INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2871 of 1995 B E T W E E N : GENCO GUNESER Applicant AND GOODYEAR TYRES PTY LTD T/as SOUTH PACIFIC TYRES Respondent Before: Judicial Registrar Staindl Place: Melbourne Date: 14 September 1995 REASONS FOR DECISION (EX-TEMPORE - Revised from draft transcript) Genco Guneser, ("the Applicant"), is an ambitious and intelligent man. He completed year 12 in 1990 and undertook university studies in the following two years. However, in 1993 he decided to seek full time employment rather than continue with his studies. Towards the end of 1994 the Applicant sought employment with South Pacific Tyres ("the Respondent"), a partnership between Pacific Dunlop Tyres Proprietary Limited and Goodyear Tyres Proprietary Limited. He had been told by others that it was a good place to work in that employees were paid well after taking into account shift and overtime allowances. He was especially enthusiastic and interested in obtaining employment with the Respondent and I infer that this may well have been one of the reasons why he was successful in obtaining employment. The Applicant commenced employment on about 30 January 1995. He underwent an induction programme and then received on the job training for about six weeks. It is especially relevant to the present case that during this training the Respondent emphasised that physical violence would not be tolerated. This was noted in the factory regulations and in a warning and reprimand procedure in the new associates induction booklet. In fact the factory regulations were also printed on the rear of employee time cards. In any event, the Applicant freely conceded that he knew the seriousness of physical violence in the workplace. The Applicant's employment was terminated summarily for misconduct on 4 May 1995. The misconduct was constituted by his alleged violence towards another employee, Mr Enver Karacan. The Applicant denied that he was the aggressor in this incident and also submitted that he had been denied procedural fairness in the subsequent investigation of the matter. I turn now to consider the detail of the incident on 4 May 1995. At about 6.15 am the Applicant and one of his co-workers, Mr Eddie Konecki, were standing alongside a locker located near a machine control panel. Mr Karacan approached them. Although there is some dispute about what he actually said, I accept that he said, "move", perhaps more than once, to Mr Konecki and the Applicant. Mr Konecki did not hear this because he had earplugs in, but he moved away in any event because he could see that Mr Karacan wanted to get to the locker. The Applicant said to Mr Karacan, "say please", or words to that effect. Mr Karacan repeated his earlier statement of "move" and then put both his hands on the Applicant's arms and shifted him sideways, about 30 to 45 centimetres. I am satisfied that this was not done in a malicious or confrontationalist manner but simply was the action of someone who was in a hurry and wanted to move another person out of their way so as to get on with their work. The reaction of the Applicant was immediate. Although he now denies these actions I am satisfied that he punched Mr Karacan to the left side of his face and then tried to kick Mr Karacan with two or three karate-type kicks, (although these kicks did not connect with Mr Karacan). I say I am satisfied that this is how the incident occurred because of the evidence of Mr Karacan, Mr Konecki and the evidence of what occurred immediately following the incident. Mr Konecki's evidence is important because he can properly be described as an independent witness. In fact, the Applicant's counsel described him as a credible witness. Mr Konecki did not witness any actual blow by the Applicant because he was not looking in that direction at that precise moment. However, when he did look back he noticed Mr Karacan's glasses on the ground and he saw the Applicant try to kick Mr Karacan two or three times with a karate kick. Mr Karacan did not respond and ultimately got up and walked away. Although Mr Konecki did not see the Applicant actually punch Mr Karacan that was his impression and he asked the Applicant why he had punched him. The Applicant's answer is revealing. Not only did he not deny punching Mr Karacan but he said words to the effect of "no- one can push me around, if I allow it today everyone will do it". I will return to this later. Mr Karacan then went to the medical centre and filed a complaint. As a result of this the area manager, Mr George Saoud, spoke to Mr Karacan. He then told the Applicant and Mr Konecki to wait for him at his office. He also asked the Applicant about what had happened and the Applicant replied that, "they're pushing us around over there," (ie, in Turkey) "they can't push us around over here." The Applicant also referred to alleged derogatory remarks about Kurds that the Applicant attributed to Mr Karacan. I interpolate at this point to note that the Applicant is Kurdish while Mr Karacan is Turkish. After a short time the Applicant and Mr Konecki were interviewed separately by Mr Bill Brown, the Respondent's business centre manager. Present also were Mr Saoud and a union representative, Mr Tony Cappichiano. I was impressed generally with the witnesses called by the Respondent and I was particularly impressed by the evidence of Mr Brown. He gave evidence that he spoke with the Applicant and asked him what happened. The Applicant told him that Mr Karacan had come up to the locker and told him to move. The Applicant said, "say please," and then Mr Karacan again told him to move and actually pushed him to one side (and the Applicant demonstrated this push to those present). The Applicant said he then punched Mr Karacan and tried to kick him although he did not make contact. When asked why he did this he said he wouldn't be pushed around. Mr Saoud gave evidence which corroborated this evidence of Mr Brown and he had also made notes of this interview. Mr Brown and Mr Saoud, (with Mr Cappichiano present), interviewed Mr Konecki and then Mr Karacan after he had returned from seeing a medical doctor. Mr Karacan's version was remarkably similar to that of the Applicant and was largely confirmed by Mr Konecki. Following these interviews Mr Brown stated that the Applicant's services may be terminated. Mr Brown viewed the incident seriously. Accordingly, he involved Mr Gary Rowley, the personnel training manager, in a more formal inquiry. Mr Cappichiano also attended. Together they interviewed Mr Karacan who repeated what he had told Mr Brown earlier. They also interviewed the Applicant who repeated his earlier version. Mr Konecki had gone home at this stage and was not spoken to again until later in the day (and, it would appear, after the Applicant's employment had actually been terminated). Throughout this whole process the version of events given by the Applicant and Mr Karacan were surprisingly similar and had been confirmed by Mr Konecki in his initial interview. On the basis of all of this the Applicant's services were terminated and he was informed of this by Mr Brown when he visited his home later that day. It seems to me that the Respondent's actions have been entirely appropriate and responsible. A number of criticisms were made of its actions and some of them can only be regarded as petty. It was argued that the company acted too quickly. I can only say that criticism is often made when an investigation is delayed and people's recollections are less accurate. Here the investigation was certainly quick but in circumstances where the protagonists to such an incident give the same version then a more lengthy investigation is unnecessary. The Applicant, Mr Konecki, and Mr Karacan were all interviewed by Mr Brown and Mr Saoud in a preliminary inquiry. In a more informal inquiry the Applicant and Mr Karacan were again interviewed. Unless their versions differed on relevant matters the Respondent was perfectly entitled to act on the basis of those interviews. It was also said that the interviews should have been recorded, that signed statements should have been taken and that the police should have been involved in order to conduct a more professional investigation. If the interviews had been recorded it may well have saved a deal of time. In this case it would then have been readily apparent as to what the Applicant said at the interviews, (especially in light of his denials before the Court concerning either punching or attempting to kick Mr Karacan). However, employers are not usually professional investigators or trained as police. They cannot be expected to conduct inquiries in the same manner or with the same degree of thoroughness that the police might. Suffice it to say that in this case I find the investigation of the incident by the Respondent as being appropriate. It was further argued on behalf of the Applicant that relevant factors had not been taken into account prior to his dismissal. These matters related to Mr Karacan allegedly denigrating Kurds and attempting to set the Applicant up by having him drive a fork-lift without having a learner's permit. I am satisfied that in respect to these incidents that they are quite unfounded or that the Applicant has misconstrued them. It does seem to me that the Applicant is particularly sensitive about his Kurdish nationality. This is not a criticism but it has unfortunately led him to misunderstand and misconstrue events for which there may be an innocent explanation. I accept that he thought that Mr Karacan was antagonistic towards him, (although I do not accept that this was in fact the case). However, this led the Applicant to adopt a particular attitude towards Mr Karacan to the effect that he was not going to let Mr Karacan push him around. On 4 May this is how he saw Mr Karacan's actions and accordingly he reacted in the way he did. This is consistent with his statements immediately after the incident and in the interviews and is also consistent with what I perceive to be his demeanour in the witness box when he displayed an attitude of aggression to parts of his cross-examination. Decisions of industrial tribunals concerning violence in the workplace largely turn on their own facts. As was said by Moore J in the case of AWU-FIME Amalgamated Union v Queensland Alumina Limited, Unreported, 14 July 1995, QI 168 & 169 of 1994 after he reviewed the authorities, he said at page 21: "What emerges from these decisions is that whether a dismissal or termination arising from a fight in the workplace is harsh, unjust or unreasonable will depend very much on the circumstances. However, generally the attitude of industrial tribunals tends to be that in the absence of extenuating circumstances, a dismissal for fighting will not be viewed as harsh, unjust or unreasonable. The extenuating circumstances may, and often do, concern the circumstances in which the fight occurred as well as other considerations such as the length of service of the employee, including their work record, and whether he or she was in a supervisory position. As to the circumstances of the fight, the relevant considerations include whether the dismissed employee was provoked and whether he or she was acting in self defence." In the present case the actions of the Applicant were certainly far out of all proportion to Mr Karacan's actions, if indeed the Applicant's actions could not be said to be unprovoked. The Applicant is an intelligent man who understood the company's policies on violence and appreciated the need to report matters of concern rather than resort to direct action. In fact he had reported a previous incident which had resulted in a warning being given to another employee. Accordingly, I find that the Respondent had a valid reason for terminating the Applicant's employment and that the termination was not harsh, unjust or unreasonable. I further find that the Applicant was accorded procedural fairness pursuant to section 170DC. In opening his case counsel for the Applicant referred to some of the grounds under section 170DF as being possible reasons for the termination. These were not seriously pursued by the Applicant but in any event I think the Respondent has disproved that those grounds were included as a reason for the Applicant's termination. Accordingly, I dismiss the Applicant's application and I order simply that the application be dismissed. MINUTES OF ORDERS THE COURT ORDERS: 1. That the Applicant's application be dismissed. 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 nine (9) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl. Associate: Dated: Solicitor for the Applicant: Mr Alan McDonald of McDonald & Charman Solicitors for the Respondent: Freehill Hollingdale & Page Counsel for the Respondent: Dr R Dean Date of hearing: 10, 11 & 24 August & 13 & 14 September 1995 Date of judgment: 14 September 1995 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - SUMMARY DISMISSAL for punching fellow employee - PROCEDURAL FAIRNESS - APPLICATION DISMISSED. CASES: AWU-FIME Amalgamated Union v Queensland Alumina Limited, Moore J, Unreported, 14 July 1995, QI 168 & 169 of 1994. GENCO GUNESER -v- PACIFIC DUNLOP TYRES PTY LTD T/as SOUTH PACIFIC TYRES No. VI 2871 of 1995 Before: Judicial Registrar Staindl Place: Melbourne Date: 14 September 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2871 of 1995 B E T W E E N : GENCO GUNESER Applicant AND GOODYEAR TYRES PTY LTD T/as SOUTH PACIFIC TYRES Respondent MINUTES OF ORDERS Judicial Registrar Staindl 14 September 1995 THE COURT ORDERS: 1. That the Applicant's application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.