William John Leslie and Australian Liquor, Hospitality & Miscellaneous Workers Union v Dulux Australia and Randolph Peter Edmonds and Australian Liquor, Hospitality & Miscellaneous Workers Union v Dulux Australia

[1996] IRCA 30

DECISION NO:  30/96

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4630 and 4631 of 1995

B E T W E E N :

WILLIAM JOHN LESLIE and
AUSTRALIAN LIQUOR, HOSPITALITY &
MISCELLANEOUS WORKERS’ UNION
Applicants

AND

DULUX AUSTRALIA
Respondent

AND

B E T W E E N

RANDOLPH PETER EDMONDS and
 AUSTRALIAN LIQUOR, HOSPITALITY &
MISCELLANEOUS WORKERS’ UNION

Applicants

AND

DULUX AUSTRALIA
Respondent

Before: Judicial Registrar Murphy
Place:              Melbourne
Date:               1 February 1996

EX-TEMPORE REASONS FOR JUDGMENT

These applications for a remedy pursuant to section 170EE of the Industrial Relations Act 1988 (“the Act”) arise as a sequelae to the ending of a “closed shop” arrangement at the respondent's Clayton plant. The focus of events was the warehouse, known as the distribution centre.

An industrial dispute turned nasty. 
The two individual applicants were both employed as storemen.  Mr Edmonds had been employed since 1983 and was also a site delegate of the applicant union.  Mr Leslie had been employed since 1988.  In July 1995 there was a controversy at the plant about the commencing time for work.  Two votes of the employees were held, and a majority of them decided that they would start work at 7 am rather than 6 am as previously.  Four employees in the distribution centre decided to resign from the union over the matter.  It was not really in dispute that the resignation of the four caused tension with the other employees.  The men were then the subject of a campaign of harassment and intimidation.  The campaign consisted of verbal abuse and graffiti.  The graffiti consisted of the word "SCAB" being written or pasted at various places in the distribution centre, including repeatedly on the lockers of the men.  On 8 August one of the men was physically assaulted by an unknown assailant as he left for work.  Another was the subject of a threatening phone call.  He reported this call to the police.  The two who were the subject of the specific acts just mentioned gave evidence in Court.  The impact of the campaign was manifest in their evidence and demeanour. 

The respondent took a neutral attitude to the breakdown of the closed shop arrangement.  Early on the Distribution Manager, Mr Powley, was approached by union delegates and asked what he was going to do about the resignations.  In his evidence Mr Powley said he replied to the applicant Mr Edmonds as follows:

“He asked me what I was going to do about it... and I said that they should take good advice and make sure they knew what the law of the land said.  From there I had individual discussions one-on-one with various union delegates asking them to try and assist us to stop what was happening. 

Did you have any discussions one-on-one with Randy Edmonds? ---  Yes, I did, yes. 

And what was the effect of these discussions? ---  Well, Randy (Edmonds)  assured me that he did not know what was going on and, because of the position he was in it, would be silly to get involved in things like that.”

When the campaign of harassment commenced, the respondent took the view that this behaviour was unacceptable in the workplace.  It was worried about the possibility of physical violence, the disruption to its workplace, and its obligations to provide a safe workplace for all its employees.  Mr Powley sought the assistance of the union delegates to stop the incidents.  His evidence was that no help by way of information was forthcoming.  This evidence was not challenged.

On 15 August Mr Powley took the opportunity of the monthly staff meeting, at which he addressed all staff, to raise the issue.  He said:

“At that meeting I made it very clear to everyone there that graffiti and intimidation and harassment of any written form or anything else was totally unacceptable behaviour, and as a company we would not tolerate that going on, and that we would go to whatever means that it took to eradicate it from the warehouse.”

His evidence went on : 

“Now, did you have any discussion with Randy Edmonds during or after that meeting? ---  After that meeting had finished I said to Randy, “ I have said it.  We’ve just got to make sure this stops.”

Did he say anything to you?---Very little, no, no.”

The Court heard a number of versions of the precise words that were used by Mr Powley on that occasion.  While there was some conflict, I am satisfied that the purport of the message conveyed was that the intimidation and harassment had to cease.  One witness, a fellow employee, Mr Grice, agreed that:

“They were strong words coming from a strong manager, and they were appropriate in the circumstances.”

The incidents continued after the warning by Mr Powley, and the respondent decided to install a surveillance camera in the locker room of the warehouse.  Installation took place on the weekend of 26 and 27 August.  On the morning of 29 August a particularly offensive piece of graffiti was found on the locker of one of the former unionists.  It read: 

“MRS SCAB TAKES IT UP THE ASS (sic).  R.P.”

R.P. are the initials of one of the other former unionists.  The graffiti was brought to the attention of Mr Powley who, at 11.15 am, called a meeting of the warehouse staff.  He displayed the graffiti and again reiterated that it was unacceptable.  At that meeting Mr Edmonds confirmed on behalf of the union that the union “would not be supporting that person.”  According to Mr Powley, he said :

“Everyone here knows the union's view and we will not be supporting that person.”

Both Mr Edmonds and Mr Leslie stated that this meeting, where the graffiti found on 29 August (Exhibit R4) was raised with the employees, took place on the next day.  Mr Powley was adamant that it took place on 29 August, as also was the former unionist to whom the graffiti was directed.  On this issue I prefer the evidence led by the respondent.  Given the nature of the graffiti and the prior history of the matter, I am of the opinion that it is more probable than not that Mr Powley would take immediate action to bring the matter to the attention of the employees rather than leave the matter until the next day.  The evidence of the former unionist was cogent. It is the type of meeting that he would remember.  He tendered his attendance records (Exhibit R10), to the effect that he was not present at the workplace on 30 August. 

The actions of Mr Edmonds on 29 August were recorded on the video.  When the videotape was reviewed, it revealed that later that morning the applicant, Mr Leslie, was observed writing the words "FAT SCAB" on another locker of a former unionist.  Still later in the afternoon, Mr Edmonds was observed placing a sticker with the word “SCAB” from a roll of handwritten stickers on another locker, as well as being in conversation with Mr Leslie and looking at the lockers of the former unionists. 

The respondent puts the allegations to the applicants. 
The Employee Relations Manager of the respondent, Mr Bedford, appears to have more than a passing familiarity with the rules of procedural fairness and the approach to sensitive industrial relations issues.  Armed with the video evidence he, along with Mr Powley and another member of management, contacted the union delegates on 30 August and sought a meeting to discuss what the delegates were told was a further incident of harassment and intimidation.  The meeting took place about 1.30 pm on 30 August.  Mr Edmonds, along with two other union delegates, attended.  Mr Bedford had pre-planned the agenda for the meeting. 

The first thing he did was to lock-in the union delegates to the proposition that both management and the union regarded acts of intimidation, including "placing graffiti on lockers", as unacceptable serious misconduct.  To the proposition that the perpetrators of such acts would have their employment terminated, Mr Edmonds replied: 

“Of course, it is a matter of common sense.”

Mr Edmonds denied making this statement, but I prefer the evidence of Mr Bedford on the matter.

Having achieved this consensus, Mr Bedford then announced that he had certain allegations he wished to put to an employee and union member, the applicant, Mr Leslie.  The union representatives sought details of the allegations.  Mr Bedford declined to provide them at that stage.  After further discussions that were becoming heated, Mr Bedford provided some detail of the allegations against Mr Leslie.  As those allegations were detailed one of the union delegates challenged him that the respondent must have had a video.  Mr Bedford admitted that this was the case.  At that point Mr Bedford stated that there was also an allegation against the applicant, Mr Edmonds, a union delegate. He indicated that he wished to put the allegations to both applicants. 

The union delegates then sought to obtain advice from the union head office.  Upon receipt of advice, they sought details of the allegations in writing.  Mr Bedford refused.  Mr Bedford, by telephone, spoke to Ms Pender, a union organiser, who asked that the allegations be put in writing and that the applicants have 24 hours to respond.  This was refused.  She also asked that the applicants be suspended on pay pursuant to the Australian Paint Industry Manufacturing Award 1986 (“the Award”).  This was also refused.  Mr Bedford indicated that the respondent was not prepared to utilise the provisions of the discipline and grievance procedure in the Award, the Clayton Site Enterprise Agreement (1995) (the “Site Agreement”) and the Australian Paint Industry Operating Agreement 1992 (the “Operating Agreement”).

Clause 39(d) of the Operating Agreement provides procedures containing a provision that permits the employer to arrest the summary termination of an employee in the event of serious misconduct.  The respondent was clearly relying on clause 20 of the Award and clause 39(viii) of the Site Agreement that allow summary termination in the event of misconduct. 

At around 5.30 pm, Ms Pender arrived at the Clayton site.  Mr Bedford then sought to show the videotape to the union delegates and the applicants, and to give a verbal commentary of the allegations that were being made by the respondent.  Some discussion occurred and reference was made to the decision in Byrne v Australian Airlines Ltd (1994) 47 FCR 300. Mr Bedford was being careful to ensure that he complied with the rules of procedural fairness as he understood them. It is clear from the evidence that he was anxious to ensure that Ms Pender did not frustrate that intention. The applicants and union delegates, including Ms Pender, were allowed to view the videotape in private. After that the videotape was viewed in the presence of Mr Bedford and the two other management representatives, and from a written chronology of events Mr Bedford outlined the allegations that were evident from the tape and were being made against the two applicants. He asked each of them for a response. Mr Leslie said he had no comment. Mr Edmonds said he wanted more time to respond.

At some stage in the course of the discussions between them, Ms Pender referred to a matter involving a dismissal that had occurred a couple of months previously.  On that occasion, under clause 39(d) of the Operating Agreement, the dismissal had been arrested and the employee suspended to allow a proper investigation.  Mr Bedford refused to allow the 24 hours to respond and refused to adopt the procedure adopted previously.  Ms Pender also sought to defer matters until the following morning when the union secretary was to be present on the site.  This was also declined.

Ms Pender agreed, under pressure in cross-examination, that Mr Bedford did not impose any time limit on the ability of the applicants to view the videotape or to respond.  When the applicants declined to offer any response, their employment was summarily terminated.  The letters of termination had been prepared earlier in the afternoon. 

The evidence as to workplace culture. 
The applicants led a volume of evidence directed to the proposition that in the context of this workplace the conduct of neither applicant was such as to constitute serious misconduct. 

Both applicants gave evidence.  Both admitted the actions alleged against them.  Mr Edmonds explained his actions on 29 August as arising out of frustration, anger and pressure.  He said that union members had been pressuring him arising out of the resignations. He said that he had regretted what he had done.  He also said he had been the subject of racist comments - he is of Sri Lankan ethnicity - and other harassment by some of the former unionists.  He maintained that there was a deal of graffiti around the site.  He denied that his actions on the videotape showed that he was furtive in the way that he placed the sticker on the locker.  He also denied knowing where the short roll of "SCAB" stickers on the locker came from.  He had been using stickers from that roll. 

Mr Leslie, who arrived in Australia from Northern Ireland in 1988, said that he too was the subject of taunts directed towards his Irish extraction from former unionists.  He said he was intimidated by the taunts.  His explanation for his actions was that he was frustrated at the attitude of management and he was giving the former unionists a "bit of medicine".  He admitted using his non-dominant hand to write the graffiti. 

Both applicants in their evidence sought to allege that there were acts of abuse and resentment directed at them by the former unionists.  Their evidence on these matters smacked of recent invention as much of it was not put to the former unionists when they first gave evidence.  When the evidence was ultimately put to the two former unionists who gave evidence it was squarely denied.  In general, the evidence of the applicants in their explanation for their actions was unconvincing and lacked conviction. 

The Court heard evidence that within the workplace graffiti was common and condoned by the respondent.  It was further alleged that the use of racially and sexually abusive comments among employees was also common in what appeared to be an all male workplace.  The respondent led evidence of an harassment seminar attended by Mr Edmonds in 1994.  Mr Leslie did not attend that seminar.  Reference was also made to clause 46 of the Site Agreement which envisages a process of consultation within the workplace to resolve grievances relating to harassment.  The thrust of the evidence of Ms Pender and Mr Grice, supported by the applicants, was that the background that led to these incidents was such that the respondent should have tackled the matter differently within the workplace. 

Mr Grice maintained that when the campaign of harassment had commenced, he had suggested to Mr Powley that the management, the union and the former unionists should sit down and discuss the matter.  Mr Powley was unable to recall this discussion.  Mr Powley's evidence that he had on a number of occasions unsuccessfully sought the assistance of union delegates to prevent the problems arising from the resignations was unchallenged.  The fact that the respondent had not taken any decisive action in relation to graffiti in the past was put by Ms Pender and the applicants as showing an inconsistent attitude in the present case. 

Having heard a number of witnesses from the workplace, the Court is satisfied that there were instances of racial and sexual reference and graffiti in the workplace that the respondent took little action to eradicate.  I am satisfied, however, that the campaign that commenced with the breakdown of the closed shop was of a qualitatively different nature and was, to the knowledge of all the workforce, viewed much more seriously by the management of the respondent.  The incidents that led to these terminations cannot therefore be seen as part of any continuum of general graffiti previously condoned or ignored by the respondent.  

It is in this context that it is necessary to consider the evidence from the witnesses, including the applicants, that the dismissal was unexpected, and a harsh and a disproportionate response to the incidents revealed on the videotape.  Both the applicants denied that they believed that they would be dismissed if they were caught.  They both said that they believed they would be the subject of a lesser form of action under the disciplinary provisions.  These provisions are in common form and provide for an escalating system of verbal and written warnings. 

Both applicants admitted that they knew what allegations were being made against them.  Ms Pender did not dispute that Mr Bedford had in the course of his commentary put the allegations that the actions of the two men were intimidation and harassment that the respondent said constituted gross misconduct justifying summary dismissal.  Ms Pender's evidence was that the conduct was not serious enough to warrant dismissal.  She said that the matter should have been dealt with under clause 39(d) of the Award and under the Operating Agreement. 

She said that the respondent should have allowed additional time to allow a proper response and she noted that the union secretary was to be on the site the next day at 11.00 am.  In her view the decision of Mr Bedford to proceed to dismiss the applicants after showing them the videotape deprived the union and the men of the opportunity to obtain further advice, and proper industrial processes.  In her evidence she was generally critical of the industrial practices of the respondent, including its failure to properly consult and to use the consultative processes in the Site Agreement.

Ms Pender's evidence as to the summary nature of the process engaged in by Mr Bedford was supported by Mr Abel, a union delegate present at the meeting on 30 August as well as by the two applicants.  The latter both maintained they were shocked and ambushed by what happened to them.  Both applicants expressed regret for what had happened.  They maintained that they would be able to resume their positions with the respondent in the event of a reinstatement order. 

Did the respondent have a valid reason to terminate the employment of each of the applicants? 
In order to determine whether the respondent had a “sound, defensible or well founded”: Selvachandran v Peteron Plastics Pty Limited, (Industrial Relations Court of Australia, Northrop J,  7 July 1995), reason to dismiss the applicants, it is necessary to make findings as to the position of the respondent on 30 August 1995.  I am satisfied that in early August 1995 the respondent was faced with a serious campaign of intimidation and harassment directed against those employees who had left the applicant union.  This manifested itself in the repeated appearance of the industrially explosive term "SCAB" throughout the workplace and directed particularly against those individuals.  The campaign was also manifested by the physical assault of one employee and a telephone threat to another.  In response to this situation the respondent sought the assistance of the union delegates to eradicate the campaign.  Mr Powley addressed a meeting of the workforce on 15 August and at that meeting I find stated in no uncertain terms that harassment and intimidation would not be tolerated.

The applicant, Mr Edmonds, acknowledged that this was the union position at that meeting.  Further, Ms Pender also told a meeting of union members at the site around that time that such behaviour was not acceptable and would not be  "tolerated or condoned".  It was in this environment, with the graffiti re-appearing, that the respondent installed the video surveillance on 26 August.  I am satisfied that on 29 August Mr Powley had brought to his attention a particularly nasty piece of graffiti placed on one of the former unionist's lockers by, as it subsequently transpired, the applicant, Mr Edmonds. 

I am satisfied that this graffiti, (Exhibit R4), was brought to the attention of the warehouse staff on that day and again the position of the respondent in relation to the culprits was made perfectly clear.  The following day Mr Bedford became involved when the evidence recorded on the video became available.  I am satisfied that the respondent took the view that the videotape recorded acts of serious misconduct by the two applicants.

Mr Bedford showed the videotape to the two applicants.  Neither chose to deny on that day that the videotape recorded what Mr Bedford alleged.  In these proceedings it was admitted by the applicants that the video records them placing graffiti on the lockers of the former unionists.  Before Mr Bedford put the allegations to the applicants I am satisfied that he said to the three union delegates, including the applicant, Mr Edmonds, that:

“People undertaking acts of graffiti or harassment will be guilty of serious misconduct and be terminated.”

I find that to this Mr Edmonds replied:

“Of course, that is a matter of common sense.”

While it could be said that Mr Bedford deliberately manoeuvred the three union delegates, including the applicant, Mr Edmonds, into making this admission, I am satisfied that in the industrial environment then prevailing the position taken by the respondent was perfectly proper given its statutory and contractual obligations to its workforce and in particular to the former unionists.  The respondent declined, as it was entitled to do under the Site Agreement and the Award, to process the allegations against the applicants under the disputes procedure or to suspend the applicants on pay for an investigation.

The representative for the applicants referred the Court to a number of cases dealing with the meaning of gross or serious misconduct. It is unnecessary to consider the cases in detail. The question of a valid reason, for the purposes of section 170DE of the Act, for termination has been considered in a number of cases such as Selvachandran (above), Gibson v Bosmac Pty Ltd (1995) 130 ALR 245, and Drury v BHP Refractories Pty Limited, (Industrial Relations Court of Australia, Wilcox CJ, 16 June 1995). 

Here I am satisfied that the respondent laid out to its work force on 15 August 1995 that a continuation of the campaign of intimidation and harassment of the former unionists was unacceptable. That view was affirmed on 29 August and then endorsed by the three union delegates, including the applicant, Mr Edmonds, on 30 August. Having regard to these considerations I am satisfied that the respondent has discharged its onus that it had a valid reason, pursuant to section 170DE(1) of the Act, for the termination of employment of both applicants when it found them both engaging in an act of intimidation and harassment against the former unionists.

Procedural unfairness. 
The decision of the High Court in Byrne v Australian Airlines Ltd (1995) 131 ALR 422 has confirmed that procedural unfairness may render a decision to terminate employment in breach of a requirement that the termination not be “harsh, unjust or unreasonable”.

In this sense the High Court has indicated that the requirements of section 170DC of the Act are implicit in the application of section 170DE(2) of the Act. At 434, Brennan CJ, Dawson and Toohey JJ said:

“Save for the prescription of periods of notice, cl 11 does not require the adoption of any particular procedure for the dismissal of an employee.  However, it is clear that the use of an unfair procedure may result in a dismissal being harsh, unjust or unreasonable.  For example, the failure to afford an employee the opportunity to explain apparent misconduct where there is an innocent explanation available would result in the dismissal of the employee being in breach of cl 11(a).  On the other hand, if an employer were to observe the actual misconduct of an employee in circumstances which allowed no innocent explanation, a summary dismissal might not be in breach of cl 11(a).”

It is worth noting, however, as argued by counsel for the respondent, that McHugh

and Gummow JJ said at 462 that “the distinction between procedure and substance

is elusive.”

Here the representative for the applicants argued that the procedure adopted by the respondent was procedurally unfair and denied the applicants due process.  The decision of the High Court in Byrne (above) and decisions of this Court in cases such as Nicolson v Heaven & Earth Galleries Pty Limited (1994) 1 IRCR 199, Gibson (above) and Selvachandran (above) show that the requirements of section 170DC of the Act are informal but substantive. There is no set formula or process. The requirements must be applied in the context of the workplace under consideration.

Here the respondent acted with some expedition.  First it took the view that it was dealing with misconduct and thus the usual discipline procedure of warnings did not apply.  I find that this was a reasonable approach open to it.  Next, it refused to arrest the dismissals on the basis that further investigation was necessary.  This was also reasonable given the graphic evidence available.  No further investigation was warranted.  It was argued that the whole issue of the harassment should have been approached in some other way by the respondent.  There is no substance in that submission.  The respondent in effect directed its employees, including the applicants, to desist.  It was entitled to do so.  It is easy in retrospect to say that the matter should have been approached differently. 

The representative for the applicants argued that the actual process on 30 August was unjust.  He referred to the refusal to adjourn the proceedings to the next day when the union secretary would have been available.  This argument is squarely met in the decision in Gibson (above, at 252) where the employee failed to avail himself of an opportunity to respond. No breach of section 170DC was made out.

Here it was the applicants through their representative, Ms Pender, who chose when confronted with the videotape to decline to comment.  Both applicants had known since earlier in the afternoon that the allegations relating to harassment were to be made against them.  They knew the general nature of the allegations before Ms Pender arrived.  They viewed the videotape.  No time limit was imposed by the respondents.  Mr Bedford then outlined the allegations and invited a response.  The applicants, and in particular, Mr Edmonds, sought further time. 

It was reasonable not to accede to that request.  It was the applicants who, when the opportunity was offered, were failing to avail themselves of the opportunity to respond to the allegations.  Ms Pender was seeking to set the timetable and process for procedural fairness.  Mr Bedford would not allow her to dictate the agenda.  Both parties were aware of the implications of the decision in Byrne v Australian Airlines Ltd (1994) 47 FCR 300 and Mr Bedford was not going to face an accusation that he failed to accord procedural fairness.

The respondent acted with some expedition but it was entitled to do so as it had a duty to the whole of its work force.  It did not have to march to Ms Pender's timetable.  Ms Pender and the union delegates had enough experience to know that when Mr Bedford refused to adjourn the matter they had a choice whether to maintain their “no comment” position.  The cases relied on by the representative for the applicant are distinguishable because they relate to a series of matters that were not put to an employee before he or she was terminated:  See in particular Perrin v Des Taylor Pty Limited, (Industrial Relations Court of Australia, Moore J, 10 March 1995).

Here there was a real opportunity to respond. The applicants have failed to make out any breach of section 170DC of the Act.

Was the termination in breach of section 170DE (2) of the Act. 
The considerations I have discussed in relation to the validity of the reason for the terminations are relevant to the issue on which the applicants carry the onus of proof, namely that the terminations were otherwise harsh, unjust or unreasonable.

For both the applicants the starting point is the respondent’s attitude, shared by the union, as to the unacceptable nature of what was happening in the workplace.  The evidence supports a finding that each of the applicants knew that continuation of the campaign against the former unionists was unacceptable and would result in serious consequences.  The furtive nature of the actions of both applicants supports that conclusion and finding.  The finding that the position of the respondent in relation to the graffiti was reiterated at 11.15 am on 29 August makes the position of Mr Edmonds in placing stickers in the afternoon of that date even more stark.

The failure of the applicant, Mr Leslie, to proffer any convincing explanation for his own actions with Mr Edmonds in the locker room as recorded on the videotape is a further matter relevant to the onus to be discharged by both applicants.  The account  by Mr Edmonds of the motivation for his actions was thin.  He asked the Court to accept that he committed these actions out of character and out of frustration and pressure.  The furtive way that he committed the acts and his disingenuous response on a number of occasions to Mr Powley in relation to the union's attitude to the campaign lead the Court to pay scant regard to his words of contrition.  Similarly, the explanation by Mr Leslie was also thin and not corroborated in any degree.  The Court does not accept his evidence that he too was a subject of any racial abuse so as to provide any real reason to respond by joining the campaign. 

The deliberate nature of the actions of each applicant must be weighed against the submission by their representative that their service records were such that the dismissal was too harsh a response.  Mr Powley, however, gave evidence that all matters relating to the applicants were considered.  He also said that a lesser sanction such as transfer to another site was not deemed appropriate.  In Byrne (above, at 463) McHugh and Gummow JJ in the High Court endorsed the following comments, made in Bostik (Australia) Pty. Ltd v Gorgevski (No.1) (1992) 36 FCR 20 at 28 per Sheppard and Heerey JJ, about the term “harsh, unjust or unreasonable”:

“These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated.  We do not think any redefinition or paraphrase of the expression is desirable.  We agree with the learned trial judge's views that a court must decide whether the decision of the employer was, viewed objectively, harsh, unjust or unreasonable.  Relevant to this are the circumstances which led to the decisions to dismiss and also the effect of that decision on the employer.  Any harsh effect on the individual employee is clearly relevant but of course not conclusive.  Other matters have to be considered such as the gravity of the employee's misconduct.”

In Gregory v Philip Morris Ltd (1988) 80 ALR 455 at 457, Jenkinson J was considering the meaning of the word "unreasonable" and said it must be understood in the sense :

“which it has come to bear in many legal contexts when applied in characterisation of human conduct,  that is, failing to conform to a course of conduct which a reasonable person would, in the judgment of the tribunal of fact, have adopted in all the circumstances.”

He went on to say that the question is ultimately one of fact and  :

“This question requires a determination, by reference to moral values and prudential considerations current in the community, of what the tribunal of fact thinks a reasonable employer in the circumstances would have decided to do at the time when the respondent terminated the appellant's employment.”

In Gibson (above, at 253) Wilcox CJ said in relation to the word “unreasonable” :

“In considering reasonableness it is necessary to take into account the position of both parties.”

In Drury (above) Wilcox CJ said that a decision to dismiss the employee after a

written final warning would not have infringed section 170DE(2) of the Act.

Here, applying these principles in the cases, the respondent did not infringe section 170DE(2) when it dismissed either applicant on 30 August. Any dismissal will have a harsh effect on an employee. Considerations such as long service, or even quite exceptional service, as in the case of the applicant Mr Edmonds, must be weighed against the gravity of the misconduct. The misconduct here was gross. It was misconduct that Mr Edmonds and the two union delegates agreed should result in termination. At that stage of the industrial dispute over the departure of the unionists it was “beyond the pale”. The applicants were found to have engaged in the acts of misconduct. They offered no explanation or anything in mitigation despite the opportunity to do so. Given all this the dismissal on that date was not harsh. It was not disproportionate to the conduct. It was a reasonable response by the respondent after it acted with due deliberation. Each applicant has failed to discharge his onus of proof that the termination infringed s170DE(2) of the Act.

Was termination on notice required? 
The respondent relied on s170DB(1)(b) of the Act to argue that it was not required to make any payment in lieu of notice. For the reasons that I have discussed in relation to the validity of the reason for the termination I am satisfied that the applicants were guilty of “misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period.”  (s170DB(1)(b) of the Act).

The conduct was gross misconduct. Fairness and justice did not require a continuation of the employment relationship during a notice period particularly where the applicants had failed to offer any explanation. The actions of the applicants went to an essential requirement of their contracts of employment, namely that they obey lawful directions and respect the rights of their fellow employees to work in an atmosphere devoid of intimidation and harassment. The respondent has not breached section 170DB of the Act. The applications must be dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That each of the applications is dismissed.

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

I certify that this and the preceding seventeen (17) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:  
Dated:  1 February 1996

Representative for the Applicants:        ALHMWU - Miscellaneous Workers Division
Representative for the Applicants:        Mr Brian Tee

Solicitors for the Respondent:               Mallesons Stephen Jaques
Counsel for the Respondent:                Mr M McDonald

Date of hearing:  29, 30 & 31 January 1996
Date of judgment:  1 February 1996

C A T C H W O R D S

INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - SERIOUS MISCONDUCT - SUMMARY DISMISSAL for “scab” graffiti in workplace - PROCEDURAL FAIRNESS - HARSH, UNJUST OR UNREASONABLE TERMINATION

Industrial Relations Act 1988 ss.170 DB, 170DC, 170DE

CASES:

Selvachandran v Peteron Plastics Pty Limited, (Industrial Relations

Court of Australia, Northrop J,  7 July 1995).

Gibson v Bosmac Pty Ltd (1995) 130 ALR 245
Drury v BHP Refractories Pty Limited, (Industrial Relations Court of Australia, Wilcox CJ, 16 June 1995). 

Byrne v Australian Airlines Ltd (1994) 47 FCR 300 (FCA);

(1995) 131 ALR 422 (HCA).

Nicolson v Heaven & Earth Galleries Pty Limited (1994) 1 IRCR

199.

Perrin v Des Taylor Pty Limited, (Industrial Relations Court of Australia, Moore J, 10 March 1995).

Bostik (Australia) Pty. Ltd v Gorgevski (No.1) (1992) 36 FCR 20.

Gregory v Philip Morris Ltd (1988) 80 ALR 455.

WILLIAM JOHN LESLIE and
 AUSTRALIAN LIQUOR, HOSPITALITY &
MISCELLANEOUS WORKERS UNION -v- DULUX AUSTRALIA

AND

RANDOLPH PETER EDMONDS and
AUSTRALIAN LIQUOR, HOSPITALITY &
MISCELLANEOUS WORKERS UNION -V- DULUX AUSTRALIA

Nos. VI 4630 and 4631 of 1995

Before:  Judicial Registrar Murphy
Place:  Melbourne
Date:  1 February 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4630 and 4631 of 1995

B E T W E E N :

WILLIAM JOHN LESLIE  and
AUSTRALIAN LIQUOR, HOSPITALITY &
MISCELLANEOUS WORKERS’ UNION
Applicants

AND

DULUX AUSTRALIA
Respondent

AND

B E T W E E N

RANDOLPH PETER EDMONDS and
AUSTRALIAN LIQUOR, HOSPITALITY &
MISCELLANEOUS WORKERS’ UNION

Applicants

AND

DULUX AUSTRALIA
Respondent

MINUTES OF ORDERS

Judicial Registrar Murphy      1 February 1996

THE COURT ORDERS:

1. That each of the applications is dismissed.

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