David McLaren Johnstone and Electricity Commission of New South Wales trading as Pacific Power [1995] IRCA 198

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES Matter no NI 1408 of 1994 DISTRICT REGISTRY BETWEEN: David McLaren JOHNSTONE applicant AND: ELECTRICITY COMMISSION OF NEW SOUTH WALES TRADING AS PACIFIC POWER BEFORE: Tomlinson JR DATE OF HEARING:30 and 31 March 1995 PLACE OF HEARING: Sydney DATE OF JUDGMENT: 31 March 1995 REASONS FOR JUDGMENT Revised from transcript delivered ex tempore This is application number 1408 of 1994 in which the applicant, David McLaren Johnstone, seeks a remedy against Pacific Power. The remedy sought is compensation. Mr Hodgkinson, on behalf of the respondent - and it has been uncontested - has stated that reinstatement is not sought. The Court heard that Mr Johnstone commenced employment on 3 June 1991 with Pacific Power and at the date of his termination, which was 17 December 1994, as a business analyst he earned a salary of approximately $49,000 a year. The incidents leading to the termination of the applicant occurred on 7 December 1994 when the applicant attended a conference at North Sydney for the users of a particular software computer package. The conference finished at 5 O'Clock and the applicant, together with other employees, left the conference and attended a party hosted by the software proprietors Mincom. Certain incidents took place at that party, the incidents which gave rise to the termination. It appears that during the course of the party on 7 December 1994, the applicant assaulted a fellow employee and, it seems, various other people. The applicant was absent from work on 8 December 1994 and on Monday, 12 December 1994, the respondent, in the course of conducting its inquiries, by exhibit number "1" provided to the applicant a letter which stated that a report had been received that at Mincom's regional centre the applicant had physically assaulted representatives of Pacific Power. Exhibit number "2" was a response to that request for information provided by the applicant in which the applicant said allegations had apparently been made, by a person or persons unknown to him, concerning alleged bad behaviour. This Court heard that as a result of receiving a written request from the applicant, the respondent organised for the applicant to attend a meeting; which the applicant duly did and at which meeting he was accompanied by a union representative of his choice. I agree with the contention of counsel for the respondent that the applicant at this point of time knew his job was on the line. Exhibit "5" in these proceedings is a letter written by the applicant to the respondent providing an explanation as to what occurred at the party on 7 December 1994. I should like to say that the applicant, at the time he was there was there in a professional work capacity and not as a private citizen as is alleged in the fourth paragraph of the letter of 15 December. Whether the applicant had a name tag or not, or whether he was specifically on a guest list or not, is irrelevant. I feel that if the applicant had been somehow injured while travelling home from work after that party, that injury could well have founded a workers compensation claim and, accordingly, I find that he attended the function as an employee representing the respondent, his employer, and as such the employer had extra responsibilities to exercise in regard to its liability concerning the actions of the employee. From all accounts, the applicant was drunk. He probably would not have assaulted anyone if he was sober. During the course of this hearing it seems to be acknowledged that the applicant had a problem with alcohol. I do not agree with the contention of Mr Reitano on behalf of the applicant that Exhibit "4", which is the letter of 15 December 1994 written by the applicant to the respondent, bore an air of contriteness. It appears to me that the applicant sought to lay the blame for the continual filling of his glass on congenial caterers. I cannot accept that this letter falls squarely within the framework an appropriate apology. I agree with the applicant that there was a level of intoxication and that is referred to in his letter. But it appears that this was used in an excuse for assault. Intoxication should ever be used as an excuse for assault. I place no weight on the evidence that Mr Vail may or may not have had an injured eye after the incident on 7 December 1994. Previous conduct of the applicant, previous bad conduct, previous misconduct of the applicant, is not relevant for my findings in these proceedings. Under section 170EDA, I am of the view that the respondent is entitled to rely on the fact that he has discharged his onus of proof by relying on the evidence of Mr Vail. I have to say that I find there are certain inconsistencies of the applicant and subsequent evidence adduced by him. In cases of unprovoked assault, so clearly proven as they are here, I am of the view that there can be no mitigating circumstances or if there are, they are of little weight. I agree with the contention of the respondent, that mitigating circumstances should properly be considered in a fight situation, when two people perhaps of equal aggression confront each other. That was not the case here. Mr Ellis, as this Court heard, had no power to dismiss the applicant and it is my view that only the determinations of Mr Russell should be considered. It is clear that Mr Russell's investigation was complete and thorough and that Mr Russell having considered all aspects, accorded the appropriate penalty. Counsel for the applicant contended that the assaults were not premeditated, but I am of the view that that is of no consequences because the result of the assault was that innocent people, through no fault of their own, were subjected to assault by the applicant. It is my contention that the respondent, as an employer, has a duty to prevent this in the future. As I said earlier, all the circumstances of this assault are relevant and I find the misconduct was gross, warranting instant dismissal Counsel for the applicant referred to the case in this Court of Mishra and Crest Screen Printing, a decision of Patch JR, handed down on 20 January 1995 on the basis that the action there was irrational. The irrational action there caused a termination. I find the action here to be similarly irrational. The action was irrational, however, I have to say the alcohol was taken deliberately and without consequential thought to the future. In the case of Coccias, reference was made to the past good conduct of the applicant. Here there was no reference to past good conduct of the applicant, however, I have already stated that I am only looking at the incidents that occurred on 7 December 1994. In the three cases decided by Judicial Registrars of Mishra and Screen Printing, of Ashby and James Lofferin, of Hibbs and BHP, in those three cases in differing circumstances, the applicant was summarily dismissed for physical violence. In the case of assault, I do not think it is appropriate to categorise the degree of viciousness present, only to make a finding that an assault and battery had in fact occurred. Here, it is beyond dispute that that in fact occurred. With regard to the other assaults which occurred on the other guests at the party, I do not find it necessary for the purposes of a justified termination to decide categorically if or if not, they had occurred and if so, to look at the evidence in detail. In this case, I have no evidence that the effect of the termination was harsh and unjust. Accordingly, I dismiss the application of the applicant, David Johnstone. I certify that this and the preceding four pages are a true copy of the reasons for judgment of Judicial Registrar Tomlinson delivered ex tempore. Associate: Date: Appearances Solicitor for the applicant: Mr W Clarke Counsel for the applicant: Mr R Reitano Solicitor for the respondent: Mr P Sistrom Counsel for the respondent: Mr B Hodgkinson