David Frederick Heales v St Bartholomew's House Inc. [1995] IRCA 711

DECISION NO: 711/95 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - Whether termination at the initiative of the employer - Valid reason relating to conduct - misconduct - Assault on fellow employee - Whether termination harsh, unjust or unreasonable - Whether applicant given opportunity to defend himself against allegations. INDUSTRIAL RELATIONS ACT 1988 Ss 170EA, 170EE DAVID FREDERICK HEALES -v- ST BARTHOLOMEW'S HOUSE INC. - WI95/1841 BEFORE: R D FARRELL JR PLACE: PERTH DATE: 21 DECEMBER 1995

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1841 BETWEEN: DAVID FREDERICK HEALES - Applicant AND: ST BARTHOLOMEW'S HOUSE INC. - Respondent MINUTE OF ORDERS BEFORE: R D FARRELL JR PLACE: PERTH DATE: 21 DECEMBER 1995 THE COURT ORDERS THAT: 1. The application be dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS ) COURT OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) No. WI 95/1841 BETWEEN: DAVID FREDERICK HEALES - Applicant AND: ST BARTHOLOMEW'S HOUSE INC. - Respondent BEFORE: R.D. FARRELL JR PLACE: PERTH DATE: 21 DECEMBER 1995 REASONS FOR JUDGMENT This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, David Frederick Heales ("Mr Heales"), by the respondent, St Bartholomew's House Inc. ("St Bartholomew's"). Reinstatement was not sought. St Bartholomew's runs a hostel for homeless men, including a recently opened wing for frail and aged men. The hostel was previously run by the Anglican Church, but St Bartholomew's is now an incorporated body. Mr Heales is a gentleman of 54 years of age, who had been employed as a care attendant at St Bartholomew's for a little less than 6 months, having previously worked for other organisations involved with community care, including the RSL War Veterans Home, other nursing homes and Perth City Mission. Mr Heales employment with St Bartholomew's came to an end on Friday 30 June 1995, following a meeting at which it was put to him that he had assaulted a fellow worker, Mrs Jennifer Hinchley ("Mrs Hinchley"), the previous day. St Bartholomew's have at all times treated Mr Heales as having resigned at the end of that meeting. Mr Heales denies that he resigned, and denies having assaulted Mrs Hinchley. At the conclusion of the hearing, Ms Laferla, who appeared for St Bartholomew's, conceded that there had been a termination at the initiative of the employer. The concession was properly made, as it was clear on the evidence that if Mr Heales resigned then, viewing the circumstances as a whole, his resignation was procured by the employer. Had Mr Heales not resigned, there is no doubt that it was the employer's intention that he would be dismissed. The reason the employment ended was that David Kernohan ("Mr Kernohan"), the manager of St Bartholomew's, had concluded that Mr Heales had in fact assaulted Mrs Hinchley in the manner she alleged. There was evidence of other allegations that Mr Heales had also failed to follow Mrs Hinchley's instructions on a number of occasions prior to the alleged assault. It was confirmed by Mr Kernohan in evidence that Mr Heales' alleged failure to follow instructions was not a reason for the termination. An unprovoked assault by an employee upon another employee is a valid reason for dismissal. There would be few circumstances in which a termination by reason of such an assault would be harsh, unjust or unreasonable. I am satisfied it would not be harsh, unjust or unreasonable in this case. Indeed, Mr Heales accepted in evidence that such a physical assault, if it occurred would warrant dismissal. The issues to be decided in this matter are therefore first, whether Mr Heales did in fact assault Mrs Hinchley as alleged, and secondly, whether Mr Heales was given the opportunity to defend himself against the allegation.