Gregory John Coggins v The Ani Corporation Limited

[1995] IRCA 518

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION  -    SERIOUS MISCONDUCT

INDUSTRIAL RELATIONS ACT  1988 , ss170EA, 170DE

Schaale v Hoechste Australia Ltd (1993) 47 IR 249

Ball  v  Tip Top Bakeries  WI575/94  Wheeler JR  21 April 1995  unreported

The AWU-FIME Amalgamated Union  v  Queensland Alumina Limited  Moore J    14 July 1995  unreported

GREGORY JOHN COGGINS v THE ANI CORPORATION LIMITED  
No. QI 95/1049

BEFORE:   BOULTON JR

PLACE:     BRISBANE

DATE:       15  AUGUST  1995

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )   No. QI 95/1049
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  GREGORY JOHN COGGINS

Applicant

AND:  THE ANI CORPORATION LIMITED

Respondent

MINUTE OF ORDERS

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                15  AUGUST  1995     

THE COURT ORDERS THAT:

1.      The application be dismissed.

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.  QI 95/1049
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  GREGORY JOHN COGGINS

Applicant

AND:  THE ANI CORPORATION LIMITED

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                15  AUGUST  1995     

REASONS FOR JUDGMENT

Background.

During the course of the hearing I gave leave to the applicant to amend the name of the respondent to read The ANI Corporation Limited, ACN 000 421 358, due incorporation of that body being admitted.

The applicant, now aged 35, was employed by the respondent as a storeman at its premises at Northgate, Brisbane, for about two years.  The respondent was involved in the distribution of various steel products from those premises.  The applicant's duties included making up orders and the loading and unloading of trucks.  The applicant worked in the flat bay.  Steel there is stored in a racking system.  Near were two set-down areas associated with loading and unloading. 

The applicant holds gantry crane and fork-lift tickets.  Since his employment commenced, the applicant had worked on afternoon shift which, for about eight months prior to March 1995, ran from 2 pm to 10 pm.  There was conflict between the day and afternoon shifts, principally about the way in which one or other shift was leaving the state of the racked steel.  An example was the stacking together of differently sized pieces of steel, making it more difficult than usual to extract a piece.  Complaints were made by employees to their superiors but the situation does not seem to have improved.

The Incident 

On 21 February 1995, the applicant was involved in an altercation with a day-shift employee, an Alec Charlwood, at about 2.15 pm.  The day and afternoon shifts overlapped by an hour.  Charlwood was controlling a crane in the flat bay area during the unloading of a truck.  The applicant's evidence is that another employee, one Bashford, asked him if he had any trouble turning packs, meaning using the crane to turn steel packs so that they fall into the racks in such a way as to make it easier for a worker to get them out.  The applicant replied in the negative.  Charlwood heard something being said and took it to be derogatory of his crane driving ability.  The applicant's evidence is that Charlwood then threw the crane's control box away and started to storm off.  The applicant said to Charlwood: "It's only because you don't know how to drive the crane properly." 

What followed next is the subject of conflicting evidence.  In evidence in-chief the applicant's account was that Charlwood stormed back over to him (after the applicant's crane driving comment) and started to yell abuse and asked him, several times, to fight him there.  The applicant refused.  He claimed that he said: “let us go down the back, to discuss it down there.”  They went down the back and were yelling obscenities at each other.  The applicant says that Charlwood made a lunge for him at which time the applicant threw his arm out to force Charlwood back. 

Charlwood stepped back, and lunged for him again.  They grabbed each other.  The applicant twisted himself around to get Charlwood in a headlock.  When he had Charlwood in a headlock, he realised things were getting out of hand so he said, as an excuse to break it up, that Chris Appenzeller (personnel manager) was in the vicinity.  The applicant then broke away from Charlwood and the altercation ceased.

On the other hand, Charlwood's evidence was that after he heard a comment about the way he was operating the crane, he said: "I don't need this shit.”  He let go of the crane, went to walk away, something else was said which he did not (properly) hear, so he turned around and walked back and asked the applicant if he had the guts to say it again.  The applicant complained about Charlwood looking down at him, Charlwood being on the raised make-up floor and the applicant below.  They were about 3 feet apart.

The applicant got up on to the make-up floor, more words were said and Charlwood "copped a head butt."  Charlwood said he did not move towards the applicant (after initially turning around and walking back), nor did he raise his hands at the applicant.  The head butt was hard enough "to make your eyes water."  They then went down the back, more words were said, the applicant threw a punch at him which he ducked, and then the applicant grabbed him in a headlock.  Charlwood pushed him away, and then someone said one of the bosses was around, and everyone disappeared.

In cross-examination, while the applicant denied heat butting Charlwood, he said that "I put my head to his head solely to push him away.”  Other employees witnessed the altercation.  Mr Bashford denied seeing the applicant head butt Charlwood.  He confirmed that the applicant had got up on to the make-up floor but only after Charlwood would have stuck his face pretty close to the applicant's.  He went with them down the back where he saw the applicant throw a punch which did not land, and then there was a bit of a wrestle.

A Mr Dodd, another storeman, saw the applicant get up to where Charlwood was standing and "head butted" him there.  When they went down the back, they were arguing and he saw the applicant throw a punch at Charlwood, which the latter ducked.  Then Charlwood ended up in a headlock.

A Mr Winter, a storeman, said in evidence that he saw "the actual head butt."  I asked him if it was a significant contact, and he said, "It only travelled a short distance but he did mean to do it, yes."  According to this witness, the action down the back included Charlwood pushing the applicant.

Mr Hall, a storeman, saw no physical contact between the applicant and Charlwood before they went down the back.

The applicant finished his shift that day.  The next day when he arrived to clock on at work he was told not to but to report to the conference room.  He did and was asked by management to explain the incident of the afternoon before.  He did so, and shortly after, he was sacked. 

The Investigation

A Mr Purcell is the Queensland sales and operations' manager of the respondent.  He conducted the investigation into the altercation, including the interviewing of witnesses, Charlwood and the applicant, and made the decision to terminate the applicant's employment.  He said in evidence in answer to my question, "Was there any fact which played a greater role than any other in your decision to terminate," that from his interviewing of witnesses, "there seemed to be only one aggressor in it.  There was no retaliation from the other partner."  In that conclusion, I think he was substantially, although not entirely, correct. 

While I doubt that at the back of the warehouse Charlwood resorted to no physical action, I accept that in the flat bay the applicant was the aggressor; he stepped up to Charlwood's level and while there head butted him.  The applicant appears also to have resorted to more physical action down the back than Charlwood. 

There was no doubt, even in the applicant's mind, that fighting at the respondent's workplace could lead to dismissal.  The policy of the respondent on that matter was well-known to employees.  There was no argument directed to me that it was somehow unreasonable for the respondent to have such a policy.  The Enterprise Bargaining Agreement to which the respondent was a party provided for summary dismissal for "any employee found to have physically assaulted another employee" - clause 5(h)(i) thereof.

In submissions, various criticisms were levelled at Mr Purcell's investigation.  It was pointed out that while Mr Purcell thought all witnesses gave to him versions consistent with each other of what had happened in the altercation, those same witnesses had not given consistent evidence before me.  While there is truth in this, it is as well to remember the remarks of Heerey J in Schaale v Hoechste Australia Ltd (1993) 47 IR 249-252 that employers are not required to have the skills of police investigators or lawyers.

I rather favour the approach of Wheeler JR in Ball v Tip Top Bakeries WI 575/94 21 April 1995 unreported wherein she said, at pages 4/5:

There is, in my view, much to be said for an interpretation of the Act which would result in a reason for termination being found to be valid if it were a reason which fair-minded persons would consider legitimate and if it was, in fact, the reason which actuated the termination and not a justification put forward later as a screen for some other motive. Similarly, it seems that the question of fairness, substantive or procedural, might be judged according to the facts known to the employer or which could, with reasonable diligence, have been ascertained by him and that provided the employer's actions can be described as fair in all the circumstances, he could be allowed some scope for genuine error.

I do not accept evidence called of a campaign on the part of Charlwood designed to secure the applicant's sacking.

I am satisfied that the respondent had a valid reason for the applicant's termination within the meaning of subsection 170D E(1) of the Industrial Relations Act 1988 (The Act).

Harsh, Unjust or Unreasonable

"Generally, the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable.  The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including his or her work record .....  As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self-defence" - The AWU-FIME Amalgamated Union v Queensland Alumina Limited Moore J 14 July 1995 unreported, at page 21.

It was submitted that it was harsh, unjust or unreasonable to dismiss the applicant and not Charlwood as well, the latter receiving a warning only.  I am not convinced of this, given what I consider to be the lesser role of Charlwood in the altercation.  While Charlwood may well have been lucky in the treatment meted out to him, I am not persuaded that the difference in treatment between the two of them warrants a conclusion vitiating the decision to dismiss the applicant.

On behalf of the applicant, it was submitted also that Mr Purcell, in making his decision to dismiss, did not take into account the likely effect on the applicant of dismissal, the applicant having a dependent spouse and two children; nor did he invite the applicant to suggest why he should not be dismissed before informing him of his decision to that effect.  While these criticisms are each made out, and Mr Purcell should, in any future such situation, heed the remarks of Moore J earlier referred to about extenuating circumstances, I am not convinced that his failures in this regard rendered the decision to dismiss harsh, unjust or unreasonable.  The valid reason earlier referred to has not been impugned.

Procedural Fairness

The applicant was given an adequate opportunity to defend himself against the allegation of fighting.  Mr Purcell invited a union delegate, a Mr Raines now a supervisor employed by the respondent to be present for his interviews with the applicant, Charlwood and the witnesses.  He swore that the applicant was given an opportunity by Mr Purcell to give his version to him.  Mr Raines also swore that he thought Mr Purcell had handled the investigation "real well."

Serious Misconduct

I am satisfied that the applicant was guilty of serious misconduct within the terms of para 170DB(1)(b) of the Act, such that the question of notice or compensation instead of notice does not arise. 

Order

The order I make is that the application be dismissed.

I certify that this and the preceding FIVE (5) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  15  August  1995  

Counsel for the Applicant:               Mr  Diehm

Solicitor for the Applicant:              Elias &  Mumford Solicitors

Appearing for the Respondent:                 Ms  I.  Asbury

Dates of hearing:  6 and 7  July  1995

Date of judgment:  15  August  1995