Thompson v Boyne Smelters Limited

[1997] IRCA 132

DECISION NO:132/97

CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT  - WHETHER "Briginshaw onus" necessarily applies to allegations of employee misconduct - whether such an onus necessarily applies to allegations of criminality - approach of Court where truth of allegation of misconduct depends upon evidence of a single witness

Briginshaw v Briginshaw (1938) 60 CLR 336.








MELANIE FLEUR THOMPSON v BOYNE SMELTERS LIMITED
QI 1036R of 1996


Before:  MADGWICK J
Place:  BRISBANE
Date:  3 APRIL 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

QI 1036R of 1996

BETWEEN:

MELANIE FLEUR THOMPSON
Applicant

AND

BOYNE SMELTERS LIMITED
Respondent

BEFORE:     MADGWICK J
PLACE:       BRISBANE
DATE:          3 APRIL 1997

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1.The application for review is upheld.

2.The orders of the learned Judicial Registrar be quashed

3.Ms Thompson's application for reinstatement is dismissed.

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

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY

QI 1036R of 1996

BETWEEN:

MELANIE FLEUR THOMPSON
Applicant

AND

BOYNE SMELTERS LIMITED
Respondent

BEFORE:     MADGWICK J
PLACE:       BRISBANE
DATE:          3 APRIL 1997

REASONS FOR DECISION
Delivered ex tempore

1. HIS HONOUR:   This is an application for review by an employer of a Judicial Registrar's decision that a former employee, Ms Thompson, be reinstated to her position.  With succinctness, the Judicial Registrar set out the background:

2. "The applicant is now aged 23, having been born on 3 July 1973.  At all material times, she was employed as a smelter operator in the Metal Products section of the respondent's plant at Gladstone, Queensland.  She took up her employment with the respondent on 22 August 1994. 

3. The applicant's employment was terminated by the respondent with effect on 9 February 1996.  The reasons relied on by the respondent in terminating the applicant's employment were her possession and use of illegal drugs at the workplace. 

4. At trial, Counsel sensibly agreed on a number of facts.  These included that the respondent had prohibited the possession or usage of cannabis at its work site, and had warned (its employees) that possession or consumption could result in instant dismissal.  This prohibition was known to the applicant at all material times, and so was the risk of instant dismissal.  The agreed facts also included the fact that the Manager, Metal Products, one Katherine Gould, had received an unsigned, handwritten note on 16 January 1996 accusing the applicant and two other named employees of regularly consuming cannabis at the workplace and of thereby endangering the safety of themselves and other employees. 

5. An investigation was thereafter conducted by Ms Gould, aided by other company personnel, which investigation ultimately led to the decision to terminate the applicant's employment.

6. Issues

   No attack was made on the appropriateness of the respondent's policy concerning the possession or usage of cannabis at the work site. No attack was made on the basis that procedural fairness was not accorded the applicant in the manner of termination of her employment. Counsel agreed that if cannabis were possessed or being consumed by the applicant at the workplace, that would constitute a valid reason (within the meaning of subsection 170DE(1) of the Industrial Relations Act 1988) for her dismissal from employment.

7. The upshot is that what calls to be examined in this case is the evidence tendered in proof of the applicant's alleged possession or usage of cannabis at the workplace."

8. The Judicial Registrar then dealt with the evidence that was before him.  The employer's case before the Judicial Registrar was supported by the evidence of Mr Price (who gave evidence before me) and also by the evidence of a Mr Stone.  However, the employer's case before me has probably lost nothing by the absence of Mr Stone because the Judicial Registrar was very unimpressed with his evidence.

9. There were two incidents in the end which were relied upon by the applicant.  One was of Mr Price having seen Ms Thompson in possession of marijuana at the "smoker's table" of her work area.  This was a table at which employees might smoke tobacco at times when they were having a break.  The pace of the work and the work flow was such, one gathers, that the employees would work quite hard for a couple of hours for the completion of a "cast" of aluminium ingots, and then might be free to relax including by going to the amenities room where they could have a cup of tea or coffee, but could not smoke tobacco or, if they were smokers, going to the smoker's table where they could sit down and rest while they smoked.  At that time, at least, they were allowed to smoke generally in their workplace.

10. At the smoker's table, Mr Price says that he saw the applicant produce from her pocket a substance which, based on the relatively limited number of occasions upon which he had seen it, he believed was identical in appearance to that of marijuana.  Ms Thompson said that she had "spilled her mull", mull, of course, as everybody understands, being a common term for cannabis.  Mr Price said that when the applicant lit a cigarette (which he believed was an ordinary tobacco cigarette), he smelt what he regarded as the unmistakable smell of cannabis smoke.

11. The attacks made on Mr Price's credit are only to his recollection and his accuracy, there being no suggestion that he had any motive to lie or to disadvantage Ms Thompson.  There was no challenge to his assertion that in fact he had got on well with her.  He was not censorious about the legalities of marijuana use away from the workplace. 

12. It was suggested that he was mistaken as to whether the incident occurred on day shift or night shift and I would not regard his evidence on that point as immutable nor, however, would I regard it as mattering one way or the other.  He differed from Ms Thompson as to how she put back into a film canister the vegetable matter which, it is common ground, was loose in her pocket and which she had removed.  Again, one could not place much weight on Mr Price's account of this contested detail, another detailed version having been asserted. 

13. Mr Price freely admitted that his observations of marijuana were hardly in the expert category and that he would not be able to say that the vegetable matter he saw was cannabis rather than say, a herbal tea.  He freely acknowledged that Ms Thompson was in the habit of using herbal tea.

14. The essence of his evidence is that he smelt marijuana burning when Ms Thompson lit up.  He recounted the detail that what preceded Ms Thompson's remark about her "mull" was the fact that her "Bic" type lighter would not work and that she went to great pains to remove bits of vegetable matter, which he thought were like marijuana, from it; when she lit the lighter, the marijuana smell occurred.  It was said that Mr Price's account of the details of cleaning the vegetable matter from the lighter was such that it defies probability that there could be even a grain of cannabis left in the lighter to omit an odour when the lighter was activated.

15. The Judicial Registrar had a positive view of Mr Price's attitude to giving evidence and so do I.  I think that he was doing his best to be honest with the Court, fair to the company and fair to Ms Thompson.  As I said, nothing to the contrary was suggested to him.  It was shown in cross-examination of Ms Thompson that, in relation to various other matters, Mr Price was a man who could accurately reproduce details.  To my mind, it is a very strong consideration that he was quite certain, despite testing and that all proper concessions were made by him, that he had smelled marijuana.  If he smelled it, it could, in the circumstances of this case, hardly have been anything else.

16. The only evidence of Ms Thompson was her own, and I have given it anxious consideration.  As I said to counsel, I do not like deciding cases because of any perception of demeanour or any intuition about a witness' truthfulness because, along with most judges, I am sure that I have been successfully lied to, and also that I have mistakenly failed to perceive the truth when it was being told to me and wrongfully doubted it or rejected it.  However, the employer is entitled to have me record (for what it is worth) that I did not get a favourable impression of Ms Thompson's attitude to giving evidence.  I do not feel that she was especially trying to be helpful to the Court.  A number of matters well within her intellectual comprehension had to be dragged from her.  I think she perceived the logical result of the answers to some of the questions that were put to her in cross-examination, and she was simply not keen to give the answers that would lead to that result. 

17. She explained her reference to spilling the mull to be an example of her propensity for making jocular remarks.  She gave as other examples that she might, from time to time, refer to water as vodka or to common edible mushrooms as (hallucinogenic) "gold tops".  One sees the joke.  It is a way of teasing or otherwise having a little fun at the expense of the credulous.  But counsel for the employer put to her the obvious fact that the joke about the mull would not be a joke unless the vegetable matter looked like marijuana.  She affected to be unable to understand this for some time.  That could not have arisen through any lack of comprehension of the questions that were put to her, nor because she was an inarticulate person.  I think the true explanation is that she did not want the Court to focus on the proposition that the substance did look very much like marijuana. 

18. There are other unsatisfactory things about her evidence.  If she was a constant joker, why would she remember a particular innocent joke, especially when a person present was Mr Stone, a person whom she regarded as ripe material for kidding and teasing?

19. On the other hand, if she did have marijuana, had shown it and incautiously admitted its nature to Mr Price but then thought that Mr Price did not approve of it and that she had committed a social gaffe and may have even prejudiced her employment, it is far more likely that she would remember the matter and might even remember some of the detail as to how she got the substance back into the film canister.  Mr Price did disapprove of what he believed to have been her marijuana usage at work.  Unbeknown to her, he had complained to his supervisor about the second incident (though the first in point of time) about which he gave evidence.  This was an occasion when he says that he observed Ms Thompson giggling to the point of stupidity and incompetence to rise from her seat.

20. Doubtless one would not base a conclusion of intoxication to the point of near incapacitation from cannabis use merely on such an inexpert observation, particularly of a fun loving girl who might well have been simply amused at one of life's stupidities.  However, it is highly likely that in some way Mr Price, not a dissembler, would have registered his disapproval of what he believed to be marijuana in the workplace on the occasion of the "mull" remark, and that his disapproval was noticed by Ms Thompson, and that this explains why she does have a memory of the incident.

21. Another aspect that is unsatisfactory about Ms Thompson's evidence is that she says she was carrying herbal tea around with her in the pocket of her work uniform trousers, when there was no reason to do this and when her only answer was that "lots of things" ended up in her pocket.  There was a place close to the hot water where her herbal tea might safely have been stored.  She was in the habit of bringing to work a bag containing her lunch or dinner.  It seems very improbable that the herbal tea would become so separated from the other comestibles.

22. The only substance that Ms Thompson knows that smells like burning marijuana is a burning ginseng cigarette, and she is an enthusiastic and unabashed marijuana user, at least away from work, and, one gathers, a proponent of the use of and experimenter with various herbs.  She did not have ginseng tea at work on that day, she says, and she does not suggest that she was smoking a ginseng cigarette.

23. The only alternate explanation of Mr Price's evidence is that, believing from his observations of her giggling that she had used marijuana at work, he jumped to the wrong conclusion from seeing a marijuana-like substance and hearing her remark that she was indeed in possession of it, and went on in an honest way to invent the memory that he had actually smelt marijuana at that time.  If he invented the last detail, namely the smell, he must have invented it before 1 February 1996 when he was prepared to sign a statement saying that he had witnessed Melanie Thompson "with what looked and smelt like marijuana" on the occasion in question in December 1995.  I do not believe that, so close to the event, so phlegmatic a witness as Mr Price would have invented such a matter. 

24. The Judicial Registrar accepted that there was a Briginshaw onus upon the employer in this case: see Briginshaw v Briginshaw (1938) 60 CLR 336. There are no doubt cases in which the imputation by an employer against an employee of conduct amounting to a crime, as it would be for Ms Thompson to have possessed marijuana, or of disgraceful conduct, as some persons in the community would think the possession of marijuana to be, would be apt to require the Court to exercise caution in being satisfied that the imputation was made out. I do not myself believe it appropriate that such a doctrine should be applied here. The applicant perceives no shame in being a regular user of cannabis. She is, as she is entitled to be, an enthusiastic advocate for its de-criminalisation and she evidently regards the law as illogical, old-fashioned and unhelpful, as do some other quite respectable people. But, since it is not a matter of any shame to her, I do not see why one needs to be cautious in deciding whether she was in possession of it on a particular occasion. It was said to me that, in all cases where an employee's continued employment depends upon a finding of misconduct, at least where (as here I imagine) there would be grave difficulty in finding other work at a standard of pay that would compare to that of the job in question, a Briginshaw onus should be applied.  I do not think this is right.  There are various kinds of misconduct which, if proven, may justify the termination of an employee's employment.  Some such alleged misconduct may also involve imputations of disgraceful behaviour or actual criminality seriously prejudicial to reputation.  But some would not.  In general, I do not believe that the mere fact that the litigation may have difficult consequences for an employee is enough to require that the Briginshaw onus be invoked in cases of this kind.  It does not, in any case, need to be applied here.

25. However, if this were an actual criminal prosecution of Ms Thompson, I would be inclined to think that the case had been proven beyond reasonable doubt.  It is not the case that the Court need or must shy away from resolving a question decisively when there is only a single witness on either side of the controversy.  It would be monstrous if it were so; in almost no case of sexual assault would the assailant ever be convicted.  It is important however that, where matters depend on a single witness, the evidence of that witness be closely scrutinised before acceptance.  I feel comfortably satisfied that Mr Price did in fact smell marijuana when Ms Thompson lit her lighter, and that this was because, on the probabilities, she had marijuana in her pocket.

26. Ms Thompson was supported in this litigation by her union.  It is no surprise, therefore, having regard to the obviously very dangerous nature of some of the work activities carried on in her workplace, that she should have offered no challenge to the view that, if she was in possession of marijuana, this was a matter seriously prejudicial to workplace safety, and that such an infraction of previously notified company policy should be attended by the termination of employment.

27. I think the employer very fairly investigated the matter, and I think the employer had a valid reason for terminating her services. 

28. Accordingly I think that the application for review should be upheld, the orders of the learned Judicial Registrar quashed, and Ms Thompson's application for reinstatement dismissed.

    I certify that the preceding      paragraphs are a true copy of the reasons for decision of Madgwick J.
    
    
    
    Associate:  
    Dated:  3 April 1997
    
    
    
    
    APPEARANCES
    
    

Counsel appearing for the applicant:	G Rhead
Solicitors for the applicant:	C A Sciacca & Associates
Counsel appearing for the respondent:	J Jerrard
Solicitors for the respondent:	Freehill Hollingdale & Page
Date of hearing:	3 April 1997