Jill Walker v The Commonwealth of Australia [1995] IRCA 139

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI 899 of 1994

BETWEEN:

C. KOLIOS & OTHERS Applicant

AND

coogi australia pty limited 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' 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."