The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch v Dampier Salt Operations Ltd
[1999] WASCA 284
•13 DECEMBER 1999
THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH -v- DAMPIER SALT OPERATIONS LTD [1999] WASCA 284
| WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT | Citation No: | [1999] WASCA 284 | |
| Case No: | IAC:7/1999 | 1 NOVEMBER 1999 | |
| Coram: | KENNEDY J (Presiding Judge) ANDERSON J SCOTT J | 13/12/99 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH DAMPIER SALT OPERATIONS LTD |
Catchwords: | Industrial relations (WA) Dismissal of an employee for assaulting supervisor Whether dismissal harsh, oppressive or unfair Decision of Full Bench not erroneous in law |
Legislation: | Industrial Relations Act 1979, s 23A |
Case References: | Qantas Airways Limited v Cornwall (1998) 83 IR 102 The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch v John Holland Construction & Engineering Pty Ltd (1999) 79 WAIG 1302 BHP Iron Ore Limited v Transport Workers' Union of Australia, Industrial Union of Workers, WA Branch (1993) 73 WAIG 529; (1992) 48 IR 89 Federated Iron Workers Association v Australian Iron and Steel Pty Ltd (1975) AILR 913 The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch v Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch (1985) 65 WAIG 2033 Gromark Packaging v The Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 73 WAIG 220; (1992) 46 IR 98 House v The King (1936) 55 CLR 499 Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385 Norbis v Norbis (1986) 161 CLR 513 Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 67 WAIG 723; (1987) 19 IR 112 Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 Stockwin v Cable Sands Pty Ltd (1997) 77 WAIG 509 |
JURISDICTION : WESTERN AUSTRALIAN INDUSTRIAL APPEAL COURT CITATION : THE AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS - WESTERN AUSTRALIAN BRANCH -v- DAMPIER SALT OPERATIONS LTD [1999] WASCA 284 CORAM : KENNEDY J (Presiding Judge)
- ANDERSON J
SCOTT J
- Appellant
AND
DAMPIER SALT OPERATIONS LTD
Respondent
Catchwords:
Industrial relations (WA) - Dismissal of an employee for assaulting supervisor - Whether dismissal harsh, oppressive or unfair - Decision of Full Bench not erroneous in law
Legislation:
Industrial Relations Act 1979, s 23A
(Page 2)
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr R D Farrell
Respondent : Mr D S Ellis
Solicitors:
Appellant : Derek Schapper
Respondent : Freehill Hollingdale & Page
Case(s) referred to in judgment(s):
Qantas Airways Limited v Cornwall (1998) 83 IR 102
Case(s) also cited:
The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union of Workers - Western Australian Branch v John Holland Construction & Engineering Pty Ltd (1999) 79 WAIG 1302
BHP Iron Ore Limited v Transport Workers' Union of Australia, Industrial Union of Workers, WA Branch (1993) 73 WAIG 529; (1992) 48 IR 89
Federated Iron Workers Association v Australian Iron and Steel Pty Ltd (1975) AILR 913
The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch v Federated Clerks Union of Australia, Industrial Union of Workers, WA Branch (1985) 65 WAIG 2033
Gromark Packaging v The Federated Miscellaneous Workers Union of Australia, WA Branch (1992) 73 WAIG 220; (1992) 46 IR 98
House v The King (1936) 55 CLR 499
Miles v The Federated Miscellaneous Workers' Union of Australia, Hospital, Service and Miscellaneous, WA Branch (1985) 65 WAIG 385
Norbis v Norbis (1986) 161 CLR 513
Robe River Iron Associates v Amalgamated Metal Workers and Shipwrights Union of Western Australia (1987) 67 WAIG 723; (1987) 19 IR 112
(Page 3)
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620
Stockwin v Cable Sands Pty Ltd (1997) 77 WAIG 509
(Page 4)
1 KENNEDY J (Presiding Judge): On 29 June 1998, the employment of Mr R M Baron was terminated by the respondent on the ground that he had assaulted his supervisor, Mr K Cockrill. He was given five weeks' pay in lieu of the required notice. On 2 July 1998, the appellant gave notice seeking an urgent conference under s 44 of the Industrial Relations Act 1979 to resolve a dispute with the respondent, claiming that Mr Baron, who had been employed by the respondent as a mechanical tradesman for approximately 18 years, had been denied natural justice. At the conclusion of the conference, no resolution of the matter having been arrived at, the matter was referred to the Senior Commissioner for hearing and determination of the dispute.
2 At the hearing, there was a clear conflict of evidence regarding the events leading to Mr Baron's dismissal. As the Senior Commissioner indicated, the appellant claimed, in effect, that the allegation of an assault made against Mr Baron by the respondent was a concoction, and part of a conspiracy by its senior officers to get rid of him. The foundation for these allegations was said to be that Mr Baron was an active member of the appellant union, one of the few persons whose employment with the respondent was still covered by the Dampier Salt Award, and that he "passionately" pursued his own rights and entitlements under that award. As a consequence, the appellant maintained that Mr Baron's dismissal was unfair, and that he should be reinstated in his employment pursuant to s 23A of the Industrial Relations Act 1979.
3 Mr Baron's dismissal stemmed from a confrontation between himself and Mr Cockrill, who was the maintenance superintendent for the respondent at its Lake McLeod operations. Mr Cockrill's evidence was that, on 3 June 1998, he had questioned Mr Baron regarding his taking what Mr Cockrill regarded as an unauthorised day off duty on 29 May. Mr Baron told Mr Cockrill that the day off duty was authorised. Mr Cockrill then asked to see the roster and, for that purpose, he requested Mr Baron to accompany him to the office of the Co-ordinator, Mr Perry, where the roster was kept. Mr Baron accompanied Mr Cockrill to Mr Perry's office. Mr Cockrill examined the calendar and saw that there was no allocated day off duty marked for Mr Baron on 29 May. Both he and Mr Perry then questioned Mr Baron about the matter. After a brief time, Mr Baron walked out of the office, saying that he was not going to answer questions from two people at the same time.
4 Shortly afterwards, in order to resolve the issue, Mr Cockrill went across to the workshop where Mr Baron was carrying out maintenance work. Mr Cockrill took with him the calendar and the rosters for May and
(Page 5)
- June 1998 and he laid them out on a bench near to where Mr Baron was working, asking him to show how he had an entitlement to the day which he had taken off. Mr Baron's response, according to Mr Cockrill, was to come over to the bench, take hold of the roster, screw it up, grab Mr Cockrill's open neck shirt by the collar and to thrust the roster down his front. In doing so, Mr Baron made contact with Mr Cockrill's chin and scratched his neck. Mr Baron immediately afterwards said words to the effect that he should not have done that, with which sentiment Mr Cockrill agreed. Mr Cockrill indicated to Mr Baron that he was going to report the matter.
5 Mr Baron's evidence was very different from that of Mr Cockrill. He denied touching Mr Cockrill and said that: "With frustration, I screwed the roster up and I dropped it on the floor, turned my back on Mr Cockrill and carried on with my work".
6 Mr Cockrill proceeded to make a report on the matter to Mr P C Kibble, the respondent's Manager, Personnel Services. He also reported the matter to Mr G Mashford, who was the Manager, Maintenance and Engineering. On the following morning, Mr Mashford, Mr Kibble and Mr Cockrill met to discuss the events of the previous day and a decision was made to call upon Mr Baron for an explanation for his conduct. It was then anticipated that he would arrive for work later that day. He did not, as it turned out, come to work on that day. Instead, he sent in a medical certificate claiming that he was unfit for work for approximately a week as a result of his suffering stress and anxiety.
7 On 10 June 1998, Mr Mashford telephoned Mr Baron, seeking to ascertain his version of the incident, and asked him to provide a statement for this purpose. Mr Baron told him that he was not well enough to explain the position. Mr Mashford subsequently telephoned Mr Baron's doctor to inquire whether Mr Baron was unfit to take part in an investigation. Quite properly, the doctor indicated that he was not prepared to discuss the matter without first talking to Mr Baron about it. The doctor did indicate that Mr Baron had been "devastated" by the incident without, however, precisely identifying what the incident was said to have been. Mr Mashford followed up his telephone calls with two letters, dated 12 June 1998 and 19 June 1998, and a further telephone call on 18 June, inviting Mr Baron to participate in an investigation and warning him that the respondent viewed the matter as one of some importance. In the first of those letters, Mr Mashford advised that Mr Cockrill had reported actions of gross misconduct by Mr Baron in that he had physically abused Mr Cockrill in a manner which displayed a
(Page 6)
- blatant disregard for authority at a time when he was attempting to interview Mr Baron regarding his taking non-scheduled "allocated days off". He indicated that he intended to proceed with his investigation on 15 June. In the subsequent letter of 19 June, Mr Mashford set out his understanding of what had occurred and once again requested Mr Baron's "input". He informed Mr Baron that if no notification was received by noon on 26 June, he would finalise his investigation and inform him of the outcome. In the meantime, Mr Baron had been discussing a workers' compensation claim with the insurance representative and, in addition, he had been discussing his affairs with a union representative. When no submission was forthcoming, the investigation was concluded, and a letter dated 26 June 1998 was written to Mr Baron, conveying to him the finding that he had assaulted Mr Cockrill at work while he was in the course of his duties for the respondent. Mr Mashford indicated that it was a matter of the utmost gravity and that he had decided that the only appropriate course was to terminate his contract of employment. This was effected on 29 June 1998.
8 The ultimate decision of the Senior Commissioner turned upon his findings of fact. He had no doubt as to where the truth lay. He said:
"Having had the benefit of hearing and observing the parties and their witnesses over almost three days, I am left in no doubt about the proper outcome as to the facts. In contradistinction to the evidence given by Mr Baron, the more I heard from Mr Cockrill, the more convinced I was that he was telling the truth. His ability to give detailed answers and, moreover, to do so spontaneously, impressed me and I would be surprised if he did not impress many others who had the benefit of sitting in the court and listening to him give his evidence. Unlike Mr Baron, he was able to vividly recreate the circumstances surrounding the assault. Even taking into account Mr Baron's obvious physical indisposition, which I do indeed take into account, there is no getting away from the fact that Mr Baron was unable to give as much detail of the incident as Mr Cockrill. Certainly he did not sound anywhere nearly as convincing as did Mr Cockrill. If Mr Cockrill conspired with others to make up his story, I can only say that he learned his story very well. I simply do not accept for one minute that he did make up his story or that he was part of a conspiracy. What he said about the matter was, to a substantial degree, supported by both Mr Kibble and Mr Mashford. Although I have no doubt that neither of those persons is in the slightest unhappy to see
(Page 7)
- the end of Mr Baron, I do not accept that that coloured their evidence, which appeared to me to be quite open and frank."
- There can be no doubt that, on the basis of the Senior Commissioner's findings, Mr Baron committed an assault upon Mr Cockrill - see the definition of the expression in s 222 of the Criminal Code.
9 The relationship between Mr Baron and his employer had from time to time been uneasy. In previous "personal effectiveness reviews", the respondent had indicated that, although he had good technical skills, there were some negative aspects to Mr Baron's conduct. However, it was also indicated that Mr Baron had the ability to overcome these matters. The situation was that, although he was respected as a good tradesman with a great store of knowledge, he was regarded as being difficult.
10 As the Senior Commissioner pointed out, the issue in the proceedings was really quite simple. The essential question was whether Mr Baron had assaulted Mr Cockrill, as Mr Cockrill alleged, or whether he had not. If the assault had occured as Mr Cockrill had alleged, then, as the Senior Commissioner indicated, the appellant would be hard pressed to say that the respondent had abused its right in the normal industrially accepted sense to terminate Mr Baron's employment. He found that Mr Baron had been given a full opportunity to be heard and he accepted the evidence of Mr Cockrill.
11 The Senior Commissioner concluded his extempore reasons by indicating that Mr Baron may well have been entitled to expect that his allocated day off fell due on the same day as that enjoyed by others, but the fact was, as he himself had admitted, that he needed approval from his supervisor before the day off was actually taken. He did not have that approval. And even if he had been wrongly accused of being absent without leave, he still would not have had the right to react in the way in which the Senior Commissioner found he had reacted. He was satisfied in the circumstances that the respondent was entitled to take the action that it did and he was not persuaded that the respondent acted harshly, oppressively or unfairly. He therefore dismissed the application.
12 The appellant's appeal to the Full Bench of the Commission was dismissed by a 2 to 1 majority, with the President dissenting.
13 The appellant now appeals to this Court against the decision of the Full Bench on the ground that the Senior Commissioner's discretion miscarried in that he failed to have regard to any relevant factor, apart
(Page 8)
- from the fact of the assault itself. The relevant factors to which, it was claimed, he should have had regard, were specified as follows:
(a) the immediate acknowledgment of fault by Mr Baron;
(b) the extremely minor nature of the assault;
(c) the fact that the assault was incidental to the stuffing of the roster down the shirt rather than intentional;
(d) Mr Baron's long and unblemished service as a competent tradesperson;
(e) Mr Baron's exemplary character;
(f) whether there was any other appropriate way with which the misconduct should have been dealt.
15 The assault cannot fairly be characterised as being of an extremely minor nature. This was an assault upon an officer of the respondent and had the effect of undermining his authority. The claim that the assault was incidental to the stuffing of the roster down the shirt rather than intentional is specious and devoid of merit. It was an act done in anger and by way of insubordination in relation to a matter for which Mr Cockrill was fully entitled to require an explanation. The President was correct in saying that the act was a serious act, not lightly to be condoned or considered to be trivial - see Qantas Airways Limited v
(Page 9)
Cornwall (1998) 83 IR 102, at 110, and see also Whincup M, "The Right to Dismiss" (1986) at 90 - 91.
16 Whilst it is true that Mr Baron had a good reputation in the general community, as demonstrated by the references which were submitted on his behalf, and notwithstanding his acknowledged capabilities as a tradesman, there were some not insubstantial questions associated with his attitude to his work. In my view, on the facts as found, the respondent was entitled to take the action which it did and it was not required to seek some other way in which Mr Baron's misconduct might have been dealt with, particularly having regard to his denial of the event having occurred. I do not consider that the decision of the Full Bench was erroneous in law.
17 In the circumstances, I would dismiss the appeal.
18 ANDERSON J: I have had the advantage of reading in draft the judgment of Kennedy J and I entirely agree with it. There is nothing I wish to add.
19 SCOTT J: I have had the opportunity of reading the draft reasons to be published by Kennedy J. I agree with those reasons and the conclusions of his Honour and I would also dismiss the appeal.
20 There is nothing I can usefully add to those reasons.
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