Shane Ball v Tip Top Bakeries [1995] IRCA 161

IN THE INDUSTRIAL RELATIONS ) No. WI 575 of 1994 COURT OF AUSTRALIA ) WESTERN AUSTRALIA DISTRICT REGISTRY )

BETWEEN: Shane Ball Applicant AND: Tip Top Bakeries Respondent

BEFORE: Wheeler JR PLACE: Perth DATE: 21 April 1995

REASONS FOR JUDGMENT

On successive days I heard, as separate actions, this matter and the matter of Grueter v Tip Top Bakeries. Different evidence was presented at each hearing, although the respondent in each case had the same representative. It is unfortunate that the matters were not heard together, as they arise out of the same set of circumstances, being a dispute culminating in a brief fight between Mr Ball and Mr Grueter. The findings I make in each of these cases may well appear to be inconsistent. That is an unfortunate but necessary consequence of the fact that different evidence was presented on each occasion. Mr Grueter and Mr Ball had a fight on 9 November 1994. It is common ground that Mr Ball was Mr Grueter's supervisor and that Mr Grueter was the assailant in the fight and that Mr Ball had not retaliated. The employer quite properly caused a detailed investigation to take place. Statements were taken from a large number of witnesses. Those statements were annexed to an affidavit of Mr Bajada, the Employee Relations Manager of the respondent. Unfortunately, and for reasons not

clear to me, separate affidavits were not made and no oral evidence was sought to be adduced from many of those who had made statements which would tend to support the conclusion to which the respondent came. It is therefore necessary for me to treat those statements as hearsay. I find that they are admissible as evidence of the steps the employer took to enquire, that is as evidence of the procedural fairness of the enquiry but not as evidence of the truth of their contents. The purpose for which the statements of the eyewitnesses can be admitted is important, as it was conceded on behalf of the respondent in this action that in order to demonstrate that there was a valid reason for the dismissal of the applicant it was necessary for the respondent to prove, on the balance of probabilities, that the conclusion at which it had arrived concerning the incident was correct. That conclusion was that, although Mr Grueter had not been justified in attacking Mr Ball, Mr Ball's conduct had, nevertheless, prior to the attack, constituted an abuse of his authority as supervisor. The abuse of authority particularly relied upon seems to have been the giving of a warning for lateness to Mr Grueter. This warning was either later withdrawn or destroyed and Mr Ball had said to another person that it had been intended only as a "joke". It also seems to have been relevant to the conclusion reached by the respondent that Mr Ball had, in its view, been teasing Mr Grueter and calling him names in a manner which caused Mr Grueter considerable distress. This was thought to be inappropriate behaviour for a supervisor. I agree with the respondent's view that the conduct which it found Mr Ball had engaged in was inappropriate and could be regarded as abuse of a position as supervisor, had this conduct occurred.