Thomas v Queensland Alumina Limited
[1996] IRCA 355
•30 Jul 1996
DECISION NO: 355/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - ALLEGED UNLAWFUL TERMINATION - VALID REASON - FIGHTING AT WORK AND WILFUL DESTRUCTION OF PROPERTY - PROCEDURAL FAIRNESS
INDUSTRIAL RELATIONS ACT 1988 , s170EA, ss170DE(1), ss170DE(2), s170DC
The AWU_FIME Amalgamated Union v Queensland Alumina Limited
Moore J 14 July 1995 unreported
BRADLEY JAMES THOMAS v QUEENSLAND ALUMINA LIMITED
QI 95/1349
BEFORE: BOULTON JR
PLACE: ROCKHAMPTON (HEARD IN BRISBANE)
DATE: 30 JULY 1996
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1349
QUEENSLAND DISTRICT REGISTRY
BETWEEN: BRADLEY JAMES THOMAS
Applicant
AND: QUEENSLAND ALUMINA LIMITED
Respondent
BEFORE: BOULTON JR
PLACE: ROCKHAMPTON (HEARD IN BRISBANE)
DATE: 30 JULY 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of orders are dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA ) No. QI 95/1349
QUEENSLAND DISTRICT REGISTRY
BETWEEN: BRADLEY JAMES THOMAS
Applicant
AND: QUEENSLAND ALUMINA LIMITED
Respondent
BEFORE: BOULTON JR
PLACE: ROCKHAMPTON (HEARD IN BRISBANE)
DATE: 30 JULY 1996
REASONS FOR JUDGMENT
Background
The respondent operates an alumina refinery at Gladstone, Queensland engaged in refining bauxite transported to Gladstone from Weipa. The working environment is demanding and physically hostile. Caustic soda, which is highly corrosive, and high pressure steam are used in the production process.
The applicant is now aged 25, having been born on 15 September 1970. He had been employed by the respondent at its refinery since early 1990. As at early October 1995, his designation was as a refinery worker in Plant Services.
The respondent terminated the applicant's employment with it with effect from 7am on 2 October 1995, for fighting with a fellow employee and cutting that same employee's safety helmet in half with a power saw.
The applicant has applied to this Court seeking, in effect, to overturn the decision of the respondent to terminate his employment, and consequential relief, including reinstatement to his former position.
The respondent has a policy, well publicised among its employees, that fighting at work is a dismissible offence. The applicant was, at all material times, aware of this policy. It is not a policy that is entirely rigid in the sense that any employee fighting at work will necessarily be dismissed. The purpose of the policy has been described by Moore J in The AWU-FIME Amalgamated Union v Queensland Alumina Limited 14 July 1995 unreported, at page 19 as follows:
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.
Findings
What follows, in summary form, are my findings in respect of what I consider are the key features of the case. On 7 August 1995, while working on top of a mud washer tank at the refinery, the applicant punched a fellow employee, one Oost, on the nose. The punch was fairly hard. It snapped Oost's head back, it hurt, and it made Oost's nose bleed. The punch was deliberate, and not an accident. The applicant meant to strike Oost. He was angry because Oost, with a fellow employee, Cruwys, had pocketed his watch, and pretended to him that it must have fallen into the tank on which they were standing. There was no apology after the punch by the applicant to Oost. Oost was working with the applicant that day, but not in the same crew.
Oost, being fairly new to employment with the respondent and not wishing to be seen as a "dobber", did not report this incident.
On 18 or 19 September 1995 the applicant used a power saw to cut Oost's safety helmet in half. He knew at the time whose safety helmet it was he was destroying. Oost and he had had no contact in the period since the punching incident. I infer that the applicant still bore ill-will towards Oost as a result of the watch prank.
The destruction of Oost's helmet came to the respondent's attention. During its investigation, the applicant readily admitted he had destroyed the helmet. He stated that while he knew who the helmet's owner was at the time, he held no grudge or feeling towards him. The respondent issued a Record of Corrective Action to the applicant, which document proposed, among other things, a meeting between Oost and the applicant to remove any bad blood which may have been generated by the helmet incident.
There was a meeting with Oost by a Mr Farrar, Superintendent of Plant Services, on 29 September to clear the way for the applicant and Oost to get together on the following Monday, 2 October. It was at that meeting that Farrar learnt of the punching incident.
After further investigation, including meetings with the applicant and various union representatives, the applicant was informed at 11.30am on 3 October that a decision had been taken by a Mr Glasby, the Maintenance Services Manager, to terminate his employment. Prior to making his decision, Mr Glasby considered whether there were any extenuating circumstances, and alternatives to termination.
An internal appeal, conducted by the applicant's union, failed on 6 October to overturn the decision to terminate the applicant's employment.
Issues
Ss 170DE(1)
The applicant did not dispute the existence and appropriateness of the respondent's policy against fighting at work. I am satisfied that there was a valid reason connected with the applicant's conduct and the operational requirements of the respondent's undertaking for the termination of the applicant's employment.
Ss 170DE(2).
Despite the applicant's youth, the length of his service with the respondent (about 5½ years), the fact that he is a husband and father, and the difficulty he will undoubtedly experience in obtaining other permanent employment in Gladstone, I am not satisfied that his termination is harsh, unjust or unreasonable. I have taken into account that the applicant had acted for a time as a mentor to new employees, helping to show them the ropes of their new employment.
I reject the suggestion advanced on the applicant's behalf that the termination of his employment was somehow unfair because management had allegedly given insufficient attention to problems which the applicant had been having with members of his crew. This suggestion might have had more force had Oost been a member of the applicant's crew and there was a history of bad blood between them of which management was aware.
S 170DC
The only criticism levelled at the process of investigation and decision-making undertaken by the respondent was the applicant's having left the room during the early morning meeting of 3 October of management and his union while Oost was questioned. I do not consider there is any substance in this. Not only did the applicant's union representatives remain during Oost's attendance at the meeting, one of their number directed a critical question to Oost, designed to advance the applicant's apparent contention that the punch to Oost had been a "light, joking punch," had the answer been in the affirmative. There was nothing about the way in which the respondent went about investigating the incidents and deciding to terminate the applicant's employment that might suggest a lack of procedural fairness.
Order.
I order that the application be dismissed.
I certify that this and the preceding three (3) pages are a true copy of my Reasons for Judgment.
Judicial Registrar:
Date: 30 July 1996
Appearing for the Applicant: Mr McKay
Industrial Advocate
Counsel for the Respondent: Mr Murdoch
Solicitors for the Respondent: Freehill Hollingdale & Page
Dates of hearing: 9 & 10 July 1996
Date of judgment: 30 July 1996
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