Yew v ACI Glass Packaging
[1996] IRCA 364
•14 Aug 1996
DECISION NO: 364/96
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - serious misconduct - fighting - respondent policy provided for instant dismissal - PROCEDURAL FAIRNESS - only one of the protagonists dismissed for fighting - whether respondent policy applied fairly
Industrial Relations Act 1988, ss 170 DC, 170 DE, 170 EE
AWU - FIME Amalgamated Union v Queensland Alumina Limited, unreported, Industrial Relations Court of Australia, NI 95/311, Moore J, 14 July 1995
Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 1999
Cox v South Australian Meat Corporation 60 IR 239
Laws v London Chronicle (Indicator Newspapers) Limited (1959) 2 AllER 385
Crosslands v John Farifax & Sons Limited (unreported) 14 IRB at 610
JASON YEW V ACI GLASS PACKAGING PTY LTD
No NI96/1202
Before TOMLINSON JR
Place SYDNEY
Date 14 August 1996
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
Matter No NI96/1202
B E T W E E N
JASON YEW
Applicant
A N D
ACI GLASS PACKAGING PTY LTD
Respondent
MINUTES OF ORDER
THE COURT ORDERS THAT
The respondent shall pay to the applicant six month’s salary
by way of compensation within 28 days of the date of this judgment.
The respondent shall pay an additional amount within 28 days to the applicant being four weeks salary.
.
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
NEW SOUTH WALES DISTRICT REGISTRY
Matter No NI96/1202
B E T W E E N
JASON YEW
Applicant
A N D
ACI GLASS PACKAGING PTY LTD
Respondent
REASONS FOR DECISION
14 AUGUST 1996 TOMLINSON JR
This is an application brought under the Industrial Relations Act (“the Act”) for reinstatement by Jason Yew to his former position of machine operator with the respondent.
In evidence given at all times through an interpreter the applicant stated he had been employed for 6 ½ years with the respondent as a machine operator and that immediately prior to the termination he was employed in the respondent’s mould shop. He was terminated on 12 February 1996. He had been in the mould shop for approximately 6 months. The applicant worked a 12 hour day and told the Court that other workers called him unsavoury names, in that comments were made about Asian people having small eyes and small genitalia. Additionally the applicant stated on occasion he was called “arsehole.” In response to these taunts the applicant stated to his workmates that “I come here to work, not to make trouble, and that he would walk away, sometimes “showing the finger.” The applicant said he complained about this abuse to Lloyd Neil, and to “Pete”. Particularly the applicant said Sean Swadling was always teasing him.
On Saturday 3 February 1996 it was the evidence of the applicant that at work part of his duties were that he was required to deliver articles with his trailer. He was at the point where he had loaded the trailer when he saw Sean Swadling unhooking the loaded trailer from its main vehicle. The applicant said that no-one else was around. Further, that later on during that day the applicant told the Court “Sean hid my clothing - I could not find them - I had put them in front of my locker - they were kept there because I took them for washing - my clothes were gone at the end of my shift. I did not find them on that Saturday.”
The applicant continued:
“On 4 February I started my shift at 7 am as usual - I asked Sean to return my clothing - I was very courteous - he replied “arsehole” and pushed me.” He only said - “I didn’t take your clothes.”
I responded: “Don’t be childish and keep hiding people’s things.”
The applicant said after this he then walked away. The applicant said two other employees, Gerard Dolphin and Billy were watching this verbal exchange. Later that day, around 11.15, 11.30 am, the applicant said Sean Swadling refused to let him take the trolley to the hot end of the factory floor. Further, that Sean tried to remove the key from the vehicle and that the applicant tried to stop him. The applicant told the court that he put his hand over the keys - and that then Sean went around the back of the vehicle and attempted to unhook the trolley. The applicant said there were no other workers in the vicinity. When Sean tried to unhook the trolley the applicant said he pushed his arm and said words to the effect “Don’t do that.” When he pushed Sean, the applicant said that Sean punched him and that he then fell onto the floor - and that at that point Sean jumped over the tow bar of the trailer and kicked and assaulted the applicant.
The applicant said he was very frightened and so he defended himself and that he kicked Sean away while he was attempting to get to his feet. At that point the applicant said he was aware that someone was behind him holding him - and so he reached for a mould to throw at Sean to scare him off - the applicant told the court that during the struggle at about this point he became aware that the person holding him was Gerard Dolphin. The applicant said Gerard Dolphin asked him to stop.
Shortly after that it was the applicant’s evidence that Jimmy Love, the MWU representative, came and talked to him, the applicant having just apparently got back onto his feet. Jimmy Love asked the applicant what had happened, and the applicant told the Court that he had asked Sean for his clothing and that Sean had assaulted him. The applicant said Jimmy Love said words to the effect “I will speak to Dean and tell the other colleagues but don’t let anybody know this happened”. When Jimmy Love spoke these words the applicant said Sean Swadling was sitting about 7 feet away. The applicant stated he told Jimmy Love that Sean had attacked him first. The applicant said Jimmy Love must have been approximately 10 feet away, working on the same side of the trailer as Gerard Dolphin.
The applicant said Gerard Dolphin was a tool maker, and that at the time of the incident he was working at his bench and that the applicant could not see Mr Dolphin from where he was standing before the fight. It was the evidence of the applicant that Gerard Dolphin should have been able to see Sean Swadling kick him when he was down. The applicant said after the incident he talked to Gerard Dolphin who said he had a wife and kids and that he did not want to lose his job, and that he too asked the applicant “not to reveal the matter.” The applicant asked for his clothing to be - Sean Swadling told him where it was - and told the court the two men then shook hands. From start to finish the applicant said the fight took 10 to 15minutes. Afterwards people asked why the applicant’s head was bleeding and he told the Court that he replied that he had fallen over, as he had to keep his promise. The applicant said he sustained other injuries in the fight, and that he had marks on his face, arms and chest, where Sean Swadling had kicked him.
The applicant said that at the time Jimmy Love intervened he was “just debating with Swadling” and that the tone was a bit louder than normal - the applicant said he was not being rude - he was just asking for his clothing back. Because his clothing was missing the applicant was forced to wear the dirty clothing back to work on the Sunday.
The day after the fight the applicant said the foreman Wayne - came to him and directed him to the office. In the office there was John Parker the manager -he was asked what happened the previous day - the meeting took five minutes the applicant said he was then asked to Go to the the canteen and wait. The applicant was then told to go to personnel and there he met Norm, the personnel manager, Ian the union representative and John, the manager of the mould shop and Wayne, the foreman. The applicant said at that time he was dismissed and he left the premises that day.
2 to 3 weeks after the dismissal Norm the personnel man telephoned the applicant and as a result the applicant attended for an appointment with the respondent. The applicant said he was asked to drop the whole matter, meaning the proceedings in this Court, otherwise it would be “hard for him”. The applicant said the words sounded like a threat - present at that meeting was Jimmy Cliff a chinese person and also a union representative. The applicant said at the meeting Jimmy Cliff kept persuading him to drop the matter. It was suggested to the applicant that if stopped his proceedings in this Court the record would be changed and things would be different for him.
The applicant said he saw MFI 1 when he was applying for unemployment benefits. The applicant said he had not looked for work because of the threatening things that were said to him at the last interview - that when future employers would ring the respondent they would be told the applicant was dismissed for fighting and then he would never get a job. The applicant said there were only 3 other Asian people to his knowledge employed by the respondent.
In cross examination it was put to the applicant that there were 6 people present at the fight - Jimmy Love, SeanSwadling, Tom Woods and Jim McKechnie. The applicant denied, however, that Sean Swadling took the keys out of the vehicle he wanted to drive The applicant denied Swadling was counting the blanks on the back of the trolley and holding sheets of paper at the same time.
It was put to the applicant that he had king hit Sean, and the applicant denied the statement. The applicant denied the two men fell to the floor, and maintained that he was on the floor and Swadling was still on his feet.
The applicant denied that at the site of the fight there were two fire extinguishers secured on the wall, and stated the walls were tiled, not constructed of wood. Exhibt B was a floor plan of the mould shop showing where the event occurred.
The applicant stated that when Swadling was kicking him that he kicked back to fend him off and in so doing the fire extinguisher toppled over. The applicant denied that when he kicked the fire extinguisher he was standing up.
On behalf of the respondent the Court heard from Mr Gerard Dolphin who stated that until 6 May 1996 he had been employed by the respondent in its moulding section since April 1989. It was the job of the witness to clean and repair the metal moulds used in forming glass containers. Gerard Dolphin stated he had worked with the applicant for 6 months commencing September 1995. On Sunday 4 February 1996 at about 11.30 am the witness saw the applicant and Mr Sean Swadling wrestling on the floor in the aisle beside his work bench. The witness separated the two men and stated that then the applicant picked up a heavy metal mould and threw it at Mr Swadling. The witness retreated and said he did so as he was concerned about repercussions and his own employment. At the time there were 4 other employees present - Messrs Love, Woods, Savanavitch and Cagney and Mr Dolphin stated none of those people actually witnessed the fight. In cross examination the witness stated that all employees “get regularly teased” and stated he had never heard the applicant called “Mr Wong” and that he had never heard other employees pass derogatory comments about Chinese women. Gerard Dolphin stated that it was subsequent to the incident that he learned that the day before the fight, Saturday 3 February 1996, the applicant complained that some of his clothing had been removed. It was also after the fight that the witness learned that an incident over a trolley began the disagreement. The witness did not know who threw the first punch, nor whether Sean Swadling had kicked the applicant whilst he was on the ground. The witness could not remember if he had pulled the applicant from behind and held his arms nad stated that he did not know if the protagonists shook hands afterwards.
On 20 March 1996 Gerard Dolphin stated that as a result of a telephone call from Personnel he made a written record of the incident. Mr Dolphin allegedly had no trouble in understanding the applicant, although the English of the applicant was "not excellent English”. Mr Dolphin discussed the matter with other employees present but has not discussed things with Sean Swadling. Mr Dolphin stated that he was aware that Sean Swadling was taller and heavier than the applicant and that subsequent to providing his written statement he learned that the applicant had complained to management that he was receiving unfair treatment.
On behalf of the respondent the court heard from Sean Swadling, who stated he commenced employment with the respondent inJune of 1992 and that he ceased work in March 1996. The witness did not take the oath on the Bible, as he told the Court he was a practising Christian with the Christian City Church at Penrith and that as such it was not permissible to swear on the Bible. It was te evidence of Mr Swadling that on Sunday 4 February he was cleaning the blank moulds and he was in the process of counting the blanks on the trolley and the applicant would not let him count them. Sean Swadling told the court that as a result he bent down to unhook the trolley and the applicant hit him. Mr Swadling said that he thereupon dived upon the applicant, and that the two men hit the fire extinguisher as they fell to the ground. A wrestle then ensued - Mr Swadling said “Jason was still kicking and fighting - he picked up blanks - Gerry came running over and grabbed him and Jason tried to throw them.” When Gerard Dolphin held Jason, Mr Swadling said he told Jason not to be silly. Mr Swadling said then Jimmy Love came over and said words to the effect, "calm down or you will be had up for assault” and said both workers had to sort the problem out. Shortly thereafter the two men shook hands. At about 11 am Mr Swadling said he helped the applicant look for his glasses - and said that he realised that people had seen the fight.
The next day the supervisor called in 6 witnesses - and both protagonists met with Mr Wilson, one at a time. Mr Swadling said he went to the personnel office with John and Wayne and that he told them what had happened. Mr Swadling wrote out a statement, marked as exhibit “E”. The respondent told Mr Swadling that Jason was to be put off and that he was to be placed on probation for 12 months. Mr Swadling said he was very shocked at the outcome and that he liked Jason. Previously in the factory people had “mucked around” but that this had been the first fight. Apparently the applicant would turn off Mr Swadling’s spray gun - and with rolled up paper the pair would try to hit each other in fun.
Mr Swadling agreed the applicant was angry about the removal of his clothes, and that he, Mr Swadling had moved them on Saturday, and that someone else had hidden them from that point. Mr Swadling said that together with the applicant he had searched for the clothes - and that this search had taken place before the fight. The witness told the court he was currently unemployed, and that he had ben harrassed whilst working with the respondent. The harrassment arose from his Christianity. Further, after the incident, employees said to him “you should have got the sack” and that the applicant was the subject of regular teasing about being Asian. The witness denied that he said Asian people have small eyes, and that he would say “Ah So”. The witness denied that he had unhooked the applicant’s trolley on the Saturday. The witness denied in cross examination that he had kicked the applicant and that the facial mark was sustained when the applicant fell to the ground, and that he did not know if anyone else saw the fight, but that 6 or so other people were standing near when he and the applicant got up of the ground. Mr Swadling said the fight was over in a couple of minutes. Mr Swadling said in answer to a question from Mr Wilson as to whether he did anything to cause the fight the answer Mr Swadling gave was that he took Jason’s clothes.
On behalf of the respondent the Court heard from James Love, who had been employed by the respondent for some 11 years. Mr Love said on the day in question he saw a problem around the spray booth and so he went over. Sean Swadling said to him “Jason King hit me”. Mr Love allegedly told Jason to calm down and confirmed that at the time of the incident Mr Swadling was holding a board in his hand for the counting of moulds. The court also heard from Mr McKechnie who stated he had been employed by the respondent for 7 years as a toolmaker. On the day in question Mr McKechnie saw the two men wrestling on the ground and he stated he also saw the fire extinguisher knocked over. The witness saw Gerard Dophin go between the two men, and he also stated he was the applicant reach for the blank mould. Admitted into evidence was the kind of mould referred to in these proceedings, being a solid cast piece of heavy metal.
Wayne Hoffman gave evidence on behalf of the respondent and said he had been with the respondent for a considerable length of time. Mr Hoffman was the mould shop supervisor. Mr Hoffman attended the meeting after the incident when Mr Wilson was trying to find out what had happened. Mr Hoffman said the applicant replied that he and Mr Swadling were ‘just mucking around”. Mr Hoffman said he had spoken to all those who were around on the day of the fight and who had observed the event, in order to conduct an investigation.
On behalf of the respondent the court heard from Norm Wilson, the personnel manager of the respondent. On Monday 5 February 1996 Mr Wilson said he had a visit from John Parker the manager and Wayne the supervisor and he learned about the incident the day before. Mr Wilson said he spoke to both men and that Sean produced a written statement - exhibit C. That document stated inter alia:
“Sunday 3 February 1996
Janson hooked up trolley to tak to hot end. I informed him
I had not counted the blanks, for the records kept by
John Parker and asked him to wait while I did so.
Jason became agitated and abusive. 2 or 3 times I
asked him if I could do the coung needed, he refused
and went to drive off. I then ben forward to unhook
the trolley so I could do the count.
Jason then jumped down, was very abusive and King
hit me while my head was down. he (sic) continued
to swing and curse at which time I lunged at him,
knocking myself and him to the ground, this was
done in self-defence.
When we got up Jason continued to throw punches
and kick, I was blocking them with my arms, he was
restrained byJerry, but Jason then picked up 2 blanks
in an attempt to throw or hit me with them
The situation was calmed down, as Jimmy Love
calmed Jason down. Jason then apologised at
which (sic) I accepted.
Sean Swadling”
Mr Wilson said he then called Jason into the office and asked him if he had been fighting and he said no. Mr Wilson said he became exasperated with the continual denial of the positon by the applicant. Jason said “we were just playing.” Mr Wilson stated to the Court: “Jason mentioned about his clothes being moved. I said no more.”
Mr Wilson said all indications were consistently that Jason was the aggressor. Gerard Dolphin was interviewed by the respondent and he told the respondent he tried to stop the throwing of the mould. Mr Dolphin said Jason had lost control - and that no act of aggression by Sean was seen at the time. Mr Wilson said tht Jimmy Love did not actually see the fight - but said that Jason remained agitated and wanted to finish the fight outside.Mr Wilson said other witnesss gave evidence that. Exhibit D was the company policy on fighting. That document stated:
“AMENDED TERMINATION POLICY
The following procedures have been designed to assist Managers and Supervisors in the steps culmination in the termination of an employee.
Serious and Wilful Misconduct
Abandonment of machine or work statin withoug prior approval
from Supervisor
Failure to carry out lawful instruction by Supervisor
Industrial Sabotage
Fighting
Drugs dealing
Drug taking or alcohol drinking
Theft
Fraud
Instant dismissal is to be effected for any of the aforegoing offences with no payment in lieu of notice.”
The court heard evidence the applicant had only had the occasional casual employment since termination and was more than aware of the consequences of the termination because of fighting on his future employment prospects.
CONCLUSION
On behalf of the applicant it was submitted that the respondent did not have a valid reason based on the applicant’s conduct to justify termination either summarily or at all. Further, even if the respondent did have a valid reason for that termination, such validity was lost as the termination, in all the circumstances, was harsh, unjust and unreasonable. The respondent submitted that it did have a valid reason and that reason was serious misconduct that preceded the termination. Further, that in view of the serious misconduct and the applicant’s failure to satisfactorily explain his conduct, in all the circumstances the termination was not harsh unjust or unreasonable.
Fighting on the job per se is serious misconduct and warrants summary dismissal. The basic policy of the respondent attests to that fact. However, all the circumstances such as provocation, previous relationships of the protagonists and working conditions have to be looked at when determining whether in fact the fighting occurred, and if so, the appropriate penalty applicable.
I agree with the submission of the applicant that the unequivocal evidence before the Court is that no third person witnessed the commencement of the altercation between the two men.
Om behalf of the respondent it was submitted that the respondent determined that there had indeed been a fight, and that the applicant had been the aggressor. At all times the applicant gave his evidence through an interpreter. The evidence before the Court was that there were very very few people of the applicant’s background who worked with the respondent. At best the applicant in his work situation had broken English and probably scant resources in the way in which he received management information and coped with the Australian jargon and cameraderie. Those factors to my mind put the applicant in a minority group worthy of extra care in the area of both human rights and equal opportunity in general - and the right specifically to work free from harrassment and victimisation. I agree with the submission of the applicant that the fighting policy of the respondent that the policy was only distributed in the English language and was not placed on the notice board at all times and that it cannot be assumed that reliance could not be placed on the applicant knowing this policy.
In conducting its investigation the respondent, according to the evidence of Mr Wilson the personnel manager, simply looked at the actual fisticuffs - and did not take the factors mentioned above into consideration. To my mind all the surrounding factors are vital in the apportionment of blame. I do not place as much weight on the evidence of Gerard Dolphin as I do on other witnesses, as the applicant indicated that Mr Dolphin was one of the employees involved in the harrassment name calling incidents over the period of the employment.
It is clear that both people involved in the fight - the applicant and Mr Swadling - for long periods of time felt the subject of harrassment in the work place for various reasons. However the harrassment of Mr Swadling is not an issue at present. Harrassment and victimisation builds resentment, and for a person of ethnic background, then to be the subject of a practical joke , such as the removal and hiding of work clothing, the consequences of which could have affected work performance, could be a provoking and causative factor in a fight. On behalf of the respondent it was submitted that whilst there was evidence of taunting of the applicant, such claims were exaggerated. I cannot agree with that assertion.
That fact was given weight in the evidence of the personnel manager Mr Wilson on behalf of the respondent when he told the Court that Jason Swadling answered a direct question and told the respondent he had taken the applicant’s clothes in answer to a question as to whether Swadling did anything to cause the fight. However it seems the respondent did nothing with that information - it conducted an equiry into the fight treating the parties on equal footings and making no allowances for the disadvantage of a non-English speaking background and secondly for the acknowledged element of provocation.
Accordingly it is my view that the applicant was involved in a physical altercation, but upon considering all the circumstances, that altercation did not amount to serious misconduct warranting summary dismissal. In support of that finding I rely on Laws V London Chronicle (Indicator Newspapers) Limited (1959) 2 AllER 385 at 386 where the Court said:
“If summary dismissal is claimed to be justifiable, the question
must be whether the conduct complained of is such as to show
the servant to have disregarded the essential conditions of the
contract of service.”
Further, on behalf of the applicant it was submitted in support of the contention that all the circumstances of the case have to be looked at Morgan J in
Crosslands v John Farifax & Sons Limited (unreported) 14 IRB at 610 (cited in
Norths v Television Corportion Limited (1976) ALR 599 stated:
“It is clear that at common law the mere fact that the servant
has been guilty of misconduct does not necessarily justify
sullary dismissal. As ws said in the Privy Council in Clouston
& Company Limited v Cooory (supra); ‘the other sufficiency
of the justification depended upon the extent of the misconduct.
There is not fixed rule of law defining the degree of misconduct
which would justify dismissal
Accordingly it is a finding of this Court that the termination was in breach of section 170 DB(1) and (2) of the Act in that the applicant, not being guilty of “serious misconduct” (as defined by section 170) was summarily terminated.
On behalf of the applicant it was contended that the evidence of the applicant on occasion conflicted with the evidence of Mr Swadling and I agree with the submission that the evidence of the applicant in those situations is to be preferred on the basis that at all times the applicant was frank and honest with the Court and gave consitent evidence throughout proceedings even though cross-examination of the applicant occurred on two separate occasions.
I bear in mind the comments concerning Mr Swadling but I place weight on the evidence of Mr Swadling when he said that after he received his warning and was placed on probation, other employees told him he too should have been sacked. In that regard I found Mr Swadling to be most sincere. Those remarks by fellow employees meant the general consensus was that both fighters were equally to blame and that the respondent had not been fair and even handed in its treatment of the parties.
In the case of Mr Yew, if the respondent were simply rigidly and inflexibly to apply a “no fight” policy, then both protagonists should have been summarily terminated. But that did not happen. The respondent was of the view that based on the witness statements the applicant had started the fight by first hitting Mr Swadling. The respondent failed, in my opinion, to take into account the statement of Mr Swadling that he had removed the applicant’s clothes beforehand, and that that act was enough to be an act of provocation deserving of dismissal as being a causative factor in the physical fight. It is a finding of this Court that the respondent did take into account the fact that eye witnesses were of the view that the applicant was the aggressor and was therefore more deserving of summary dismissal. But it is noted no-one saw the beginning of the fight.
Section 170 DCof the Act sets out what is known as the procedural fairness section and 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; ..”
In the case of The AWU - FIME Amalgamated Union v Queensland Alumina Limited, unreported, Industrial Relations Court of Australia, NI 95/311 a decision of Moore J handed down on 14 July 1995 the facts involved claims similar to Mr Yew under the Industrial Relations Act. There it was stated:
“...Their employment was terminated on 16 June 1994 as a result of a fight that had occurred at work the previous day.
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.”
On behalf of the respondent it was submitted on the basis of the Queensland Alumina case and Schaale’s case the standard of investigation conducted by an employer does not have to be to the standard of the police. I agree with that proposition but distinguish the facts concerning Mr Yew. In relation to the non-English speaking background of the applicant, I note the solemnity with which the applicant treated his undertaking given to Jimmy Love and to Swadling not to discuss the fight with anyone, and to keep the matter quiet. It seemed that the applicant was concerned for his own job safety as he was for that of Swadling’s and the matter assumed a position of personal honour. It could be that the personal honour situation also partially was the reason the applicant at first, according to Mr Wilson, to be frank and to deal honestly with the situation. The applicant kept his word, and on the other hand Mr Swadling seems to have gone home and the next day prepared a statement - which very soon thereafter found its way to the respondent and then into this Court as an exhibit. To my mind those facts support the finding that the cultural differences between the applicant and Mr Swadling tended to work against the applicant in that he did not receive what has been called “a fair go” when all the circumstances were considered.
Additionally there was no evidence before the Court that the applicant was ever made aware of the consequences of his actions when he failed to answer the manager truthfully when asked to explain his actions. Nowhere in the policy of the respondent does it say that. The respondent failed to treat each protagonist equally - on the one hand it took into account the eye witness accounts that the applicant threw the first punch and on the other hand it failed to take into account the act of provocation previously done by one of the protagonists. In failing to treat each of the protagonists equally the respondent as failed to treat the applicant fairly. Although it is agreed all workers are subject to ribbing and taunts, and employers should be aware that people of ethnic background are more than likely to have trouble coming to understand the friendly insult, and so the duty to investigate, in my mind, in circumstances such as befell Mr Yew, are of a higher order. Accordingly I am of the view that the respondent has failed to accord the applicant procedural fairness and so s 170 DC has been breached.
It is my view that based on the fact that both people were probably equally responsible for the fight, but in the case of Mr Yew the respondent has failed to treat them equally in that it dismissed the one and retained the other. Mr Swadling received a warning and was allowed to remain employed. That was a harsh result and the applicant has discharged his burden in that regard.
Accordingly it is a finding of this Court that the Act has been breached in that the applicant was not accorded procedural fairness as the management policy was not applied equally. In these circumstances a remedy is due to Mr Yew.
With regard to reinstatement, Wilcox CJ in Nicholson v Heaven & Earth Gallery Pty Ltd (1994) 1 IRCR 199 at 210; 57 IR 50; at 60 stated:
“One of the amendments to Part VIA made in June 1994 was the substitution of a new section 170 EE. Under the substituted section, the first task of the court, inconsidering relief, is to consider whether reinstatement is practicable. Compensation for loss of job (as distinct from lost remuneration) may be awarded only if reinstatement is ‘impracticable’. It is important to note that Parliament stopped short of requiring that,for general compensation to be available, reinstatement be impossible. The word ‘impracticable’ requires and permits the court to take into account all the circumstances of the case, relating to both the employer and employee, and to evaluate the practicability of a t reinstatment order in a commonsense way. If a reinstatement order is likely to impose unacceptable problems or embarrassments,or seriously affect productivity, or harmony within the employer’s business, it may be ‘impracticable’ to order reinstatement, nothwithstanding that the job remains available.”
Mr Justice von Doussa in Cox v South Australian Meat Corporation 60 IR239 at 300, in relation to the above passage, said,
“ I respectfully agree with the interpretation placed on “impracticable” by Wilcox CJ”.
Having found that the respondent contravened ss170DE and 170DC of the Act I am concerned about the evidence given by the applicant concerning personal abuse and harrassment suffered by him in the workplace. The issue was raised by him and in my mind was part of the reason he engaged in the altercation with Mr Swadling. The Court heard no evidence as to how the applicant would cope again with that position. Accordingly I am of the view that reinstatement is impracticable. Accordingly it is appropriate in all the circumstances of the case to make an order requiring the respondent to pay compensation to the applicant.
Section 170EE (2) of the Act provides that if the Court thinks, in respect of a contravention of a provision of this Division (other than section 170DB or 170DD) that the reinstatement of the employee is impracticable, the Court may, if the Court considers it appropriate in all the circumstances of the case, make an order requiring the employer to pay to the employee compensation of such amount as the Court thinks appropriate. I take into account the limited English of the applicant and the effect of being terminated for fighting on the prospects of the applicant’s re-employment.
.
Section 170EE(3) and (4) of the Act provides as follows:-
In working out the amount of the compensation for the purposes of subsection (2), the Court is to have regard to the remuneration that the employee would have received, or would have been likely to have received, if the employer had not terminated the employment, but the amount of compensation:
(a) must not exceed, in respect of any employee, the amount of the remuneration that would have been received by the employee in respect of the period of 6 months that immediately followed the day on which the termination took effect if the employer had not terminated the employment and the employee had continued to receive remuneration in respect of the employment at the rate at which he or she received remuneration immediately before the termination took effect.
I see no reason why the applicant should not receive the maximum amount of compensation.
Accordingly I make the following orders:-
The respondent shall pay to the applicant six month’s salary
within 28 days of the date of this judgment.
The respondent shall pay an additional amount to the applicant
being four weeks salary under section 170 DB(2).
I certify that this and the preceding twenty one (21) pages are a true and correct copy of the Reasons for Decision of Judicial Registrar Tomlinson
Associate J A Liston
Date 14 August 1996
Appearances
Applicant
Counsel Ms N H Rudland
Instructed by Ms D Chee
Yee & Company
Respondent Mr S Wilson
Instructed by Mr M Byrnes
Clayton Utz
Date of hearing 10, 30, 31 May 1996, 3 July 1996
Final submissions 9 August 1996
Date of judgment 14 August 1996
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