Peter James McPhane v Brotherhood of St Laurence [1995] IRCA 676

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3989 of 1995 B E T W E E N: Peter James McPHANE Applicant A N D BROTHERHOOD OF ST LAURENCE Respondent REASONS FOR DECISION 21 December 1995 PARKINSON JR This is an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed by the respondent in its maintenance area as a maintenance painter. In the course of his duties he also performed routine maintenance tasks at the properties of the respondent. The period of employment was between 26 October 1990 and 17 July 1995, when the employment was summarily terminated. The incident which lead to the termination of the employment occurred on 29 June 1995. It was not in issue in these proceedings that the applicant was involved in a physical fight with another employee of the respondent, Mr McGregor, on 29 June 1995 and that as a result Mr McGregor made a written complaint to the respondent who, after an investigation, decided to terminate the employment of the applicant. However, the fact of provocation and the severity of the physical assault were in issue, together with issues in relation to the application of s170DC of the Act. The applicant did not concede that the respondent had valid reason relating to his conduct for terminating the employment. In the circumstances it was submitted that no valid reason existed because the applicant was provoked into the physical assault. In my view, this aspect of the matter would have been more appropriately argued in the context of whether the termination of the employment was harsh, unjust or unreasonable, as opposed to the initial question arising pursuant to s170DE(1) as to whether there was valid reason for the termination. I am satisfied that the respondent had valid reason for the termination of the employment of the applicant as a result of his conduct in engaging in and, as is my finding of fact for the reasons set out below, physically initiating a fight with another employee at the workplace. I turn now to consider the questions arising in relation to s170DE(2) of the Act. For these purposes it is appropriate to set out some detail of the circumstances of the incident and my findings of fact in relation to the provocation alleged and the severity of the fighting. On 29 June 1995 the applicant was in the course of having morning tea in the maintenance workshop together with other maintenance employees, when they were approached by Mr McGregor with a request to borrow a screwdriver for work purposes. The evidence is that the tools on the premises, including the screwdrivers, were generally the personal property of the employees, and that they were therefore sensitive to their use by others. However, after the applicant chastised Mr McGregor for interrupting the morning tea, one of the other employees obtained a screwdriver for him. Shortly thereafter, Mr McGregor returned to inform them that he required a different type of screwdriver to the one borrowed. There was a mutually offensive exchange between the applicant and Mr McGregor in the course of which I am satisfied that the applicant told Mr McGregor in clear terms to leave the premises, and instructed another employee not to assist him. Mr McGregor then appeared to leave the building. However, he reappeared shortly thereafter with a screwdriver in his hand, advising the applicant and others that he did not need their help because he had found what he needed. The applicant thereupon advanced upon Mr McGregor, grabbed him and, I am satisfied, physically assaulted him. The applicant does not deny that he made first physical contact with Mr McGregor, although he alleges that Mr McGregor threw the first punch. The applicant's evidence was that he was going to remove the screwdriver from Mr McGregor's possession and "escort" him from the workshop premises. I take this to be an attempt to physically frogmarch Mr McGregor from the building. Mr McGregor's evidence was that the applicant head-butted him on at least two occasions and punched him during the course of the assault. The applicant denies that he either head-butted or punched Mr McGregor. His evidence was that there was a struggle which was mutual, and that they on a number of occasions crashed into a steel factory door during the scuffle. The applicant relies upon this impact as having caused the injuries which were observed shortly after the incident to have been sustained by Mr McGregor. Three of the employees present at the incident were called on behalf of the applicant. Their evidence was unhelpful to the Court. Their ability to recall the events exactly was limited and, in my view, selective, and the evidence of Mr Patterson was also unhelpful to the Court. Mr Patterson saw nothing and heard nothing, notwithstanding that there was a physical assault occurring. Mrs Daniel, another employee sitting at the same table, was calling upon him and others to intervene to stop the fight. Mr Worthington's evidence was that he did not see the applicant head-butt Mr McGregor, and he was unable to inform the court with any certainty as to who grabbed who first, although he thought that it was the applicant. He gave no evidence, however, as to Mr McGregor threatening the applicant with the screwdriver, nor using it as a weapon. The respondent also called persons who were present at the incident. Mrs Hazel Daniel gave evidence of her observations during the lead up to and in the course of the incident. I found this witness to be credible and frank in her evidence. Of all witnesses, I prefer her version of events. I am satisfied that she gave a full and truthful account of what she observed, both to this Court and initially to management of the respondent, and that this was despite having been in fear of harassment and being shunned by some employees for doing so. Although Mrs Daniel did not see the applicant head-butt because she had turned away, she observed the applicant aggressively physically attack Mr McGregor for what appeared to be little provocation. Mrs Daniel did not hear Mr McGregor use the language that was attributed to him by the applicant and others. Her evidence was that she was told by Mr Paul Lovell at the time of the incident that he had seen the head-butting occur. Mr Lovell gave an account in similar terms to that of Mrs Daniel, including an account of observing the head-butting incident. It was submitted on behalf of the applicant that Mr Lovell's evidence was unreliable because he had earlier refused to openly cooperate with management in its investigation of the incident and had changed his position only as a result of a grievance held towards the applicant and the applicant's wife. I do not accept that his evidence is unreliable. I am satisfied that his initial silence was because of at least an implicit and probably explicit expectation in the maintenance workshop that there would be "no dobbing on your mates". Ms Stretton's evidence as to Mr Lovell informing her very early on in the interview process "that it wouldn't be worth his while" when she attempted to interview him, confirms this explanation. The proposition about "not dobbing on your mates" was put in cross-examination to each of the witnesses from the maintenance area called on behalf of the applicant and each of them, although one with qualification, conceded that this was a view they held. I am satisfied that Mr Lovell was frank in his evidence as to why he had initially refused but ultimately decided to speak on the events, and I accept that this was because of the subsequent conduct of the applicant and others in the workplace in labelling him as having 'lagged'. Further, the version of events given by him is consistent with that of Mrs Daniel, and consistent with the evidence of Mr McGregor as to what occurred. I therefore also find Mr Lovell's evidence as to the incident more reliable than that of the applicant. I am satisfied that even though there is some evidence to suggest that Mr McGregor was, both by demeanour and language, to some degree taunting of the applicant, I am not satisfied that the language used was as the applicant described it. I accept the evidence of Mr McGregor as to the language used and its context. However, I should add that even had the language been as described by the applicant, this would not have assisted him in this case. The evidence reveals that the applicant is not a person who would be predisposed to being offended at the use of what might in some circles be described as offensive language. There is evidence in these proceedings of the applicant's own commentary and comments on a tape recording (Exhibit A3), where he uses language of a type no less colourful than that he alleges Mr McGregor used to upset and provoke him to violence. Finally in relation to provocation, I do not accept the applicant's explanation that he believed Mr McGregor to be raising a screwdriver in a dangerous manner, nor do I accept that Mr McGregor was responsible for throwing the first punch. Not one witness other than the applicant gave any such evidence. The applicant's evidence was that Mr McGregor dropped the screwdriver only as the other employees attempted to break up the fight. Mr McGregor's evidence was that he had dropped the screwdriver almost immediately the applicant grabbed him. I accept this evidence. It is consistent with the evidence of Mr Lovell and Mrs Daniel. Even the applicant's own evidence did not suggest that Mr McGregor was intentionally threatening him with the screwdriver, and indeed it was the applicant's own conduct which brought him into close range with or proximity to the implement in any event. The final aspect of Mr McGregor's conduct relied upon as provocation was his going to the tool box and removing a screwdriver without permission. This is related to the fact that the tools were the personal property of the employees. Whilst I accept that there is a sensitivity about trade tools being borrowed, particularly when they are privately owned, this does not account for, nor excuse, the extremity of the reaction of the applicant. It was a gross overreaction and had about it characteristics of bullying and thuggery which are unacceptable in any workplace. I am not satisfied that the applicant was provoked in a manner which would in any circumstances either justify or mitigate the severity of his reaction to the provocation. I am satisfied that Mr McGregor suffered physical and emotional pain as a result of the attack upon him, the physical pain involving damage to a tooth, cuts, abrasions and bruising. I am satisfied that he was shocked and upset by the incident and continued to be affected for some time after the incident. The assault was a serious assault to occur in the workplace and certainly not an incident which might be described as a minor scuffle, as it was characterised on behalf of the applicant. I am not satisfied that the termination of the employment of the applicant was harsh, unjust or unreasonable. I am not satisfied that there has been a failure to comply with s170DE(2) of the Act. It is my conclusion, in view of the circumstances of the termination, that the respondent was entitled to terminate the employment summarily, and has not therefore contravened s170DB of the Act. I turn now to consider the matters raised in relation to s170DC of the Act. The applicant was interviewed by the respondent shortly after the incident was reported to the respondent. The first interview with the applicant took place on 30 June 1995. The respondent took steps to interview all persons present at the time of the reported incident and to give the applicant an opportunity to inform the respondent of his version of events. Ms Stretton, the personnel officer, and Mr Wise, the executive officer, were both involved in the investigation, with Ms Stretton conducting initial interviews of employees including the applicant and the complainant, Mr McGregor. Mrs Daniel was interviewed and a number of attempts were made to interview Mr Lovell, who on all occasions either declined or indicated he was afraid to make a statement. The applicant was interviewed on three occasions. The first interview was tape recorded. During the course of this interview the applicant was clearly asked for his version of events, and it is clear from the tape and the notes taken that the applicant was well aware of the matter being inquired into by the respondent and the nature of the allegations against him. The applicant was given an opportunity and utilised the opportunity to raise matters in his own defence, including the making of allegations against Mr McGregor. At that stage of the proceedings the applicant was told that the investigations would be continuing. The next interview took place with Mr Wise who informed the applicant that he was to be suspended on full pay until the investigation into the incident could be completed. In the period of the suspension the respondent attempted over two weeks to contact the applicant to arrange a further interview. Ultimately an interview was arranged by letter dated 11 July 1995 (Exhibit A7). The respondent set out in a letter the precise allegations which were made against the applicant and the conclusions that it had drawn as a result of the investigations it had conducted. It was made clear to the applicant in that letter that these conclusions were to be discussed at a meeting scheduled for 17 July 1995. The third and final interview took place on 17 July 1995. This interview was also tape recorded although aspects of the tape are disjointed, and some parts of the conversation were erased by accident by the applicant. At this interview the applicant was provided with a copy of Ms Stretton's report into the investigations, and took an opportunity to read it. He was also provided with a copy of the respondent's Disciplinary Procedures policy. Extensive notes were also taken of the meeting. I am satisfied that in the course of this interview the allegations made were once again put to the applicant and he was once again given an opportunity to respond to the allegations. It is clear from the tape that the elements of the complaint against the applicant had been put to him. I am satisfied that he knew what the allegations were and had every opportunity to raise any matters or respond to the allegations made. At one point in the tape he indicated that he did not wish to say anything beyond the statement he had already made. The respondent terminated the employment and provided the applicant with a letter advising him of this fact and the basis upon which the decision had been made (Exhibit A8). One complaint of the applicant was that the respondent did not identify the name of the persons who had given statements against him. In the circumstances of this case, and having regard to the fact that the fullest of explanations was given to the applicant of what the allegations were, I am not satisfied that the failure to identify the persons concerned was unfair or in any way reduced the opportunity of the applicant to respond to the allegations made against him in contravention of s170DC of the Act. Having regard to the above, I am not satisfied that the termination of the employment of the applicant was unlawful. I am not satisfied that the respondent contravened any part of Division 3 Part VIA of the Industrial Relations Act 1988. The application pursuant to s170EA of the Act is dismissed. I certify that this and the preceding eight (8) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate: Dated: 21 December 1995 APPEARANCES Solicitor appearing for the applicant: Martin Willoughby-Thomas Solicitor appearing for the respondent: Michael P. Rahilly Dates of hearing: 4 & 5 December 1995