Goncalves v Amcor Limited
[1997] IRCA 115
•09 April 1997
DECISION NO:115/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - SERIOUS MISCONDUCT - WHETHER APPLICANT FIGHTING - REMEDY - WHETHER REINSTATEMENT IMPRACTICABLE
WORKPLACE RELATIONS ACT 1996, s170EA, 170DE(1), 170EE(1)
AWU - FIME Amalgamated Union -v- Queensland Alumina Ltd (1995) 62IR 385
Westen -v- Union Des Assurances De Paris NI 2819/95
Madgwick J 17 December 1996 unreported
CARLOS GONCALVES -V- AMCOR LIMITED
NI96/2306
BEFORE: BOULTON JR
PLACE: BRISBANE (HEARD IN SYDNEY)
DATE: 9 APRIL 1997
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. NI96/2306
NEW SOUTH WALES DISTRICT REGISTRY
BETWEEN: CARLOS GONCALVES
Applicant
AND: AMCOR LIMITED
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE (HEARD IN SYDNEY)
DATE: 9 APRIL 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application be allowed.
The respondent reinstate the applicant by re-appointing him to the position in which he was engaged immediately before the termination of his employment on 8 November 1996, or appointing him to another position on terms no less favourable than those on which he was then employed.
The respondent pay the applicant the remuneration lost by him because of the termination.
The respondent take such steps as necessary to maintain the continuity of the applicant’s employment for all purposes.
There be liberty to the parties to apply on the issue of the remuneration lost by the applicant because of the termination no later than 7 days after the publication of these reasons for judgment.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. NI96/2306 NEW SOUTH WALES DISTRICT REGISTRY
BETWEEN: CARLOS GONCALVES
Applicant
AND: AMCOR LIMITED
Respondent
BEFORE: BOULTON JR
PLACE: BRISBANE (HEARD IN SYDNEY)
DATE: 9 APRIL 1997
REASONS FOR JUDGMENT
BACKGROUND
The applicant was employed by the respondent at its Revesby, Sydney plant from 5 December 1995. The respondent is engaged at that plant in the manufacture of corrugated cardboard boxes. The applicant’s duties involved him in the production process, his job title being General Hand Feed/Stacker.
On 8 November 1996 the respondent summarily terminated the applicant’s employment, for fighting. The respondent has a well - publicised policy against fighting at the workplace. It is justified in having such a policy, for the reasons referred to by Moore J in AWU-FIME Amalgamated Union -v- Queensland Alumina Ltd (1995) 62IR 385, at 392. The applicant worked in the vicinity of moving machinery. It could well be dangerous to come in contact with such machinery in the course of a fight.
The respondent is a party to the Amcor Fibre Packaging Enterprise Agreement 1994 (the Agreement). That provides, inter alia, that summary dismissal of an employee may occur for misconduct, one example of which is fighting. The steps to be taken by the respondent in the event that summary dismissal for misconduct is contemplated are stipulated in the Agreement. It is to the respondent’s credit that it places the emphasis it does on the health and safety of its employees.
EVIDENCE
In what follows below, I do not propose to deal with all of the evidence in the case but only those matters which I consider to be material in the resolution of the matter.
I am satisfied that at all material times the applicant was aware of the respondent’s policy in respect of fighting, and the likely consequences to him if he engaged in fighting at the workplace. He had signed for a booklet provided by the respondent titled For Your Health and Safety in which this entry appears under the heading of Conduct of Employees at page 12:
Horseplay or disorderly conduct (including fighting) is strictly forbidden and will result in disciplinary action
A Mr Allcorn is the respondent’s production manager at the Revesby plant. He oversees any disciplinary action to be taken against workers at the plant. On 8 November 1996 he was advised by his production supervisor of an incident involving a fight between two employees. I am satisfied that Mr. Allcorn went about his duties in a conscientious and even handed - manner in investigating what he had learnt. I am satisfied in particular that he followed the procedures relating to investigation and disciplinary action stipulated in the Agreement.
The applicant and three other workers were working as a team. As part of the production process, it was necessary to put a date stamp on each box. At the time in question one of the boxes apparently missed being stamped. The other three members of the applicant’s team were referred to in evidence as Joe (Taloto), Bien (Chow) and Kit (whose other name I took to be Loung).
Mr Allcorn interviewed the four of them and made notes of the interviews. According to Bien, he had noticed one of the boxes had not been date stamped. Kit asked him who it was who had not put the date stamp on. Bien replied that it was the applicant. The applicant called Joe over and asked him why he had not put the date stamp on. It was Bien’s opinion that it was the applicant who should have put it on. Mr Allcorn records Bien saying that Carlos fronted up first and waved his fists
at Joe. Joe then struck Carlos. Carlos then went away from the machine. He also records Bien’s opinion that Carlos aggravated the situation.
In evidence Mr. Allcorn’s attention was drawn to the fact that in the notes of interview with Bien he had written the words pretended to before the words waved his fists at Joe. I understood Mr. Allcorn to say that he crossed out the words pretended to after Bien, having reflected, restated the position to him.
Kit was unable to add much to what Mr. Allcorn learnt of the incident. He had gone in the opposite direction after allegedly seeing Joe grabbing a box and going towards the applicant. Joe at this time appeared to be upset.
Joe told Mr. Allcorn that Kit had come up to him and asked him why there was no date stamp on the box. Joe said to Kit that he (Joe) did not put the stereo (the rubber roll which prints on the boxes) on. Joe then went up to the applicant and asked why there was no date stamp on. Joe was upset at this time. The applicant then swore at Joe and said fuck off. Joe said to the applicant to be quiet and not swear. The applicant then tried to hit Joe with his hands and also kicked but none of these landed on Joe. Joe then punched the applicant with light force, and the applicant walked away.
Mr. Alcorn recorded the applicant telling him after the applicant learnt that no date stamp was on the box that Joe came up to him and lightly tapped him on the head with one of the boxes. Joe said to the applicant why did you not put the date stamp on and the applicant replied, why did you not put the date stamp on the box?. The applicant may have included the words fuck or fucking in his answer. Joe then struck the applicant in the face. The applicant then went to see a union official, she was not there so he went to see the production supervisor.
Kit did not give evidence before me. More significantly, neither did Joe. It is perhaps not surprising that Joe did not, his employment having been terminated at the same time as that of the applicant.
Bien gave evidence and I thought he was doing his best to be truthful and accurate. He claimed in chief that the applicant had asked Joe why he had not put on the date
stamp and Joe replied that it was not his job. He claimed that he saw the applicant moving his hands and fists around in what he agreed was a “shaping up style”. He then saw Joe hit the applicant in the face. He thought the applicant was at fault because it was the applicant’s job to put the date stamp on. He did not see Joe having earlier tapped the applicant on the head with a box. He was doing something else while these events were going on. He cannot remember if the applicant said
anything else to Joe. In cross examination he agreed that the impression he had was that the applicant could have been pretending (in shaping up to Joe).
The applicant in evidence denied shaping up to Joe. He claimed that Joe had tapped him on the head with a box. He responded by asking Joe why he had done that. Joe asked why he had not put the date stamp on. The applicant said that he responded why didn’t you fucken put it on yourself? Straight away after he had finished speaking Joe hit him in the face. He denied trying to hit or kick Joe.
Mr. Allcorn agreed that what he termed provocation on behalf of the applicant was crucial to the decision which was taken to terminate his employment. He agreed that the decision might well have been different if the applicant had not waved his fists at Joe.
Having observed both Bien and the applicant give evidence, I am not prepared to find that the applicant did anything more in Joe’s presence than use the words why didn’t you fucken put it on yourself before he was struck by Joe. In so concluding, I take into account:
the applicant’s denials to Mr Allcorn
his evidence before me
his size (small build) compared with that of Joe (described as over 6 feet, 16/17 stone)
the applicant’s reaction having been struck— he walked away, sought a union official and then his supervisor
no history on his part of violence, either with the respondent or with a previous employer
I consider it more likely than not that Joe tapped the applicant on the head with a box before the 2 of them spoke. Whether or not the words spoken by the applicant to Joe are sufficient to amount to provocation is, in my opinion, beside the point. I am not satisfied that the applicant engaged in fighting in breach of the respondent’s policy. It follows that the respondent has not proved that the applicant’s termination was justified in all the circumstances, and that it had no valid reason to terminate his employment - Westen v Union Des Assurances De Paris number NI2819 of 1995 Madgwick J 17 December 1996 unreported.
REMEDY
The applicant seeks reinstatement. The respondent opposes this remedy, arguing that were the applicant to be reinstated, it would send the wrong message to fellow workers that one of them could fight and get away with it. I do not agree that this is
so. The applicant was not fighting. I do not accept that his reinstatement will impugn the effectiveness of the respondent’s policy. The respondent can make it perfectly clear to its workers if it chooses that provocative conduct leading to a fight is also embraced in its no fighting policy. Of course, whether or not in any particular case such a policy would stand up to an attack in a case in this area of the law would remain to be seen.
I am not satisfied that reinstatement is not practicable in all the circumstances of this case. The applicant had a good and long history as an employee with a previous employer. He had no history of or disposition to violence with that employer or with the respondent. I am satisfied that a proper and harmonious relationship between employer and employee can be re-established.
I expect that the parties ought to be able to reach agreement on the remuneration lost by the applicant because of the termination. This exercise needs to take account of the applicant’s earnings from Chippendale Printing Company since termination. It ought to take account too of the additional (post-termination) remuneration which the applicant earned with Berkeley Challenge over and above his ordinary earnings from that source. I am not presently convinced that credit needs to be given for a payment which the applicant is said to have received in lieu of holiday pay from what I took to be the latter source.
If the parties are unable to agree on the sum representing the remuneration lost by the applicant because of the termination, they will have liberty to apply to me by way of facsimile submissions setting out the figures respectively contended for by each with supporting material, if any. If the payment in lieu of holiday pay remains in contention, there should be argument addressed as to whether or not that sum ought to be taken into account.
I gave leave at trial to the applicant to amend the title of the respondent to read Amcor Limited ACN 000 017 372.
ORDERS:
I order that:
The application be allowed.
The respondent reinstate the applicant by re-appointing him to the position in which he was engaged immediately before the termination of his employment on 8 November 1996, or appointing him to another position on terms no less favourable than those on which he was then employed.
The respondent pay the applicant the remuneration lost by him because of the termination.
The respondent take much steps as necessary to maintain the continuity of the applicant’s employment for all purposes.
There be liberty to the parties to apply on the issue of the remuneration lost by the applicant because of the termination no later than 7 days after the publication of these reasons for judgment.
I certify that this and the preceding FIVE (5) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 9 April 1997
Counsel for the Applicant: Mr Kimber
Solicitors for the Applicant: Gibsons
Solicitor appearing for the Respondent: Mr Brown
Solicitors for the Respondent: Baker & McKenzie
Dates of hearing: 24 and 25 March 1997
Date of judgment: 9 April 1997
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