Thomas McVay v Western Mining Corporation

[1995] IRCA 387

IN THE INDUSTRIAL RELATIONS  )    No. WI 1036 of 1995

COURT OF AUSTRALIA  )

WESTERN AUSTRALIA DISTRICT REGISTRY     )

BETWEEN:Thomas McVay

Applicant

AND:Western Mining Corporation

Respondent

BEFORE:                 Boon JR
PLACE:  Perth
DATE:  20 April 1995

REASONS FOR JUDGMENT

This is an application under Section 170EA of the Industrial Relations Act 1988. The applicant alleges that his employment with the respondent was unlawfully terminated and seeks reinstatement and compensation.

The respondent alleges that there was a valid reason for the termination; namely, that the applicant assaulted one Jim Raven at his workplace.  The applicant denies that an assault took place.

At the commencement of the hearing, Counsel for the applicant stated that there was only one issue to be determined by this Court; namely, whether the alleged assault took place.  The applicant concedes that the procedural fairness provision of Section 170DC of the Act was not breached by the respondent.  Further, the applicant concedes that if this Court finds that an assault did take place as alleged, the termination of his employment was not harsh, unjust or unreasonable.

The respondent is a large mining corporation.  As part of its business, it operates Agnew Gold Operations (AGO) in Leinster, a country town in Western Australia.  AGO is made up of two underground gold mines and a 1.1 million tonne per annum gold mill.  There is an approximate labour force of 170 people, including contractors.  Of that labour force, there is a Western Mining Corporation staff of 34 made up of managers and supervisors.  Contractors undertake the work in the mill, in maintenance, in underground mining, and in trucking and transporting materials.  The maintenance contractor was Taymcon.  Jim Raven is employed by Taymcon as a Maintenance Supervisor at AGO. 

The applicant is 59 years of age and is a migrant from England.  He has worked in the mining industry for 30 years and describes himself as a working class man.  He was employed by Western Mining Corporation at AGO from 17 February 1993 until his dismissal on 6 December 1994 as a Mechanical Foreman.  His duties were the planning and maintenance of the fixed plant.  As part of his duties, he was required to supervise Jim Raven.  For approximately eleven months prior to the applicant's appointment, Jim Raven ran the maintenance operation on his own.  The applicant and Jim Raven shared an office.

It is common ground that there was a history of tension and bad feeling between the applicant and Jim Raven.  The applicant felt that Jim Raven had ignored his instructions and this problem manifested itself in verbal disagreements on several occasions.  The applicant had asked for Jim Raven to be transferred to another section to avoid these problems.  Sometimes the arguments between the two men became heated, and Jim Raven alleges that on one prior occasion the applicant had behaved in an aggressive manner towards him.

The applicant took leave between 28 October 1994 and 16 November 1994.  He states in his affidavit that on his return he discovered that four service sheets, which are reports made after the inspection of machinery, had not been forwarded to him for approval and many service sheets had not been completed.  Mr Raven denies that this is so, but the matter is not relevant to what ensued.  It is sufficient to say that there was a difference between the two men on this question.

On Sunday 4 December 1994, Jim Raven found a note from the applicant stuck to his computer terminal.  The note questioned why these service sheets had not been passed on to him.  The applicant was not at work on that day.  In his verbal evidence, the applicant stated that on each weekend that he was not on duty he left a list of instructions for Jim Raven to follow.

On Monday 5 December 1994, the applicant started work at about 6.00am.  Jim Raven's affidavit reads in part as follows:

"35.On returning for work on Monday 5 December 1994 at approximately 6.30am I told McVay in words to the effect that he had not received the worksheets on 4 November 1994 because he was on holidays in Penang at the time. 

36.He reacted aggressively and demanded my timecards.  He said 'I have no idea what hours you have been doing lately'. 

37.I pointed to a large bundle of cards on his desk and said they were in the pile and that he would have found them 'if you open your eyes'. 

38.He became even more angry. 

39.He then accused me of not doing a job assigned to me on 2 December 1994 on a shutdown. 

40.I said 'if you got off your fat arse on Friday and came down to the crusher you might have had some idea of the extra jobs I had done'.

41.McVay then stood up.  He started screaming at me and came towards me.

42.When he was within arms length of me he grabbed my shoulders and then my throat with both hands.

43.I broke his grip by pushing away both of his upper arms.

44.He pushed me into a yellow cupboard.

45.The incident lasted about twenty to thirty seconds.

46.He then retreated and I left the office.

47.This was at approximately 6.45am."

In contrast, the applicant's affidavit states in part:

"7.On 5 December 1994 Jim Raven came into my office.  He explained that he had simply forgotten to forward the completed sheets to me and had not had time to complete the uncompleted sheets.  Since I had been back at work for two weeks I did not consider these to be valid excuses.  I raised other jobs which had not been completed such as the motor stand welding and unfixed conveyor skirts.

8.An argument ensued which became heated.  I told Raven to get out of the office.  A few hours later he came back and I apologised for losing my temper.  He acknowledged that we had both been at fault and were under a lot of pressure.  Work continued as normal.

. . . .

12.I deny ever assaulting Jim Raven and believe that there were no valid grounds for my termination."

Jim Raven denies that he told the applicant that he had forgotten to forward the completed sheets to him and that he said that they had both been at fault.

The statement written out by the applicant at the request of his superiors reads, in part:

"Monday morning Raven came into the office and said these services had been done while I was on leave, hence the delay.  I pointed out I had been back two weeks, and it was I that had found them.  An argument then began, and I pointed out some other work that had not been done that is, CRO4 motor stand to weld.  The argument became heated and a lot was said.  Later, after I had thought it over, I apologised.  It was mutually agreed that we were both at fault, and left as is.  Work then continued as normal".

Ian Suckling, the resident Manager of AGO, states in his affidavit that he became aware of the incident the next day.  Jim Raven had not wanted to proceed with any complaint and when called into Ian Suckling's office appeared nervous and reluctant to discuss the incident.  However, when the seriousness of the matter was explained to him, Mr Raven provided a statement which reads, in part:

"Tom then accused me of not doing a job which had been assigned to me on Friday 2 December shutdown.  At this I became angry and said to Tom 'If you got off your fat arse on Friday and came down the crusher you might have had some idea of the extra jobs I had done.  At this Tom stood up and started screaming at me, and working towards me.  When he got to within arms length he grabbed my shoulders and then my throat.  I broke his grip by pushing away both of his upper arms.  I then held him at bay while he thrashed and pushed me, (he pushed me backwards into the yellow cupboard) after probably no more than 20 to 30 seconds he started to calm down and back off, I then released his arms.  He then accused me of being unloyal to him and of being too friendly with the production people . . . . at this I left the office straight away".

According to Ian Suckling, the applicant's version of events was very similar to that of Jim Raven except that he categorically denied that he ever physically touched Mr Raven.  At an interview with Ian Suckling and Steven Turnley, the Mill Superintendent at AGO, the applicant alleged that the accusations against him were possibly being concocted against him by underlings because of the difference in ages and personalities.  It was clear to Ian Suckling the applicant did not consider he was in trouble and that Western Mining Corporation would support one of its own employees'.

Mr Turnley later interviewed Dave Richards, a crane driver employed by Brambles Manford at Leinster.  Mr Richards stated that on the morning of 5 December 1994, the applicant had spoken to him and said words to the effect that "he had lost it for three seconds and grabbed Raven by the throat".  Mr Richards said that he would not make a statement, but was prepared to sign one written out by Mr Turnley.

When the applicant was advised by Mr Suckling that a third party had corroborated Jim Raven's version of events he said "How can that be?  It's just my word against his, there are no witnesses".  The applicant continued to maintain that he never touched Jim Raven and that he was being set up.

In his verbal evidence, on cross examination, the applicant, who is a large man, admitted that he had lost his temper during the argument.  He could not remember what was said at the time or what exactly went on but could only remember that Jim Raven was abusive and a lot of harsh words were said.  He stated that when Jim Raven first approached him, he was seated at his desk.  Once the argument had begun he must have stood up.  He could remember being on his feet in front of Jim Raven, but he couldn't remember getting up and walking there.  He said that at no point would he say that "he'd lost it".  He was not enraged, just angry and they were shouting at each other.  He was not sure what the point of advancing towards Jim Raven was.  The applicant admitted that he was not rational at the time, he could have told Ian Suckling that he'd "thrown a wobbly".  The applicant continued to deny that he had assaulted Jim Raven.

In his verbal evidence, on cross examination, Jim Raven, who is considerably younger and smaller than the applicant, said that the applicant had started yelling at him.  He got up and moved around the right hand side of his desk and moved towards Jim Raven.  As the applicant moved forwards he pushed Jim Raven backwards.  He grabbed Jim Raven on the shoulders and instantly his hands slipped up and were on Mr Raven's collarbone.  Mr Raven managed to break the grip and had to force the applicant's arms apart.  He had the applicant pinned by the forearms.  The applicant transferred his grip to Mr Raven's arms and pushed Mr Raven into the cupboard.  Mr Raven's back hit the cupboard and his whole back hurt.  Mr Raven acknowledged that his neck and throat were not sore after the assault and he did not check for any marks.  Mr Raven said that after he was pushed into the cupboard he was very nervous and scared and wanted to get out of there.  When I asked him why he didn't immediately go to his supervisors and report the incident, Mr Raven said that he was worried about his own position.  He knew that there was a rule that employee's would be instantly dismissed if they fought in the workplace, and he was worried he might lose his job.

In his verbal evidence, on cross examination, Dave Richards admitted that in the past there had been some ill feeling between himself and the applicant.  He had been reported by the applicant and this had caused him to have some misgivings about how long his employment would last under Mr McVay.  However, sometimes their relationship was easy.  Mr Richards was unable to say at what time the applicant spoke to him on the morning of 5 December 1994, but it was before 9.00am.  He said that the applicant appeared a little agitated and told Mr Richards that he'd "lost it".  Mr Richards said "What have you done now?" and the applicant said "I grabbed Raven by the throat and put him up against the cupboard." Mr Richards said "You shouldn't have done that".  He said that he didn't take it further because it was none of his business.  On 7 December 1994 he saw Jim Raven looking worried.  Jim Raven told him that "McVay's denied everything".  Dave Richards then told Jim Raven what the applicant had said to him on 5 December 1994.  He hadn't wanted to prepare a statement because he didn't want to be accused of "dobbing McVay in".  Actually preparing a statement himself would be dobbing someone in, and that's not the done thing in the blue collar workforce.  It would create trouble as dobbers are generally not well regarded.

This Court is left in the difficult position in which there are two conflicting bodies of evidence.  The applicant maintains that he did not touch Jim Raven and Jim Raven maintains that he was assaulted.  I have found this matter extremely difficult to decide but I have come to the conclusion that the evidence of Jim Raven and Dave Richards is to be preferred to that of Mr McVay.

In the first place, Mr McVay admits that he lost his temper and "threw a wobbly".  He admits that he advanced towards Jim Raven.  He is, however, unable to say what happened, whereas Jim Raven has given a clear and consistent account of the events.

Secondly, Jim Raven's version of the events is corroborated by the evidence of Dave Richards.  Although Mr Richards had experienced some difficulties with Mr McVay in the past, I could not come to the conlcusion that he would lie under oath in order to have Mr McVay removed from his employment.  My view is strengthened by the fact that Mr Richards was reluctant to "dob in" Mr McVay.

Thirdly, I consider that if Mr Raven and Mr Richards had been engaged in a plot to have Mr McVay dismissed, it is likely that they would have gone about it in a more direct manner.  Mr Raven did not want to pursue the matter and was at first reluctant to talk about it to his superiors.  He was mindful of the company policy on fighting in the workplace and was worried about losing his job.

On balance, I consider it more probable than not that Mr McVay assaulted Mr Raven and that there was a valid reason connected with this conduct for the termination of his employment.  It follows that his application must be dismissed.

Having said that, I have come to this conclusion with a great deal of reluctance.  Whilst any form of violence in the workplace is inappropriate and usually inexcusable, I consider that Mr McVay was put in a very difficult position at Leinster given the history of personality clashes between him and Mr Raven.  It was almost inevitable that there would be further trouble and the company did nothing about his requests that they be separated.  Further, on the day of the assault, he was subjected to some considerable provocation by Mr Raven.  I accept that Mr Raven was shaken by the experience but he was not injured in the incident.  Although I cannot condone the violence that took place, I am mindful of the applicant's age and the difficult situation in which he now finds himself.  I refer to the comments of Ryan JR in the case of Paul Ashbee v James Loughrans & Sons Pty Ltd, IRCA unreported, No. 196 of 1994 (13 December 1994) at page 4 as follows:

". . . .  I therefore dismiss the applicant's application. 

Having said that, I am aware of a major employer, a very major employer, who has written policies prohibiting fighting and the like but who considers not reinstatement, which is not justified, but re-employment after a period in the sin bin, say three months.  This allows an employer to maintain its reputation and its discipline and its strength and its integrity, but to also show some compassion. 

No direction or recommendation can come from this Court, given the dismissal of the action, but given the difficult employment conditions in this state, perhaps the employer can find it in its collective heart to consider offering Paul Ashbee another chance.  I say no more than that, but perhaps the respondent's solicitors can refer a copy of the written reasons for this judgment (when they come off the press) to the respondent, that is when the judgment is settled".

Those words can apply equally to the present case, given the matters leading up to the incident and the size of the respondent employer.

The order is that the application be dismissed.

I certify that this, and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Boon.

Associate:

Date:

Counsel for the Applicant:                  Mr M C Herron

Solicitors for the Applicant:                 Gibson & Gibson

Council for the Respondent:              Mr A Power

Solicitors for the Respondent:            Jackson McDonald

Date of Hearing:  17 March 1995

Date of Judgment:  20 April 1995

IN THE INDUSTRIAL RELATIONS  )    No. WI 1036 of 1995

COURT OF AUSTRALIA  )

WESTERN AUSTRALIA DISTRICT REGISTRY     )

BETWEEN:Thomas McVay

Applicant

AND:Western Mining Corporation

Respondent

BEFORE:                 Boon JR
PLACE:  Perth
DATE:  20 April 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

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

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - complaint of unlawful termination - misconduct - allegations of assault - valid reason for termination - termination not harsh, unjust or unreasonable.

INDUSTRIAL RELATIONS ACT 1988, Ss 170DE, 170EA

Paul Ashbee v James Loughrans & Sons Pty Ltd, IRCA unreported judgment, No 196 of 1994 (13 December 1994).

THOMAS MCVAY V WESTERN MINING CORPORATION WI 1036 OF 1995.

BEFORE:                 Boon JR
PLACE:  Perth
DATE:  20 April 1995