Rosich, Terrence Neil v Atlas Group Pty Ltd

[1997] FCA 1554

FEDERAL COURT OF AUSTRALIA

WORKPLACE RELATIONS - Termination of employment - Harsh unjust unreasonable - Review of Judicial Registrar’s decision - Nature of Federal Court review - Whether appropriate to view an incident in its totality rather than its constituent parts - Legal effect of employer’s policy document outlining “dismissible offences”.

Industrial Relations Act 1988 (Cth) ss 170DE, 170 EA.

Wyndham Lodge Nursing Home Inc v Reader (No 2) (1996) 65 IR 253 (Applied)

TERRENCE NEIL ROSICH (First Applicant) TRANSPORT WORKERS’ UNION (Second Applicant) v ATLAS GROUP PTY LTD
WI 1047 of 1997

FINN J
PERTH
13 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1047  of   1997

BETWEEN:

TERRENCE NEIL ROSICH
FIRST APPLICANT

TRANSPORT WORKERS' UNION
SECOND APPLICANT

AND:

ATLAS GROUP PTY LTD
RESPONDENT

JUDGE:

FINN J

DATE OF ORDER:

13 NOVEMBER 1997

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1. The orders of the Judicial Registrar are discharged.

1. The application is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WI 1047 of 1997

BETWEEN:

TERRENCE NEIL ROSICH
FIRST APPLICANT

TRANSPORT WORKERS' UNION
SECOND APPLICANT

AND:

ATLAS GROUP PTY LTD
RESPONDENT

JUDGE:	FINN J
DATE:	13 NOVEMBER 1997
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

This proceeding is by way of review of a Judicial Registrar's decision on an application by Terrence Neil Rosich (“the applicant”) under section 170EA of the then Industrial Relations Act 1988 (now the Workplace Relations Act 1996), (“the Act"), for compensation arising from the alleged unlawful termination of his employment by the Atlas Group Pty Limited (the respondent) (the “Company”). It has been agreed that the evidence before the Judicial Registrar would constitute the evidence in this proceeding.

The claim before me is founded on section 170DE of the Act, as it then stood.  It provided:

Harsh, unjust or unreasonable termination
“170DE.(1) An employer must not terminate an employee’s employment unless there is a valid reason, or valid reasons, connected with the employee’s capacity or conduct or based on the operational requirements of the undertaking, establishment or service.

(2) A reason is not valid if, having regard to the employee’s capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable.  This subsection does not limit the cases where a reason may be taken not to be valid.”

Mr Rosich claims that the respondent had no valid reason for the termination of his employment.  Despite the unusual course the parties have taken in prosecuting this review, the bare question with which it is concerned is whether the respondent had such a reason.

Before outlining the factual setting I should outline the manner in which the parties have presented this matter.

Mr Rosich was successful in his claim before the Judicial Registrar.  The respondent, casting itself in the role of “appellant” has filed “grounds for review” which as actually relied upon before me advance three bases upon which the Judicial Registrar “erred in law” in reaching his decision.  Given the nature of the review performed by this Court: cf Wyndham Lodge Nursing Home Inc v Reader (No 2) (1996) 65 IR 253, and the cases referred to therein; it is not at all apparent to me why I should not simply “decide the matter by reference to the agreed evidence led in the review and independently for the decision of the Judicial Registrar”: cf Association of Professional Engineers, Scientists & Managers (Australia) v Deniliquin Council (1995) 58 IR 275.

This is the course I will take.  It occasions no prejudice to the parties as the particular matters raised by them in prosecuting and in responding to the “grounds of review” actually address the central issue to be decided, in any event. 

The factual setting

(1)  The company, among other activities manufactures building materials.  At the time relevant to the events of concern in this matter it had just experienced industrial disputation culminating in a 48 hour picket of the company's operations.  Mr Rosich participated in that picket.  Mr McGrechen, the other party to the incident leading to Mr Rosich's dismissal, did not.

(2)  As a result of what Mr Rosich and Mr McGrechen believed to have been a change in their usual working arrangements on the first day of work after the picket, both were allocated brick packing duties.  Mr McGrechen was unhappy with this state of affairs.  In the process of a conversation with another or others, he turned to Mr Rosich and complained that he was being punished because of the strike.  This apparently, was an adverse comment on those who participated in the strike.  Mr Rosich responded with words to the effect that he should not be “bad-mouthed” and that “if you're too much of a girl to stand up for your rights, don't take it out on me”.  He went on to suggest that if Mr McGrechen had a problem he should take it up with others.  And if he wanted to take the matter further with him, he should do so “outside the workplace”.

(3)  Shortly thereafter Mr McGrechen saw a Mr Rowe-Platts, then manufacturing supervisor, and complained of his work arrangements.  In the course of that discussion he mentioned he had problems with Mr Rosich and that they had had a disagreement.

(4)  Mr Rowe-Platts in turn saw Mr Rosich.  The burden of what he said to him was that Mr Rosich was not to upset his work mates.  It seems likely that he referred expressly to Mr McGrechen in this discussion;  such is his evidence, though Mr Rosich had no recall of his so doing.

(5)  After this meeting Mr Rosich immediately confronted Mr McGrechen.  He asked Mr McGrechen if he had “dobbed him in”.  Mr McGrechen said he had.  I note in passing that the tone of this exchange was heated and the language used florid.

(6)  Mr McGrechen was then holding an air hose used to blow sand from between rows of bricks.  It had an aluminium nozzle of some length.  Mr Rosich pulled a hose from Mr McGrechen's hand.  This was done with force to the extent of being described as “violently”.  In the course of his so doing the aluminium nozzle was bent through 90 degrees, thus damaging it.  The reason Mr Rosich gave for pulling away the air hose was that he did not want Mr McGrechen to have anything in his hand.  Mr Rosich then picked up a brick.  He probably did not make any actual gesture towards Mr McGrechen with it.  Nonetheless, as he said, he was “very angry”, he was yelling, he intended to threaten Mr McGrechen and he picked up the brick as “a scare tactic”.

(7)  Much, though not all of what had so far transpired in this incident, was observed by a Mr Ritchie, a leading hand who came over and in a reference to the brick said words to the effect “don't even think about it”.  Mr Ritchie's evidence was that he intervened because the first thing that came to his mind was that Mr Rosich was going to use it.  The brick was put down and Mr Rosich returned to where he was working.

(8)  Though not the matter of immediate complaint, Mr McGrechen reported the incident later that day.  A company investigation followed at which statements were given, the explanation Mr Rosich gave to the three members of management involved - Mr Rigby, the personnel officer,  Mr Panizza, the plant manager, and Mr Rowe-Platts - was that “things just got out of hand”, he was getting very angry and he “just lost it”.

(9)  The three managers, in the event, agreed that Mr Rosich should be dismissed.  It was considered that he had threatened Mr McGrechen and damaged company property and disobeyed instructions given immediately prior to the incident.  The threatening itself was regarded as “a serious issue”.  Mr Rigby's evidence was that the incident was looked at as a whole.  I would add that the managers appear to have viewed this incident under the shadow of a distinct, earlier event where an employee was seriously injured by a brick thrown at him.

(10)  Mr Rosich was given a letter of dismissal that stated inter alia:

As per our discussion on 27 November 1996 I confirm that you have been dismissed for serious misconduct as a direct result of physically threatening a fellow employee and in doing so damaging Atlas property.

(11)  Additionally, I should note that the company had a policy document, signed by Mr Rosich at the time of his engagement by the company, which listed “Dismissible Offences”.  Formal sections apart it reads:

Please be advised that the following behaviour constitute Gross Misconduct and are potentially Dismissible offences.

·   Wilful damage to Atlas goods or property;

·   Theft or fraud;

·   Breach of confidence eg. disclosure of company secrets;

·   Wilful disobedience of a reasonable and lawful instruction when given warning that such action may result in termination;

·   Horseplay, skylarking and practical joking;

·   Gross insubordination towards a manager or supervisor;

·   Assaulting another employee in the workplace;

·   Wilful neglect to follow mandatory safety instructions and procedures; and

·   Any form of discrimination against other employees in relation to race, sex, age, religion, mental or physical impairment, political conviction of family status.

It is in your interest to take note of this code of conduct and to avoid participating in behaviour that may put your employment, personal safety, or safety of others in jeopardy.

I would merely note that the letter of dismissal, reflects two of these grounds (ie wilful damage and assaulting), while the discussions of the management officers involved in the investigation considered additionally disobedience of an instruction.

Submissions

The respondent’s submissions put compendiously are: (i)  if the incident is viewed in its totality and not merely in its parts, there was a valid reason demonstrated for dismissal; and (ii)  it was not necessary for this purpose that Mr Rosich's threatening behaviour did in fact result in a violent physical encounter (ie a fight). 

The respondent submits that: (i)  the company had evolved an exhaustive and exclusive “code” of dismissible offences, being those contained in the policy document; (ii) in the circumstances Mr Rosich's conduct did not sufficiently offend any of the possible offences relevant to what had transpired; and (iii)  the “assault” offence in the policy document was a “no fighting clause” and there had been no fight here.

Conclusion

In my view, this is a clear case.  It is not my function to determine whether in the circumstances termination should have occurred.   Rather, it is with whether the view adopted by the company, that termination was warranted, was itself rational and reasonable in the circumstances.  If it was, then for the purposes of section 170DE(1) it was a “valid reason”. 

If one looks at the component parts of the incident in question for the purpose of asking whether they individually constitute dismissible offences (ie by reference to the company's own policy), it could well be said that in relation to at least two of the matters in question -  Mr Rosich's disregard of Mr Rowe-Platts' “instruction” not to upset his work mates and the damage to the air hose - the conduct involved or the damage inflicted fell short of that which standing alone would properly inform a reasonable and rational view that termination was warranted.  As to the third matter, the threatened violence brought to an end by Mr Ritchie's intervention, I entertain the contrary view.  I need not speculate on what might have transpired but for that intervention. 

However, it is incorrect to desegregate the component parts of a composite event in the above way where the parts give colour and context to an appraisal of the entire incident and where the reason for the termination is arrived at, to use Mr Rigby's words, by "[looking] at the whole incident as a whole basically". 

Before indicating briefly why in the present circumstances such an approach renders the decision of the company unimpeachable, I should refer to the submissions made on Mr Rosich's behalf.  First, I have said sufficient above on the propriety of dealing with the component parts of the incident separately.  Secondly, while it is unnecessary for reasons given below to express a concluded view on whether the company's policy document on dismissible offences constituted an exhaustive code on misconduct justifying dismissal, I would have to say I see little to justify the conclusion that it did.  The document does not encompass forms of conduct some of an egregious kind that could furnish a reasonable and rational view that termination was warranted.  More importantly, where dismissal occurs for whatever reason, the issue thus generated by the Act is with the validity of that reason.  Where there is an asymmetry or contradiction between that reason and a policy document on dismissible offences, that may be a factor which in particular circumstances might bear on the question whether the employer's view was reasonable in the circumstances.  It cannot render that view unreasonable per se. 

Thirdly, as to the submission that the wilful assault offence is in fact a “no fighting” clause and, as such, requires an actual physical engagement for its contravention, I need only say, as I indicated at the hearing, that the evidence relating to such understanding as was entertained at this offence simply does not support this limited interpretation of the policy.  The offence clearly encompasses actual fighting and witnesses acknowledge this.  But, as Mr Rigby noted, it also comprehended what transpired in this incident.  In that he was correct.  Given that the policy is directed towards gross misconduct, it is reasonable not to differentiate between reasonably apprehended violence of a serious character and the actual perpetration of that violence in circumstances where outside intervention (as here in the form of Mr Ritchie) precluded further action of the threatening aggressor (irrespective of what that action might have been). 

Considered in the context of the sensitivity of workplace relationships consequent upon the picket, Mr Rosich’s disregard of Mr Rowe-Platts' indication that he should not upset his work mates, if not properly to be characterised as disregard of a “lawful instruction”, was an inflammatory action which, given the nature of his confrontation with Mr McGrechen, precipitated further action on his part that can only be characterised as calculated to intimidate and to create an apprehension of violent behaviour.  His actions were designed in a sense both to disarm Mr McGrechen (by pulling the air hose from him) and to arm himself (by picking up the brick) and so to generate apprehension in Mr McGrechen.  What those actions conveyed to a bystander was expressed by Mr Ritchie who intervened because what first came to his mind was that Mr Rosich was "going to use" the brick. 

It cannot be said that the view taken by the managers was not a reasonable and rational one.  The conduct was serious and made the more so by its context.  And its implication for the workplace if tolerated was obvious enough. 

In these circumstances, I am unable to accept that the company terminated Mr Rosich's employment otherwise and for a valid reason.  Accordingly, though it may be strictly unnecessary so to do, I discharge the orders of the Judicial Registrar.  I dismiss Mr Rosich's application.  In doing this I note that matters were raised in that application that either were decided adversely to Mr Rosich or else were left undecided by the Judicial Registrar.  I merely note that these matters were not made subjects of this review. 

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:

Dated:             12 December 1997

Solicitor for the Applicant:	P Williams
Counsel for the Respondent:	P Hotchkin
Solicitor for the Respondent:	Hotchkin Hanly
Date of Hearing:	11 November 1997
Date of Judgment:	13 November 1997