Targett v National Casting

[1996] IRCA 195

DECISION NO:  195/96

C A T C H W O R D S

INDUSTRIAL LAW - termination of employment - misconduct

Industrial Relations Act 1988 S170DE, S170EA

DONALD TARGETT -v- NATIONAL CASTING

No. TI-96/1002

Before:  Judicial Registrar Ryan
Place:  Launceston
Date:  29 April 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
TASMANIA DISTRICT REGISTRY

TI-96/1002

B E T W E E N :

DONALD TARGETT
Applicant

AND

NATIONAL CASTING
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan  29 April 1996

THE COURT ORDERS:

1.     That the application be dismissed.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
TASMANIA DISTRICT REGISTRY

TI-96/1002

B E T W E E N :

DONALD TARGETT
Applicant

AND

NATIONAL CASTING
Respondent

Before:      Judicial Registrar Ryan
Place:       Launceston
Date:         29 April 1996

REASONS FOR JUDGMENT (EX TEMPORE)

The Applicant claims unlawful termination of employment.  He seeks reinstatement or compensation.  It is not necessary to go into detail about the facts leading up to the termination of the Applicant.  The Applicant concedes that at a Christmas function conducted by the Respondent in a beer garden on 21 December 1995 he was very intoxicated and in the course of a dispute tried to hit another employee, Mr Steve Collins, and was asked to leave the beer garden by Mr Peter McClindon, the General Manager of the Respondent's Launceston factory.

There is some dispute as to what precisely happened thereafter but the Court accepts that the Applicant returned to the beer garden after a short interval and Mr McClindon again asked him to leave.  The Respondent claims that the Applicant punched Mr McClindon in the chin, (I refer there to paragraph 6 of the precis of the Respondent's case), but in his evidence today Mr McClindon described the blow as a mere touch.  The Applicant concedes he threw two or three punches at Mr McClindon but missed and there is general agreement that the Applicant was evicted from the premises by the concerted action of several employees.   On 22 December, the day after, Mr McClindon wrote to the Applicant as follows, in exhibit A1:

“Dear Don

With reference to the incident that occurred at the company break up day function at the Commercial Hotel on 21 December 1995 at approximately 3 pm.  Please contact the undersigned by 5 January 1996 to arrange a suitable time to meet at work to discuss the incident.  I will be available on the company telephone number -

and a number is there given -

from 27 December 1995 during business hours.”

The Applicant did contact Mr McClindon.  Mr McClindon then rang to speak to the Applicant and gave the Applicant's mother a message that the Applicant could bring a witness to the interview.  On 3 January Mr Michael Curry, production manager, and Mr McClindon interviewed the Applicant.  There are differences between the evidence of all three participants as to the detail of that interview.  The Applicant states that the incidents on 21 December were put to him and that he apologised and indicated that it would not happen again and if it had not been for alcohol the incidents would not have happened at all.

Mr Curry relies primarily on notes he states he prepared on 3 January a few hours after the interview, that is exhibit A7.  He states he prepared the notes in conjunction with Mr McClindon and that he had also prepared some handwritten notes which he used at the interview.  Mr Curry claims that the circumstances documented in A7, were put to the Applicant at the interview.  The circumstances, as documented in exhibit A7, read as follows:

“1.After lunch at approximately 1.30 pm Mr Targett tipped out a plastic bin full of ice and some beer on to the ground in order to find a beer.

2.At approximately 2.30 pm Mr Targett had been upsetting and aggravating a number of other employees at which time Mr McClindon asked him to leave.  He agreed and proceeded out of the beer garden towards the front of the hotel.

3.Within 15 minutes he was back in the beer garden where Mr McClindon again asked him to leave.  Eventually he agreed and Mr McClindon escorted him to gate.

4.Mr Targett stepped on to the footpath and then came back through the gate showing a complete lack of authority to the manager.

5.Mr Targett shaped up to fight but Mr McClindon stated that he would not fight.” 

Mr McClindon in his evidence concedes that in the interview on 3 January the Applicant also apologised for his behaviour and indicated it would not happen again.  Mr McClindon says he was not aware of notes taken by Mr Curry in the interview or prepared by Mr Curry before the interview but he does seem to suggest that most of exhibit A7 was in fact prepared before the interview. The Curry and McClindon evidence on exhibit A7 can be reconciled but the Court is not much concerned as to when and how exhibit A7 was prepared.

Exhibit A7 is not in any way, in any expert or professional sense, a record of the interview on 3 January 1996, but Messrs Curry and McClindon are not professional investigators and there is plenty of authority that the standards of professional investigators are not required of employers or employer representatives.  The Applicant through counsel asserts that the termination was harsh, unjust and unreasonable on the following procedural grounds and I quote here from the Applicant's precis of case, paragraph 3:

“(a)the Applicant was not given proper notice of the purpose of a disciplinary meeting held on 3 January 1996 in that the letter of 22 December 1995 did not specify precisely what the Applicant had done wrong;  and

(b)upon inquiries by the Applicant and his mother on separate occasions the Applicant was not informed that the incident may result in his dismissal;

(c)in conversations with Mr McClindon upon inquiry by the Applicant and his mother on separate occasions the Applicant was given the impression that in the event of an adequate apology being made the Applicant would not be at risk of dismissal;

(d) when the Applicant requested contact details through his union delegate the Respondent:

(i)failed to provide the Applicant with contact details for the union delegate which was known to the Respondent; and

(ii)failed to postpone the meeting until a suitable alternative person was available to accompany the Applicant.”

The court finds in respect of (a), (b), (c), and (d) above that:

(a) the notice of meeting on 3 January 1996 was perfectly adequate in the circumstances

(b) & (c) while the Applicant was not told the incidents might result in dismissal he was certainly not told directly or through his mother that there was no risk of dismissal

(d)the Applicant was given adequate notice of and an opportunity to have a witness with him on 3 January and the Applicant could have had a union representative if he had arranged it.  The Respondent in no way hindered or prevented the Applicant availing himself of representation at the meeting on 3 January

The Court also rejects what the Applicant's solicitors describe as "substantive grounds" for concluding that the termination was harsh, unjust and unreasonable. The fact that the incident took place outside the work place is in no way a mitigation of conduct which, during a work sponsored Christmas function, amounted to the Applicant, on his own admission, attempting to strike Mr Collins and Mr McClindon. There is no doubt the Applicant's conduct constituted a valid reason for termination under S170DE(1) of the Industrial Relations Act 1988.

The conduct constituted a valid reason for summary termination there and then on 21 December 1995.  However, the Court agrees with Mr McClindon that there is real doubt that the Applicant was in a fit state to completely comprehend a termination at that time.  Furthermore, the Applicant's termination then and there could also have exacerbated a volatile and difficult situation. 

The Court does not accept that Mr McClindon's knowledge of the Applicant's earlier difficulty with amphetamines amounted to a knowledge of the Applicant's vulnerability to alcohol or that if Mr McClindon had such a knowledge, and the Court does not accept he did, that such a knowledge required the Respondent to take steps to prevent over-consumption of alcohol by the Applicant at the Christmas function.  Having found the termination for valid reason and now finding the termination neither harsh nor unjust nor unreasonable, the application is dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1.That the application be dismissed.

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

I certify that this and the preceding 6 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.

Associate:          
Dated:  14 May 1996

Solicitors for the Applicant:  McLean Phillips & Bartlett
Counsel for the Applicant:    Mr C McKenzie

The Respondent was represented by Mr A Cameron of the Tasmanian Chamber of Commerce & Industry

Date of hearing:                   29 April 1996
Date of judgment:                29 April 1996