Cornwall, Bruce Richard v QANTAS Airways Ltd [1997] FCA 1402

FEDERAL COURT OF AUSTRALIA UNLAWFUL TERMINATION - Employee dismissed for striking a supervisor - In all the circumstances, not a valid reason for dismissal. Industrial Relations Act 1988 (Cth) - ss 170DC, 170DE, 170EE AWU-FIME Amalgamated Union v Queensland Alumina Ltd (1995) 62 IR 385, considered Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, applied BRUCE CORNWALL v QANTAS AIRWAYS LTD QI 96/1083 DRUMMOND J BRISBANE 8 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QI 96/1083

BETWEEN: BRUCE CORNWALL

Applicant

AND: QANTAS AIRWAYS LTD

Respondent

JUDGE: DRUMMOND J

DATE OF ORDER: 8 DECEMBER 1997

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The respondent's application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QI 96/1083

BETWEEN: BRUCE CORNWALL

Applicant

AND: QANTAS AIRWAYS LTD

Respondent

JUDGE: DRUMMOND J

DATE: 8 DECEMBER 1997

PLACE: BRISBANE

REASONS FOR JUDGMENT

On 27 March 1997, Judicial Registrar McIlwaine, in proceedings under Division 3 of Part VIA the Industrial Relations Act 1988 (Cth) ("the Act"), declared that QANTAS did not have a valid reason for terminating Mr Cornwall's employment, that it was not impracticable to reinstate the applicant to his former position and ordered, among other things, that he be reinstated to that position, viz, customer service agent. Mr Cornwall had held this position for nine years. Although in a statement of contentions filed in compliance with directions of the Court Mr Cornwall challenged the correctness of the Judicial Registrar's determination that there had been no contravention of s 170DC of the Act, that challenge, rightly in my opinion, was abandoned at the hearing. The material before me indicates that prior to the incident on 4 April 1996 which led to Mr Cornwall's dismissal, QANTAS was dissatisfied with his performance of his duties: he was then already subject to a process of informal review. However, early in the hearing, QANTAS disavowed reliance on anything other than the incident of 4 April to justify the dismissal. QANTAS contended that, because Mr Cornwall struck his immediate supervisor, Mr McCue, on the morning of 4 April, it had valid reason for dismissing him. Mr Cornwall denies striking Mr McCue, but argues in the alternative that if the Court finds there was a striking, the circumstances in which it occurred are not such as to provide QANTAS with good reason for terminating his employment. According to Mr McCue, Mr Cornwall struck him once under the chin with the heel of Mr Cornwall's right hand. This episode took place in or close to a doorway separating the public baggage collection area at the QANTAS terminal at Coolangatta from the non-public baggage handling area. Mr Handley, a QANTAS commissionaire, was performing his duties in the baggage handling area. He was in the immediate vicinity at the time and witnessed some of what happened. It appears that when Mr McCue said he was struck, Mr Handley had turned his back and was walking away from them, not wanting to be involved in the altercation. I prefer Mr McCue's evidence that he was struck as he claims and reject Mr Cornwall's evidence denying any striking. On some matters of detail Mr McCue has, on earlier occasions, given accounts inconsistent with the account he gave in the proceedings before me about this incident. I do not consider that of much significance given that he, like Mr Cornwall, was in a state of considerable emotional disturbance at the relevant time and so unlikely to be able to recall with exact precision the sequence of actions. He has nevertheless given what I regard as a generally consistent account of the episode. There is unchallenged evidence that immediately after the incident he told the QANTAS Airport Manager, Ms Benson, that Mr Cornwall had hit him. Ms Benson said that Mr McCue was then pale, very shaken and appeared to be in a state of distress. Mr McCue's evidence was supported by that of a particularly well-qualified medical practitioner, Dr Carlyle, who examined him shortly after the incident. It tells against Mr Cornwall's credibility that he was prepared, in two quite significant respects, to present false evidence: in support of his contention that he was in a state of severe distress on the morning of 4 April prior to the incident, he said that he had been served in the evening of 2 April with an application by his wife in Family Court proceedings for leave to take the children of the marriage out of Australia. He said this application "came entirely out of the blue" and was, in effect, for that reason a major cause of his being emotionally distraught on the morning of 4 April when he returned to work after his day off on 3 April. I am satisfied from what emerged in his cross-examination that, for at least a week prior to 2 April, he had had warning that his wife had in mind making such an application. Secondly, he undoubtedly believed that it was an issue of some importance in the dismissal proceedings whether he received a telephone call on his mobile telephone at the customer check-in counter he was servicing on the morning of 2 April, as Mr McCue asserts, or whether his use of his telephone was confined to a break period in a non-public area of the terminal. There was a QANTAS management directive in force that staff were not to make or receive personal telephone calls while working at the check-in counters but were to confine personal telephone calls to non-public areas. Mr Cornwall has variously asserted that either the call was received by him fortuitously while he was in a non-public area having a break from work or that it was a telephone call actually made by him from his mobile telephone while he was in that non-public area. I am satisfied that, as Mr McCue says, Mr Cornwall received the telephone call in question on his mobile telephone while he was at the customer service desk in the terminal and that Mr McCue, on the first occasion he spoke with Mr Cornwall on the morning of 4 April, made an issue of Mr Cornwall having used his mobile telephone while working at the check-in counter on 2 April. If an employee strikes a fellow employee, that will amount to conduct which will always put at risk the former's job. If the victim is the assailant's supervisor, that will generally be an aggravating factor. However, while there may be an exceptional case justifying such a course, it will ordinarily be necessary for the employer to have regard to the circumstances in which fighting by an employee or the striking by an employee of another took place before the employer can properly determine whether the aggressor's conduct provides a valid reason within s 170DE(1) of the Act to terminate his employment. In AWU-FIME Amalgamated Union v Queensland Alumina Ltd (1995) 62 IR 385, Moore J, in speaking of the justification of an industrial employer having a "no fighting" policy, said, at 392: … The purpose of the policy appears to be twofold. The first is to avoid situations where employees might injure themselves, for example, as a result of losing complete control of movement by being pushed or shoved while fighting in a dangerous working environment. The second is to ensure that employees exercise a measure of discipline when responding to tensions that might arise with other members of the workforce. While fighting may, in some instances, have a cathartic effect it can also heighten tensions and lead to situations where trust and cooperation is lost entirely. In Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Wilcox CJ referred to this dictum and observed, at 205: These considerations justify an employer taking a serious view about fighting in the workplace. Especially where the fight takes place in the vicinity of heavy equipment or industrial products, as in this case, there is a serious risk of injury to one or both combatants. But, as Moore J recognised, it is too simplistic an approach to say that any employee involved in a fight is guilty of serious misconduct and, therefore, there is a valid reason for that employee's dismissal. In considering whether QANTAS had a valid reason to terminate Mr Cornwall's employment, I have regard to what Northrop J said in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373, about the meaning to be given to the expression "valid" in s 170DE(1) and to the fact that the High Court in Victoria v The Commonwealth (1996) 70 ALJR 680 at 708 held that s 170DE(2) was invalid. But it is, in my opinion, necessary, in determining whether an employer has a valid reason to terminate a worker's employment by reason of conduct of an employee, to have regard to all relevant circumstances, including those in which the conduct in question took place. Considerations personal to the employee, such as his length of service and previous work history, will also often need to be taken into account. Ms Benson, one of the two QANTAS managers who made the decision to dismiss Mr Cornwall, acknowledged that, in arriving at this decision, she and the other manager concentrated, to the exclusion of everything else, on whether Mr Cornwall struck Mr McCue. It was because they reached a conclusion on that issue adverse to Mr Cornwall that they decided he should be dismissed. It is to an extent understandable that they would follow this course, given that Mr Cornwall denied he laid a hand on Mr McCue and that, in consequence, the dispute over this became the matter of central concern. Ms Benson's evidence also suggests that, when she participated in the dismissal decision, she did not have anything like as full account of events leading up to Mr Cornwall's assault on Mr McCue as that which Mr McCue put before this Court. Moreover, while Mr Cornwall's union representative did draw to Ms Benson's attention Mr Cornwall's matrimonial problems and the impact they were having on him, she appears not to have had regard to that in arriving at the dismissal decision. Ms Dupen-Holland, QANTAS' Queensland Airports Manager who dealt with Mr Cornwall's appeal against his dismissal in accordance with QANTAS' internal appeal procedures, did discuss his personal problems with Mr Cornwall in the course of considering the incident of 4 April 1996, but, in effect, gave them little weight. Again, it seems clear enough that, like Ms Benson, Ms Dupen-Holland did not have anything like the full account covering, in particular, the first two of Mr McCue's contacts with Mr Cornwall on the morning of 4 April, that Mr McCue has put before this Court when she was dealing with the appeal. However, the Court's function is not to review the discretionary exercise by an employer of its power to dismiss an employee in, for example, a way analogous to the way a court deals with an appeal from the exercise of a judicial discretion. "If the termination comes before the Court, it is the duty of the Court to determine for itself whether, upon the balance of probabilities, there was a valid reason for the termination. It must do this by reference to the evidence. The Court is not concerned with the question whether, upon the information available to the employer, the conclusion reached by the employer was, or was not, a reasonable one": Yew at 205-206. It is common ground that the onus of proving justification for the dismissal is on the employer. For the reasons given, I accept much of Mr McCue's account of the circumstances leading up to the incident of 4 April. On the morning of 2 April 1996, Mr McCue spoke to Mr Cornwall about having left a bag unattended on a baggage carousel; Mr McCue said he noticed that Mr Cornwall had received a telephone call on his mobile telephone while at his work station in the public area of the terminal and had then walked into one of the non-public areas to continue that telephone call ignoring the bag. On this occasion Mr McCue criticised Mr Cornwall in a perfectly unexceptional way, for leaving the bag unattended. He said Mr Cornwall apologised for his oversight. That would have been the end of the matter but for the fact that, at a customer service officers' meeting held the next day when Mr Cornwall was not working, Mr McCue learned that management had decided that Mr Cornwall's performance should be monitored. He mentioned the incident of 2 April and was told to discuss this with Mr McAppion, the duty Airport Manager, a superior of both Mr McCue and Mr Cornwall. Mr McAppion told Mr McCue to arrange a meeting between himself, Mr McCue and Mr Cornwall. Early on the morning of 4 April when Mr Cornwall had returned to work, Mr McCue said he called him into his supervisor's office, told him that his performance was being monitored and then raised with Mr Cornwall the incident of 2 April. He pursued this incident at some length with Mr Cornwall, who became upset and ultimately walked out of the office. Mr McCue did not, at any stage of this first contact, mention to Mr Cornwall that Mr McAppion wanted a meeting to discuss the incident of 2 April. That was all that Mr McCue was called upon to do on this occasion; there appears to be no useful purpose that could have been served by Mr McCue, instead, resurrecting that incident himself with Mr Cornwall and going over at some length the deficiencies in Mr Cornwall's behaviour on that occasion. Soon after Mr Cornwall walked out of Mr McCue's office, the latter decided to follow him to his work station where he had gone to perform his duties. Mr McCue spoke further about the propriety of Mr Cornwall's conduct on 2 April. This terminated with Mr Cornwall making an abusive comment to Mr McCue, telling him that he had misunderstood things and that he wanted to see Ms Benson when she started work to clarify the point. Mr McCue said he would arrange a meeting with Ms Benson and then walked away. Once again, Mr McCue made no mention of Mr McAppion's instruction that Mr Cornwall was to meet with Mr McAppion and Mr McCue. Instead, he rehashed the events of 2 April a second time and yet again told Mr Cornwall what he had done wrong. On both occasions, Mr McCue appears to have been unnecessarily officious in following the course he did. He was Mr Cornwall's temporary supervisor: his normal position was the same as Mr Cornwall's. He could not identify anything that he himself hoped to achieve by speaking to Mr Cornwall as he did on either occasion. It was not suggested that he had any authority to take any further action against Mr Cornwall in respect of the incident of 2 April. All he was called on to do on 4 April was convey Mr McAppion's instruction to Mr Cornwall. Yet he entirely failed to do this for no good reason. Before Ms Benson arrived at work that morning, Mr Cornwall came to Mr McCue and threw at Mr McCue a copy of the memorandum issued earlier in the year by Ms Benson concerning the receiving and making of personal telephone calls by QANTAS staff while on duty, in apparent vindication of the position Mr Cornwall had earlier taken in the course of that morning's discussions with Mr McCue. A little later, Mr McCue saw Ms Benson and arranged a meeting with Mr Cornwall for 8.45 am. He then approached Mr Cornwall, who was in the baggage handling area close to the door giving access to the public area of the terminal. Mr Handley was near by. Mr McCue says he told Mr Cornwall of the meeting with Ms Benson, started to walk away and then became the subject of verbal abuse by Mr Cornwall; he says that as he went to leave the baggage area by the door I have mentioned, Mr Cornwall spun him round by the arm and hit him once under the chin with the heel of his right hand. Mr McCue does not suggest he was the victim of a violent assault, although he said that the blow caused him neck-muscle soreness and headaches for a couple of days. Although I generally accept Mr McCue's evidence, I do not accept what he has to say about approaching and speaking to Mr Cornwall in a restrained way, on this final occasion. Mr Cornwall says that Mr McCue came right up to him, pointed his finger in his face and in a loud and aggressive tone of voice told him to be in Ms Benson's office at 8.45 am. Mr Cornwall says he reacted angrily and abused Mr McCue. He says Mr McCue responded in kind. Mr Handley, whose evidence I have no hesitation in accepting, confirmed the essential details of Mr Cornwall's account of this particular episode although, as I have also said, he was not looking at Mr McCue and Mr Cornwall when Mr McCue was struck. He confirms that they quickly became involved in an angry exchange of words. The evidence indicates that there was no history of ill feeling between Mr McCue and Mr Cornwall prior to 4 April. It is therefore difficult to understand why Mr McCue would behave in the officious way he did on each of the three occasions he sought out Mr Cornwall on the morning of 4 April. I do not consider that Mr McCue behaved in a grossly provocative way, rather his actions suggest lack of training and perhaps experience in exercising the supervisory authority over Mr Cornwall which he temporarily possessed. I consider that Mr McCue's unjustifiably officious conduct played a large part in causing Mr Cornwall, on the third occasion Mr McCue approached him, to react angrily and so lose control of himself as to strike Mr McCue. I am also satisfied that, on the morning of 4 April, Mr Cornwall was in a state of emotional distress, largely brought about by service on him on the evening of 2 April of an application by his wife to the Family Court for leave to take the children of the marriage out of Australia. I am so satisfied notwithstanding that I consider that Mr Cornwall had some forewarning of the possibility that his wife might make such an application. I think that Mr Cornwall's emotional state, arising from his matrimonial difficulties, also materially contributed to his loss of control. In my opinion, when regard is had to the relevant circumstances, including the relatively minor nature of the assault and the fact that it was, to a material extent, brought about by reaction by an employee to a series of unnecessarily officious approaches to him by a person with temporary supervisory authority over him, the conclusion is clear: the mere fact that Mr Cornwall struck Mr McCue cannot provide valid reason for his dismissal. It was submitted that an employee should be expected to be able to deal with a brusque or officious supervisor without resorting to physical violence. There is much to be said for that proposition in the abstract. But the circumstances to be taken into account in determining whether Mr Cornwall's dismissal was justified include his personal situation of emotional distress and his length of service, nine years, especially given that QANTAS did not attempt to rely on any history of violence by Mr Cornwall in the workplace on earlier occasions. Both considerations confirm that QANTAS did not have a valid reason for dismissing Mr Cornwall. Mr Cornwall seeks reinstatement. In the course of his evidence-in-chief, counsel for QANTAS said that if I reached a conclusion adverse to QANTAS on whether there was valid reason for the dismissal, QANTAS could not contend that it was open to me to find that reinstatement of Mr Cornwall would be "impractical", within the meaning of that term in s 170EE(2). In closing address, however, counsel submitted that, even if I were to find that QANTAS did not have valid reason to dismiss Mr Cornwall, I still had a discretion whether to order his reinstatement, having regard to s 170EE(1). I accept that I have such a discretion. Counsel further submitted that it would be proper for me to exercise the discretion adversely to Mr Cornwall because his application for reinstatement was based, and his case was maintained, on an untruth, viz, that he did not strike Mr McCue. Reference was also made to his untruthfulness in the respects I have already referred to. In my opinion, caution needs to be exercised before a court can properly conclude that, notwithstanding that there is no valid reason for an employee's dismissal, reinstatement, otherwise not impracticable and sought by the former employee, should nevertheless not be ordered because of the latter's untruthfulness in the way he mounted or ran his attack on the dismissal. If a court were to conclude that an applicant for reinstatement's untruthfulness in connection with the prosecution of his claim was such as to preclude the employer from being able to rely upon the employee to honestly conduct himself in the discharge of his duties, then even if that could not be said to make reinstatement impracticable, it might well be good ground for exercising the discretion against the employee invalidly dismissed. However, it is unnecessary to pursue the matter further in this case. Having regard to what counsel for QANTAS had to say in the course of the hearing about QANTAS not wishing to contend that reinstatement would be impracticable, to the late emergence of this argument and, in consequence to Mr Cornwall not having any opportunity to explore the matter with QANTAS' witnesses or to consider whether to adduce evidence on the point himself, I think this particular argument should be rejected. The respondent's application will therefore be dismissed.