INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2615 of 1994 B E T W E E N : JUAN RAMIREZ & AUTOMOTIVE, FOOD, METALS & ENGINEERING UNION Applicants AND KRAFT FOODS LTD Respondent Before: Millane JR Place: Melbourne Date: 17 May 1995 REASONS FOR JUDGMENT By an application made on 30 November 1994 pursuant to Part VI A Division 3 of the Industrial Relations Act 1988 (the Act), the applicant seeks reinstatement to his former employment with the respondent as a maintenance fitter. It is alleged that the respondent unlawfully terminated the applicant's employment on 14 December 1994. The applicant's employment was initially terminated on or about 11 November 1994 with the applicant being paid to 14 November 1994. As a result of recommendations made by the Australian Industrial Relations Commission on 23 November 1994, the applicant was placed on suspension pending a review of the decision to summarily terminate his employment. He received payment from the respondent from that date until 14 December 1994 when the respondent's board confirmed the decision to summarily terminate the applicant's employment. In the course of the hearing, the parties asked the Court to treat the date of termination as being 14 December 1994. The respondent undertook to pay the applicant for the period between 14 November 1994 and 23 November 1994 which period preceded the second period of paid suspension of his employment. The applicant alleges both substantive and procedural unfairness as well as breaches of s.170 DE(2) of the Act in the termination process. For its part, the respondent says it has gone to considerable lengths to investigate the incident giving rise to the summary dismissal and to afford the applicant an opportunity to put his version of events. Notwithstanding the explanations provided by the applicant and other mitigating factors, the respondent says that it was and is justified in terminating the applicant's employment because of what it saw as a breach of its policy prohibiting fighting in the workplace. The case proceeded over four days of hearing and submissions and the following witnesses were called: (a) By the applicant: (i) the applicant (ii) Warren William Hardiman from AFMEU, union organiser (iii) Guy Harold Larkin, maintenance fitter and shop steward (iv) Barry Rouse, fitter and turner (v) Paston William Miles, maintenance fitter (unemployed); and (b) By the respondent: (I) Quoc Nguyen, machine operator (ii) Geoffrey Jones, night shift manager (iii) Rasim Ali, an employee of the respondent (iv) Ramona Bubbin Pereniko, leading hand (v) Gladys Lago, jar line employee (vi) Tome Sivkarovski, machine operator (vii) Richard Nigel Forster, Human Resources Manager Background facts The applicant is a 43 year old maintenance fitter employed by the respondent in that capacity from April 1990. Richard Nigel Forster (Forster), the respondent's Human Resources Manager since 1992, told the Court that he had examined the applicant's personnel records and there was no record of any complaint, warning or counselling in nearly five years of employment. Forster was reluctant to concede that such a record allowed him to describe the applicant as a good employee. Forster drew a distinction between the applicant's employment record and one which contained commendations. These accolades are given infrequently. Even so it would still be fair to conclude that the applicant's unblemished employment record made him worthy of the description "a good employee". He was also variously referred to by two fellow employees as a placid and quiet man with no history of violence in his employment. This, coupled with his good work record, makes it all the more remarkable that the applicant was accused of and found to have made an unprovoked physical assault on a fellow employee, Quoc Nguyen (Nguyen), on 9 November 1994. The finding was arrived at by applying the criminal standard of proof to the evidence; that is to say it was proven and the respondent's board was persuaded beyond reasonable doubt. The applicant was employed in night shift work between the hours of 11 p.m. and 7 a.m. and with loadings earned approximately $2,500.00 gross per fortnight. It was not customary for him to perform maintenance work in the jar line production area of the respondent's factory. However, at about 4.45 a.m. on 9 November 1994, he responded to a maintenance call to the jar line room. In this room there are a number of facets of operation including fillers, capers and an invertor. The invertor had malfunctioned when the discs became loose. This meant that jars passing along the production line could jump the line once they reached the invertor and end up on the floor. This production line was an export line and was given maintenance priority so that when the applicant was asked to attend to it, he did so even though he had not previously worked on the invertor. Five photographs (Exhibit A1) and a hand drawing (Exhibit A10) were tendered to help identify the location of the invertor, the protagonists and four other employees present when the applicant allegedly elbowed Nguyen three times in the chest (in the region of the solar plexus). At the time of the incident the applicant was a member of the Automotive Food Metal and Engineering Union (AFMEU) and Nguyen and the other employees present when the incident occurred were members of another union, the National Union of Workers (NUW). When the applicant responded to the request to repair the invertor, he entered the jar line room and positioned himself in front of the invertor with his body facing across the room towards the caper. Before and during the alleged incident, Rasim Ali (Ali) was positioned on the applicant's left hand side, facing the same direction as the applicant whilst assisting the applicant by checking the width of the discs with a jar as the applicant used allen keys to adjust the discs. It was agreed that the two men's shoulders were touching from time to time whilst they worked and that the space between the invertor, the production line and the wall running parallel to them was a very narrow passageway. This space was measured at 73 cm (roughly 2 ft 4 1/2 inches). It was not of sufficient width for two people to pass one another shoulder to shoulder and certainly required Nguyen when he attempted to pass behind the applicant to "squeeze" past side-on. The applicant is 5 ft 5 inches tall and of a slight built. In evidence, Nguyen was described as "fat" and "chubby". His appearance in Court confirmed this description and also demonstrated that he was of a short stature. At the time of the incident three additional employees gave evidence that they were present in the jar line room. None was standing or sitting in a direct line with the invertor. Indeed, it was said that the seating position to the right of the applicant and next to the invertor as shown in the photographs had to be vacated to allow any other person to pass down the passageway to reach the invertor. Ramona Bubbin Pereniko (Pereniko) told the Court that she was seated near the filler which is around a corner of the production line from the invertor. She was not actually watching the applicant, Ali or Nguyen but, from her vantage point, was able to see the applicant and Nguyen from their waist up. Gladys Lago (Lago) placed herself further away from the applicant and closer to the filler than Pereniko so that her view of the men involved was limited to the top half of their bodies. Tome Sivkarovski (Sivkarovski) alleges he was opposite the filler, which was not his place of work and standing talking to two other female employees whom he did not identify. His line of sight was also limited to the upper portion of the men's bodies. The applicant alleges that, whilst leaning over the invertor next to Ali, Nguyen attempted to pass behind the applicant from the applicant's right to his left hand side and in so doing rubbed his genitals against the applicant's backside "in a nasty way". This caused the applicant to turn immediately and look over his left shoulder at Nguyen whom the applicant described as then standing behind but between the applicant and Ali and pretending to look at the jars. The applicant returned to his work which he said required considerable concentration and recalled that Nguyen then moved behind him and made three to four thrusting motions against the applicant's backside whilst the applicant was bending over. The applicant stood up and over his right shoulder told Nguyen "don't do it - don't do it to me". He returned to his job and again felt Nguyen thrusting against his buttocks a further three to four times. This caused the applicant to stand and try and push Nguyen away with his right shoulder and elbow. When Nguyen did not move and tried to "do it again," the applicant contends that he used his shoulder and elbow to push Nguyen away. This caused Nguyen to move away towards the filler and say words to the effect of "you hit me, you hit me hard". Nothing further was said by either man in the jar line room and the applicant spent another 5 to 10 minutes repairing the invertor before leaving the room to attend to another job. Nguyen's account of the incident to the Court was that he had returned from his tea break. He usually worked in the area of the invertor. In fact, Ali was replacing him during his tea break. Nguyen had been told of the break-down and went to look at the machine and tried to walk past the applicant, side on and behind the applicant, and look at the machine. As Nguyen returned to pass the applicant, the applicant "put his elbow in my chest three times very hard". Nguyen agreed that he asked the applicant why he had hit him to which the applicant replied "don't push me". Otherwise, Nguyen denied any earlier comment by the applicant and denied any physical contact between their bodies or sexually suggestive conduct by him as he moved from one side of the applicant's body to the other. Whilst agreeing that the passageway was very narrow and that he had "squeezed" past the applicant, Nguyen was adamant that he did not touch the applicant's body during this manoeuvre and had not at any time stood behind the applicant. Those employees who were present during the incident were all strongly supportive of their production line colleague's version of events although, on the evidence, there was no witness who could establish that they were in a position to and did observe all of the bodily contacts and movements of the applicant and Nguyen. There was also contradictory evidence given by all those present as to what was heard and said and when it was said by either protagonist. The upshot of Ali's evidence was that he did not see anything of moment until he heard the sound emitted by Nguyen when he was struck by the applicant and Ali turned and saw Nguyen's face. Prior to turning, he heard Nguyen asked the applicant "what the problem was". After the contact, he heard Nguyen asked the applicant why he had hit him and heard the applicant respond by saying "listen, don't play". He did not hear any comment from the applicant before the elbowing. Ali agreed that he could not say whether Nguyen touched the applicant, however, because he had to squeeze past the applicant's body it was possible contact was made within the narrow space available. He also agreed that he could not see Nguyen's body when he turned because Nguyen was standing behind the applicant. Ali made no comment to either the applicant or Nguyen after the incident and recalled Nguyen returning to his work thereafter. Pereniko, whilst she was not actually looking directly at the men, was able to say that she saw Nguyen move to the middle of the applicant and Ali and that she saw the applicant hit Nguyen three to four times with his elbow as he moved back. She believed it was a hard hit because Nguyen went pale in the face and asked "why hit me .... why you hit me". Pereniko agreed that she could only see the top half of the men's bodies. She further agreed that, because of the narrow space, Nguyen had to squeeze past and, in her opinion, would have had to make bodily contact to get past although she could not say from where she was what part or parts of Nguyen's body made contact with the applicant's body. She did see Nguyen behind the applicant whilst he was bent over the machine and, from where she was sitting, she conceded that she did not think she could have seen any thrusting motions on Nguyen's part if in fact he had behaved in this manner. She also conceded that although she believed the elbowing was hard, it could also be described as a "push". Pereniko, from where she was placed, did not hear the applicant speak at all but conceded that he could have said something. Lago's view, as with Pereniko's view, was impeded by the angle of her vision and the equipment and production line which obscured the lower half of the men's bodies. Lago saw Nguyen enter and pass behind the applicant and look at the machine asking "what's the problem". She then saw him pass behind the applicant again and stand beside the applicant on his right hand side when the applicant hit Nguyen. She heard Nguyen asked "what you hit me for?" and the applicant respond to that question however she could not say what he said - "I no heard and little bit far and I no listen". As with the other female witness, whilst Lago did not see any contact between the men's bodies, she conceded she was not able to see whether the lower half of their bodies came into contact. In one of the statements made by Lago to her employer on the day following the incident, such statement being adopted by Lago in evidence, Lago was recorded as saying that Nguyen stood slightly behind the applicant's right hand shoulder. Lago denied these words and was adamant that Nguyen was beside and to the right of the applicant when he was struck by the applicant. This version of events is against the weight of the evidence and highly improbable because of the angle at which the applicant would have needed to swing his right shoulder and elbow to strike Nguyen. There was some argument about this witness having told another employee that she had heard the applicant say "don't push me" prior to elbowing Nguyen. She denied making this statement and no witness was called to contradict this denial. Lago's statement to her employer further contained the statement that she heard the applicant say "don't push me" after the incident occurred. However, her oral evidence contradicts this statement because she now says she did not hear what the applicant said to Nguyen after he was struck. Sivkarovski's location had similar disadvantages to that of the female witnesses in that his view would also have been limited to the top half of the men's bodies. Although he claimed to have seen the incident "clearly", his recollection of the encounter is different to all of the other witnesses insofar as he recalled Nguyen entering the room and trying to pass behind the applicant when the applicant suddenly elbowed Nguyen three times in the chest. He made no mention of Nguyen passing the applicant and being struck on his return manoeuvre. Interestingly enough, he also claimed that he was standing talking to two women who were standing and facing him when the incident occurred. There was no evidence as to who these women were and, if they were the other two female witnesses, Sivkarovski's evidence is at odds with their evidence as to where they were located at the time of the incident. He did not see whether the applicant was leaning over at any stage and claims to have heard nothing. Nguyen's evidence was that after the incident he worked until 7 a.m. and then went to see a doctor and went home because of the pain in his chest. It seems however that, during that period, the leading hand Branko reported the incident to a supervisor and there was a meeting arranged with the night shift manager Jeff Jones (Jones). Nguyen's evidence was somewhat confused on this matter because at first he claimed that he met with Jones alone. The evidence of Jones and the applicant indicate that they all attended this meeting which took place in Jones' office at approximately 5.30 a.m. The conversation between the parties at Jones' office was recorded. It formed part of Exhibits A2 and R6. The only challenge to any part of the recorded conversation was from the applicant who alleges that he used the words "push" and not "hit" to describe what he did to Nguyen with his elbow when asked to describe this event to Jones. It is worth recounting the contents of the first conversation report following the incident to understand the nature of the applicant's complaint and his defence - "RECORD OF CONVERSATION 9.11.94 J.R. (Juan Ramirez) Q.N. (Quoc Nguyen G.J. (Geoff Jones) At approximately 5.30 a.m. Peter Konadis arrived at the shift office with Juan Rameriz and Quoc Nguyen. Peter said they'd had a problem downstairs. They sat down and I asked Juan what had happened. J.R. "I was working on the inverter when Quoc went behind me and started playing games" Q.N. interrupted - "You liar, you liar" G.J. to Quoc - "Just be quiet for a while" J.R. continued - "I don't like that sort of thing. I hit him with my elbow" G.J. to Juan - "There's absolutely no excuse for violence" etc J.R. "I know but he does it to other people but he's not doing it to me. I don't like it" G.J. to Quoc - "You know we have rules against skylarking" Q.N. "I was just passing behind him. He hit me three times very hard. I couldn't breathe. My chest is very sore" J.R. "He's always doing it to other people. He's always playing around". Q.N. "You liar, you liar, you liar" G.J. to Quoc - "Stop saying that" J.R. to Quoc - "I warned you not to touch me before" Q.N. to Juan - "You said that AFTER you hit me" G.J. to Quoc - "We told everyone at Team briefing about skylarking and interfering with people" J.R. to Quoc - "That's sexual" G.J. to Juan - "There's still no excuse for violence. You should have made a complaint instead" G.J. to both - "I'll be making a report about this. Are you two going to be able to go back to work in the meantime?" J.R. to Quoc - "I apologise to you. I apologise" (offered his hand to Quoc) G.J. to Quoc - "He's apologising to you" (Quoc reluctantly shook hands) G.J. "This will have to be taken further. I'll make a report about it" Both left the office. I phoned Nigel Forster about speaking to Quocs Leading Hand." The abovementioned exchange contains clear references to Nguyen always "playing around" and "playing around" behind the applicant with the applicant identifying Nguyen's behaviour as being "sexual". Indeed, Jones saw fit to tell the applicant that Nguyen's behaviour did not justify violence and the applicant should have made a complaint. From this I infer that Jones was referring to the respondent's sexual harassment policy and procedure. The statement refers to the applicant's knowledge that Nguyen did this to other people and that he was "always doing it to other people". In his oral evidence the applicant stated that prior to 9 November 1994 he had seen Nguyen conduct himself in the same manner behind another employee, Ortiz. At the conclusion of the first record of interview, the applicant shook Nguyen's hand and offered an apology. In evidence Nguyen agreed that he had accepted the apology. It should also be kept in mind Nguyen had not suffered any discernible injury and that his later visit to a doctor confirmed that there was no bruising. Nguyen alleged that the doctor had told him he had "internal injuries". No medical certificate or evidence was adduced to the Court or the respondent to demonstrate any injury other than the soreness complained of. At hearing Nguyen repeatedly told the Court that he had been "badly hurt", however, the evidence does not support such an exaggerated finding. If the matter had rested at the end of the interview and the giving of the apology, a great deal of time and expense would have been saved by all concerned. The applicant explained the giving of the apology on the basis that he had no animosity towards Nguyen whom he intended to tell not to do it again without making any formal complaint. At that stage the applicant did not believe that the incident would lead to his dismissal. There is no history of discord between these two men and no reason to believe that some warning and disciplinary action would not have been sufficient to bring the whole incident to a proper conclusion and maintain harmony in the workplace whilst stressing the need for compliance with the company's policies. The Companies Policies Two company policies were relied upon by the respondent to justify its decision to terminate the applicant's employment. One prohibited fighting in the workplace making an offending employee liable to instant dismissal. This policy was confirmed by a subsequent briefing statement to employees in March 1994 which reminded employees that "the company's policy dealing with physical violence prescribes dismissal for all involved". The other policy formed part of the sexual harassment policy prohibiting this behaviour and giving the respondent a discretion to apply disciplinary action "up to and including dismissal". The sexual harassment policy published in 1987 stated that all employees should report such conduct to a supervisor whilst reassuring the employees that such complaints would be investigated. In September 1994 (Exhibit R10), a further briefing to the employees noted that as a result of an increased number of complaints employees were reminded that amongst other things physical interference or horseplay would be the subject of disciplinary action. The applicant acknowledged an awareness of the abovementioned policies prior to 9 November 1994. However, he disputed that his conduct on 9 November 1994 amounted to fighting. On the facts alleged by him, he claimed that he only pushed Nguyen with his elbow and this was done in self defence and as a result of Nguyen's provocative physical contact. After sending both men back to their jobs, Jones reported the incident to Forster who instructed him to suspend both men pending an investigation and also arranged an interview with the applicant at 8 p.m. on 9 November 1994. The interview was attended by the applicant with two union representatives (see Exhibit R6). During this interview, the applicant reiterated his version of the incident and specifically referred to Nguyen standing behind him and repeatedly rubbing his body against the applicant. Forster represented the company at the hearing providing instructions throughout to the company's counsel, Mr McNab. He was the last witness to give evidence. When giving his evidence, he said that the notes of interview taken by him during the interview on 9 November 1994 represented a record of what the applicant had said to him at that interview and was a record of the key points made at the time. He then went on to tell the Court that at no stage had the applicant suggested that Nguyen rubbed his genitals against the applicant's backside or buttocks. Indeed, he now recalled questioning the applicant about the alleged rubbing incident and how it was done and further recalled being told by the applicant Nguyen had rubbed his belly against him in a sideways motion. Coming at the end of the hearing after the applicant and his union representative, Guy Larkin (Larkin), who was also present at the interview with Forster, had both given evidence, this belated explanation of the evidence was somewhat surprising. It was not repeated in any of the records of interview or any of the respondent's submissions to the respondent's board when the board had occasion to review the company's earlier decision to dismiss the applicant. From these matters I conclude that this further evidence should be rejected. Following the abovementioned interview with the applicant, Forster informed the applicant and Larkin that the applicant and Nguyen were suspended on full pay pending the outcome of Forster's investigation. Nguyen was not interviewed by Forster until the following morning when he repeated his version of the events which took place. It also appears that he was not suspended at any time up to the time of the interview or thereafter until there was a complaint about this from the AFMEU. In the interview with Forster, the only additional matter of significance was Nguyen's claim that, after he had asked the applicant why he had hit him, the applicant had said "don't push me". Nguyen also confirmed that there had been an apology given. The notes of interview of Nguyen were also tendered in evidence as part of Exhibit R6. These notes make no reference to any issues being put to Nguyen concerning any physical contact between him and the applicant and the rubbing of Nguyen's body against the applicant's body as he tried to pass behind the applicant. It also appears from the notes that there was no discussion of or response given by Nguyen to any alleged sexual behaviour on his part which may have provoked or initiated the applicant's physical reaction. In other words Forster appears not to have sought or obtained any explanation from Nguyen of the behaviour the applicant alleged occurred prior to the applicant elbowing Nguyen in the chest. Mr McNab, in his submissions to the Court, placed a great of emphasis on what he described as the applicant's failure to make any formal complaint of sexual harassment and to fully articulate his allegations against Nguyen. The first recorded and detailed claim of the rubbing of Nguyen's genitals against the applicant's backside and the alleged thrusting movements is contained in a later record of interview on 5 December 1995 when the applicant's employment had been terminated (see Exhibit R6) and the decision to terminate him was the subject of review. Whilst it is clear from the statements made and the evidence given in Court that the applicant has now articulated in some greater particularity what he meant when in his initial interviews he referred to Nguyen rubbing up against him and when he described Nguyen's behaviour as "sexual", it does not follow from this that the applicant is now giving an explanation which was not implicit in and consistent with his original and contemporaneous statements to Jones and Forster. Further, on the evidence, I am not able to and should not conclude that the failure to make a formal complaint of sexual harassment against Nguyen means that no allegation amounting to sexual harassment; that is to say any unwelcome physical contact of a sexual nature, was made by the applicant. Indeed, Jones, when asked to describe the applicant's demeanour when he entered his office at 5.30 a.m. on 9 November 1994, said that the applicant appeared "pumped-up", that is to say "indignant and angry" and it is clearly recorded by Jones that the applicant referred to Nguyen's behaviour as being sexual. In contrast, Jones observed that Nguyen was very quiet and did not say much except to call the applicant a liar a couple of times. I find on the evidence that following the incident that the applicant provided an explanation, in so many words, indicating there had been an unwelcome physical contact from Nguyen, which the applicant rightly or wrongly perceived to be of a sexual kind. In his discussions with Nguyen, Forster appears not to have pursued this issue in any depth or at all. At the cessation of Nguyen's interview, Forster gave him permission to return to his employment duties. This was done before Forster or any of the respondent's management had interviewed the employees present during the incident. I conclude from this precipitous action that Forster had either ignored the applicant's explanation and his statement made to Jones or had already decided before completing his investigation there was no issue of self-defence in the sense that the applicant was resisting the unwelcome physical contact. In his evidence Forster states that he concluded that "what the applicant said he (Nguyen) had done was not of sufficient gravity to lead to Nguyen's dismissal and at the end of the interview Nguyen was free to attend work but not to talk to witnesses". There was no evidence of any disciplinary action ever taken against Nguyen indicating that as at 10 November 1994 and prior to any witness statements being obtained Forster had concluded that the applicant was solely responsible for the incident. The injustice of the position in allowing Nguyen to return to work before the matter had been fully investigated was not lost on the applicant's union which, on ascertaining this, held meetings and imposed bans in the workplace. The respondent saw the error of its ways and suspended Nguyen pending the final outcome of its investigations. Lago, Pereniko, Svikarovski and Ali were all interviewed by Forster during 10 November 1994. The rather short records of interview of the same date (see Exhibit R6) were all adopted in evidence. What stands out from these early interviews is that the workers on the production line were never asked for or did not respond to questions on their ability to observe any kind of rubbing or physical contact between the two men and to hear all that was said. A later interview with Lago after the first dismissal does take the matter a little further insofar as she states that she was unable to see whether or not there was any contact between the lower halves of the men's bodies. As their oral evidence now demonstrates, the witnesses' ability to refute the applicant's allegations has to be treated as limited given their respective positions and what they actually could see and hear. Fighting It was Forster's evidence that the respondent adopts "a hard line" on violence. With a large multi-cultural workforce and an obligation to maintain a healthy, safe and harassment free environment, the respondent regards fighting as a serious offence. In his position as Human Resources Manager, Forster had previously dealt with complaints of fighting. His modus operandi is not to dismiss an individual unless it is proved to his satisfaction that the offence has been committed. Where there are no witnesses and it is one person's word against another, then Forster gives a caution. This evidence suggests that once there is proof that fighting has occurred then dismissal is an inevitable consequence of the "hard line" taken by the employer. In cross-examination, Forster agreed that he was present when the respondent's General Manager Peter Ray (Ray) who was not called to give evidence, informed the applicant's union representatives that the company would not tolerate minor or major fighting, the inference being that a person would be dismissed in either instance. Whilst it must be accepted that the employer has a right to enforce its policy against fighting in the workplace, such policy must have some element of flexibility in its application if it is to be enforced fairly. In considering matters which may mitigate the penalty for or indeed exonerate the employee accused of fighting, the company must give consideration to amongst other things provocation, any defence of self-defence, the gravity of the offence and degrees of guilt. Forster told the Court that, after obtaining all the witness statements, he reviewed the applicant's personnel file taking into account the length of service, his age and his record before determining to dismiss him. He makes no mention of any mitigating factors such as provocation exculpatory factors such as self-defence (or even some contribution by the conduct of the other employee), the giving and acceptance of an apology and the absence of any appreciable injury or property damage in determining the applicant's fate. When Forster was interviewed by the review panel on 28 November 1994, he explained the basis of his decision to terminate by saying - " (1) J. Ramirez stated that he had reacted to some provocation. (2) Even if J. Ramirez's version was accepted the action of striking Q. Nguyen was not to be condoned, and (3) Belief that J. Ramirez's action would still lead to dismissal even if he had spoken to Q. Nguyen first as physical violence was not a response the company would or could condone." This suggests that Forster saw no room for the exercise of any discretion even if the applicant's claim was correct. The decision was "run past" Ray on the following morning on 11 November 1994 before the applicant's union representatives were informed of the result. The applicant was not notified by the company of its decision other than through his union representatives prior to 14 November 1994 when his wages were finalised and Forster rectified his oversight in not directly notifying the applicant. It was contended by the applicant that at the relevant time he was not fighting. Apart from claiming that he only pushed Nguyen with his elbow and right shoulder, he claimed that he regarded Nguyen's unwelcome physical contact as an attack and his conduct was a defensive response to the provocative bodily contact. In summary the evidence before the Court supports a finding that: (a) it is more likely than not that there was unwelcome physical contact between the two men on at least two occasions as Nguyen sought to squeeze past the applicant whilst he was facing the back of the applicant who was bending and leaning over the invertor; (b) such contact as there may have been was capable of being interpreted as sexual in nature and that was how the applicant interpreted it when he gave his first explanation to Jones soon after the incident; (c) at some stage during or immediately after the incident the applicant spoke to Nguyen saying "don't push" and/or "don't play around" and such statements make it more likely than not that there was some physical behaviour on the part of Nguyen which prompted a physical and verbal response from the applicant. It would be inappropriate to attempt to characterise precisely what physical behaviour should be construed as fighting. The general term should and must have wide application to allow employers to maintain control over their workplace. Nevertheless, each case should be dealt with on its merit. Any inflexibility in the proscription of this behaviour and in imposing sanctions is a prima facie basis for saying that a decision to terminate is a harsh, unjust or unreasonable decision. In order to operate fairly, the policy must be flexible enough to take into account a variety of circumstances including a defence of self-defence. Valid Reason - s 170 DE(1) To discharge the onus of proof requiring the respondent to show a valid reason or reasons for termination the respondent must show that the reason put forward; that is to say that the applicant assaulted another employee in breach of the prohibition against fighting in the workplace is true. If there was no assault and self-defence is accepted as a complete defence then arguably there is no valid reason for terminating an employee's employment and certainly no misconduct. Technically the applicant was involved in a fighting activity making him liable to instant dismissal. Initially, in making his decision to terminate, Forster appears to have ignored or rejected any notions of any provocative behaviour on the part of Nguyen or self-defence as factors which not only mitigate against the imposition of the harshest discipline the employer could meet out; namely, dismissal but, in the case of self-defence, may offer a complete excuse and remove any basis for termination. He also appears to have ignored the fact that in perspective the applicant's alleged unprovoked and unreasonable attack on Nguyen was a comparatively minor exchange with no injury or property damage and an apology was given and accepted shortly after the incident. As at the date of Forster's decision there was doubt as to the existence of a valid reason for termination and I would have no trouble in saying that on the evidence any termination was substantively unfair in that it was harsh, unjust and unreasonable because of the failure to consider all mitigating factors and the inflexible application of the prohibition in this case. The Review Decision The decision to terminate the applicant's employment rather than discipline him had the effect of escalating the tensions in the workplace. Further workplace bans were imposed by the AFMEU and the dispute went before the Australian Industrial Relations Commission. By this stage Nguyen's union was also deeply involved in the dispute representing Nguyen's interest. On 23 November 1994 the parties agreed to certain recommendations made by the Australian Industrial Relations Commission (see Exhibit A4) which included the putting aside of the decision to terminate the applicant from 12 noon on 23 November 1994 until 12.30 p.m. on 30 November 1994 and placing the applicant on suspension on full pay to allow a tripartite review of the incident. This appears to have been translated into a review of the decision to terminate the applicant's employment. The recommendation of the Commission led to the formation of a review group consisting of representatives from the AFMEU and the NUW and the respondent's management. This group met on a number of occasions (see Exhibits R3, R4, R12 and R13) when the process for review was discussed. The AFMEU's position was that some witnesses should be re-interviewed. In its view the applicant had responded to a sexual approach and was defending himself against it. The AFMEU did not seek dismissal of Nguyen but sought suitable warnings and counselling for both parties as well as consistency in the application of the company's policy. This latter point was sought to be demonstrated by the union by reference in evidence to a number of incidents where the company had either not acted against alleged protagonists or had only offered counselling. One incident deposed to by Barry Rouse, a fitter and turner employed by the respondent for some 18 years, occurred in December 1993 when Rouse alleges that he was grabbed by another employee and given a violent shaking which caused him to attend the medical centre and receive treatment for the pain in his arm, such pain persisting for some days thereafter. He reported this incident to Forster whom he said did not appear interested and told him that he, Forster, did not think it was really an instance of physical violence because it was only a minor incident. On Forster's recommendation, Rouse met with the other person involved whose apology Rouse accepted. Whilst Rouse did not seek the other person's dismissal, he believed he should have been disciplined. Forster recalled the incident but noted that there were no witnesses. The other person's version of events was that he had grabbed and squeezed Rouse but this was not malicious and he was joking when he told Rouse that there was "no bloody way you're going over there". As a result, Forster counselled the other person and that was the end of the matter. More recently and some weeks after the incident between the applicant and Nguyen, Nguyen's leading hand Branko was involved in an altercation with another employee, Ortiz, who had made a statement alleging that Nguyen had sexually harassed Ortiz on a previous occasion. It is alleged that the two men were discussing the incident involving the applicant and Nguyen when the leading hand grabbed Ortiz by the jaw and said "your man's going to get sacked". Forster acknowledged this complaint and told the Court that it has never been investigated because the company was at that time in the middle of reviewing the decision to terminate the applicant and there were "lots of complaints against Nguyen and others". In other words, the company never got around to conducting an investigation. These incidents do tend to demonstrate inconsistency in the approach of the respondent to the application of its "hard line" policy and this is a matter which is relevant to whether the termination was unreasonable. William Warren Hardiman (Hardiman), an organizer for the AFMEU, was one of the review group and gave evidence on the process adopted in attempting to review the decision to terminate the applicant's employment. It was Hardiman's contention that, whilst the union representing the applicant was able to participate in the determination of the review process and ultimately make written submissions to the respondent's board on setting aside the decision, too much influence was given to the NUW in determining the extent of the further investigations, the evidence to be put before the respondent's board and the interviewing of witnesses. As a third party to the process whereby the respondent had agreed to review its decision to dismiss the applicant, Hardiman contended that the respondent had allowed the third party union to influence the outcome of its decision and that produced an unfair process and result. None of the representatives of NUW gave evidence at the hearing. Clearly because of the allegations of sexual harassment against their member, the NUW had an interest in participating in the review process. The question is to what extent the third party whose member was neither the subject of any disciplinary action nor dismissal should have been allowed to direct or decide the relevance of the evidence, the taking of statements from witnesses and to further make submissions to the respondent's board, the effect of which submissions was amongst other things to ask the respondent's board to uphold the earlier decision to dismiss and to treat the submissions of AFMEU representing the applicant as a "sham" (see Exhibit R6)? At page 7 of its written submissions to the board, NUW says - "Furthermore, it (the company) should consider the fact that Mr Ramirez claimed that he had never been subjected to the alleged behaviour before and therefore it is difficult to comprehend had (sic) he can now claim a climate of provocation as the basis of his actions. Several of the interviewees claimed that there is a general behavioural problem in the Grocery Product Section - something which Mr Ramirez would have been aware of". The logic of the abovementioned submission escapes me. One instance or many instances of physical contact of a sexual kind can provide a basis for an allegation of sexual harassment just as one incident of provocative behaviour may give rise to defensive action. So far as the witness statements relied upon in the review (including the statements of witnesses who were re-interviewed and other employees interviewed after the dismissal in November) are concerned, the NUW appears to adopt the syllogism that, if the witnesses to the incident did not see the contact between the applicant's buttocks and the front of Nguyen's body when they saw Nguyen move past the applicant, then there was no contact of any kind or basis for a defence of self-defence. The evidence suggests that this reasoning is illogical and flawed because of the limitations on what the witnesses actually were able to see and did hear. During the hearing I was troubled and am still troubled by the proposition that it was open to a third party or indeed the alleged victim of the assault to in effect require the respondent's board to confirm the earlier decision to dismiss the applicant. It is perfectly understandable that the NUW would and should take steps to assist its member who denied any contact between his body and the applicant's body prior to the elbowing. This may take the form of attending interviews with him and putting his case to the employer if there was a threat of any discipline or dismissal. With the witnesses who were also NUW members, the union may take an interest in assisting them at interview and may ultimately ask the employer to take into account the reputation of its member when dealing with the board's findings in relation to the incident. Otherwise the decision to terminate and what material is put before the board in order to make this decision is a matter for the applicant and the company. It would be both substantively and procedurally unfair for the respondent to take into account a third party's submission, the effect of which was to seek the dismissal of the applicant. The Court was informed that Nguyen may initiate an action for defamation and that the applicant has already lodged a complaint with the Human Rights Commission. No doubt, these actions have contributed to the NUW's decision to participate in the review process and have placed more pressure on all the parties to achieve a desired result. At some stage prior to the meeting of the respondent's board to review the decision, it was agreed that the case against the applicant was to be established beyond reasonable doubt. Having set that high standard the company could on the evidence establish beyond reasonable doubt that there was an incident whereby the applicant made physical contact with Nguyen's chest three times. In respect to any alleged assault, provocation is not a defence. However, evidence of provocation may be used in mitigation. Self-defence is a defence and once the applicant raised this doubt, it was for the prosecution/company to show that the applicant did not believe on reasonable grounds that it was necessary in self-defence to do what he did. If there was such a belief and there were reasonable grounds for it so that there is a reasonable doubt about the matter, then the respondent could not be persuaded beyond reasonable doubt (see Zecovic v Director of Public Prosecutions 162 CLR 645). The application of the criminal standard of proof did not require the applicant to prove that he was defending himself against sexual harassment or any other unwelcome physical contact. In its submissions to the board, the company's management notes that the review process has not "... proven the AFMEU assertion that J. Ramirez was subject to sexual harassment by Q. Nguyen at the time of the incident". This statement shows that the company's management misunderstood the proper application of the criminal standard of proof. Such a misunderstanding held by the company's management does suggest an element of unfairness in the review process and the approach taken where the higher standard of proof was applied by reason of an agreement between the parties. Evidence of reputation and history of conduct A great deal of time and energy was devoted to the question of the admissibility of evidence from an employee, Paston William Miles (Miles), who had made a statement claiming that Nguyen had previously rubbed himself against Miles in a sexually provocative way whilst Miles was working on the jar line and further, that Nguyen had a reputation for doing this sort of thing. When the respondent's board came to review the decision to terminate, it also had before it statements made by two other employees, Ortiz and Porter. Ortiz's statement referred to occasions on which Nguyen had touched him in a sexually provocative way. Porter's statement did not refer to any direct contact between himself and Nguyen, only what Porter had observed Nguyen doing to other employees. It was and is the applicant's case that he knew Nguyen had a reputation for this kind of behaviour and had observed him on at least one occasion behaving in this way prior to the incident on 9 November, 1994. Miles was the only witness called to give evidence and he gave that evidence subject to an objection to its admission because, in Mr McNab's submission, the prejudicial value of the evidence outweighed its probative value. In its submissions to the board, the NUW also urged the board to disregard this evidence which it claimed was obtained after dismissal, was not originally the subject of any complaint, was irrelevant and even if proven did not mean that Nguyen behaved in an identical manner on 9 November 1994. Insofar as the Court is required to deal with the question of substantive and procedural fairness in the board's decision making, the statements made by the other employees and considered by the board in arriving at the decision are relevant. In fact, the respondent itself tendered in evidence a bundle of documents (Exhibit R6) which included all these statements. Pursuant to s.55 of the Evidence Act 1995 (Commonwealth), relevant evidence is evidence "... that if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding". Section 135 of the Evidence Act gives this Court a discretion to exclude logically relevant evidence where its probative value is substantially outweighed by the danger that it might be unfairly prejudicial to a party, misleading or confusing or causing or resulting in undue waste of time. In this regard, it should be kept in mind that Nguyen was not and is not a party to this proceeding. The Evidence Act now deals comprehensively with tendency and coincidence evidence which was formerly referred to as similar fact evidence (see Part 3.6 of the Act). Section 97(1) of the Evidence Act states - "Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that the person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind if: ... (b) the Court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." What is important in deciding the admissibility of the evidence is its relevance. In the context of the applicant's case, the oral evidence of Miles and the statement adopted in evidence by him is relevant to and has significant probative value in respect to inter alia: (a) whether Nguyen had a reputation for this sort of behaviour; (b) whether Nguyen had a prior history of this sort of behaviour; and (c) the grounds the applicant had for and his belief that the conduct was sexual and that it was reasonable for him to defend himself against this conduct. Having decided that it was more probable than not that there was physical contact between the two men before the elbowing incident, the Court must also decide whether the contact was as described by the applicant in his evidence. Further, because of the defence raised the Court needs to consider whether the applicant had a belief on reasonable grounds that it was necessary in self-defence to do what he did. Accordingly, evidence of Nguyen's reputation and history which supports the applicant's version of events and his belief is logically probative of the existence of facts in issue. Miles told the Court about an incident in the latter part of 1993 when he was working on the jar line and Nguyen "rubbed his full frontal section of body up against my left rear side saying 'I still wuv you'". Miles treated this as a joke and made no report or complaint until he and other employees were asked by the AFMEU after the applicant's dismissal about any incidents on the jar line. Nugent denied any prior conduct as alleged and all the other witnesses called by the respondent denied ever seeing Nguyen engaged in any sexually provocative conduct. Because of the applicant's evidence and, in particular, the matters raised in his first statement as well as Miles' evidence I am satisfied that it is more likely than not that the applicant was acting in self-defence when this incident occurred. It has been argued by the respondent that the company's policy also precludes an employee from responding to provocation or retaliating if sexually harassed. It refers to disciplinary procedures being imposed against the employee so responding. There is a distinction between self-defence and retaliation, the latter of which is more in the nature of a reprisal and may not involve any element of self-defence. An employer cannot realistically legislate against acting in self-defence in all circumstances so that an employee subjected to a sexual assault is precluded from defending himself regardless of what takes place or risk dismissal. Even if it was considered that the applicant's actions were retaliatory rather than defensive, the sanction provided for this is disciplinary action not dismissal. In its letter dated 14 December 1994, the respondent's board gives notice of its decision to uphold its original decision to dismiss the applicant. In arriving at this position, the board points out that it took into account the written submissions and information provided to it. The reasons given for its decision were: (a) Mr J. Ramirez made physical contact with Mr Q. Nguyen that caused Mr Nguyen considerable discomfort and pain. (b) The severity of this physical contact was considered to be significant. (c) There is a lack of clear evidence from the witnesses to indicate that Mr Nguyen provoked Mr Ramirez in a threatening manner in such a way that the conduct of Mr Ramirez could have been in reasonable self-defence. (d) The physical response from Mr Ramirez was excessive and not reasonably proportionate considering the alleged behaviour of Mr Nguyen, even if the committee had concluded (which it has not) that Mr Nguyen had ever behaved in the manner alleged by Mr Ramirez. (e) The company believes that to ensure a safe working environment for all employees, physical violence is totally unacceptable, the existing procedures to communicate issues and resolve disputes should be followed at all times. On the evidence before the Court and having regard to the material placed before the respondent's board, I am satisfied that the applicant had reasonable grounds for believing that it was necessary to do what he did in order to avoid what he believed was a sexual attack. In the ordinary course of events, self-defence amounts to a complete defence and may thereby remove any basis for alleging a valid reason for terminating the applicant's employment. Even if the applicant's belief whilst honestly held was not reasonable, for instance, the contact made by Nguyen was accidental and non-sexual, this belief would still amount to a mitigating factor to be taken into account. The respondent's board's reasons as published (no evidence being given by any board member) suggest an inflexible application of the company's policy, perhaps reflecting the earlier comments made to this effect by the General Manager, Ray, and Forster's views. As can be seen from this judgment, there were placed before the board and the Court many mitigating if not exculpatory factors in favour of the applicant. The evidence of the witnesses is not conclusive of the question of whether there was any sexual contact much less provocative contact between the two men. There is also the very real question as to whether the respondent has adopted a consistent approach to the application of its policy against fighting in all the circumstances. The existence of mitigating factors and the inconsistency in the company's application of its policy indicate that the confirmation of the decision to terminate was substantively unfair and was harsh, unjust and unreasonable. Remedies The applicant seeks reinstatement and this is strongly contested by the respondent. In February 1995, a decision, which had been under discussion by the respondent for some two years, was implemented whereby it was decided to contract out maintenance services to a private contractor, Skilled Engineering. The decision gave rise to further industrial action because of the loss of jobs experienced by the AFMEU's members. From the correspondence (see Exhibit R14) tendered and the evidence given, the abovementioned dispute was resolved on the basis that a core group of maintenance fitters of 25 men would be retained by the company until 21 June 1995 and after 21 June 1995 the group can: (a) accept a redundancy package and be re-employed by Skilled Engineering; or (b) be employed by Skilled Engineering and remain working at the respondent's Port Melbourne site; or (c) take the redundancy package and not be employed by Skilled Engineering. According to Hardiman, there is still the possibility that the company could re-employ maintenance fitters workers privately. However, the most likely outcome is that contained in options (a)-(c) above. The redundancy package offered and paid to the applicant's colleagues and any entitlements the applicant could have expected to receive include: (i) 4 weeks severance pay; (ii) 3 weeks of pay for each completed year of service; (iii) the payment of the balance of the applicant's unused sick leave; and (iv) an ex gratia payment of $7,000. It was argued by the respondent that the agreement reached between the union and the company as to the maintenance fitter workforce is conclusive and exclusive in as much as it precludes the applicant's return to his former position as a maintenance fitter even before 21 June 1995. The evidence of Hardiman who represented the union suggests that it is still open to the company to consider other options to employ maintenance fitters independently of any sub-contracting arrangement. Furthermore, whilst the core group of 25 men has, by a process of attrition, now been reduced to 19 men, there appears to be no reason for saying that the applicant could not return to this core group and take the options available to his colleagues in the fullness of time. In these circumstances, I am not satisfied that it is impracticable to reinstate the applicant. MINUTES OF ORDERS THE COURT ORDERS THAT: 1. The respondent reinstate the applicant by re-appointing him to the position in which he was employed immediately prior to the termination. 2. The respondent pay the applicant the remuneration he would have received but for the termination. 3. The applicant's employment with the respondent be treated as being continuous for all purposes. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding thirty eight (38) pages are a true copy of the reasons for judgment of Judicial Registrar Millane. Associate: Dated: 17 May 1995 Representative for the Applicants: Mr M. Perica Automotive, Food, Metals & Engineering Union Counsel for the Respondent: Mr A McNab Solicitors for the Respondent: Freehill, Hollingdale & Page Date of hearing: 3, 4 & 5 May 1995 Date of judgment: 17 May 1995 C A T C H W O R D S INDUSTRIAL LAW - Unlawful termination - valid reason - harsh unjust or unreasonable - policy against fighting - mitigating and exculpatory factors - tendency evidence Industrial Relations Act 1988 s.170 EA, s.170 DE (1) & (2) Evidence Act 1995 s.55, s.97 (1) and s.135 CASES: Zecovic v Director of Public Prosecutions 162 CLR 645 JUAN RAMIREZ & AUTOMOTIVE, FOOD, METALS & ENGINEERING UNION v KRAFT FOODS LIMITED No. VI 94/2615 Before: Judicial Registrar Millane Place: Melbourne Date: 17 May 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 94/2615 B E T W E E N : JUAN RAMIREZ & AUTOMOTIVE, FOOD, METALS & ENGINEERING UNION Applicant AND KRAFT FOODS LIMITED Respondent MINUTES OF ORDERS Judicial Registrar Millane 17 May 1995 THE COURT ORDERS THAT: 1. The respondent reinstate the applicant by re-appointing him to the position in which he was employed immediately prior to the termination. 2. The respondent pay the applicant the remuneration he would have received but for the termination. 3. The applicant's employment with the respondent be treated as being continuous for all purposes. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.