before : PARKINSON JR
Place : MELBOURNE
Date : 19 JUNE 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 2567 of 1997
B E T W E E N:
Vlado GALINAC
Applicant
A N D
LIBERTY MEAT EXPORTS (AUST) PTY LTD
Respondent
MINUTES OF ORDERS
19 JUNE 1997 PARKINSON JR
THE COURT ORDERS THAT:
Pursuant to Section 170EE (1) (a) (i) of the Workplace Relations Act, 1996, on and from 23 June, 1997, the respondent reappoint the applicant to the position in which he was employed immediately before the termination of the employment.
Pursuant to Section 170EE(1) (b) (i) of the Workplace Relations Act 1996, the employment of the applicant by the respondent be treated for all purposes as having been continuous between the date of the termination of the employment and the date of the re appointment pursuant to Order 1 herein.
Pursuant to Section 170EE(1)(b)(ii) of the Workplace Relations Act 1996 the respondent pay to the applicant, within 21 days of this order, remuneration lost by the applicant between 4 October, 1996 and 8 April, 1997, as a consequence of the termination of the employment.
The parties have leave to apply to the Court upon 24 hours notice in the event that agreement cannot be reached in relation to the calculation of the amount of lost remuneraton in Order 3 herein.
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
VICTORIA DISTRICT REGISTRY
VI 2567 of 1997
B E T W E E N:
Vlado GALINAC
Applicant
A N D
LIBERTY MEAT EXPORTS (AUST) PTY LTD
Respondent
REASONS FOR DECISION
19 June 1997 PARKINSON JR
This is an application made pursuant to Section 170EA of the Workplace Relations Act 1996.(‘the Act’) The applicant was employed by the respondent as a boner at its meat processing plant at Northcote in Victoria and had worked for the respondent for over ten years, in a number of different capacities. The applicant’s employment was terminated summarily on 4 October, 1996.
The respondent contends that it had valid reason for the termination of the applicant’s employment based upon the applicant’s conduct in the workplace. The respondent alleges that on 4 October, 1996 at approximately 7.00am, the applicant threatened another of the respondent’s employees, the Foreman, Mr Rutmar, with a knife that he used in the course of his employment. The applicant denies that he threatened the other employee.
It is appropriate to set out some of the background to this matter together with my findings of fact. In 1995 the applicant’s right hand was injured in the course of his employment and as a consequence returned to work in July, 1996 on his own initiative, able to perform modified duties only. The duties for which he was able involved light boning work. He was restricted from performing any work on heavy carcasses and was in the main, limited to slicing work in preference to boning. These limitations were in the knowledge of the respondent’s Occupational Safety and Work Care Officer, and had been discussed with the applicant’s supervisors on the job.
On 4 October, 1996, the applicant was working on the boning table at the rear of the premises when he was instructed by the supervisor to go and work on another table. This instruction was given as a consequence of the table being short one employee as a consequence of injury. The applicant protested to Mr Rutmar that he was not able to perform the work on that table because of his injury. He advised Mr Rutmar that he should check this out with Mr Norwood, the general manager of the plant. Mr Rutmar responded “...you can see f’ing Norwood you can see your f’ing mother but down here you talk to me and you go where I tell you to go...”. Whilst in his evidence Mr Rutmar used the abbreviated version, I am satisfied that Mr Rutmar used the full version of the expletive in the course of his conversation with the applicant.
The applicant, offended by the obscenity attached to the reference to his mother then responded, “what did you say about my mother” and took steps towards Mr Rutmar who was at that time some three to four metres away from the applicant. The evidence is that the applicant continued to hold the slicing knife in one of his hands and the sharpening steel in the other, at the time he moved towards Mr Rutmar. The applicant says he didn’t brandish or threaten Mr Rutmar with the knife. His evidence is that he was unaware of the knife when he reacted to the comments. Mr Rutmar’s evidence was that he was afraid for his safety and felt that he was being threatened by the applicant with the knife and that he on a number of ocassions called out to the applicant to put down his knife. His evidence was that the applicant should have put the knife down on the table. The evidence of other employees as to what occurred in the incident varies considerably. The evidence is that some employees intervened between the applicant and Mr Rutmar and also told the applicant to put down his knife. This is variously said to have been just a friendly arm around his shoulders to calm him down to the applicant being physically restrained from approaching closer to Mr Rutmar. However none of these witnesses gave evidence of seeing the applicant brandish or raise the knife in a threatening manner towards Mr Rutmar.
I have considered the evidence of Mr Peter Ktski, Mr Vinko Knezevic and Mr Bozo Cubla and am not satisfied that the applicant acted in a manner which threatened Mr Rutmar’s physical safety by the use of a knife or was intended to be threatening with a knife or to cause Mr Rutmar to fear that he was being physically threatened with a knife. Mr Ktski’s evidence was that the applicant held his arms with the knife in one hand at right angles from his body with his elbows bent. As I interpreted his evidence, the knife was not being brandished or pointed towards Mr Rutmar. His evidence was that he intervened and stopped the applicant close to the main work table, by holding his hands. His evidence was that he did not use much force and the applicant responded immediately to his intervention and went back to work at the light duties table. Mr Knezevic’s evidence was that the applicant holding his steel and knife started to walk towards Mr Rutmar, but was intercepted and told by Mr Knezevic to go back to his table, which he did. His evidence was that the applicant was holding his knife and steel pointed towards the ground. Mr Cubla’s evidence was that he did not see the applicant restrained by any other employee and that he did not see him raise or brandish his knife towards Mr Rutmar.
In this industry the carrying and use of knives in the workplace is an integral part of the work and there is no evidence to suggest that there is anything improper in an employee moving around the factory without sheathing his knife and steel. There are rules as to what is to be done with knives when operations are in progress and these rules are rules directed to health inspection requirements and require that, during the course of work, the knife either be sheathed in a leather pouch if worn or held in the hand. Department of Primary Industry Regulations prohibit the knife being placed on the workbench when not in use. It is apparent from the evidence that to a meat worker the knife they work with is carried as second nature.
Whilst I accept the evidence of the respondent that in the meat industry there is a general industry policy that any misuse of knives or fighting with knives will result in termination of employment and whilst I also accept that it would have been more prudent for the applicant to have stored or sheathed his steel and knife before approaching Mr Rutmar, I do not accept that in this case the applicant was either fighting with a knife or misusing his knife, by holding or using it in a manner likely to cause injury or harm to another person. Nor am I satisfied, having regard to the evidence as to the location of the applicant at the commencement of the incident and the location of Mr Rutmar, together with the location of both parties during the incident, that there was ever a physical proximity between the applicant and Mr Rutmar which would provide Mr Rutmar with reasonable cause to be afraid for his physical safety. Whilst it appears that some of the applicants co-workers saw fit to intervene, their evidence was generally that they did so to stop the applicant from doing anything silly, rather than to protect Mr Rutmar from any apprehended immediate danger.
I prefer the evidence of the applicant to that of Mr Rutmar. The evidence was that the applicant was not an agressive person, or prone to bursts of anger. Further he was identified as being a co-operative employee, willing to undertake work as directed by Mr Jervis. The conduct which is sought to be attributed to the applicant on 4 October is conduct which is not consistent with the evidence as to his usual demeanour and character. Whilst it is clear that the applicant was angry during the course of the incident, the evidence establishes that he maintained a level of self control and I am not satisfied that he lost self control to the extent that he behaved in a threatening manner with the knife.
I formed the view that Mr Rutmar was in some respects hostile towards the applicant as a result of his inability to achieve full tally as a consequence of his injury. This is evidenced by Mr Rutmar’s deduction of monies from the applicant’s pay, despite the latter’s entitlement to full payment whilst on alternative duties and Mr Rutmar knowing of this entitlement. The evidence of Mr Rutmar confirmed that his view of the applicant was that he ought not to have continued in the employment as he was not a fully productive employee and I am satisfied that this statement and statements to this effect were made to the applicant on more than one occassion by Mr Rutmar. I am satisfied that Mr Rutmar held a negative attitude towards the applicant prior to this incident occurring. In this context, it is difficult to accept that the interpretation placed on the applicant’s conduct by Mr Rutmar was reasonable. There is an aspect of Mr Rutmar’s previous conduct towards the applicant in the workplace which suggests a degree of malevolence and in this context I am not satisfied that he is a reliable witness as to the applicant’s demeanour or apparent intention on the day in question.
Mr Marshall, the Occupational Health and Safety Officer, gave evidence that the applicant admitted to him during the course of an interview that he did not intend to hurt Mr Rutmar with the knife, but was going to hit him over the head with the steel. I accept that the applicant places that conversation into a different context. Further, there is no evidence in these proceedings to suggest that the applicant at any time threatened Mr Rutmar with the steel, nor did Mr Rutmar suggest this in his evidence, consequently in view of the denial of the applicant, in the course of the conversation with Mr Marshall, as to misuse of the knife, it is difficult to place this conversation into a context relevent to these proceedings.
Whilst I am satisfied that there was a dispute between Mr Rutmar and the applicant on the morning of 4 October, which resulted in the applicant becoming angry and both employees raising their voices and shouting, I am not satisfied that there was involved in that dispute a misuse of the applicant’s knife or a threat to harm Mr Rutmar. Consequently I am not satisfied that the respondent had valid reason for the termination of the applicant’s employment.
Further, I am satisfied that the respondent failed to investigate the allegations made by Mr Rutmar as to the applicant’s conduct. Mr Rutmar informed another supervisory employee, Mr Jervis, that the applicant had tried to attack him with a knife. On the basis of this advice, Mr Jervis acted to stand the applicant down from the employment. He advised the applicant of this and then when the applicant apparently had not understood that he was to go home, reiterated the advice. No interview of discussion was held with the applicant at that time as to the events and only a cursory discussion with Mr Ktski. No interview or discussion was held with the other employees in the workplace to ascertain whether there was an alternative version of events and if so, which version of the events was to be preferred. Mr Jervis formed a view that he ought accept Mr Rutmar’s version of events as a consequence of his observations of the demeanour of Mr Rutmar, and the advice of Mr Ktski that the applicant “had chased Mr Rutmar with a knife”. Mr Ktski’s evidence in these proceedings was not to that effect. No enquiries of other employees as to the events were undertaken until after the applicant’s employment had been terminated. These matter are relevent to my decision that the respondent in terminating the applicant’s employment on 4 October, acted without a reason which was sound, defensible or well founded, in the sense discussed by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 and also to my conclusion that the respondent failed to accord the applicant an opportunity to respond in accordance with the requirements of s170DC of the Act. I do not accept the submission of the respondent that in the circusmtances it was not reasonable to require such an opportunity to be accorded. The evidence identifies that there were significant differences in the accounts of the parties as to the incident and the witnesses to it. Further there was no operational imperative, which in the circumstances required that the respondent take immediate action and indeed it did not take immediate action, rather it stood the applicant down and sent him home. The decision to terminate his employment being subsequently confirmed.
Remedy
The evidence of the respondent’s witness as to impracticability was that of Mr Jervis and his evidence was founded upon an assumption that the applicant conducted himself in a threatening manner in the workplace. His evidence was that because of this fact he would find it difficult to work with the applicant and that he felt other employees would also. However Mr Jervis was not an eye witness to the incident on 4 October and having regard to the evidence of the witnesses, the Court has not formed the same conclusion as to the applicant’s conduct. Had the Court found that the applicant had acted in the manner complained of by the respondent, then there is little doubt that it would be impracticable to reinstate an employee to such a place or location of employment. However in view of the findings as to the conduct of the applicant, I am not satisfied that Mr Jervis’s concerns form sufficient basis for a finding that a reinstatement order is impracticable.
The applicant is 57 years old and has been employed in the meat industry for many years. He was recently injured during the course of his employment with the respondent. As a consequence of these matters the evidence is that he has grave difficulty finding alternative employment. There is no impediment to the applicant returning to the employment on the same terms as he was engaged prior to 4 October, 1996 and the order of the Court will be an order for reinstatement to take effect on and from Monday 23 June, 1997. An order will be made for payment by the respondent to the applicant of lost remuneration between the date of termination of the employment and the date of the trial being 8 April, 1997, with relevent account being taken of payments made by the Workcover Authority on account of injury. Parties will be granted leave to apply in the event that agreement cannot be reached as to the amount of the remuneration to be paid. An order for continuity of employment will also be made. In view of my findings and orders as to remedy, it is unecessary for the claim in the associated jurisdiction of the Court, for damages for reasonable notice, to be determined.
I certify that this and the preceding seven (7) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate :
Dated : 19 June 1997
APPEARANCES
Counsel appearing for the applicant : Ms. R. Doyle
Solicitors for the applicant : Slater & Gordon
Counsel appearing for the respondent : Mr. A. Hands
Solicitors for the respondent : Kennedy Guy
Dates of hearing : 2, 7 & 8 April 1997
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