Rubie v Bi-Lo Cheap Groceries Pty Ltd

[1996] IRCA 206

DECISION NO:  206/96

CATCHWORDS

INDUSTRIAL LAW  - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION  -    VALID REASON  -  PROCEDURAL FAIRNESS

INDUSTRIAL RELATIONS ACT  1988 , SS 170EA, 170DC, 170DE

KELLY LINDSAY COLIN RUBIE -v- BI-LO CHEAP GROCERIES PTY LTD

No.  QI 95/1336

BEFORE:   BOULTON JR

PLACE:     BRISBANE

DATE:       4  APRIL  1996

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )                  No.  QI 95/1336
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  KELLY LINDSAY COLIN RUBIE

Applicant

AND:  BI-LO CHEAP GROCERIES PTY LTD

Respondent

MINUTE OF ORDERS

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                4  APRIL  1996  

THE COURT ORDERS THAT:

1. The application be dismissed.

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

IN THE INDUSTRIAL RELATIONS             )
COURT OF AUSTRALIA  )       No.  QI 95/1336
QUEENSLAND DISTRICT REGISTRY

BETWEEN:  KELLY LINDSAY COLIN RUBIE

Applicant

AND:  BI-LO CHEAP GROCERIES PTY LTD

Respondent

BEFORE:           BOULTON JR

PLACE:             BRISBANE

DATE:                4  APRIL  1996  

REASONS FOR JUDGMENT

Background

The applicant, now aged 54, is a qualified butcher of long standing.  The respondent operates grocery stores, including one at Helensvale, Queensland where the applicant took up employment as a casual butcher from 16 January 1995.  His duties were principally associated with the pre-packing of meats for display for sale in the store.

On the morning of 2 October 1995, the applicant was involved in a heated argument with a fellow employee, Scott Raine, an apprentice butcher.  Later the same day, the applicant's employment was summarily terminated.

Facts

I find that what the applicant said to Raine at about 8.30 am on 2 October 1995 was, "You fucking little smart-arse cunt; I'll smash your head in."  There was practically no dispute between the parties at trial as to the applicant's use of these words.  The applicant claimed that his appalling language, and the threat of physical violence, were prompted by Raine's deliberate knocking over of the water bottle of a fellow employee, one Field.  Raine denied having deliberately knocked over the water bottle.  In this he was supported by Mrs Field, the fellow employee.  I find that the applicant was mistaken in the view he took of Raine's role in the water bottle incident.

Raine claimed to have taken the applicant's threat seriously enough to have left his work station to complain to a superior.  Mrs Field's view was that the subject incident was a "lot more severe" than the banter that might ordinarily be encountered among employees in the meat room.  Both Raine and Mrs Field had heard the applicant tell a story in the past about his resorting to violence in a disagreement he had with a fellow spectator at a State of Origin football game. I find that Raine did not over-react in the face of the applicant's evident hostility towards him that morning.

The core of the dispute between the applicant and the respondent's witnesses at trial concerned what transpired when the respondent's management took up with the applicant in the early afternoon of 2 October.  According to the applicant, the respondent's managers had already made up their minds to dismiss him before he was called in to answer the allegations relayed by Raine to his supervisor.  The applicant claimed he was given no opportunity to respond to Raine's allegations, but in effect was told that it was a pity that the company (the respondent) had to dispense with his services effective immediately.

On the other hand, three witness for the respondent gave evidence directly contradicting the applicant's assertions.  The gist of their evidence was that the applicant was given an adequate opportunity to respond to Raine's allegations.  He was, however, very agitated, his face was red, the veins in his neck were poking out, he seemed uninterested in the allegations and shrugged his shoulders when asked for a response.  Further, he did not show any remorse during his interview with the managers.  Rather, he displayed continuing anger towards Raine, saying, "I hope Scott's not in the meat hall" towards the end of his interview that afternoon.

The applicant asserted that there was one only unbroken meeting with the respondent's managers during which his employment was terminated.  The managers claim to have broken the meeting, after allowing the applicant the opportunity to respond to Raine's allegations, during which they discussed, in the applicant's absence, the options open to them and one of their number, a Mr Abel, contacted the State Human Resources Manager of the respondent to seek her advice.  After that advice was obtained, the applicant was called back into the meeting, and then told his employment was to be terminated.

I prefer the evidence of the respondent's managers as to what transpired between them and the applicant.  I accept their versions of the course of the meetings.  I do not find it necessary to have to rely on the evidence of Ms Spires, the State Human Resources Manager of the respondent.

Issues

I am satisfied that the respondent had a valid reason for its termination of the applicant's employment connected with his conduct towards the apprentice Raine.  I am not satisfied that the termination was otherwise harsh, unjust or unreasonable.  The respondent owed a duty of care to its employees, to protect them from threats of harm, and possible harm, at the hands of a fellow employee.  I am unconvinced that any behaviour on Raine's part could properly amount to provocation sufficient to excuse the applicant's behaviour towards him.  The applicant's behaviour was "over the top", in a working environment where knives and band saws were in regular use.  The applicant's rage was still unabated many hours after the morning's events.

One of the options considered by the respondent was transferring the applicant to another of its stores.  This was ruled out, on the basis that it would be transferring the problem (the applicant's apparent temperament) elsewhere.  In the circumstances of this case, I agree this option was not open.

My findings dispose of the applicant's assertion that he was not accorded procedural fairness in the manner of his termination.

I am satisfied that the applicant was guilty of serious misconduct, such that the question of notice, or compensation in lieu of notice, does not arise.

Finally, the applicant asserted, albeit faintly, that his known interest in trade union activities might have played a role in the respondent's decision to terminate his employment.  I am satisfied that the respondent has proved that this was not the case.

Order

I order that the application be dismissed.

I certify that this and the preceding THREE (3) pages are a true copy of my Reasons for Judgment.

Judicial Registrar:

Date:  4  April  1996  

Appearance for the Applicant:                  In person

Appearance for the Respondent:     Mrs Spencer
  Retailers’ Association of Queensland                 

Date of hearing:  19 & 20 March 1996

Date of judgment:   4  April  1996