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. However, I am unable to be satisfied on the balance of probabilities that the behaviour of Mr Ball leading up to this incident was as the respondent had found it to be. Mr Ball gave evidence by affidavit, and was cross-examined briefly on that affidavit. He did not depart from the account he had given in the affidavit and there was nothing unconvincing or inconsistent about his evidence or demeanour. He further called evidence from a number of other employees who, via affidavit, deposed that they had always found Mr Ball to be a fair and helpful supervisor. Two of them deposed that Mr Grueter could be difficult to work with and that Mr Grueter was in fact, back late from his workbreak, which could cause problems for other employees. Having regard to all the evidence, I am simply unable to be satisfied one way or another as to what took place on this occasion. The result is that the employer has failed to discharge its onus of proving that there was in fact a valid reason for the dismissal of Mr Ball. Before I leave this topic I should perhaps record my own view that I am not entirely convinced that the test is as the respondent has accepted it to be. I note that in Byrne v Australian Airlines (1994) 120 ALR 274 at 276 Black CJ said: "it may well be said that to dismiss an employee who is in fact not guilty of any misconduct is objectively "unjust" notwithstanding that in a procedural sense the employers conduct was not unreasonable and the decision to dismiss was one the employer might properly have arrived at" Gray J expressed a similar view but in more positive terms at 327. These passages tend to suggest that the question of whether there has been in fact relevant misconduct is one which goes to the question of whether a dismissal is "unjust" rather than to whether there is a valid reason for the dismissal. If that view were correct, the onus would be on the applicant and the applicant would in this particular case have failed to discharge his onus. However, that case was of course concerned with the proper construction of an expression in an award, and the question of whether there was a "valid reason" for dismissal did not arise. Similar reasoning might well lead to a conclusion that a reason for dismissal is not "valid" if the misconduct complained of did not in fact occur. This was the approach taken by Judicial Registrars in two different cases: Renesse v Melbourne City Mission, Parkinson JR unreported, 5 October 1994; Australian Rail, Tram and Bus Industry Union and Kirkpatrick v MTT, Linkenbagh JR, unreported, 11 October 1994. I have reservations about any approach which would require the court to substitute its own decision as to whether misconduct had in fact occurred for that of the employer. As Heerey J pointed out in Schaale v Hoechst Australia Ltd (1993) 47 IR 249 at 252, provisions such as these which were previously found in awards and are now enshrined in the act, are to operate "in a practical way in a commercial and industrial environment" with the result that "employers are not required to have the skills of police investigators or lawyers." (I note however that in that case his Honour did go on to make a finding as to his own satisfaction of the truth of the matters alleged by the employer). There would appear to be room at least for argument that it does require employers to have skills of police officers or lawyers, or perhaps of judges, to interpret the requirements of the Act so as to either require the employer to be able to prove that he was in fact correct (if objective truth of the allegations is seen as part of the "valid reason") or at least to be unable to be proven to be wrong (if the untruth of the allegations objectively is seen as an element making dismissal "unjust"). There is, in my view, much to be said for an interpretation of the Act which would result in a reason for termination being found to be valid if it were a reason which fair minded persons would consider legitimate and if it was in fact the reason which actuated the termination and not a justification put forward later as a screen for some other motive. Similarly, it seems that the question of fairness, substantive or procedural, might be judged according to the facts known to the employer or which could, with reasonable diligence, have been ascertained by him and that provided the employer's actions can be described as fair in all the circumstances, he could be allowed some scope for genuine error. An approach of this type has been taken by the Industrial Commission of South Australia (Bi-Lo Pty Ltd v Hooper [1992] 53 IR 224); and see Transport Workers Union of Australia v Tip Top Bakeries [1994] 75 WAIG 9). However, determining this case upon the basis accepted by the respondent and which finds support in the decisions to which I have previously referred, I find that the employer has failed to satisfy me that there was a valid reason for the termination of the applicant's employment. The applicant seeks reinstatement and gave evidence that he does not personally envisage any problems in returning to work for the respondent. Reinstatement is the primary remedy, and although there may be some embarrassment to the employer if Mr Ball is reinstated there is nothing in the evidence to suggest that it would be so great as to render reinstatement impracticable. The applicant also seeks compensation for loss of wages, approximating $650 net per week for the time from his dismissal to his reinstatement, a period of some five months. The court therefore orders: 1. The respondent reinstate the applicant to the position in which the applicant was employed immediately before the termination within 14 days of the date of this order. 2. The respondent pay the applicant compensation in the sum of $13,000 within 14 days from the date of this order. I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Wheeler. Associate: Date: Counsel for the Applicant: Ms V Ponnuthurai Solicitor for the Transport Workers Union Representative for the Respondent: Mr J Uphill Date of Hearing: 7 March 1995 Date of Judgment: 21 April 1995 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 MINUTE OF ORDERS THE COURT ORDERS THAT: 1. The respondent reinstate the applicant to the position in which the applicant was employed immediately before the termination within 14 days of the date of this order. 2. The respondent pay the applicant compensation in the sum of $13,000 within 14 days from the date of this order. Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. CATCHWORDS INDUSTRIAL LAW - Termination of employment - claim of unlawful termination - whether valid reason for terminating employment - physical assault - investigation - abuse of authority as supervisor - test as to what is valid reason. Byrne v Australian Airlines (1994) 120 ALR 274 Renesse v Melbourne City Mission, Parkinson JR, unreported, 5 October 1994 Australian Rail, Train and Bus Industry Union and Kirkpatrick v MTT, Linkenbagh JR, unreported, 11 October 1994 Schaale v Hoechst Australia Ltd (1993) 47 IR 249 Bi-Lo Pty Ltd (1992) 53 IR 224 SHANE BALL v TIP TOP BAKERIES No. WI 575 of 1994 BEFORE: Wheeler JR PLACE: Perth DATE: 21 April 1995