Michael Grueter v Tip Top Bakeries
[1995] IRCA 163
•21 April 1995
IN THE INDUSTRIAL RELATIONS ) No. WI 1021 of 1995
COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
BETWEEN:Michael Grueter
Applicant
AND:Tip Top Bakeries
Respondent
BEFORE: Wheeler JR
PLACE: Perth
DATE: 21 April 1995
REASONS FOR JUDGMENT
In my reasons for judgment in Ball v Tip Top Bakeries (WI 575 of 1994) I have set out briefly the history of this matter and have referred to the fact that there were two separate hearings dealing with two terminations arising out of what was essentially one incident.
At this hearing it became clear, particularly from the cross-examination of Mr Maxwell, one of the respondent's witnesses, that Mr Grueter was dyslexic, that this was known to at least some of the senior staff of the respondent, and that Shane Ball had, on a number of occasions taunted Mr Grueter by calling him a "slow learner" or a "dumb cunt" or other similar terms. Mr Grueter had approached Mr Maxwell on one particular occasion which Maxwell recalled, complaining of such name calling, and Mr Maxwell had asked Mr Ball about the events and Mr Ball had denied calling Mr Grueter any names. Mr Maxwell also recalled, but had not recorded specifically in his diary, a number of previous approaches from Mr Grueter about name calling by Mr Ball.
It was clear from Mr Grueter's evidence that he was particularly sensitive about his dyslexia and about name calling which appeared to be directed at that fact.
Mr Grueter's dismissal was both formally and factually immediately the result of his fight with Mr Ball. He was the aggressor in the physical fight and Mr Ball did not retaliate. Notwithstanding that there may have been provocation by Mr Ball, the respondent was entitled to view very seriously, as it obviously did, any fighting at work. An employer's duty to take reasonable care for the safety of its employees will generally mean that such behaviour not only may, but should, be dealt with severely. See for example, Transport Workers Union of Australia v Tip Top Bakeries (1994) 75 WAIG 9, a decision of the Western Australian Industrial Appeals Court on this point and involving this respondent.
I have no hesitation in finding that there was a fight, that Mr Grueter was the aggressor, and that there was a "valid reason" for the dismissal.
What has caused more difficulty in my consideration of this matter is whether, nevertheless, the dismissal in these circumstances was "unjust". The applicant has drawn my attention to the Disability Discrimination Act 1992 which has a number of relevant provisions. Section 15(2) prohibits employers or persons acting on their behalf from discriminating against an employee on the basis of disability. More relevantly to this case, S 35 prohibits harassment of a person who has a disability, while S 122 makes vicariously liable for the harassment of another anyone who "causes, instructs, induces, aids or permits" another person to act unlawfully.
In my view, Mr Grueter did and does suffer from a disability. There is clear evidence that Mr Ball had on a number of occasions harassed him on that account. There is also clear evidence that Mr Grueter had complained of this harassment on a number of occasions, and that action - in the form of speaking to Mr Ball about it - had been taken on the respondent's behalf to prevent the harassment on only one of those occasions. The continuation of that harassment seems to have been the immediate cause of Mr Grueter's attack on Mr Ball.
In my view, it is harsh and unjust for an employer to terminate the employment of an employee who is responding to provocation which is unlawful, which the employer had notice of, which the employer had the ability to prevent, and which the employer failed to prevent. I would not wish to be thought to indicate that as a general rule provocation alone will make it harsh or unreasonable for an employer to dismiss an employee who has engaged in physical aggression against another. However, where all of the circumstances which I have indicated are present, as they are in this case, then I take the view that the termination in those circumstances is harsh and unjust.
Mr Grueter seeks reinstatement in his employment and there is no reason advanced as to why reinstatement would be impracticable. He was earning approximately $550 gross when employed by the respondent previously; he was unemployed from the time of his termination on 11 November 1994 until approximately the 8 February 1995; he received approximately $460 in social security payments during that time. In those circumstances, the appropriate compensation for the lost earnings between his termination and his reinstatement would be in the order of $5,000. The Court orders:
The respondent reinstate the applicant to the position in which the applicant was employed immediately prior to his termination within 14 days from the date of this order.
The respondent pay to the applicant the sum of $5,000 within 14 days from the date of this order.
I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment of Judicial Registrar Wheeler.
Associate:
Date:
Counsel for the Applicant: Mr S. Sirett
Solicitors for the Applicant: Wojtowicz Kelly
Representative for the Respondent: Mr J. Uphill
Date of Hearing: 8 March 1995
Date of Judgment: 21 April 1995
IN THE INDUSTRIAL RELATIONS ) No. WI 1021 of 1995
COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
BETWEEN:Michael Grueter
Applicant
AND:Tip Top Bakeries
Respondent
BEFORE: Wheeler JR
PLACE: Perth
DATE: 21 April 1995
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The respondent reinstate the applicant to the position in which the applicant was employed immediately prior to his termination within 14 days from the date of this order.
The respondent pay to the applicant the sum of $5,000 within 14 days from the date of this order.
Note:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - claim of unlawful termination - physical assault - employer's duty to take reasonable care for safety of its employees - valid reason for termination - whether dismissal was unjust - unlawful provocation - reinstatement.
INDUSTRIAL RELATIONS ACT 1988 S170EA
DISABILITY DISCRIMINATION ACT 1992 Ss 15(2), 35, 122
Transport Workers Union of Australia v Tip Top Bakers (1994) 75 WAIG 9
MICHAEL GRUETER v TIP TOP BAKERIES
No. WI 1021 of 1995
BEFORE: Wheeler JR
PLACE: Perth
DATE: 21 April 1995
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