Manojlowski and Caroma Industries Limited

[1994] IRCA 159

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1267 of 1994

B E T W E E N :

GEORGE MANOJLOWSKI & ANOR
Applicant

AND

CAROMA INDUSTRIES LIMITED
Respondent

Before:       Judicial Registrar Chancellor
Place:         Melbourne
Date:          16 December 1994

REASONS FOR JUDGMENT (EX TEMPORE)

This is an application by George Manojlowski pursuant to section 170EA of the Act in relation to the termination of his employment by Caroma Industries Limited on 25 July 1994.  It was not in dispute that the sole reason for the applicant's termination was his involvement in an altercation with a fellow employee, one Don Garth, two days earlier on Saturday 23 July 1994 during the course of his employment at the respondent's premises.

The officer of the respondent who investigated the circumstances of the altercation and made the decision to summarily dismiss the applicant was Mr Neil House, the quality assurance supervisor in charge of the cistern assembly area.  Mr House gave his reasons for termination as follows:  (1) during the course of the altercation the applicant picked up an iron bar off his work table and threatened Don Garth, leading to an escalation in the altercation;  (2) he saw the applicant as being the aggressor;  (3) the applicant's explanation for picking up the iron bar and threatening Don Garth was insufficient;  (4) the applicant showed contempt for a suggestion that he should have downed tools and walked away from the altercation;  (5) Mr House was responsible for the safety of workers and the work place;  (6) company policy was that assault and/or fighting constituted grounds for summary dismissal. 

The onus is upon the respondent to establish that a valid reason or reasons associated with the applicant's conduct justified the termination.  The circumstances of the altercation are therefore critical to the determination of this case.  Evidence in relation to the altercation was given by three witnesses:  the applicant, Mr Steve Devine, who was the applicant's direct supervisor and leading hand in the cistern assembly area, and Tony Dragarski, another work mate in the area.  Don Garth, who was dismissed by the respondent not long after the applicant's dismissal, was not called to give evidence.  It seems generally accepted that the altercation commenced when Mr Garth flicked a ball of tape which struck the applicant.  An argument developed, and I accept the applicant's evidence that Mr Garth was abusive toward him.

Mr Devine gave evidence that he heard yelling, and he told the men to stop.  He then saw the applicant and Mr Garth pushing and shoving across a conveyor belt which separated their work areas.  He saw the applicant step back and pick up the bar and raise it above his head.  Mr Garth tried to get across the belt to get at the applicant, and the two men were still pulling and holding.  Mr Devine said that the applicant could have used the bar at any time, but he just left it up in the air.  He had ample opportunity to hit Mr Garth with the bar, but did not.

Mr Devine quickly got between the two men and pushed them apart.  The applicant was pushed back into a corner, but Mr Garth was still trying to get over the top of Mr Devine in an attempt to get to the applicant.  Mr Devine could feel the applicant pushing from behind.  After a few seconds Mr Devine got the two men apart.  They calmed down fairly quickly and resumed work, although Mr Devine quite wisely separated them.  The incident happened early on the Saturday and both men worked out the full shift without any further problems.

In his evidence the applicant said that he first grabbed the iron bar after Mr Devine had come between them, but I find this most unlikely, and in general terms I accept Mr Devine's version of the incident, but with the proviso that it should be remembered that incidents of this type occur very quickly and a complete and accurate recollection is rarely possible. 

In attempting to determine who was the aggressor in the matter, I make the following observations: 

(1) It was Don Garth who flicked the ball of tape into the applicant and who was abusive toward the applicant;  (2) the applicant stepped back to pick up the iron bar after the pushing and shoving had commenced and seems to have moved backward from that time on;  (3) although he raised the iron bar above his head the applicant made no attempt to use the iron bar, despite having ample opportunity, and with Mr Garth coming aggressively toward him, perhaps also ample reason to do so;  (4) the applicant did not move toward Mr Garth.  Indeed, it was Mr Garth who climbed over the conveyor belt, and in doing so knocked product off the line in what seems to have been a very determined attempt to get to the applicant;  (5) even when Mr Devine stepped in between the two men, Mr Garth was climbing over the top of Mr Devine in an attempt to get to the applicant.  Although the applicant was still pushing, I think it was more likely because he was being backed into a corner. 

On balance, I find that it is most likely that the applicant raised the iron bar to warn the abusive and aggressive Mr Garth to keep away from him as the men were already pushing and shoving before it was raised.  The applicant's actions were primarily defensive and not offensive.  I note that the altercation did not extend beyond pushing, shoving and holding, and it seems to be only Mr Garth who wanted to take it further.  There was no evidence of complaint from other workers following the incident.  Steve Devine gave evidence that he was primarily worried about the fact that the two men did not take notice of him when he asked them to stop, and at the time he did not see it as a dismissible offence. 

In reaching his decision, Mr House seems to have underestimated the fact that there had already been some abuse, pushing and shoving prior to the iron bar, which it must be remembered was a work tool on a nearby table, being raised.  He also seemed to be of the view that if Steve Devine had not intervened that the applicant would have used it, when it is clear from the evidence that although the applicant had ample opportunity to do so, the bar was not used. 

Clearly, the applicant's behaviour in becoming involved in a pushing, shoving and slanging match is not acceptable work place behaviour and may constitute a valid reason for termination.  The company has an obligation to ensure a safe work place.  In relation to the other matters relied upon I find that he was neither the aggressor, and nor did he cause an escalation in the altercation.  I also believe that Mr House misunderstood his explanation of the matters.

Even though a valid reason did exist, it is my opinion that the termination was in breach of section 170DE(2) in that in having regard to the employee's conduct the termination was harsh, unjust or unreasonable.  This is on both substantive and procedural grounds.  In Bostik (Australia) Pty Limited and Gorgevski (No. 1) 1992 36 FCR20 at page 35 Gray J said:

“Although the procedural requirements of the clause will vary according to the circumstances they are intended to be real.  An employer genuinely investigating an allegation of misconduct or neglect of duty or some other act or omission which might provide a ground for dismissal is required to carry out a proper investigation and not merely to go through the motions.  The employer is required to ascertain whether there are any mitigating factors either associated with the alleged ground for dismissal or arising from the employee's past record and future prospects.”

In my opinion the investigation of this matter by Mr House was inadequate.  He was first advised of the incident by Mr Devine at about 6.50 am on 25 July.  At that stage Mr Devine indicated that as a result of an altercation on the Saturday he had to physically separate the men, and he wanted them spoken to.  Mr House immediately went to the cistern assembly area to speak to the applicant and Don Garth.  Garth allegedly said that everything was all right until he was threatened with the iron bar, although in my view this was clearly not the case as pushing and shoving had already commenced.

According to Mr House the discussion became heated and the two men were asked to come to the office area.  A further brief discussion took place, and the applicant allegedly confirmed that he had threatened Mr Garth with the iron bar and also allegedly said that he had had enough of Mr Garth and wanted to settle the matter.  The applicant denied making these admissions.  As I have previously indicated, if the applicant wished to settle it then and there he had both the potential weapon and ample opportunity to do so.

Given the overall circumstances it seems most unlikely that the applicant made such admissions.  There may very well have been a misunderstanding between the applicant and Mr House due to the obvious language difficulties of the applicant which were readily apparent during the course of this hearing.  Mr House did not specifically ask the applicant why he raised the iron bar, and seems to have reached conclusions based on his very limited understanding of the incident and largely based on Mr Garth's assertions.

Mr House gave evidence that he indicated to the applicant that his action in raising the iron bar warranted dismissal.  He sent the applicant back to his work station, thought about the circumstances for some time and decided to dismiss the applicant.  It was only then that Mr House spoke to Mr Devine to find out what he had actually seen on the Saturday.  Mr Devine said that this discussion occurred a little later after he first reported the incident.  Mr Devine gave details of the incident and said that Mr House asked him if he had seen the applicant pick up the iron bar.  When he replied, yes, Mr House said that he would have to sack the applicant.

Mr House then called the applicant and Don Garth back to his office and told the applicant that he was dismissed.  Mr House said that this occurred at about 8.30 am to 9.00 am.  The union shop steward who worked at the respondent's premises, Len Perham, gave evidence that he was advised of the dismissal at about 7.00 am to 7.30 am.  Mr Devine's evidence indicated that it all happened fairly quickly.  It is likely that the time between Mr House first becoming aware of the allegations and his dismissal of the applicant was in the vicinity of one hour.  The time spent investigating and considering the matter was very short.

Mr House did not have detailed statements from the applicant and Don Garth.  He had spoken to Steve Devine, but Devine's version of events was not put to the applicant.  The applicant was never specifically asked why he lifted the iron bar.  No attempt was made to obtain statements from the other three workers who were in the vicinity of the incident and who were not directly involved.  Mr House did not speak to any other officers of the company, nor did he involve the union shop steward.  No attempt was made to investigate the work histories of the applicant and Mr Garth to see if there might be any mitigating factors.

Indeed, once Mr House was advised that an iron bar was raised and that was confirmed to him, it seems to have been the end of the matter.  Statements he made to Mr Devine and union representatives who became involved indicate to me that Mr House did not adequately consider the context in which the iron bar was raised.  I agree that raising an iron bar during the course of an altercation is a serious matter.  However, making a decision to sack a 51 year old employee with a good six year work record, the prospect of continuing secure employment and potential substantial difficulty in obtaining alternate employment is also a serious matter.

Despite subsequent union submissions that included advice that Don Garth was the aggressor, that Don Garth had possibly assaulted the applicant as recently as November 1993 in a prior work altercation, that the men had previously been moved to separate work areas, that there were other potential witnesses, and the provision of a statement from Mr Devine stating that Don Garth was to blame for this incident, the respondent refused to alter its position.  The respondent failed to give the matter full, adequate and proper consideration.

In particular, given Mr Manojlowski's completely clear work history in his six years with the company and given the degree of provocation and aggression shown by Don Garth, it is my opinion that his behaviour in raising the iron bar in a primarily defensive manner did not warrant his termination, and therefore the decision was harsh, unjust and unreasonable.  In my opinion, the respondent was also in breach of section 170DC of the act.  In Nicholson v Heaven and Earth Gallery Pty Limited, unreported decision 20 September 1994, Wilcox CJ said in relation to this section at page 23 of his decision:

“The paragraph does not require any particular formality, but this does not mean that it is unimportant or capable of perfunctory satisfaction.  Section 170DC carries into Australian labour law a fundamental component of the concept known to lawyers as natural justice, or more recently, procedural fairness.  The relevant principle is that a person should not exercise legal power over another to that person's disadvantage and for reason personal to him or her without first affording the affected person an opportunity to present a case.  The principle is well-established in public administrative law.”

The respondent in this case failed to fairly and squarely put the allegations to the applicant to give him a proper chance to respond.  It also failed to give the applicant any real opportunity to put his views on the question of the appropriate penalty.

In relation to the question of remedy, the applicant seeks reinstatement to his former employment.  The respondent argued that if reinstatement was ordered it would undermine the company's policy and control over its employees.  It feared that other employees might take it upon themselves not to be bound by or follow its rules in relation to fighting on the premises.

The court rejects that proposition.  This decision should not be seen as in any way condoning fighting in the work place, and the court accepts the respondent's submissions that fighting is certainly an activity that may warrant summary dismissal.  However, each case must be considered on its merits.

The applicant has made a number of attempts to find work since his termination, but has been unsuccessful.  Given his age, language skills and a recent WorkCover claim, this is entirely understandable.  I also note that Mr Don Garth is no longer in the respondent's employment.
In my opinion reinstatement is the appropriate remedy in this case, and I therefore make the following orders: 

(1) that the termination of the applicant's employment by the respondent contravened section 170DC and section 170DE(2) of the Industrial Relations Act 1988;

(2) that the applicant be reinstated by the respondent by being reappointed to the position occupied by him immediately before the termination of his employment, and that the reinstatement take effect forthwith; 

(3) that the period from 25 July 1994 to 16 December 1994 inclusive be treated for all purposes as continuous employment of the applicant by the respondent in the position occupied by the applicant immediately before the termination of his employment; 

(4) that the respondent pay the applicant remuneration at the rate of $600 gross per week from 25 July 1994 to 16 December 1994 inclusive. 

MINUTES OF ORDERS

THE COURT ORDERS AND DECLARES:

1.that the termination of the applicant's employment by the respondent contravened section 170DC and section 170DE(2) of the Industrial Relations Act 1988;

2.that the applicant be reinstated by the respondent by being reappointed to the position occupied by him immediately before the termination of his employment, and that the reinstatement take effect forthwith; 

3that the period from 25 July 1994 to 16 December 1994 inclusive be treated for all purposes as continuous employment of the applicant by the respondent in the position occupied by the applicant immediately before the termination of his employment; 

4that the respondent pay the applicant remuneration at the rate of $600 gross per week from 25 July 1994 to 16 December 1994 inclusive. 

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of Judicial Registrar Chancellor as recorded in the draft transcript and revised by the Judicial Registrar.

Associate:            
Dated:  16 December 1994

Solicitors for the Applicant:    Maurice Blackburn & Co.
Counsel for the Applicant:     Mr N Kenyon

Solicitors for the Respondent: Australian Chamber of Manufactures
Counsel for the Respondent:   Mr C Blanden