Herdegen v Woolworths Ltd
[1997] IRCA 86
•21 February 1997
DECISION NO:86/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - Assistant Store Manager (a male) had grabbed a young female employee by her ponytail, threatened to put her head through the wall, and pushed her head into the wall - This was SERIOUS MISCONDUCT which justified the termination of his employment - OPPORTUNITY TO RESPOND TO ALLEGATIONS - If either of sub-section (a) or sub-section (b) of section 170DC of the Workplace Relations Act is satisfied, the section is not breached - The applicant’s conduct was so serious that his employer had no reasonable alternative other than to terminate his employment - It followed that, to give the employee the opportunity to argue, not only that some of the allegations were false (which opportunity was given to him) but also to argue that his employment should not be terminated (which opportunity was not given to him) would have been futile, and that, therefore the “employer could not reasonably be expected to give the employee that opportunity” - The operation of section 170 DC(b) of the Act is not limited to cases where it is urgently necessary to terminate an employee’s employment - APPLICATION DISMISSED.
Workplace Relations Act, 1996, ss 170DC, 170DE(1)
Evidence Act, 1995, ss 60, 108(3)(b)
Briginshaw -v- Briginshaw 1938 60 CLR 336
North -v- Television Corporation Limited (1976) 11 ALR 599
R -v- Skuse, NSW Court of Criminal Appeal, 24 October 1996, unreported
Wentworth -v- Rogers(No10) (1987) 8 NSWLR 398
HERDEGEN -v- WOOLWORTHS LTD
NI 2108 of 1996
Before: PATCH JR
Place: COFFS HARBOUR
Date/s of hearing: 21 FEBRUARY 1997
Date of judgment: 21 FEBRUARY 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 2108 of 1996
BETWEEN:
NORMAN ERNEST HERDEGEN
Applicant
AND
WOOLWORTHS LTD
Respondent
BEFORE: PATCH JR
PLACE: COFFS HARBOUR
DATE: 21 FEBRUARY 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
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
NEW SOUTH WALES DISTRICT REGISTRY
NI 2108 of 1996
BETWEEN:
NORMAN ERNEST HERDEGEN
Applicant
AND
WOOLWORTHS LTD
Respondent
BEFORE: PATCH JR
PLACE: COFFS HARBOUR
DATE: 21 FEBRUARY 1997
REASONS FOR DECISION
Delivered ex tempore - revised from the transcript
In this case the applicant says that the termination of his employment was unlawful. The respondent argues that certain conduct of the applicant amounted to serious misconduct warranting the summary termination of his employment.
The applicant was employed as the assistant store manager of the large Woolworths store in the city centre of Coffs Harbour. A 19 year old woman, Miss Kylie Booth, was employed as a junior employee in the store and had worked at the store from January 1996. On 26 July 1996, a Wednesday, an incident occurred in what is called the systems room, at the back of the store.
The systems room is a room with computers and a printer in it. It is used, amongst other things, as I understand it, to print labels for putting on the shelves for prices and goods descriptions and the like. Miss Booth had a desk in that room. Ms Debbie Roby also had a desk in that room.
At some time between 3.30 and 4.00 pm in the afternoon, an incident occurred involving the applicant and Miss Booth. I find, contrary to the evidence of the applicant, that the incident occurred during that period.
The reason I make that finding is because the evidence of Miss Booth as to the time is supported by the evidence of Ms Roby and by the evidence of Ms Leonie Reid. Ms Reid gave evidence that she had had a conversation with Miss Booth during which Miss Booth said to her something like "Norman's been giving me a hard time and I've had enough", and during which it was apparent to Ms Reid that Miss Booth was upset.
Miss Booth gave evidence that that conversation had occurred very shortly after the incident. I therefore accept Miss Booth's evidence as to the time of the incident.
In many respects, the evidence of the applicant and the evidence of Miss Booth about what had allegedly occurred in the systems room during the incident was not in conflict.
To summarise the alleged incident into a very truncated form, it is alleged that Mr Herdegen committed three wrongful acts during the incident. These were:
He grabbed Miss Booth on the ponytail up near where the ponytail joined her skull.
Whilst holding her like that, he said to her something like "I'll slam your fucking head into the wall."
That he then pushed or pulled Miss Booth's head into the wall, such that her right forehead came into contact with the wall of the systems room.
Before moving on, I should say that Mr Herdegen's evidence of what he actually said was as follows: "Don't do that again or I will put your effin head through the wall." Miss Booth's evidence of what was said was "I'll smash your fucking head through the wall" and Ms Roby's evidence of what the applicant said was "If you keep going on with it, I'll slam your fucking head into the wall."
Mr Bryan Fisher, the Area Manager of Woolworths Limited, was the person who terminated the employment of the applicant. On analysis, however, he was not the person who, except in a very limited sense, made the decision to terminate the employment of the applicant.
That decision was made by the most senior management of the company at head office in Sydney. I accept Mr Fisher's evidence that he went to Coffs Harbour on 1 August 1996 with a brief from his superiors in Sydney to interview both Mr Herdegen and Miss Booth and, if their information was consistent with that already held by the company, to terminate Mr Herdegen's employment. In my view, this does not amount to a decision to terminate Mr Herdegen's employment no matter what transpired during Mr Fisher's visit to Coffs Harbour. The situation was simply that, if the information remained the same, then the employment of Mr Herdegen should be terminated.
Mr Fisher said, and I accept him, that if the information had changed significantly then the decision to terminate the applicant's employment would have been put on hold.
It is necessary for the Court to determine what occurred in the systems room on 26 July 1996.
The applicant said that he was called to the systems room in order to take a call from a customer. This call turned out to be a complaint. The applicant said, and now I quote from his statement, exhibit 1:
“Upon arrival in the systems room I observed that Ms Debbie Roby and Ms Kylie Booth were in the room. I went to the telephone, which is located on the desk, and said "Assistant Manager speaking.” Immediately I said this Miss Booth commenced to mimic the words "Assistant Manager”" and engage in loud, cynical laughter. Because of this, I had difficulty hearing what the caller, who was making a complaint about the store, said. When I had finished the telephone conversation I turned around and said, "Next time I'm on the phone I would appreciate a bit of Courtesy. I was taking a complaint and couldn't hear what the woman was saying.”
In his oral testimony, the applicant said that he also said the words "You wouldn't do that to Mr Gibson." (Mr Gibson is the Store Manager.)
The applicant's statement continued as follows:
“Miss Booth, who had been standing facing me and only a short distance from me turned away and as she did so, quickly brought her left elbow back into my midriff area. The blow did not hurt me at all but took me completely by surprise. In a reflex action, I moved my right arm forward and pushed Miss Booth away. As I did so, my hand went over her hair which she wears long down her back. I said, "Don't do that again or I will put your f...... head through the wall." Miss Booth said "Go on, smash my head into the wall." I said, "You remind me of the way the Abos reacted when they were picked up for shoplifting. They were yelling out `Go on, smash my head into the shop window”. Miss Booth then walked away and said, "You shouldn't treat people like that.” At no time did I strike Miss Booth, pull her hair or attempt to hurt her in any way. Ms Roby, who was working on a computer turned around and said, "If you two are going to fool around go somewhere else to do it. I have work to do.”
The applicant then went on to say that there then followed a conversation between himself and Miss Booth about a man named Chad, who is a security officer, (not at the store) during which Miss Booth said, "I don't like him,” and the applicant said, "I think he is all right." The applicant said that he did not regard the matter as serious and that Miss Booth did not show any sign of distress and was not injured in any way.
Miss Booth gave a different version. Her version was as follows:
“I was talking to Debbie about what labels needed printing and Norm Herdegen was standing slightly behind me to my left hand side. He interrupted and part of the conversation that I remember was words to the effect of:
I said, “Are you friends with Chad?”
He said, “Yes, Chad’s a real man.”
I said, “I don’t like him.”
Norm then said, “He’s a good mate.”
I turned away from Norm to face the second systems computer because I didn’t want to talk to him and I felt I was making that obvious to him. He was standing too close to me, I felt uncomfortable. I stepped to my right.
Norm then grabbed my ponytail in a tight grip and forced my head against the wall causing my head to hit the wall which is made of brick. At or about the same time the conversation was words to the effect of:
Norm said, “I’ll smash your fucking head through the wall.”
I said, “Go on smash my head into the wall.”Norm then let me go and I walked over to my desk on the other side of the systems office. At no time did I touch him, push past or elbow Norm.
While I was at my desk Norm then said, “There’s no use going to complain, I’m the only one here today.”
Norm then said, “You remind me of an abo the way you reacted. They said the same thing when I was going to smash them through a glass window.”
I said, “They can charge you with assault.”
Norm said, “There’s no point in that, I know all the cops in town.”
I said, “You shouldn’t treat people like that.”Then I grabbed the labels which had been printed and walked out of the room and put the labels on the shelves. I was due to finish at 4.00 pm and I was extremely upset. Having finished what I was doing I went to the change room where I met Leonie Reid and I told her how I felt. By this time I was openly crying. Because of the incident I had a strong headache at the back of my head for the rest of the day.”
Ms Roby gave a version of the events which was not as complete as those given by Mr Herdegen and the applicant.
“In the room at the time was Kylie Booth, Norm Herdegen and Leonie Reid, the store union delegate. Kylie and Norm were standing to my right behind me and were talking. I’m not sure what was being said but I remember Norm Herdegen was stirring Kylie Booth about something.
The parts of the conversation I recall were words to the effect of,
Kylie said, “I don’t like Chad. He tried to get on to me once.”
Norm said, “He’s a mate of mine.”I recall the conversation got more heated but I was working so I had not absorbed all that they were talking about.
Norman said, “If you keep going on with it I’ll slam your fucking head into the wall.”
This caught my attention. I then turned around and a that time he grabbed her hair. The next thing I heard was a bang. It was a metallic sound like something hit the electrical box. Norm still had hold of her hair when I turned around.
I said words to the effect of, “If you’re going to fool around go else where and do it, I’ve got work to do.”
Kylie said, “If you ever do that again I’ll go to the cops.”
He said, “That won’t do any good, I’m mates with all them all.”
Kylie them left the room.”
Ms Roby went on to say in her statement:
“Norm came near me and laughingly showed me his security card. I grabbed what I was doing and left the room and I didn't hear anything else.”
Ms Roby was the only person present in the room who was not part of what obviously became a heated discussion. I accept Ms Roby as a witness of truth and I accept her version of what occurred. It follows that I accept Miss Booth's version insofar as Miss Booth said that the conversation about the person, Chad, occurred before the incident during which Mr Herdegen grabbed Miss Booth's ponytail.
An important aspect of what occurred in the systems room which was not covered by Ms Roby's evidence is whether or not Miss Booth's head hit the wall.
Ms Roby was not looking at Miss Booth and the applicant at the time that Miss Booth said the applicant caused her head to hit the wall. Ms Roby's evidence as to hearing a banging noise does not corroborate Miss Booth's evidence as to her head hitting the wall because, on analysis, the banging noise that Ms Roby heard could not have been the sound of Miss Booth's head hitting the wall. That is because the wall was made of brick and the banging noise that Ms Roby heard was a metallic sound. However, it is not necessarily inconsistent with Miss Booth's evidence either - a metallic fuse box was right next to where the applicant and Miss Booth were standing.
It is, therefore, necessary to look at the other evidence in the case to decide whether or not to accept Miss Booth or the applicant on the question of whether or not Miss Booth's head was brought into contact with the wall by the applicant. Very shortly after Miss Booth left the systems room she went to the change room and spoke to Leonie Reid. She made no mention of any of the aspects of what had occurred in the systems room. All she said in response to a question from Ms Reid as to "What's wrong?" was, "I'm scared and upset. Norm is giving me a hard time and I've had enough. I can't come to work tomorrow”" Ms Reid then replied by saying something like "Don't worry about it. That's just Norm.”
Ms Reid gave a slightly different version of what had occurred, but it was more or less the same. If Miss Booth had given a detailed account of what had occurred in the systems room to Ms Reid and had omitted what was clearly, on her version of the events, the most important part, namely the hitting of the head on to the wall, that would have been significant. It would have tended to show that what Miss Booth later said about her head being brought into contact with the wall was not true.
It would not necessarily have been conclusive on that, but it certainly would have assisted the applicant in his argument that what Miss Booth was saying about that aspect of the matter was untrue. However, Miss Booth did not give an account in any detail at all of what had happened.
In the circumstance of her only having complained, in a general way, about the applicant having given her "a hard time", I do not regard the omission to mention the allegation that her head had been put into the wall as significant at all - all the other details was also not mentioned.
The next person that Miss Booth spoke to was her boyfriend, Mr Bradley Walsh. Mr Walsh gave evidence, which was called in rebuttal of the allegation that Miss Booth had fabricated the assertion that the applicant had pushed her head into the wall, (see Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 and, now, section 108(3) (b) of the Evidence Act, 1995).
Mr Walsh said that Miss Booth came on her bicycle to his place of work at about 4.30 pm. He said that she was "Pretty upset crying," and that "I had not seen her that bad before." He said that he asked her what was wrong, and his evidence continued as follows:
“She said that she was in one of the rooms at work. He grabbed me by the ponytail, and pushed my head against the wall. She said that when he grabbed her he said he was `going to push her head through the fucking wall’”
Initially Mr Walsh had said that these words were, "Going to push her fucking head through the wall," but I do not think that anything turns on that.
Mr Walsh's testimony continued as follows:
“I told her that she should ring the union or the manager (or something like that).”
In cross-examination Mr Walsh said that Miss Booth had a sore on the back of her head. This was consistent with Miss Booth's evidence that the back of her head was hurting as a result of the blow that she had received on her forehead. I take judicial notice of the fact that blows to one side of the head frequently cause bruising - type injury to the brain on the other side.
I regard Mr Walsh's testimony as significant. It shows that Miss Booth's version of the events was said to the first person that she knew well within about half an hour of the incident having occurred. That testimony of what Miss Booth said is evidence now that, once admitted for one purpose, becomes admissible for all purposes. See section 60 of the Evidence Act, 1995, and R v Skuse, NSW Court of Criminal Appeal, 24 October, 1996, unreported. It is thus evidence of the truth of what she said.
I do not neglect the necessity, in cases of serious or grave allegations, that to prove a fact to the reasonable satisfaction of a Court requires more stringent proof of the facts than might otherwise be the case. (see Briginshaw -v- Briginshaw (1938) 60 CLR 336)
However, in my opinion, the clear preponderance of the evidence is that the applicant did push Miss Booth's head into the wall.
It follows from the above findings of fact that there was a valid reason for the termination of the applicant’s employment, which was not, therefore, in breach of section 170 DE(1) of the Workplace Relations Act, 1996.
WAS THE CONDUCT OF THE APPLICANT SERIOUS MISCONDUCT WARRANTING THE SUMMARY TERMINATION OF HIS EMPLOYMENT?
The applicant was the second most senior person in the store - he was the Assistant Manager. On the day in question the Manager was away and the applicant was the Acting Manager. That, in my view, is a significant aggravating feature in respect of the seriousness of his conduct. As the Assistant Manager or Acting Manager he had a responsibility to the employees under his care.
He had a duty of care to them, and he had a duty to set an example. Furthermore, there was a disproportionate relationship of power between a person in the applicant’s position and a young person in Miss Booth's position. In addition to that, the applicant was a male and clearly stronger than Miss Booth.
Mr Fisher, when he gave his evidence, said that in his opinion (and I assume therefore that it would be the opinion of Woolworths Limited as well) it was sufficient to warrant the termination of the applicant's employment that he admitted that he had grabbed Miss Booth by the ponytail and that he had said to her something like, "I am going to push your head through the fucking wall."
I agree with that. For a strong male person to assault a young female person in that way and make that threat is bad enough. For a senior manager to do it to a junior employee is much worse. In my view the admitted actions of the applicant were serious misconduct warranting a summary termination of his employment. The added fact that he pushed her head into the wall merely aggravates what was already sufficiently serious.
The question of serious misconduct has been traversed in many decisions over the years. In North v Television Corporation Limited (1976) 11 ALR 599, their Honours, Evatt and Smithers JJ, said that serious misconduct was:
“Conduct so seriously in breach of the contract (of employment) that by standards of fairness and justice the employer should not be bound to continue the employment.”
The conduct of the applicant, particularly in view of his position, was, in my view, such that by standards of fairness and justice his employer was not bound to continue the employment, and was entitled to summarily dismiss him.
WAS THERE A BREACH OF SECTION 170DC OF THE ACT?
Section 170 DC reads as follows -
“An employer must not terminate an employee’s employment for reasons related to the employee’s conduct or performance unless:
a) the employee has been given the opportunity to defend himself or herself against the allegations made; or
b) the employer could not reasonably be expected to give the employee that opportunity.
It will be seen that either subsection (a) or subsection (b) of section 170DC has to be satisfied, or the termination of an employee's employment is unlawful, if that termination is for reasons related to the employee's conduct or performance (as is clearly the case here).
It is arguable in this case that section 170DC(a) of the Act was not satisfied because, putting aside some evidence of Mr Fisher, which was not put to the applicant and which the respondent would not have been allowed to address me on if I had found it necessary to hear from the respondent, there was no evidence that the applicant had been given the opportunity to "defend himself against the allegations made" in the sense that he was given the opportunity to defend himself by arguing that his employment should not be terminated. This was because there was no evidence that the applicant was ever told that his position was in jeopardy.
In view of the absence of any evidence upon which the respondent could address the Court to the contrary, I accept the applicant's evidence in this respect.
However, in my view, the conduct of the applicant, even on his own admitted version of the events, constituted serious misconduct such that there was no reasonable alternative other than to terminate his employment.
The applicant, through his counsel, argues that section 170DC(b) of the Act only applies in circumstances of urgency such that it is necessary to immediately terminate the employment of the employee. I do not agree. The phrase "the employer could not reasonably be expected to give the employee that opportunity" is a very broad phrase. It is not to be limited to one particular type of factual circumstances such as urgency.
Here, there was serious misconduct. There was, in the view of the Court, no reasonable alternative other than to terminate the applicant's employment. It follows from that fact alone that, in the circumstances of this case, "the employer could not reasonably be expected to give the employee" the opportunity to defend himself against the allegations made, in the sense that he should have been given the opportunity to argue that his employment should not have been terminated. Such a course of action would have been futile, and therefore unreasonable.
I add, for the sake of completeness, that, in my view, the employee in this case was given ample opportunity to defend himself against the factual nature of the allegations and was, in that sense, afforded adequate procedural fairness.
ORDER
It follows from the above matters that the order of the Court is that the application be dismissed.
I certify that this and the preceding 15 pages
are a true copy of the reasons for decision of
Judicial Registrar Patch as recorded in the transcript
and revised by the Judicial Registrar.
Associate: Debra Scott
Dated: 21 March 1997
APPEARANCES
Counsel appearing for the applicant Mr J Parrington Industrial Advocate for the respondent: David Ritchie Dates of hearing: 21 February 1997
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