The AWU-FIME Amalgamated Union v Queensland Alumina Limited
[1995] IRCA 311
•14 July 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - summary dismissal for fighting - whether employee given opportunity to defend himself - whether termination harsh, unjust or unreasonable.
APPEAL - review by Judge of exercise of power by Judicial Registrar - nature of review of order made by consent.
LEGAL REPRESENTATION - desirability to separate representation of two dismissed employees where possible conflict of interest.
Industrial Relations Act 1988 S170DC, S170DE
Schaale v Hoechst Australia Ltd (1993) 47 IR 249
Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR
233
Harris v Caladine (1990) 172 CLR 85
Nos. QI 168 of 1994 and QI 169 of 1994
THE AWU-FIME AMALGAMATED UNION v QUEENSLAND ALUMINA LIMITED
MOORE J
SYDNEY (Heard in Brisbane)
14 JULY 1995
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) Nos. QI 168 of 1994
) & QI 169 of 1994
QUEENSLAND DISTRICT REGISTRY )
BETWEEN: THE AWU-FIME AMALGAMATED UNION
Applicant
AND: QUEENSLAND ALUMINA LIMITED
Respondent
JUDGE: Moore J
PLACE: Sydney (Heard in Brisbane)
DATE: 14 July 1995
ORDER OF THE COURT
THE COURT ORDERS THAT:
The application under s170EA by AWU-FIME Amalgamated Union on behalf of Mr Phillip Merritt is dismissed.
The application under s170EA by AWU-FIME Amalgamated Union on behalf of Mr Robert Sonter is dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) Nos. QI 168 of 1994
) & QI 169 of 1994
QUEENSLAND DISTRICT REGISTRY )
BETWEEN: THE AWU-FIME AMALGAMATED UNION
Applicant
AND: QUEENSLAND ALUMINA LIMITED
Respondent
JUDGE: Moore J
PLACE: Sydney (Heard in Brisbane)
DATE: 14 July 1995
REASONS FOR JUDGMENT
This is an application by Queensland Alumina Limited ("QAL") involving the exercise of the Court's powers under s377 of the Industrial Relations Act 1988 ("the Act") to review the exercise of a power by a Judicial Registrar to order the reinstatement of two former employees of QAL. The orders were made in applications filed by AWU-FIME Amalgamated Union ("the Union") under s170EA of the Act. The applications were made on behalf of the employees: see s170EA(2), Mr Phillip Merritt and Mr Robert Sonter. Their employment was terminated on 16 June 1994 as a result of a fight that had occurred at work the previous day.
On 7 February 1995 the Judicial Registrar ordered the reinstatement of Merritt following a contested hearing and, on that day also ordered the reinstatement of Sonter. That latter order was made by consent and is a matter I return to consider later in this judgment.
In the review evidence was called by QAL from a number of witnesses who did not give evidence before the Judicial Registrar. In the application concerning Merritt (QI 168 of 1994), affidavit evidence was given by:
*Mr William Allen
Level 3 Shift In Charge (QAL)
*Mr David Billingsley
Instrument Fitter (QAL until February 1995)
*Mr Paul Burns
Solicitor
Freehill Hollingdale & Page
Solicitors for QAL
*Mr Alan Conner
Operations Superintendent (QAL)
*Mr Lewis McDonald
Human Resource Development Manager (QAL)
*Mr Peter McIntosh
Operations Manager (QAL)
*Mr Garry Parmenter
Senior Industrial Officer (QAL)
*Mr David Sandercock
Training & Safety Supervisor (QAL)
*Mr George Skiba
Operations Superintendent, Organisational Development
(QAL)
*Mr Neville Stallan
Relief Shift Operations Supervisor (QAL)
*Mr Kevin Thomsen
Shift (Operations) Supervisor (QAL)
*Mr Ian Turner
Employee Relations Consultant
Australian Mines and Metals Association Inc
Affidavits were also filed in the matter concerning Sonter's termination (QI 169 of 1994) by McIntosh, Thomsen, Allen, McDonald, Conner and Parmenter. Merritt gave evidence in his matter as did Sonter in his matter. There was no suggestion that the evidence in one matter should not be treated as evidence in the other. Each of these witnesses was cross examined save for Burns and Billingsley. Burns gave evidence so as to enable the reading of Billingsley's affidavit as he is presently employed in Papua New Guinea and was unable to be called.
Before dealing with the circumstances that gave rise to the termination, I briefly describe the evidence about QAL's operation at Gladstone where both Merritt and Sonter were employed. QAL operates the world's largest alumina refinery at Gladstone. The nature of the plant was described by Conner in his affidavit. The production process is directed to refining bauxite transported to Gladstone from Weipa. The process involves the heating and cooling of a recirculating stream of caustic soda solution resulting in the precipitation of alumina at the end of the process. The area in which Sonter and Merritt were employed is described as the digestion area which forms a significant part of the plant covering an area of approximately eight hectares. The plant in that area consists of high pressure vessels operating at four thousand kpa to which ground bauxite, high pressure steam and high temperature caustic soda are added to commence the alumina extraction process. Conner describes the remainder of the units as pressure flash tanks to reduce the pressure of the slurry to atmospheric pressure and extract as much energy as possible for reheating purposes.
The digestion area is staffed by four crews operating on twelve hour shifts. Each crew comprises sixteen refinery workers, two of whom operate the control room and fourteen of whom perform all outside equipment changes. Merritt and Sonter worked in this latter group. The crews working on the shifts are refinery workers of various grades. One of the supervisory grades is a Shift Production Operator in Charge ("POIC").
Conner described the working environment in the following way:
"The Digestion area is noisy and hot making the working environment extremely hostile. For example, there is high pressure steam consumption of 700 tons/hr and 4,500 kl/hr of caustic soda and 50 tons of strong sulfuric acid in circulation to descale pipe work."
It was not in issue that the environment in which Merritt and Sonter worked was demanding and physically hostile though the incident which gave rise to their termination occurred in a crib room located in a single storey building found in the midst of the plant which is in a much larger scale. The building also housed the control room.
Save to the extent that I am discussing differing accounts of what happened, the following narrative reflects findings of fact I have made.
On 15 June 1994 Allen and Sonter were in the crib room when Merritt entered. What occurred was the subject of evidence from Allen, Merritt and Sonter. There was at least one other employee in the crib room but no other witnesses were called to give evidence of the fight and the events leading to it. There are variations in their evidence some of which are potentially of significance. Of particular significance is the account Merritt and Sonter gave of what occurred immediately before blows were struck. As one counsel was appearing for the Union, and thus representing the interests of both employees, there was no cross examination of each witness by a person representing only the interests of one of the dismissed employees to test which of the accounts was correct. This is a matter to which I return. Counsel for QAL had no interest in testing Sonter's account as it coincided, in substance, with Allen's upon which QAL relied.
Allen's account of what happened is that Merritt entered the crib room and asked Sonter if Sonter had paid money for drinks. This angered Sonter. The question related to drinks that were available in the crib room which were provided by a social club run by and for employees on the particular shift. It was common ground that the social club performed at least two functions. One was to provide the drinks for which members made payment. The other was to make available the weekly subscription each club member paid as a fund to be used for gambling each week by one club member on behalf of all members on a rotating basis.
Allen then recounts that Sonter said to Merritt that the money for the drink was paid which was then followed by Merritt picking up the social club account book that Sonter and Allen had been using. Merritt then began to tally the amounts which led Allen to say words to the effect "Don't you trust our bookkeeping" or, on another version, "Do you think we're ripping you off". Allen conceded that these remarks were not made light heartedly or jokingly. They were plainly hostile and probably provocative. Merritt then said that he was not checking the bookkeeping but was trying to find out how much money was in the social club. This then led Sonter, according to Allen, to throw down the money tin and to tell Merritt that he could look after the books. Allen denied that the money, tin or book was thrown into Merritt's lunch box. As will be apparent shortly, I prefer Merritt's account that his lunch was squashed when these items were thrown down. Sonter then made complaint about Merritt "doing nothing all day except driving around while I check the turbine pumps" after which Merritt shaped up in a fighting position and said to Sonter "hit me". Sonter then struck Merritt on the jaw and Merritt responded by seizing Sonter in a headlock and punching him in the face at least ten times. Allen was not cross examined by counsel for the Union as to whether Sonter was scratching and ripping at Merritt's ear before Merritt began punching. Allen and another crew member in the crib room then grabbed Merritt to separate them and had to restrain Merritt by holding the arm that was being used to punch Sonter. It was only by doing so that the punching stopped. Merritt then turned to Allen and said "this is all your fault, you're next" but Allen did not respond and left the crib room.
Sonter's account was essentially the same as Allen's though he could not recall as much detail as either Allen or Merritt. Nonetheless his recollection generally accords with that of Allen and, in particular, Sonter says that Merritt said to him words "go on hit me" and that prompted Sonter to hit Merritt resulting in Merritt putting him in a headlock and punching him till other employees broke them up. Counsel for the Union did not elicit any evidence from Sonter as to whether he was scratching or ripping at Merritt's ear before Merritt began punching him, or whether he threw the money, tin or book into Merritt's lunch box. Counsel for QAL did not, quite understandably, cross examine Sonter about either of these things nor did he test his evidence about whether Merritt said, "go on, hit me" or "do not bother trying" immediately before Sonter first hit Merritt.
Merritt's account is slightly different. Firstly he says that Allen twice said words to the effect "you think we are ripping it off" in the conversation arising from Merritt's scrutiny of the books. Merritt also says that after this exchange Sonter threw the book and a container with forty dollars in coins and another amount in notes into Merritt's lunchbox crushing his fruit and lunch causing him to tell Sonter that "you're a fucking dickhead". I am satisfied that the tin was thrown into Merritt's lunchbox. It accords with the account Merritt gave to McIntosh the following day. Merritt then says Sonter swung his hand up to Merritt's chin as if to threaten him or give him a "backhander" to provoke a fight. Merritt says he responded by saying "do not bother trying" which then led to Sonter punching him. Merritt also says that he put Sonter in a headlock to stop him hitting him and he only commenced to punch Sonter when Sonter grabbed his ear with a long fingernail and started ripping into it.
Shortly after the incident Thomsen saw Sonter walking out of the crib room with blood on his face and shirt and asked Allen what had happened. Allen explained with the result that Thomsen spoke to each employee which led to Thomsen making enquiries of others in a supervisory role and ultimately speaking again to both Merritt and Sonter. In due course, he sent them home with a direction to attend at the Industrial Relations Building at 10.00am the following day.
They were interviewed by McIntosh on Thursday, 16 June 1994 initially together and subsequently separately. At these interviews there were representatives of the Union present. McIntosh explained to both Sonter and Merritt that fighting was serious misconduct and that he was proposing to establish what the facts were and to give each an opportunity to present their version of the incident. Both Sonter and Merritt acknowledged they knew fighting was a dismissible offence. Thereafter McIntosh interviewed Sonter who initially said that the facial injuries he was then exhibiting were the result of falling off a horse. Upon being confronted with Thomsen saying there had been no sign of bruising when Sonter arrived at work the previous day, Sonter then gave an account of the fight which broadly accords with the evidence he gave to the Court.
McIntosh then interviewed Merritt who, whilst accepting there had been a friendly scuffle, repeated the assertion that whatever injuries Sonter now exhibited, they were as a result of him being kicked in the face by a horse. Merritt then left the room in which this interview had been conducted but returned shortly after. He was then confronted with McIntosh's understanding of what had happened as a result of which Merritt gave his version of what had occurred. However the version McIntosh records in his affidavit differs from the account Merritt gave in evidence in one material respect. He records that Merritt said, in the interview, that he said to Sonter just before blows were exchanged "go on, hit me". This is consistent with the account that Sonter and Allen had given and have since given in evidence which was not tested in cross examination by counsel for the Union. In my opinion, that reflects what was said immediately before the fight started. The affidavit of McIntosh reflects notes taken at the time of the interview and typed up later.
Merritt was then told his employment would be terminated and Sonter was called back in and told the same. During this process representatives of the Union were able to speak on behalf of both employees as to why they should not be terminated and they were both told of a right of appeal against the decision to terminate their employment. They exercised it though I do not place great weight on this appeal process as it would seem that the original decision makers were simply reviewing the decision they had earlier made. I do not say this critically, however, as, as will shortly be apparent, I am satisfied that the procedures QAL followed were unexceptional.
In giving evidence McIntosh made it plain that his decision to terminate was based on two factors. The first was that both employees had become involved in a fight and each knew that fighting was a dismissible offence and secondly that each had lied in the subsequent investigation by McIntosh. McIntosh conceded that he did not take into account the previous employment history of each employee when making the decision to terminate their employment.
The Union submitted that the termination of the employment of each employee contravened the Act in two respects. Firstly, it submitted, the terminations were in contravention of s170DC of the Act and secondly were in contravention of s170DE of the Act.
Before dealing with these issues I consider a submission made by the Union on behalf of Sonter concerning the nature of the review. The order reinstating Sonter was not made after a contested hearing. Evidence was given by Turner that the Judicial Registrar, having heard the evidence and submissions in the application concerning Merritt on 6 February 1995, indicated that he would endeavour to give a decision the following morning. He did so on the morning of 7 February 1995 and published an ex tempore judgment. Turner then says that after that judgment the Judicial Registrar gave the parties time to consider their respective positions in relation to Sonter's application. Turner, who was QAL's advocate, spoke to QAL representatives and they decided that the application would be defended. The Union's representative was informed of this though there was some uncertainty about the manner in which the application should proceed.
The advocates spoke to the Judicial Registrar about the use of evidence that had been called in the Merritt matter. The Judicial Registrar asked Turner if there were any distinguishing features between the two cases and also asked if QAL would be relying upon Sonter's shorter length of service. The Judicial Registrar indicated that if they were it was unlikely that a different decision would be reached. There was then a discussion about whether QAL would defend the Sonter application. The Judicial Registrar indicated that unless there were distinguishing features other than length of service, it was unlikely that a different decision would be made. After these remarks and bearing in mind an earlier observation made by the Judicial Registrar at a directions hearing that the matters could well "rise or fall together", Turner, after consultation with QAL representatives, indicated they would not oppose the Sonter application.
While there was some dispute in this review as to whether the orders made by the Judicial Registrar were orders made by consent in an unqualified sense, it is plain that they were not made as a result of contested proceedings and should be viewed as having been made by consent. This led to a submission by the Union on Sonter's behalf that the scope of the review is limited.
Central to the submission of the Union are the judgments of the High Court in Harris v Caladine (1991) 172 CLR 84. It is not entirely clear whether the submission was that in the review I should give considerable weight to the fact that QAL consented to an order reinstating Sonter, but as only one of the matters to be considered, or whether the submission was that the scope of the review and, thus the inquiry the Court should undertake, is limited. It would be limited to inquiring whether the consent order re-instating Sonter should be set aside on the basis that it was obtained by fraud, duress or mistake.
If it is the former, then the Court must still determine whether the termination was in contravention of Division 3 of Part VIA and, if so, what remedy should be granted. In those circumstances, the making of the consent order might constitute an admission that, as a matter of fact, the termination was, for example, harsh, unjust or unreasonable and that, as a matter of fact, reinstatement was not impracticable. However it would nonetheless be necessary for the Court to consider those admissions along with the other evidence which would include the circumstances in which the admissions were made: see e.g. Hoad v Swan & Ors (1920) 28 CLR 258 at 264-5. If this is what is intended by the Union's submission then the admissions are, in my opinion, to be given little weight in view of the circumstances in which they were made.
If the submission is that the inquiry by way of review is a limited one, it is a submission I do not accept. Harris v Caladine supra, concerned circumstances where an order distributing matrimonial property had been made by a Judicial Registrar of the Family Court of Australia with the consent of the parties. The power to make a consent order was a power delegated to Judicial Registrars by the Judges of the Court. One of the parties, the wife, withdrew her consent after the order was made. The rules of the Court delegating the power also made provision for a review of its exercise by a Judge by way of a hearing de novo. The wife sought a review of the exercise of the power to make the consent order. The Family Law Act 1975 provided that consent orders might be set aside for reasons which included circumstances where the consent had been procured by fraud or duress.
It is clear that the members of the High Court who formed the majority, considered that the Judge undertaking the review was obliged to pay regard to the fact that consent had been withdrawn and deal with the application to determine property rights, as a contested matter: see Mason CJ and Dean J at 97, Dawson J at 124-125, Gaudron J at 154 and McHugh J at 165.
In the present case QAL no longer consents to an order reinstating Sonter. A review has been sought of the exercise of the power to hear and determine the application under s170EA and, in particular, the power to order reinstatement under s170EE. The Court is obliged to review the exercise of the power on the basis that consent is withdrawn and accordingly, must deal with the application on its merits as a contested application.
I now consider the submission of the Union that the terminations were in contravention of s170DC. That section provides:
"An employer must not terminate an employee's employment for reasons related to the employee's conduct or performance unless:
(a)the employee has been given the opportunity to defend himself or herself against the allegations made; or
(b)the employer could not reasonably be expected to give the employee that opportunity."
It can be seen that the obligation this section casts on an employer is to give the employee an opportunity to defend himself or herself against the allegations made. It does not, in terms, require an employer to conduct any investigation it might undertake to a prescribed standard. In the present case the complaint made by the Union is firstly that the decision to terminate did not involve a consideration of the involvement of Allen and that he may have inflamed the situation before blows were struck. However it is plain that both Merritt and Sonter were given an opportunity to both explain their version of events and to put whatever they wished to McIntosh in defence of the allegation that they had engaged in conduct that might lead to their dismissal. There is nothing about the way in which QAL went about investigating their conduct and deciding to terminate their employment that might suggest a contravention of s170DC. I agree with the observations of Heerey J in Schaale v Hoechst Australia Ltd (1993) 47 IR 249 at 253 that employers are not required to have the skills of police investigators or lawyers: see also the observations of Wilcox CJ in Nicholson v Heaven and Earth Gallery Pty Ltd (1994) 126 ALR 233 at 243.
The Union also submits that McIntosh did not review the employment history of either employee before deciding to dismiss them: see Bostik (Australia) Pty Ltd v Gorgevski (No.1)(1992) 36 FCR 20 at 35 per Gray J. This submission was made in relation to the operation of s170DC and not s170DE. In my opinion the reach of s170DC is not as wide as this submission suggests. The plain language of s170DC(a) refers to "the opportunity to defend himself or herself against the allegations made". The allegation is as to conduct or performance. In the present case the relevant conduct was the fighting and both employees were given adequate opportunity to defend themselves against that allegation. No contravention of s170DC is established.
I turn to consider the question of whether the terminations were in contravention of s170DE which must be read in conjunction with s170EDA. Those sections provide:
"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.
170EDA(1)If an application under section 170EA alleges that a termination of employment of an employee contravened subsection 170DE(1):
(a)the termination is taken to have contravened subsection 170DE(1) unless the employer proves that, apart from subsection 170DE(2), there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE(1); and
(b)if the employer so proves, the termination is nevertheless taken to have contravened subsection 170DE(1) if the applicant proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid.
(2)If an application under section 170EA alleges that a termination of employment of an employee contravened subsection 170DF(1) on the ground that the termination:
(a)was for a particular reason or reasons referred to in that subsection that were stated in the application; or
(b)was for reasons stated in the application that included a particular reason or reasons referred to in that subsection;
the termination is taken to have contravened subsection 170DF(1) unless the employer proves that:
(c)the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or
(d)the particular reason was a reason, or the particular reasons were reasons, to which subsection 170DF(2) or (3) applied.
In this section:
"termination of employment" means a termination of employment that occurred before, or occurs after, the commencement of this section, but does not include a termination of employment in respect of which an application under section 170EA was made to the Court before that commencement if the Court pronounced final judgment in respect of the application before that commencement."
It is first necessary to consider whether QAL has proved that there was a valid reason or valid reasons connected with the employee's capacity or conduct or based on the operational requirements of the undertaking. The only relevant conduct is the fighting that occurred in the crib room and the subsequent refusal of both Merritt and Sonter initially to tell the truth when interviewed by McIntosh. It is clear that QAL has a policy that fighting at work is a dismissible offence. Both Sonter and Merritt were aware of this policy. It is not a policy that is entirely rigid in the sense that any person fighting at work will necessarily be dismissed. It allows for exceptions that might arise in particular circumstances. However it is plain that QAL has endeavoured to ensure that no fighting occurs by indicating that the likelihood is that dismissal would follow if it did. QAL operates a large, complex and dangerous industrial plant and the failure of employees to carry out their duties properly can, potentially, lead to death or injury to the workforce and significant loss of production to QAL.
Witnesses called by QAL conceded that in that working environment tensions can arise between members of the workforce. I accept, however, that it is important to QAL both in its interests and the interests of the workforce to ensure that fighting does not occur at the workplace. This is obviously so in areas where plant is located. The Union made the point that the fight occurred in the crib room which can, as it characterised it, be described as a sanctuary from the workplace.
However the policy of QAL would lose much of its effectiveness if it was to be subject to a qualification that while fighting could not occur in the vicinity of operating plant, it would not view as serious fights occurring elsewhere. The purpose of the policy appears to be twofold. The first is to avoid situations where employees might injure themselves, for example, as a result of losing complete control of movement by being pushed or shoved while fighting in a dangerous working environment. The second is to ensure that employees exercise a measure of discipline when responding to tensions that might arise with other members of the workforce. While fighting may, in some instances, have a cathartic effect it can also heighten tensions and lead to situations where trust and cooperation is lost entirely. In my opinion QAL was entitled to both adopt and give effect to a policy that prohibited fighting with the sanction of dismissal if it was breached. QAL's need to maintain the integrity of the policy constituted, in the circumstances, a valid reason for the termination of both Merritt's and Sonter's employment. The Union relied upon an incident where employees on a training course conducted at a motel some 50kms from Gladstone had, it seems, fought late in the evening after consuming considerable amounts of alcohol. I do not see this incident and QAL's response to it as inconsistent with the view I have formed that QAL is entitled to have the policy it does and to enforce it. In that case the fight was late at night when the employees were intoxicated. QAL was unable to ascertain details of the fight so as to determine how its policy might be applied.
I next consider whether the termination of Sonter and/or Merritt was harsh, unjust or unreasonable which the Union bears the burden of establishing.
I was referred to several decisions by industrial tribunals, in particular those decided by the Industrial Conciliation and Arbitration Commission of Queensland and more recently, the Queensland Industrial Relations Commission. Each concerned a situation where the dismissed employee had been involved in a fight at the workplace and had assaulted another employee. In some, the application for reinstatement was successful: see Forestry Employees Award - State Government, Commissioner Ledley, 30 May 1983, Sugar Industry Award - State, Commissioner Peebles, 5 November 1984, re Award for certain employees of the Department of Primary Industries employed at Regional Experimental Stations, Research Stations, and Animal Health Stations, Commissioner Ledley, 7 June 1988, Manojlowski v Carramar Industries Limited, Judicial Registrar Chancellor, 16 December 1994. In other instances, the application for reinstatement was unsuccessful: see Food and Drug Store Employees Award - Southern Division (Eastern District), Commissioner Bougoure, 28 June 1989, Bliss v Australian Meat Holdings Pty Ltd, Commissioner Fischer, 21 March 1995, Hibbs v BHP (Western Port) Judicial Registrar Parkinson, 7 December 1994 and Ashbee v James Loughrans and Sons Pty Ltd Judicial Registrar Ryan 13 December 1994.
What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence.
I consider first whether the dismissal of Sonter was harsh, unjust or unreasonable. Sonter initiated the fight. I say that because it was his antipathy towards Merritt that began the chain of events leading to him striking the first blow and the subsequent assault on him by Merritt. While I have accepted that, as a matter of fact, Merritt said words to the effect "go on and hit me", that occurred after the aggressive and confronting act of Sonter of throwing the tin containing the money into Merritt's lunchbox together with the aggressive remarks directed to Merritt. I accept that Allen's conduct did nothing to lessen tensions and indeed may have inflamed them considerably. Nonetheless it was Sonter who initiated the fight. While Sonter has experienced significant difficulty in obtaining work since his dismissal and is the father of a young family, his employment with QAL had been for a fairly short period at the time of his dismissal. The Union has not established that his dismissal was harsh, unjust or unreasonable. Accordingly, the employer had a valid reason for terminating his employment and the application under s170EA is dismissed as it concerns Sonter.
I have found assessing the position of Merritt more difficult. Evidence was lead by the company to demonstrate that Merritt is an aggressive person with a disposition to threaten others with physical harm if provoked, including at the workplace. However, it was made clear at the hearing that this evidence was lead only for the purpose of supporting a submission that in the event his termination was found to have not been for a valid reason, it was impracticable to reinstate him. Given the limited use that may be made of this material, the evidence upon which I am to decide whether the termination was harsh, unjust or unreasonable, is the evidence of the fight itself, the investigation that took place the following day including Sonter's failure to tell the truth and his employment history with QAL including its length and his personal circumstances.
From what I have said about Sonter it would be apparent that I view the fight as having been provoked by Sonter rather than Merritt. However, it must be accepted that Merritt's conduct contributed significantly to the conflict becoming a fight and, when the point was reached where he assaulted Sonter, the assault was a particularly vicious one and seemingly uncontrolled. Merritt showed no discipline or self restraint. His conduct was, in the circumstances, quite disproportionate to the provocation of Sonter. It is to be remembered that the evidence of Allen, which was not challenged in cross examination, was that Merritt placed Sonter in a headlock and then proceeded to punch him in the face at least ten times. This evidence of Allen was not led before the Judicial Registrar. Merritt gave no contrary evidence about the number of times he hit Sonter. I do not accept Merritt's evidence that he placed Sonter in a headlock to restrain him and that the punching was only in self-defence. The punching plainly went well beyond the bounds of force necessary to resist Sonter's assault. Merritt was only restrained by both Allen and another employee actually holding back the arm that Merritt was using to deliver the punches. On any view, it was a serious assault whether in the context of the workplace or elsewhere. They were not blows delivered by someone who had been provoked in a fight at arms length where the impact of a punch can be deflected by the person to whom it is directed. They were multiple blows directed at the face of a person who was restrained. I have concluded that this feature of the conduct of Merritt tips the balance of the mix of considerations against concluding that the termination was harsh, unjust or unreasonable. I have taken into account that Merritt had worked at QAL for nearly six years, saw it as long term and quasi-permanent employment and that he had given up other employment to start with QAL on that basis. I have also taken into account that Merritt had been asked to attend a POIC course, though it must be accepted that that was as much for reasons relating to a perceived need to develop in him a sense of team work as reflecting a view that he was likely to be promoted. I have also taken into account that Merritt is married with a young family and I accept the submission that his dismissal from QAL would render it more difficult for him to secure long term employment in Gladstone. While his present employment as a mechanic with a bus company has been reasonably regular, the period for which this work will continue may well be limited. For these last mentioned reasons I view with some sympathy his position. However, ultimately it is necessary for the Court to assess whether the termination was harsh, unjust or unreasonable and for the reasons I have just given I am not satisfied it was. Accordingly, I dismiss the application made under s170EA in so far as it relates to Merritt.
In conclusion, I should say that these proceedings evidence a potentially unsatisfactory aspect of the operation of Division 3 of Part VIA. Unlike many other provisions in the IR Act, Division 3 is directed to the creation and enforcement of individual rights. While s170EA(2) confers on trade unions a right to bring applications under s170EA, the capacity in which they make the application is, in my opinion, best described as one of statutory agency. These proceedings illustrate how problems might arise if a trade union makes an application on behalf of two employees and one person effectively appears for both. The fundamental problem can be that the determination of the application might turn on the acceptance of the evidence of one of the employees and the rejection of the evidence of the other. In those circumstances the cross examination of each employee and indeed the cross examination of other witnesses may assume some importance. It is difficult if not impossible for one advocate to do justice to the case of each employee in such circumstances. In this matter it is only fortuitous that I have been able to decide the matter in the way I have. My decision may ultimately have turned principally on my acceptance or rejection of the evidence of Sonter and Merritt as to what occurred in the minutes leading up to the fight. If that had been the case then the interests of neither would have been served by the Union being represented by one person.
There is a well established rule that one counsel cannot appear for two parties where there is a conflict of interest. It is embodied in rules 108 and 109 of the rules regulating the conduct of barristers in New South Wales and rule 9.14 of those that apply in Queensland. I have little doubt provisions to similar effect are found in rules of conduct applying to the legal profession elsewhere in Australia.
In my opinion, the principles that underpin that rule have equal application to proceedings of this type even if there is only one applicant in a nominal sense, that is, the trade union bringing the application under s170EA(2). While accepting that the application of this rule to these proceedings would have been unclear because there was only one applicant, I consider that it would have been appropriate and desirable for there to have been separate representation to protect and advance the interests of Sonter and Merritt in these proceedings. More generally, when applications are made under s170EA(2) and there is one hearing dealing with the termination of the employment of several employees, it will be necessary for separate representation in circumstances such as the present unless it is clear there will be no conflict of the type I have just discussed. An alternative would be a separate hearing dealing with the dismissal of each employee which, for obvious reasons, has little to commend it if it involved duplication of the evidence. These observations are not directed only to representation by counsel but any representation that might be authorised by s469.
It should be clear from these reasons that it is with some hesitation that I have concluded Sonter's termination was not harsh, unfair or unreasonable. Had I reached the contrary conclusion I would not have been persuaded by the extensive evidence called by QAL that his reinstatement was impracticable. This application for a review may have been brought, legitimately, by QAL because it was thought necessary to vindicate the decision of MacIntosh to dismiss these employees or to vindicate more generally the policy of the company which prohibits fighting or both. If that be so, that objective has been achieved. The discretionary considerations that may have lead to a different conclusion concerning Merritt, namely, his length of service and his domestic circumstances may provide grounds for QAL to consider whether it would re-employ Merritt though it must be accepted that this would be a matter for QAL and its local management alone.
I certify that this and the preceding twenty seven (27) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore.
Associate:
Dated:14 July 1995
Counsel for the Applicant: Mr J.A. Logan
Solicitor for the Applicant: C.A. Sciacca &
Associates
Counsel for the Respondent: Mr J. Murdoch
Solicitor for the Respondent: Freehill Hollingdale & Page
Dates of hearing: 31 May & 1 June 1995
Date of judgment: 14 July 1995
IN THE INDUSTRIAL RELATIONS )
)
COURT OF AUSTRALIA ) Nos. QI 168 of 1994
) & QI 169 of 1994
QUEENSLAND DISTRICT REGISTRY )
BETWEEN: THE AWU-FIME AMALGAMATED UNION
Applicant
AND: QUEENSLAND ALUMINA LIMITED
Respondent
JUDGE: Moore J
PLACE: Sydney (Heard in Brisbane)
DATE: 14 July 1995
CORRIGENDUM
The following amendment is made to his Honour's judgment of 14 July 1995:
On page 26, paragraph 2, line 2, delete the word "Sonter's" and replace with "Merritt's".
Associate:
Date: 17 July 1995
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