Sinan Filiz, Victor Claveria and Pilkington Glass
[1995] IRCA 716
•15 December 1995
DECISION NO: 716/95
Industrial Relations Court
of Australia
Victorian District Registry Matter No: VI 95/4236
VI 95/4237
Between: Sinan FILIZ
Victor CLAVERIA
Applicant
And: Pilkington Glass
Respondent
Place: Melbourne
Date: 15 December 1995
Before: Tomlinson JR
Reasons for decision delivered ex-tempore revised from transcript
This is matter No 4236 of 1995 and matter No 4237 of 1995, 4236 is Sinan Filiz, 4237 is the matter of Victor Claveria and the respondent in each case is Pilkington Glass.
Sinan Filiz under the Industrial Relations Legislation seeks reinstatement, compensation and payment of moneys for failure to provide notice payments upon termination. He alleged he was summarily terminated on 4 August 1995. By consent it was agreed between the parties the work history of Mr Filiz was:
Commenced on 1.12.1989 and retrenched 17.8.1990.
Commenced on 8.3.1991 and banned in employment on 27.6.1991.
Commenced on 21 January 1993 and was terminated on 14 August 1995.
At the time of the termination the applicant was employed as an afternoon shift co-ordinator in receipt of $658.04 per week together with a shift allowance. The working conditions of the applicant, in fact both applicants, were governed by the Pilkington Australia Pty Limited Automotive Award 1991. At all times the applicant gave his evidence through a Turkish interpreter and he stated he was made aware of the job vacancy by the production manager Anton Grabovic. The applicant was made a leading hand in 1994. This was a promotion and he stated there had never been any complaint about his work by the respondent.
With regard to the termination procedures of the respondent the applicant stated in the first instance a verbal warning should be given, followed by a written warning and then a third warning after that. To my mind that issue was never fully tested during the course of these proceedings. According to the applicant he was working at home on his motor vehicle on 1 August 1995 when a socket became stuck in a wrench. The applicant went to work at 2.30 in the afternoon to commence his 3 o’clock afternoon shift. The applicant took his wrench with him and asked a fitter what he should do. He was told to heat the wrench, tap the head and the socket would come out.
The court heard evidence from the applicant that it was widespread among employees to bring things to work and to work on them using the respondent’s tools and equipment. The applicant said at about 7.30 that evening he did as was suggested, went to the work shop, heated the wrench, removed the socket and then with a piece of rag placed the socket on press number 4 in the work place. Press number 5 was the work place of Victor Claveria. The applicant said he put the hot socket on this bench as he had to be certain of whether there was any paint on any of the other presses. The operation to remove the socket took some 20 minutes. The applicant said he was in a hurry at the time he placed the hot socket on the table near the press.
The applicant stated he did not leave the socket in the maintenance work shop as it could have been lost or stolen. The applicant stated he did not have a fixed place of work as it was his job to move around the work area and provide assistance when people needed him. The applicant was shown a rough diagram of his work area and agreed that he recognised it. In his evidence-in-chief the applicant stated that he placed the hot socket on press number 5 and then went to the booth area in the paint priming area. He stated that from his position in there he saw Victor Claveria place the socket on another bench.
The applicant stated that from his position in the booth he could see half way but that he did not have a clear vision of the press number as it was “on an angle.” Subsequently the applicant stated he returned to the press area and then he saw Ronnie complaining about his hand. The applicant stated that he saw Ronnie at approximately ten to eight that evening. The applicant stated he told Ronnie to put ice on his fingers. The applicant stated he then went for his meal break and after the meal break he stated he personally brought ice for Ronnie for the fingers.
At the time of the accident the applicant said no injury was visible on the fingers of Ronnie but that after about half an hour blisters developed. The applicant stated that if he thought the matter was urgent he would have taken Ronnie to hospital. The applicant stated he did not see Ronnie put water on the wound. The applicant stated the supervisor Michael came round at approximately 9 pm and inquired as to what had happened. The applicant stated he told the supervisor the socket was his and that he provided an explanation of events to the supervisor. He was advised to be more careful as he, the applicant, had had problems with Ronnie.
The following day, 2 August 1995, the applicant went to a training course all day organised by the respondent. The following day, 3 August 1995, the applicant was called upstairs and questioned by Mr Ian Langford in the presence of Wayne, the supervisor, Anton Grabovic, Mr Florence Carreon, the shop steward. The applicant stated Mr Langford asked most of the questions. He stated that Mr Langford did not tell him his job was in his jeopardy. The applicant stated he did not understand the questions as his English was poor and he only answered the questions he understood.
One of the questions concerned bringing the materials from his home to be worked on in the work shop and the applicant protested that many staff members did likewise. The applicant volunteered to the court that there were no signs up in that area advising staff that private work was forbidden by the respondent. That area was never pursued in this court. The applicant stated that at interview Anton asked him why at the time when Ronnie burnt his hand was everybody laughing. To this question the applicant told the court that he replied to Anton that when he came back to press number 4 he saw everybody was laughing so he started laughing also. He stated he did not know the reason for the laughter.
According to the applicant nothing was said to him at that meeting with Mr Langford as to what would occur in the future. The applicant stated a second meeting took place the following day, 4 August 1995, attended by Mr Langford, Mr Grabovic, Brett, the personnel manager, and Florence Carreon, the shop steward. The applicant stated that Mr Langford was talking to him and he did not understand what was being said, however, he did understand that Mr Langford told him he was terminated. The applicant said that meeting was short and took five minutes. At the conclusion of the meeting the applicant stated he spoke to Anton Grabovic who apparently treated him sarcastically and he stated that Anton was laughing in response to the applicant’s questions of distress.
The applicant said he was shocked to be terminated. Since termination the applicant has been largely unemployed. In cross-examination the applicant stated he arrived at work on the afternoon of 1 August and commenced to work. He stated he visited the fitter Eddie and was given advice how to remove the socket which he commenced to do at approximately 7.45 pm. The applicant stated he did not heat the socket until it was red hot. He said at the time of performing the undertaking he had gloves on and that he knew it was not appropriate to pick up the socket unless he did have gloves on. The applicant stated it was the socket that cause the hands of Ronnie to blister but he said, I quote “I never thought it would burn as much.”
After removing the socket the applicant stated in cross-examination he quenched it by placing it in water and he did not wish it stolen so that was the reason he carried it to bench number 5. At the time he placed it there in cross-examination the applicant told the court he was the only there in the vicinity. The applicant stated Mr Claveria at that time had his back to him as he was working on press number 5. In response to a direct question the applicant stated he did not know if in relation to the hot socket whether or not Mr Claveria stated to him as he moved it: “watch this.”
The applicant stated he did not know the distances between the various work stations and he denied the suggestion that while he was in the work shop after he had finished heating the socket he hurried away as he was called for work purposes.
The applicant rejected the suggestion that other employees saw him place the socket in the vicinity of press number 5 and he affirmed that no-one else was present. He stated that it was not until after the injury to Ronnie that he learned that the socket had been moved to press number 4. The applicant however agreed with the suggestion that he was the shift coordinator and that he would enforce safety regulations during the course of his work such as the wearing of gloves and the affixing of safety chains. The applicant rejected the suggestion that in placing the socket near press number 5 he intended to play a joke on Victor Claveria. The first time he was aware that an injury had been caused was when he saw Ronnie shaking his fingers.
The applicant was shown a document admitted into evidence as exhibit A being a handwritten note of his dated 1 August. I find it will not be necessary to deal with that document as it was indicated in light of the poor English of the applicant a direct meaning would be hard to ascertain.
The applicant confirmed in cross-examination he did not think the socket was dangerous. The applicant stated that when he asked Ronnie why he had held it for such a long time Ronnie stated that he had thick skin and that was the reason why he did not put it down immediately. The applicant stated that after Ronnie had burnt his fingers he saw Mal Jeka laughing. The applicant in cross-examination told the court the injured worker, Ronnie, at one stage took up a petition for him to be sacked. That allegation was not explored further in this court. The applicant denied that Victor and Ronnie stood close by one another when they were working their respective presses. The applicant said that Chris Mills and Ricardo Eldama were also laughing at the incident.
The applicant attended the meeting on 3 August and response to a direct question as to whether notes were being taken by the respondent replied “Yes, I answered what I could and they just wrote down anything they pleased.” The applicant could not recollect the questions he was asked at the meeting but agreed with counsel for the respondent that he, the applicant, was responsible for the overall safety of his work team. The applicant denied that Mr Langford interviewed other people on the work shift at the time. The applicant stated that one of the reasons he could not understand what was being said that Mr Langford used a particular type of English dialect that he did not understand.
The court heard evidence also from the second applicant, Victor Calveria. Mr Calveria’s application number is 4237 and it was agreed between the parties that the applicant Calveria commenced on 21 April 1994 and was terminated as a moulder on 4 August 1995. At the time of the termination the applicant was earning $588.21 together with a shift allowance. The applicant operated press number 5 and on his behalf it was stated that he used cotton gloves during the course of his work. The applicant stated on the day in question he saw Mr Filiz put the socket on his work bench. He continued doing his job. Nothing was said. The applicant Victor Calveria said he needed the space to work and so he shifted the nut onto Ronnie’s table. The socket did not feel hot as the applicant Victor was wearing a glove at the time.
The applicant Victor did not see Ronnie pick up the socket, nor did he see him receive burns. He however stated he saw Ronnie shaking his fingers. The applicant Victor said Mal Jeka touched the socket and indicated a joke. The applicant Victor said he laughed with Mal at the joke but that he did not laugh at Ronnie. The applicant Victor straight after the incident went to a meal break. The applicant Victor said straight after the incident the worker Ronnie went to a meal break and that he, Victor, reported the matter to Marko, the supervisor. Later that day Victor spoke to Sinan Filiz and asked him why he chose his table and the response was “I’m busy.” The applicant Victor said the next day the company interviewed him and there were four people present including the shop steward identified as Mr Florence Carreon.
The applicant said he gave his version of events and that he did not think he was going to get into trouble. The applicant Victor said that he was aware that Anton was interviewing other people who were working on the shift that night. At the second meeting the next day the evidence of the applicant Victor was that he was summarily terminated. The applicant has had small amounts of work since that time. In cross-examination he said he needed the space to work on and he just placed the socket on the table next to him to put it out of the way. At all times the applicant Victor denied an involvement in a practical joke.
On behalf of the respondent the court heard from a former employee, Mr Chris Mills, who at the time was working in the area of press number 4. The trimmer at that time was man named Hung.
Mr Mills stated categorically he had a clear view of press number 5 and that at all times the applicant Filiz was in the vicinity of press 5. Mr Mills saw the worker Ronnie pick the socket up. There was evidence from this witness that after Ronnie burnt his hand both applicants were laughing. According to the witness the worker Ronnie only held the socket for a very short time. The witness, Mr Mills, saw the applicant Victor wearing at least one glove at the time of the incident. The witness was called to a meeting convened by the respondent and he gave his version of events. The witness, Mr Mills, said he thought the worker Ronnie sought first-aid before the meal break.
The court heard from Mr Mal Jeka who told the court he worked with the respondent for 12 months but at the time of the burn incident he was away from his work place and did not see much. When he arrived back he picked the socket up on bench number 4 and he saw both applicants laughing but he did not know why. The witness did not recall speaking to anyone. He attended the meeting on 2 August and gave his version of events.
The court also heard from Mr Ricardo Eldama who stated he only heard later what happened at a coffee break. The witness stated that the applicant Victor had his back turned to him and that when he turned around and saw Ronnie shaking his hand that was when he became aware that something might have happened.
On behalf of the respondent the court heard from Mr Ronoelo Castillo, the injured worker. He worked on bench number 4. He stated that at one stage Victor tapped him on the shoulder and indicated that there was a socket on his bench. Ronnie picked it up and sustained the injury. Ronnie saw the applicant Filiz laughing but at the same time he saw the applicant Victor in his press doing his moulding. Exhibit E was the Workcover certificate provided for the injured worker Ronnie. Ronnie agreed with suggestions that the applicant Victor said to him at the time that he did not know the socket was hot. Ronnie stated he only held the socket for a couple of seconds. The injured worker reported the incident the following day.
On behalf of the respondent the court heard from Mr Florence Carreon Junior, the shop steward in the respondent’s factory. The witness attended the meetings arranged by the respondent to inquiry into the incident. It is clear that the recall of this witness was that the applicant Victor was of the opinion he had done nothing wrong. It was equally clear that the recall of the witness was that the applicant Sinan answered questions put to him by management and understood what was occurring.
Mr Anton Grabovic gave evidence that he had been employed for some six years by the respondent and had held the position of plant manager for four years. He first became aware of the accident the following day afterwards and arranged for interview with the injured worker.
During the course of that interview it became apparent to Mr Grabovic that something untoward had happened. A conference was held with management and it was agreed to interview all people concerned. The witness gave evidence that interviews were arranged by the respondent in the presence of the shop steward. The witness stated the applicant Sinan was a good worker and there had been no concerns with conduct prior to this incident. When considering the appropriate course of action after gathering all the evidence Mr Grabovic told the court a warning was considered but it was apparent that Sinan Filiz did not consider the seriousness of his actions and that he was dismissive of the incident.
Mr Grabovic said not many people went into the work shop and that the heated socket would have in fact been quite safe had it remained there. On behalf of the respondent the court heard from Mr Ian Langford, the plant manager with the respondent, who told the court that as a result of discussions concerning a medical certificate and the worker Ronnie he became aware that an incident had occurred at his plant the day before. A discussion took place between Mr Grabovic and the personnel resources manager, Mr Gething, and it was decided that management would conduct interviews and take statements from all people concerned.
Mr Langford told the court that all witnesses he interviewed stated that Victor was not wearing gloves at the time, that is, apart from Victor himself. Mr Langford recalled that Mal Jeka stated that he had joined in the joke and laughed at the incident. Mr Langford stated that Mr Sinan Filiz could not recall why he had put the socket on the bench at the time. Mr Langford stated he was convinced that Victor Claveria knew the socket was hot when he moved it, further, that it was company policy to speak to all people on shifts and advise all workers at all times that practical jokes on no account would be tolerated as such things would lead to personal injury. Mr Brad Gething, the human resources manager, gave evidence on behalf of the respondent and in every respect confirmed the evidence of Mr Langford concerning the interviews that took place with regard to the investigation of the allegations.
On behalf of the applicant Mr Cheevers stated the applicant Sinan Filiz was impeded by a lack of command of English. It was submitted that the applicants were not engaged in a practical joke and there was no valid reason for termination within the meaning of section 170EE(1). The court was urged by Mr Cheevers to take the previous work record into consideration when dealing with the relief sought. Mr Cheevers also argued that under section 170DE(2), that the termination was harsh, unjust and unreasonable as the company ought to have enabled to stress safety issues in the work place by giving a public written warning. Also it was alleged the applicants were not given an opportunity to consult with their union representatives.
I cannot say I totally agree with this submission as a union representative was involved at all times and certainly it is clear from the evidence that union access was not denied. I place no weight on the apparent discrepancies as to the length of the various interviews given by the respondent’s witnesses bearing in mind that the witness of the respondent did not have notes present with them at the time such evidence was given. I cannot agree that the decision to terminate was made prior to the putting of the allegations to the applicants. At all times it is clear the applicants were advised of the seriousness of their actions and from the evidence of Mr Langford it is clear that it was a well published company policy that practical jokes and horse play would not be tolerated. In other words, jobs were at jeopardy.
Mr Cheevers submitted the allegations of practical jokes were not put squarely to the applicant at interview and further, the employer had not advised the applicant that their jobs were in jeopardy. I cannot agree with the latter part of this submission. Mr Mclroy on behalf of the respondent stated the valid reason for termination was apparent after a thorough investigation. The respondent said the conduct of the two applicants fell into the category of serious misconduct and the evidence of all witnesses placed that category there. In relation to the conducting of the investigations, the respondent relied heavily on the judgment Wilcox CJ in Nicholson v Heaven and Earth Galleries.
In conclusion I say the applicant Sinan Filiz was summarily dismissed. He was dismissed for misconduct. The misconduct is in essence that whilst on duty and employed as a shift supervisor in charge of some 11 other people the applicant either deliberately or with sufficient careless disregard for the safety of others caused injury to a fellow employee in contravention of basic safety regulations. It is law that all employers must provide a safe work place for all employees such that accidents are prevented and deliberate acts of danger are not to be tolerated.
For the purposes of these proceedings I am unable to place weight on the evidence that whilst engaged in work for the respondent the applicant preferred his own interests and worked on his own matters using his own tools and equipment. Although wrong that conduct would fall into the category of a misdemeanour, it is clear those actions are not relied upon by the respondent as providing a valid reason for termination. The case for the applicant is that what he did was not serious as if the injured employee was in fact seriously injured he, the applicant, would have rendered more assistance. To my mind that is not a valid defence as although it is imperative in each case personal injury is looked at especially and on its merits the mere fact that the applicant did something that may have caused injury to another person is a serious act of misconduct.
The applicant placed a dangerous article in a place capable of causing serious injury to others. That article was a socket that had been heated by the applicant using an oxy-acetylene torch. At that point of time when the socket was deliberately placed in a public place the applicant had committed an act of misconduct. Occupational health and safety rules forbid such conduct and render an employer liable to penalty if injury flows. The common law renders such persons who engage in such conduct liable to an action for damages. I add here it is unclear as to whether the applicant placed the socket in water to quench, however, to my mind the socket would have been able to have been handled more easily if in fact that had happened. Another person, almost an innocent bystander, was injured directly as a result of the deliberated and calculated acts of the applicant Filiz.
The applicant at all times gave his evidence with the aid of an interpreter and stated he had poor English. The applicant stated he did not understand all that was said to him at the meetings of 3rd and 4 August. In claiming to have been denied procedural fairness he claimed he had a personal difficulty with the accent of Mr Langford. The applicant stated on 2 August 1995 he attended a supervisors training course organised for him by the company and that also after termination he for several weeks had attended a course of on how to operate a small business. There was no evidence that during either course he attended these with the assistance of an interpreter. During the course of the hearing of the matter the applicant often commenced to answer his answer in Turkish to the interpreter before the English question had been fully put.
The applicant by his own evidence had been employed since 1989 and so it can be assumed that far from fluent he possessed a working knowledge of English that would have enabled him to comprehend the difference between misconduct and a warnable offence in the work place. From those factors and the evidence of other people at the meetings of the respondent held on 3rd and 4th it is opinion the applicant understood both what he was doing and the import of those two meetings. The evidence of Mr Langford was that the applicant understood him perfectly and that as shift coordinator verbal communication was a skill required. To my mind the evidence of the applicant Filiz was evasive and he dissembled.
I am unable to place much weight on his evidence as to what happened on 1 August after he heated the socket. I am unable to place weight on the evidence of the applicant Filiz first by unsupported details in his own case such as quenching and the fact that he went to the paint booth. The applicant Sinan’s version differed from every other witness this court has heard. It is simply not possible that the applicant believed the socket was not dangerous nor that the worker Ronnie could have held the nut for a period of minutes as he stated. In relation to the discrepancies between the evidence between the applicant and the injured worker Ronnie I prefer the version of the injured worker Ronnie. I can find nowhere statements in support of the applicant that Mal Jeka was laughing after Ronnie burnt his hand except from the evidence from Mr Langford. He has to be borne in mind however that that evidence was not first hand.
I can find no corroboration that the employee Ronnie took up a petition for the applicant Mr Filiz to be sacked. The applicant Sinan Filiz denied that Victor Calveria and Ronnie stood close by each other when they were operating their presses. Overwhelming evidence to the contrary has been placed before this court. Accordingly it is the view of this court that the applicant Sinan Filiz knowingly indulged in conduct he knew was likely to cause a fellow employee harm and that conduct did cause harm. The applicant by his conduct breached basic safety rules and prevented the worker Ronnie from carrying out his work tasks in a safe working environment by deliberately allowing him to sustain injury to his hand.
Such conduct as described above falls into the category of misconduct entitling the respondent to dismiss the applicant summarily and it is a finding that the respondent had a valid reason for that termination and that that termination was not harsh and unjust nor unreasonable. It is then necessary for this court to look at the investigation procedures carried out by the respondent. It is my view that in light of the evidence of the respondent that a most thorough and complete investigation was carried out and that the provisions of section 170DC have been complied with by the respondent. As a result of that investigation the respondent correctly concluded the applicant had committed serious misconduct and so the applicant Filiz was correctly terminated. I dismiss the application of Sinan Filiz.
I turn now to the position of Victor Calveria. I find that to be somewhat different. Victor Calveria was summarily terminated for misconduct. At all times the applicant, Victor Calveria, denied being part of a practical joke and that evidence was backed up by the statement of Mr Gething in that Victor Claveria told him the same thing. It could be argued that the applicant Victor was a link between the primary misconduct of Filiz and the injury sustained by the employee Ronnie. However the differences in the conduct are that the applicant Victor did not conceive the plan to injure as Filiz did. There is no evidence that the applicant Victor in any way knew that the socket had recently been subjected to heat from the oxy acetylene torch.
I found the applicant Victor to be a most credible and reliable witness. There were several small discrepancies of fact in the accounts supplied by the witnesses but it is my view that the version of Victor is to be preferred. It is clear in my mind that the respondent’s witness, Chris Mills, could not have seen everything as he described so I am forced to discount that the applicant colluded with Filiz to play a practical joke on the injured worker Ronnie. Mr Mills did not give evidence that the applicant Victor tapped Ronnie on the shoulder or make him turn round to see the socket and yet Ronnie said that did happen. I am unable to place accordingly appropriate weight on this evidence. Mr Mills stated the injured worker Ronnie sought first-aid help before the meal break and yet the evidence of the injured worker Ronnie was that he went to the meal break first and then he sought first-aid.
Although I found Mr Mills and indeed all of the respondent’s witnesses to be credible and reliable I have to prefer one version to another and there are certain instances, possibly due to the lapse of time, where I discount certain parts of Mr Mills’ evidence. Further, it is clear that this court heard evidence that Mr Claveria at the time was wearing at least one glove and so it is possible he may not have felt heat from the socket as he transferred it from one bench to another. I am aware the evidence of Mr Langford reflected that the respondent from its own independent and thorough inquiries formed the view that the applicant Victor was not wearing gloves and that a rag played a part in the removal of the socket. However, I can only look at evidence that is presented to this court.
Accordingly it is the finding of this court that the reason Victor transferred the socket from his table to that of his neighbour was for work reasons and not for a practical joke to cause a man injury. The court heard a lot of evidence about laughing and who was laughing. I find the most credible evidence in this regard to be that of the injured worker Ronnie who stated that only Sinan Filiz was laughing and accordingly in respect of that I prefer his evidence. The main facts separating the conduct of the applicant Victor Claveria from the conduct of the applicant Filiz is that there was no firm proof that the applicant Claveria knew the socket was hot. There was no evidence that the applicant knew of the oxy acetylene torch.
It is the finding of this court that the conduct of Victor Claveria does not fall into the category of misconduct and in the circumstances perhaps a warning would have been sufficient discipline. It is the finding of this court that the respondent Pilkington did not have a valid reason for the termination of Victor Claveria and accordingly that the provisions of the Industrial Relations Legislation have been breached. The court heard that the respondent operates round the clock shifts and the position of the applicant Victor Claveria has been filled. I assume it is no longer available.
However, I order that the applicant Victor Claveria to be reinstated forthwith to a position equal to that that he held with the respondent at the time of termination from his employment. I secondly order the respondent to pay to Victor Claveria compensation he would have earned had he not been terminated at the rate of $593.16 per week within 21 days of the date of his application.
Minutes of Order
The court orders that:
The application of Sinan Filiz, being matter numer VI95/ be dismissed.
The applicant Victor Claveria be re-instated forthwith to a position equal to that held with the respndent at the time of termination.
The respondent pay to the applicant compensation he would have earned had he not been terminated at the rate of $593.16 per week within 21 days of this judgment
NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
I certify that this and the previous thirteen (13) pages are a true and accurate record of the resons for decision delivered ex-tempore, revised from transcript, of Judicial Registrar Tomlinson.
Associate
Date: 25 January 1996
Appearances
Solicitor for the Applicant: Mr A.Cheevers
Of: Messrs Testart Robinson & Pitts
Counsel for the Respondent: Mr A.McIlroy
Of Chamber of Manufacturers of New South Wales.
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