Manu Finau v Cadbury Schweppes

[1995] IRCA 547

IN THE INDUSTRIAL RELATIONS COURT                   )
[S1]OF AUSTRALIA  )
  )                   TI 95/1186  )
TASMANIA DISTRICT REGISTRY  )

BETWEEN:              MANU FINAU
  Applicant

AND:  CADBURY SCHWEPPES
Respondent

JUDICIAL REGISTRAR MAKING ORDER:              PARKINSON JR
WHERE ORDER MADE:  HOBART
DATE OF ORDER:  

REASONS FOR JUDGMENT

This is an application made pursuant to S170EA of the Industrial
Relations Act 1988. The applicant was employed as a confectioner by the respondent at its Claremont operation and had been so employed on various regular engagements between 1992 and the date of the termination of employment on 17 July, 1995.

The evidence is that on 14 July, 1995 the applicant physically assaulted another employee at the workplace, inflicting  on him actual physical injury.
That the assault took place, as opposed to its severity and circumstances, was not in issue in  these proceedings, and on this basis I am satisfied that the respondent had valid reason for the termination of the employment of the applicant and has thus satisfied its onus pursuant to S170DE(1) of the Act. 
Having thus found, I turn now to consider the question of whether, pursuant to S170DE(2) of the Act, the termination of the employment was harsh, unjust unreasonable. For the purposes of this aspect of the proceeding it is necessary to make some factual findings and I do so in the course of my consideration as follows.

The assault occurred in circumstances where the applicant says he was frustrated by the failure of the respondent to relieve him for a break, and the absence of Mr Oates from the line. The evidence is that Mr Oates was instructed by a supervisor to attend to other duties and was doing so at the time, in accordance with those instructions. I am satisfied that the applicant left his position and moved approximately 20 metres to where Mr Oates was then working. The applicant says that this was for the purpose of getting Mr Oates to relieve another employee. Once he was there his evidence was that having failed to get his attention, he grabbed Mr Oates by the arm. Mr Oates’ evidence was that he had no knowledge of the applicant seeking to attract his attention before he was grabbed by the applicant and assaulted. Mr Oates’ evidence was that he said and did nothing which would have provoked any assault upon him.

The applicant’s evidence of the assault is consistent with the description Mr Oates gave of the assault: that he was pushed in the face by the applicant using an open fingered, but claw-like grip. The applicant’s evidence was that he did push Mr Oates in the face and the demonstration he gave of the assault satisfies me that the evidence of Mr Oates is accurate. I am satisfied that the applicant did seize Mr Oates with a claw like grip onto the face.  I am satisfied that this grip did cause considerable harm and discomfort to Mr Oates such that it necessitated attention from the medical centre. Further, I am satisfied that the applicant also made contact with Mr Oates forehead in a strong prodding manner with two fingers. Ms Hookway, the respondent’s occupational health and safety nurse, gave evidence of her observation of the applicant shortly after the incident, and this evidence was assisted by the incident/accident report she had completed at the time (Exhibit R3).  Her evidence was that Mr Oates was not only injured, but also afraid of returning to the workplace near the applicant.

It is necessary for the applicant to satisfy the court on balance that the actions of the respondent in terminating his employment was harsh, unjust or unreasonable.  Notwithstanding that there was a valid reason, there may be  nevertheless circumstances or factors which would establish that the termination of the employment was nonetheless harsh, unjust or unreasonable.  Factors such as the degree of seriousness of the assault, together with issues of provocation and mitigation may be relevant.  However in this matter I am not satisfied there was any factor which would establish the termination of the  employment as harsh, unjust or unreasonable. I am of the view that the assault was a serious one in the context of a workplace and was unprovoked. The conduct occurred in a location some distance from the applicant’s usual workplace and in my view is not excused or mitigated by the frustrations being experienced by the applicant in the workplace that day.

The evidence satisfies me that Mr Oates did nothing to provoke such behaviour on the part of the applicant. Despite there being some evidence of verbal exchanges between the applicant and Mr Oates on previous day, I am not satisfied that these matters were at all related to the incident on 14 July 1995.  

The  applicant sought to characterise the assault as being in response to an abuse to the applicant by Mr Oates.  Whilst even on the evidence of Mr Oates it is clear that he made some response or rejoinder to the applicant, I am not satisfied that the response was made before the assault occurred.  At best for the applicant he had already grabbed Mr Oates by the arm prior to any words being spoken by Mr Oates. The abuse allegedly was
“ All brawn and no brains” and “ dickhead.” In response to this, the applicant says that he grabbed Mr Oates in the face. Even were I to accept this version of the events and version of the timing, and I do not, the response was well outside of what might be considered to be an understandable response to such words of offence. The applicant’s behaviour was extreme and in my view unprovoked in any real sense of that word.

The respondent had a policy and induction procedure operating in its workplace. It is clear from the evidence that fighting of any type is not condoned or even ignored in that workplace.  The evidence was that employees are informed at induction as to their obligations in this regard and the likelihood that they will be dismissed if they engage in fighting. This policy is addressed as a firm summary dismissal policy in such circumstances.  Whilst it is clear that notwithstanding such a firmly and clearly informed policy there might be some circumstances where the strict application of summary dismissal would be harsh unjust or unreasonable, in this case it was not a case of merely applying a blanket policy without consideration of the particular aspects of the case. I am satisfied that Mr Buchanan, the respondent’s human resources manager, took all necessary steps to ascertain the circumstances of the incident and to hear from relevant persons.

Having regard to the above matters I am not satisfied that the termination of the employment of the applicant by the respondent was harsh, unjust or unreasonable.  I turn now to consider the application of S170DC of the Act.

S170DC
I am satisfied that the applicant was given adequate opportunity in the circumstances to respond to the allegations made against his conduct in so far as fighting was concerned. The initial meeting with Mr Buchanan took place at approximately 9.00am on the morning of the incident. The applicant was well aware of the issue of concern to the respondent, and questions as to whether he had been provoked or as to whether there were any mitigating circumstances were asked of him.  Further, there was no implementation of any decision by Mr Buchanan until after he had given the applicant the opportunity to be heard through his union. That opportunity was exercised by the union on behalf of the applicant at approximately 1.00pm that day in a conversation between Mr Buchanan and Mr Treharne of the union.

In my view sufficient opportunity to be heard had been accorded that applicant and sufficient time had elapsed to enable the applicant’s version of the events, and in particular any mitigating provocation to be fully considered and canvassed and raised with the respondent. I am satisfied that the respondent complied with the requirements of S170DC of the Act.

For the reasons set out herein I dismiss the application.

I certify that this and the preceeding 5   
pages are a true copy of the reasons for
decision of Judicial Registrar Parkinson.
Associate:   
Date of Judgment:  25 September, 1995.
Place of Judgment: Hobart.

[S1]