CATCHWORDS INDUSTRIAL LAW - Termination of employment - procedural fairness - requirements of proper investigation - requirements of opportunity to respond - whether termination harsh, unjust or unreasonable - was dismissal related to union activities. Industrial Relations Act 1988, ss.170DC, 170DE and 170DF(1)(b). Lane -v- Arrowcrest Group Pty Limited (T/As ROH Alloy Wheels), (1990) 27 FLR 427 Wheeler -v- Phillip Morris ATS -v- Western Hospital Liddell v Lembke, (1994) 127 ALR 342 Campbell -v- DBB Needham (1995) ILR 3033 Nicolson v Heaven & Earth Gallery Pty Ltd (1994) 126 ALR 233 Byrne v Australian National Airlines Limited (1994) 52 IR 10 Construction Forestry Mining & Energy Union (FEDFA Vic. Branch) -v- Kodak (Australasia) Pty Ltd Gregory -v- Phillip Morris (1989) 80 ALR 455 Enichem Anic SRL -v- Anti Dumping Authority (1992) 39 SCR 458 Sullivan -v- Department of Transport (1978) 1 ALD 383 C, KOLIOS & OTHERS -v- COOGI AUSTRALIA PTY LTD NO. VI 899 of 1994 Before:FLEMING JR Place: MELBOURNE Date: 31 March 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 899 of 1994 BETWEEN: C. KOLIOS & OTHERS Applicant AND COOGI AUSTRALIA PTY LIMITED Respondent MINUTES OF ORDER 31 March 1995 Judicial Registrar Fleming THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 899 OF 1994 BETWEEN: C. KOLIOS & OTHERS Applicant AND COOGI AUSTRALIA PTY LTD Respondent REASONS FOR JUDGMENT 31 March 1995 Judicial Registrar Fleming Introduction The applicant (Mr Kolios) claims that the respondent has breached Part VIA of the Industrial Relations Act ("the Act"). The applicant claims that he has been unlawfully terminated on the basis that the respondent contravened section 170DC of the Act in that the respondent did not allow the applicant to be given an opportunity to defend himself against the allegations made. It is further alleged that the respondent has contravened section 170DE of the Act in so far as the purported reasons given for the dismissal were not valid and that in any event the termination was harsh, unjust or unreasonable. It is further and finally alleged that the respondent has contravened section 170DF(1)(b) of the Act in that the real reason for the dismissal was the applicant's union involvement. Findings of Fact The application of Mr Softly has been discontinued however his evidence remains on the record and is relevant to these proceedings. Mr Softly Mr Softly gave evidence that he commenced his employment with the respondent on 5 April 1993 and that he was dismissed on 24 June 1994. The reason for his dismissal he said was because of an incident on 18 June 1994 involving his co-worker Mr Kolios. Mr Softly's evidence was that: "On Saturday 18 June 1993 I was looking for yarn for my trimming section because the trimming always runs out of yarn, and so I proceeded to look around all the different sections and I came across Sergio Loreti, Chris Kolios, Gordon Viseman, Harry and Colin who'd just proceeded to move back to his section as I arrived. We were there chatting and I was only there for a few minutes, and then Chris proceeded to make a statement in a newspaper about a lady who made comments about religion, and me being a born again Christian from the Baptist, I stated to him, I said 'Do you believe in the Bible Chris?' He said, 'Yes'. I said, 'Do you read it?' He said, 'Yes'. I said, 'well in the Bible it states that God judges those who judges others' and with that phrase he just called me a sinner, and started calling me various types of names and then we started arguing. I swore at him and then a few people walked off - prior to us having the actual argument - and as we walked and argued I said to him, 'Why don't you go back to your section and sleep like you normally do?' Then, at this stage he was about three or four feet from me and he came right up to me and he said, 'You sleep, you sleep, you sleep', shaking his head from side to side, and that's when I actually said - pardon the expression, your Honour 'Piss off, idiot' and I pushed him with an open hand - my left hand - on his left shoulder to go away from me, and at that stage he threw himself from what I foresee as an exaggeration of what happened. He threw himself to the ground and there he proceeded to stay for about an hour. Actually when he fell and landed on the ground I said, 'What are you doing Chris?' and I told him to get up. I was then realising that he was playing up something because in my opinion I felt that because of all the pressure had been put on him and he'd been given several written warnings, or verbal warnings, and that he was making some sort of angle for himself to save his job or something, because it was just like - I just said, 'Piss off, idiot' and pushed him away from me, and I was about to leave because, I thought, this is not going to get any further, it's just going to get into a fight or something and I didn't want that, and I had no intention whatsoever to harm him, and I mean, I just bought a home and all these things and it's just been blown out of proportion." After the altercation Mr Softly went back to his machine. On Monday morning Mr Giannopolous came to Mr Softly and asked him to come with him. Mr Softly assumed that he was going to be sacked and Mr Softly had a meeting with Mr Giannopolous and told his version of events. The meeting took approximately forty minutes to one hour. On Wednesday Mr Softly gave evidence that he was telephoned by the respondent and asked to bring in a statement (Exhibit A). Mr Softly wrote a three page statement which he handed to Mr Giannopolous on Wednesday. That is marked Exhibit A. Mr Softly gave evidence that he worked on 23 June 1994 and then on Friday 24 June 1994 in the morning Mr Giannopolous asked Mr Softly to go with him. Mr Softly went to a meeting with Mr Chapman and Ms Miller and at that meeting Mr Softly said that Mr Giannopolous said: After looking at the situation we can't decide who is in the right or wrong, so we're dismissing both of you." Mr Kolios Mr Kolios commenced employment with the respondent on 11 November 1992 and was dismissed on 24 June 1994 for the same reason as Mr Softly. Mr Kolios' version of events was that on Saturday 18 June 1994: "Sergio Loreti saw something in the newspaper and said to me, he asked me to read what the newspaper article said. And I said to him I wasn't interested in reading it. I don't want to read something that I'd been reading - head been written by someone that doesn't believe in God. And Wayne got very upset, he said to me 'don't judge anybody'. And as I saw Wayne getting upset I turn around to leave, leave the conversation because I didn't want any fights or arguments, and Wayne struck me around the shoulder area. ... There were other workers around but I am not sure if they saw what happened. ... I fell onto the floor and I did not attempt to physically strike Softly as I was a bit - I was on the floor for maybe 10, maybe 30 minutes and the medical and safety officer ... I was a bit shaken so I don't know how long it was. And, well the medical and safety officers came. They insisted that I go to hospital for a check up. ... The only thing they found was a bruise." Mr Kolios then said that his next shift at work was not until Wednesday. On Sunday and Monday he took his regular rostered days off and he took Tuesday off because he was "a bit shaken by the incident". On Wednesday afternoon he received a phone call and he was asked to bring in a letter describing the incident. Mr Kolios prepared a statement, which is Exhibit B, and states: As I was talking with Sergio Loreti. Wane got upset with what I was saying. I tried to reason with him with no success. I turned to go and he came after me punched & pushed me on to the boxes then I fell on the back of the M/C & on to the floor." Mr Kolios gave this statement to Mr Giannopolous and in examination in chief Mr Kolios stated that he could not recall any discussion about Exhibit B with Mr Giannopolous on Wednesday but in cross-examination Mr Kolios' memory was revived and he recalled he discussed the incident with Mr Giannopolous but that he did not remember who said what. Mr Kolios did say that: "[I told Mr Giannopolous] as much as I wanted to tell him." And furthermore Mr Kolios agreed that he told Mr Giannopolous the whole story, the truth as he knew it. After this discussion with Mr Giannopolous on Wednesday there was meeting held on Friday 24 June 1994 at approximately 7:00am. Mr Kolios said: I was called to the office. Present was Jacky Miller, personal manager, there was Ray Chapman, general manager and Theo Giannopolous. They asked me of my version of what happened. I told them we had a discussion about religion and Softly struck me and I fell on to the floor. And Jacky Miller said to me we can't decide whose in the right and whose in the wrong so we are going to dismiss both of you. I said to her I didn't do anything and she said to me it takes two to tango. She gave me a letter to say that I was being dismissed for misconduct. That's the only reason I was given. And my payslip - I was also given my final payslip with a cheque immediately. It was already made up. And Jacky Miller said to me you'll be escorted to the door." Mr Kolios said he was not shown Mr Softly's statement nor any other statement. Mr Kolios gave evidence that at the meeting on Friday he was told "we can't decide who is in the right and who is in the wrong" and they handed him his termination payt. Evidence was given about Mr Kolios' work history which showed seven warnings in a fourteen month period between 19 April 1993 and 24 June 1994 for poor work performance. Included in these warnings were four final warning notices. I accept Mr Kolios was a union shop steward and I accept his evidence that the extent of his activities as a shop steward were limited to one occasion when he spoke to Mr Giannopolous about a smoking issue. Although Mr Kenyon sought to allege that the respondent was anti union he has not been able to prove this allegation. Valid Reason For Termination The reason for Mr Kolios' termination was for fighting in the work place. Mr Kolios was not summarily dismissed. Mr Kolios admitted to the altercation with Mr Softly but maintained he was not the aggressor. The fact that Mr Kolios admitted to the altercation is relevant. The employer was entitled to take into account his work history and even though his poor work performance over the past fourteen months was not the reason given for this termination the respondent was reasonably entitled to take that into account. I find that a valid reason was given to Mr Kolios for his termination. Compliance With Section 170DC The respondent sought statements from all witnesses to the incident and Mr Giannopolous conducted an investigation wherein he had a conversation with both Mr Softly and Mr Kolios and obtained their version of events on the Wednesday evening. There was a further meeting between management and Mr Kolios and Mr Softly on Friday morning and it was at that meeting that there were further discussions and Mr Kolios was advised that his employment would be terminated. In all the circumstances I accept that the employer has given Mr Kolios an opportunity to defend himself. Section 170DF(1)(b) I accept the submissions of Mr Cavanagh that there is no evidence that the respondent terminated Mr Kolios' employment for reasons that included Mr Kolios' union membership or participation in union activities. The Court cannot positively find that it dismissed Mr Kolios for any other reason other than the altercation on Saturday evening with Mr Softly. Harsh, Unjust or Unreasonable The Court must consider s.170DE(2) which refers to grounds for dismissal which may otherwise be valid but found to be unlawful because they result in a termination which is harsh, unjust or unreasonable. In that respect I have briefly considered the cases cited by both counsel and I conclude that the dismissal was not harsh, unjust or unreasonable because: (a) the misconduct justified summary dismissal however Mr Kolios and Mr Softly were not summarily dismissed. Neither Mr Kolios or Mr Softly were blameless and both contributed to cause the altercation on 18 June 1994; (b) the respondent conducted a reasonable investigation and witness statements were obtained and evaluated; and (c) both applicants were given more than one opportunity to state their case. Mr Kolios was asked to make a statement, then he had a discussion with Mr Giannopolous on the Wednesday and then he had a further discussion with Mr Chapman and Ms Miller on the Friday. I find that the termination was for a valid reason within the terms of Division 3, Part V1A, and was not harsh, unjust or unreasonable and therefore I dismiss the application. I thank both Mr Kenyon and Mr Cavanagh for their persuasive submissions. I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Fleming. Associate: Dated: 31 March 1995 Representative for the Applicant: Textile, Clothing & Footwear Union of Australia Counsel for the Applicant: Mr N Kenyon Representative for the Respondent: Peter Speakman & Co. Counsel for the Respondent: Mr A Cavanagh Dates of hearing: 7 & 8 February 1995 and 9 March 1995 Date of Judgment: 31 March 1995