IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2034 of 1995 B E T W E E N: PHILIP ROSS STEVENS & ALHMWU Applicant A N D COURTAULDS (AUSTRALIA) PTY LTD Respondent REASONS FOR DECISION 27 July 1995 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988 in relation to the termination of the applicant's employment. The applicant seeks orders for reinstatement and wages lost during the period between the date of the termination of his employment and any order for reinstatement. The following persons gave evidence in the proceedings: Philip Ross Stevens - applicant Carlos Estorque - applicant's co-worker Noel Halford - respondent's human resources general manager Johann Haggblom - applicant's co-worker Peter Horadecki - applicant's co-worker Antonio Meman - applicant's co-worker The applicant was employed by the respondent as a Grade 5 Resin Plant Operator between 1989 and the date of the termination of the employment on 2 March 1995. The evidence was that, aside from one warning in relation to time-keeping late in 1993, the applicant had a good employment record. The applicant was employed at the Sunshine site and worked on a permanent rotating shift roster, involving week-about night, afternoon and day shift. At the date of the incident for which his employment was terminated, the applicant and the other person involved in the incident, Mr Estorque, were on night shift. Sometime early in the commencement of the shift on the evening of 28 February 1995 an incident occurred in the alkyd plant involving an employee, Mr Feschuk and another employee, Mr Estorque. During the course of that incident Mr Estorque had, by way of attempting avoidance, kicked a roll of tape out of his way. For this action he earned the name "Maradonna". All parties accept that this was a reference to the well known international soccer player of that name. The applicant was not involved in the initial incident, however he adopted the nick-name Maradonna and apparently applied it to Mr Estorque. The evidence was that Mr Estorque was upset by the incident which occurred involving the roll of tape. However, during the course of the proceedings his evidence was that he was mainly upset and felt intimidated and harassed by the applicant persisting in calling him Maradonna, despite his clear indication that he objected to this form of address, and not so much by the incident on the line. The evidence is that this form of address was specifically used by the applicant at most on two or three occasions. The evidence of Mr Horadecki suggested that Mr Estorque was however already upset before he arrived in the lunch room, and that most persons had concluded that this was because of the earlier incident in which the applicant was not involved. Shortly after Mr Estorque arrived with his work team at the lunch room there was a further exchange between the applicant and Mr Estorque where the applicant used words to the effect of "here's Maradonna". The applicant says that this was said as a greeting and in jest. The evidence of Mr Meman was that his observation of the applicant at this stage suggested that the greeting was in jest. However from that point, as was acknowledged by all, tempers became heated and the applicant in response to something said by Mr Estorque, although not in evidence, told him to "butt out" of a conversation he was having with another employee. At all times the applicant was seated at a table separate to Mr Estorque, and at all times the applicant remained seated at that table. There was no approach by the applicant towards Mr Estorque which might represent some kind of physical threat or harassment. The evidence was that this exchange took in total a few minutes and, but for the reaction of Mr Estorque, was nothing unusual in the context of the usual exchanges between employees in the workplace, particularly at 3 a.m. on night shift. At the end of the verbal exchange, Mr Estorque stood and removed a knife from its sheath held on his person and approached the applicant in a threatening manner. His evidence was that he took steps towards the applicant. His evidence was that he pulled the knife in response to feeling threatened and intimidated by the applicant. There is no evidence that the conduct of the applicant, notwithstanding that it was childish and annoying, was of a type which might be described as in any way threatening or intimidating, notwithstanding that this was the view of the conduct taken by Mr Estorque. The respondent concluded, after investigation of the incident, that the applicant had provoked the attack and was therefore as responsible for the incident as Mr Estorque. As a result, the employment of both men was terminated and terminated summarily. Valid Reason - S170DE(1) The applicant was frank in his evidence as to the comments he made and the circumstances of the incident. It was the applicant who initiated the reporting of the matter to management of the respondent. His evidence was that he recognised his conduct may have warranted a warning. Implicit in that is a recognition that some aspect of his behaviour was not acceptable. However this is some way from establishing or characterising the conduct as misconduct, and I do not accept that it was so. This is not a case where the applicant and Mr Estorque had a record of ongoing hostility or disturbance between them. Aside from one instance where the applicant used another nick-name for Mr Estorque, there is no evidence of any contact occurring between them during the course of working time. Further, there is evidence of amicable relations between them during tea breaks, when they played cards. I do not accept that the extremity of the reaction of Mr Estorque to the conduct of the applicant forms a satisfactory basis for determining that the applicant's conduct was such as to be described as misconduct and thereby providing a valid reason for the termination of his employment. I am not satisfied that the respondent had valid reason for the termination of the applicant's employment on 2 March 1995. S170DE(2) - Harsh, Unjust or Unreasonable Whilst it is unnecessary to do so in light of my earlier finding, it is appropriate to inform the parties of my views in relation to one aspect of the application of S170DE(2) to the present case. That issue arises in respect of the question of the penalty imposed upon the applicant. It is clear on the evidence that there was no consideration by the respondent of the applicant's work record, past performance and length of service with the respondent prior to deciding to terminate his employment. Further and importantly, there was no consideration of the apportionment of blame in the incident, and the applicant's relatively minor role in the entire matter. The penalty imposed on both persons was the same, despite the fact that the applicant was clearly not engaging in any physical aggression or harassment at any time, and in fact was the subject of a threat with a weapon. Further, the penalty imposed on the applicant was summary termination of employment, no notice or payment in lieu of notice being given. The penalty of summary termination is reserved for conduct which in the terms of S170DB of the Act is of a type which constitutes serious misconduct. Even if one accepted the view of the conduct taken by the respondent, which I do not, that the applicant deliberately and extremely provoked the attack, this would not be such a case. In my view, the penalty of termination of employment in the circumstances of this case was harsh and unreasonable. Remedy - S170EE The applicant seeks reinstatement, and there is no evidence to suggest that an order for reinstatement would be impracticable. The remedy granted will be reinstatement to the position the applicant occupied immediately prior to the termination of the employment. There will also be an order for the payment of remuneration lost by the applicant in the period between the date of the termination and the date of the reinstatement. The parties are to calculate the appropriate amount, and this amount is payable as remuneration and therefore is subject to the usual deductions made by the employer in relation to that wage payment, in particular income taxation. The parties will be reserved leave to apply in relation to any difficulties in calculating the relevant amount. If this cannot be agreed, the court will determine the amount. The orders of the court will be: 1. That the respondent reinstate the applicant to the position in which he was employed immediately prior to the termination. 2. That the respondent pay to the applicant the remuneration lost by the applicant between the date of termination and the date of reinstatement. 3. Leave is reserved to the parties to apply in relation to matters arising from Order 2 herein. 4. Time for payment is twenty one days from the date of this order. 5. Reinstatement effective on and from the date of this order. I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson. Associate: Dated: 27 July 1995 Representative for the applicant: ALHMWU - Miscellaneous Workers Division Representative appearing for the applicant: Mr R Crampton Solicitors for the respondent: Dunhill Madden Butler Counsel appearing for the respondent: Mr P Ludeke Date of hearing: 26 July 1995 Date of judgment: 27 July 1995