Paul Ashbee v James Loughrans and Sons Pty Ltd

[1994] IRCA 196

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - Complaint of unlawful termination - assault - misconduct - dismissal not harsh unjust or unreasonable.

Industrial Relations Act 1988, S170DB, S170DE, S170EA

Printed and Kindred Industries Union (New South Wales branch) and John Fairfax and Sons, IRC NSW [1980]

Transfield Pty Limited re dismissal of a union delegate [1974]  IRC NSW 481

Stephen Charles Lyne and Smith's Crisps [1994] IRC NSW

Noakes and Omya Southern Pty Limited [1994] IRC NSW.

West Australian Shop Assistants and Warehouse Employees Perth and Foodland Associated Limited [1984] IRC, AILR

Metropolitan Meat Industry Board and Australian Meat Industry Employees Union, New South Wales Branch [1973] IR (NSW) 231.

PAUL ASHBEE v JAMES LOUGHRANS AND SONS PTY LTD

No. TI-136/94

Before:              Ryan JR

Place:                 Hobart

Date                  13 December 1994

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No TI-136/94

B E T W E E N:  PAUL ASHBEE  
  Applicant

AND:JAMES LOUGHRANS AND SONS PTY LTD

Respondent

RYAN JR

MINUTES OF ORDER

13 DECEMBER 1994

THE COURT ORDERS THAT:

The application be dismissed.

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

IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  Matter No TI-136/94

B E T W E E N:    PAUL ASHBEE

Applicant

AND:    JAMES LOUGHRANS AND SONS PTY LTD
  Respondent

COURT:              RYAN JR

PLACE:               HOBART

DATE:                  13 DECEMBER 1994

JUDGMENT EX TEMPORE

This is an application for remedy under section 170EA of the Industrial Relations Act 1988. The application was filed on 20 July, the termination having taken place on 28 June. Therefore, the application is a little out of time.

Both parties agree that the reason for termination was stated to be assault and Normal Russell Wells, an officer of the respondent company has described the reasons for termination of employment in paragraph 2.2 of his affidavit of 17 August as:

“Mr Ashbee was summarily dismissed for misconduct on the valid grounds of assault.” 

Mr Wells has also referred to compensation paid to the applicant in paragraph 2.1.2 of his affidavit.

The events leading up to the termination are as follows:

The applicant was a delivery driver employed by the respondent to sort delivery dockets into a daily delivery run, load goods and deliver them to customers in Launceston and district.  The respondent supplies white goods, household effects and furniture.  Usually the applicant had an assistant or offsider who helped load, unload, deliver and handle paperwork during the daily run. 

On average deliveries per truck seemed to be in the range of 15 to 25 per day five days a week.  On 28 June the applicant drove his 10 tonne truck through the exit/no entry gate rather than the entry of the container depot known as Hammond-Palmer, now a Mayne Nickless company in the Interlink Group.  The applicant says he has been to the depot on 40 or 50 occasions and because of his experience with fork lifts within the depot had reached a conclusion that it was safer to drive in by the no entry exit gate rather than by the entry gate. 

If the applicant really believes this is a safer practice than entering in accordance with the clear signs by a specific designated entrance, the court disagrees.  To be fair to the applicant, he was quite open and candid.  He does not deny the right of Hammond-Palmer to lay down rules for entry and exit or for their staff to remonstrate with him or anyone else who break the rules.  My suspicion is that he drove in the exit gate because it was the more convenient and faster when he was only dropping small parcels at the site office.

Be that as it may, on 28 June, an employee of Hammond-Palmer, Kerry Patrick Leonard, remonstrated with the applicant's offsider, Jason Mackrill, when Mackrill got out of the truck to deliver some goods to the site office.

The applicant was on a mobile phone at the time and apparently was receiving the not unexpected, but still disturbing news, of the death of his grandfather.  Mr Brett, for the applicant, puts the trauma of this news as some form of mitigation for what occurred soon thereafter.

As best the court can determine from assessing the evidence of the applicant, Mackrill and Leonard, and statements taken soon thereafter, the applicant inquired of Mackrill on the latter's return to the truck as to what was the problem between Mackrill and Leonard.   Let me say at this stage I have concluded that Leonard was more forceful than he concedes in his remonstrations first with Mackrill and later with the applicant.

The court is satisfied that the applicant, perhaps upset by the news of his grandfather's death, perhaps overjudicious in his protection of his much younger offsider, Mackrill, stopped the truck in the process of leaving the site and confronted Leonard.  No matter what the motive, or motives of the applicant, this was very unfortunate.  The applicant and Leonard exchanged words and I accept the evidence of Mackrill in this respect and to that extent the applicant too, and I reject the evidence of Leonard in this respect. There was an angry exchange of words.

The applicant claims Leonard took a round arm swing at him with his right arm and that he knocked Leonard's arm out of the way and slapped Leonard in the face with an open hand.  There is a dispute about the force of the blow but no dispute that the blow knocked Leonard's glasses off and that he fell on his back on the concrete.  The court is not much interested in the dispute about the degree of antagonism by Leonard other than to find that the verbal altercation with the applicant prior to the blow was more vigorous and heated than Mr Leonard concedes. 

The court finds that the applicant assaulted Leonard and that no matter how vigorous Leonard's reprimand of the applicant for driving in through a no entry gate, the action of the applicant was unjustified.

The court does not accept that the applicant's action was justified as a form of self-defence.  Putting aside the evidence of both the applicant and Leonard as, to some degree self-serving each to his own account, the evidence of Mackrill does not suggest a fullblooded, aggressive, initiating action by Leonard by way of an attempted blow aimed at the applicant. 

The court accepts Mackrill's evidence. The applicant was rash, hasty and indeed reckless.  Whatever his state of mind, he struck Leonard and this was an unjustified and unnecessary action.

In terms of both sections 170DB(1)(b) and section 170DE(1), the court finds that this was a degree of serious misconduct which, in itself, would have justified summary termination.

Of course the court must consider, and does now consider, section 170DE(2) which refers to grounds for dismissal which may be otherwise valid but found to be unlawful because they result in a termination which is harsh, unjust and unreasonable. 

In that respect I have briefly considered the following cases cited today.

Printed and Kindred Industries Union (New South Wales branch) and John Fairfax and Sons, IRC of New South Wales  McClelland J 25 January 1980, decision number 52 of 1980.

Transfield Pty Limited re dismissal of a union delegate I.R.C. NSW, Sheedy J, decision of 15 December 1974 number 481 of 1974.

Stephen Charles Lyne and Smith's Crisps; a decision 31 August 1994, IRC of New South Wales.

Noakes and Omya Southern Pty Limited, IRC of New South Wales, 8 March 1994.

West Australian Shop Assistants and Warehouse Employees Perth and Foodland Associated Limited, an IRC decision 1984, AILR at paragraph 413, subparagraph (7)

Metropolitan Meat Industry Board and Australian Meat Industry Employees Union, New South Wales Branch, Watson J on 4 June 1973 [1973] IR (NSW) 231.

In this jurisdiction where virtually all cases turn on the resolution of disputed issues of fact, previous cases can help but, as I think Mr Brett has conceded, are rarely a definitive guide to what flows in law from a finding on the facts.

PKIU referred to a distinction between an aggressor and a retaliator and, like a respondent in an earlier case, a distinction was drawn, and reasonably drawn in that case, between an aggressor and a retaliator.

Transfield involved a foreman knocked down in the course of an industrial dispute by a union delegate;  reinstatement was disallowed.

Lyne and Smith's Crisps involved a dispute over overtime and a worker pushed from a forklift and the crash of the forklift.  The dismissal stood.

Noakes involved a confrontation and plenty of swearing and a fight, and a fullblooded fight at that.  Fighting was prohibited and referred to in writing in the employment application form signed by employees in that case.

West Australian Shop Assistants and Warehouse Employees case did lead to reinstatement but there the employee was dismissed for fighting, and it was held that this was unfair as his reaction was taken  to be understandable in that it was a protective action and was not retaliatory or aggressive. 

At first blush Metropolitan Meat Industry Board and Australian Meat Industries Employees Union might assist the applicant.  Watson J said at 233:

As was succinctly put by Sheppard J in Coccia's case (1971) AR 111 at 115, the question comes down to this:  was the termination so unfair as to warrant interference by the commission? 

Watson J went on to say:

I fail to see why in applying this test to determine whether or not he should intervene and having in mind the considerations referred to by Sheldon J in Wattie's case (1957) AR 273 at 279, the commissioner, or the commissioner on appeal, is precluded from considering whether or not termination was too severe a penalty in all the circumstances, even if dismissal was legally justified or even, as Mr McDevitt put it, the point had been reached where at the particular time the employer's representative was faced with a situation which had developed to a stage where he had no other alternative. In some cases the issue of unfairness has been resolved because of the way in which the employer has exercised his rights to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The commission, commissioners and committees have so acted in the past and have intervened toward a reinstatement where, because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence. 

That is the nub here.  Was the misconduct such as justified dismissal? Even if it was, and if the termination was otherwise valid, was it in fact harsh, unjust and unreasonable?  Not without regret, because I consider the consequences are grave for a decent man, I have concluded today that:

(1) the misconduct justified the dismissal, especially the assault, and indeed, the whole incident involving careless and perhaps a lazy shortcut via a non-entry gate followed by a foolish, rash, and presumably much regretted assault

(2)the respondent conducted a reasonable investigation and witnesses were interviewed and evaluated;  and

(3)the applicant was given an opportunity to state his case. 

I find the termination was for valid reason within the terms of division 3, Part VIA, and was not harsh, unjust and unreasonable within the terms of division 3, Part VIA, and I therefore dismiss the applicant's application.

Having said that, I am aware of a major employer, a very major employer, who has written policies prohibiting fighting and the like but who considers not reinstatement, which is not justified, but re-employment after a period in the sin bin, say three months.  This allows an employer to maintain its reputation and its discipline and its strength and its integrity, but to also show some compassion. 

No direction or recommendation can come from this court, given the dismissal of the action, but given the difficult employment conditions in this state, perhaps the employer can find it in its collective heart to consider offering Paul Ashbee another chance.  I say no more than that, but perhaps the respondent's solicitors can refer a copy of the written reasons for this judgment (when they come off the press) to the respondent, that is when the judgment is settled.  Thank you, gentlemen.

I certify that this and the preceding page(s) are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.

Associate  :              
Date  :              1 March 1995
Appearances:
Counsel for the Applicant                 :              Mr M J Brett
Counsel for the Respondent             :              Mr J M Lumy      
Date of Hearing  :              13 December 1994

Judgment  :              13 December 1994