Parmanand Mishra v Crest Screen Printing [1995] IRCA 26

CATCHWORDS INDUSTRIAL LAW - Termination of employment - Claim of unlawful termination - Unprovoked assault on Respondent's manager by Applicant - Serious misconduct - Summary dismissal - Application for reinstatement and compensation dismissed - Order made. Industrial Relations Act 1988, ss. 170DC, 170DE(1), 170DE(2), 170EA, 170EDA. North v Television Corporation Limited 11 ALR 599, applied. PARMANAND MISHRA v CREST SCREEN PRINTING No . NI 972 of 1994 CORAM: PATCH JR PLACE: SYDNEY DATE: 20 January 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NI 972 OF 1994 BETWEEN: PARMANAND MISHRA Applicant AND: CREST SCREEN PRINTING Respondent CORAM: PATCH JR PLACE: SYDNEY DATE: 20 JANUARY 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. NI 972 OF 1994 BETWEEN: PARMANAND MISHRA Applicant AND: CREST SCREEN PRINTING Respondent CORAM: PATCH JR PLACE: SYDNEY DATE: 20 JANUARY 1995 REASONS FOR JUDGMENT This is an application under s. 170EA of the Industrial Relations Act 1988 ("The Act"). The applicant seeks reinstatement and compensation. On 20 January 1995, I made an order dismissing the application, and I now publish my reasons. Background Facts The applicant was employed by the respondent on 8 August 1994, and was summarily dismissed on 7 October 1994. He was employed as a factory hand in the respondent's printing factory. The respondent had no complaints about the competence with which he performed his job. The applicant gave evidence in his case, as did his wife, Mrs Anthea Mishra. The respondent called Mr Wayne Penn, the manager of the respondent's factory, and the person who dismissed the applicant. The other witnesses in the respondent's case were Mr Rudy Claud, Mr Jack Lai, and Ms Christine Rumler. Mr Claud and Mr Lai gave evidence about a number of incidents involving the applicant, which were of a violent or threatening nature. The applicant denied this, instead accusing them of similar behaviour. As I have decided to dismiss the application (in effect, to uphold the summary dismissal) because of what I have found to be an unprovoked assault by the applicant on Mr Penn, it is not necessary for me to decide between the competing versions of past events. But, whatever happened, it is clear that there was a considerable amount of pre-existing animosity between the applicant and Mr Claud. Mrs Mishra gave evidence of a series of strange and threatening acts by Mr Claud, towards her and her young son. Mr Claud denied doing such things. Again, it is unnecessary for me to decide between these competing versions of past events - the more so because her evidence was of only marginal relevance. But it reinforces the already clearly established fact that the applicant and Mr Claud had a hostile relationship. The events which led up to the termination of the applicant's employment On 6 October 1994, at the factory, the applicant and Mr Claud had a fight. They gave competing versions of who started it, and what occurred. There were no witnesses to it, except at the end, when Mr Penn intervened, and stopped it. Mr Claud's version was that the applicant started the fight, by blocking his access to the staff tea room, and then hitting him with a piece of wood. He then punched the applicant, so that his ring broke the skin of the applicant's forehead. They then struggled for possession of the piece of wood, and were doing that when Mr Penn intervened. The applicant's version was that Mr Claud started the fight by approaching the applicant with a piece of wood, and hitting him on the forehead with it. He then grabbed the piece of wood to protect himself. They then struggled for possession of it, until Mr Penn intervened. It was common ground that Mr Penn put the piece of wood to one side, leaning on the wall, that he and Mr Claud stayed there, and that the applicant, together with Ms Rumler (who had come out with Mr Penn to investigate), went into Mr Penn's office. The applicant said that he stayed in the office until the police arrived. The other three persons present said that, after a short time, he came out of the office. Ms Rumler said this in her affidavit: "While in the office I had my hand on Paramand's arm and my foot was keeping the door closed as Paramand was still angry and wanted to go out again. Then the phone rang. As I went to answer it Paramand took off. By the time I quickly hung up and raced out back myself I saw Paramand pick up a large piece of wood and went over to Wayne and Rudy. Wayne then asked me to call the police now. I then saw Paramand raise the piece of wood. Wayne went towards him trying to calm him down. I then ran in to the office to call the police and ambulance." Mr Penn and Mr Claud said that the applicant came out, and picked up the same piece of wood. He then approached Mr Penn and Mr Claud (Mr Claud was behind Mr Penn) and raised the piece of wood. Mr Penn, thinking that the applicant was only angry towards Mr Claud, approached the applicant to persuade him to put the wood down. The applicant than struck at Mr Penn's head, but only striking him on his arm, which he had raised to protect himself. I accept Mr Claud's version of who started the fight, and what occurred in it. The applicant was injured, and photographs of his injuries were in evidence. He has a star shaped, bleeding wound on his forehead, with a considerable amount of bruising on both sides of it. There was no expert evidence called as to what version of the events (piece of wood, or fist with ring) was more likely to have caused those injuries. To my eye, there is nothing in the injuries which makes one version more likely than the other, except that the principal point of impact was a very small area. This makes it more likely than not that the injuries were caused in the way that Mr Claud said. I also reject the applicant's version of the events following Mr Penn's intervention, and accept that version given by the other witnesses. In particular, I find that the applicant struck Mr Penn in the way Mr Penn said he did. Ms Rumler and Mr Penn impressed me as witnesses, and they had no particular motive to fabricate a story. Except for one or two minor matters, Mr Penn had been otherwise satisfied with the way the applicant had been performing his job, and there can be no suggestion of any pre-existing malice on his part which might be a reason to make up a story to get rid of an unsatisfactory employee. The aggression showed by the applicant to Mr Penn assists me to decide in favour of Mr Claud's version of the fight between himself and the applicant. As the applicant was aggressive to Mr Penn, (for no reason other than irrational anger) it is more likely that he had been aggressive to Mr Claud before Mr Penn's intervention. Mr Penn gave evidence that he decided to terminate the employment of the applicant for two interrelated reasons: 1. The applicant was unsuitable because he could not get on with other employees (Mr Claud and Mr Lai); and 2. The applicant was guilty of serious misconduct for striking Mr Penn, such that his summary dismissal was justified. If the only reason for dismissing the applicant was the first one, than it would have been incumbent on the respondent employer to give the applicant the opportunity to defend himself against that allegation. But that is not the case. In my opinion, the conduct of the applicant in striking Mr Penn with the piece of wood was: "....... conduct so seriously in breach of the contract (of employment) that by standards of fairness and justice the employer could not be bound to continue the employment." North v. Television Corporation Limited 11 ALR 599, per Smithers and Frank JJ, at 608-9. It follows from the above reasoning that the applicant was dismissed for a valid reason - he struck Mr Penn with the piece of wood. Because of the seriousness of the conduct, and also because of the fact that Mr Penn and the employee were both present, and principal participants in the events, the respondent is protected by section 170DC(b) of the Act, in that it could not reasonably have been expected to give the applicant the opportunity to defend himself against the allegation that he had struck Mr Penn. The application is therefore dismissed. ___________________________________________________________ REPRESENTATION Solicitor for the Applicant: I. MacDonald, Yeldhams Representative for the Respondent: I. Penn I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch. Associate: Julianne Taverner Dated: 30 January 1995