Fensom V Transadelaide [1996] IRCA 214

DECISION NO: 214/96 C A T C H W O R D S

INDUSTRIAL LAW - UNLAWFUL TERMINATION - VALID REASON - whether termination HARSH UNJUST OR UNREASONABLE INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE ROY ERNEST FENSOM -V- TRANSADELAIDE No. SI 95/1471 JUDICIAL REGISTRAR: L FARRELL PLACE: ADELAIDE DATE: 23 MAY 1996

INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) SI 95/1471 B E T W E E N: ROY ERNEST FENSOM Applicant AND TRANSADELAIDE Respondent MINUTES OF ORDER BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 23 MAY 1996 THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SI 95/1471 B E T W E E N: ROY ERNEST FENSOM Applicant AND TRANSADELAIDE Respondent BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 23 MAY 1996 REASONS FOR JUDGMENT This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement. During the course of the hearing the Applicant's representative requested that I disqualify myself from hearing the matter because I expressed the view that assaulting a fellow employee at work was a valid reason for the termination of employment. I also made a remark about the evidence of Mr Sowa which followed on from a remark made by the Applicant's representative to the effect that Mr. Sowa was obviously untruthful. Mr Sowa had an emotional outburst whilst being cross examined by the Applicant's representative. I regarded Mr Sowa's outburst as suggesting his frankness and not untruthfulness as suggested by the applicant's representative. I do not believe that the remarks that I made were biased or represented an incorrect view of the law. My remarks were made with a view to steering the Applicant's representative to what I regarded as the crucial issue of whether in all the circumstances the termination of the Applicant's employment was harsh, unjust or unreasonable and assisting the Applicant's representative towards an awareness of the true impact of the evidence before me. The Applicant was dismissed on 30 August 1995. He had been employed for 16 years as a bus driver by the Respondent. He has a good employment record with the Respondent. On 24 August 1995 the Applicant was chairing a meeting of the Best Practice Consultative Committee when he verbally abused then assaulted another employee, Mr Sowa. Mr Fensom gave evidence that he was under considerable pressure as a result of his duties as chairperson on the committee as well as other work he was undertaking. He was unhappy about the way Mr Sowa behaved at meetings generally. He was upset by the sexual nature of remarks that had earlier been made by others at the meeting, and he felt that a remark made by Mr Sowa a few moments before the assault undermined his authority. Mr Fensom made a remark to Mr Sowa along the following lines "If you've got something to say pus guts, say it" then he struck out at Mr Sowa with his right fist clenched. He believed he had not actually struck Mr Sowa although he conceded in evidence that some physical connection was made between his fist and Mr Sowa's face. A number of witnesses gave evidence before me regarding the incident. Whilst there were some minor discrepancies as to what had occurred, I make no adverse findings as to the credibility of any witness in this matter. Mr Sowa gave clear and honest evidence that the assault had caused him some pain, no significant physical damage, but had made him feel very scared of the Applicant and fearful of some further unprovoked act of violence by the Applicant. Mr Sowa made a complaint to Mr Barry White who was also present at the meeting. Mr White conducted an investigation into the incident and held a disciplinary hearing in accordance with the respondent's discipline policy, then terminated the Applicant's employment. The Applicant exercised his right to Appeal the decision of Mr White, however that decision was confirmed by Mr Larkin, delegate. The Applicant made no apology to Mr Sowa until after the termination of his employment. In my view the Respondent had a valid reason for the termination of the Applicant's employment. Acts of violence against others in the workplace warrant termination of employment. In considering whether the termination of the Applicant's employment was harsh, unjust or unreasonable, I have carefully considered the following factors in favour of the Applicant: · his commendable work record · the pressure he was feeling at the time of the assault · the hardship he has undergone since the termination of his employment · no serious physical injury was suffered by Mr Sowa However, in my view, those factors are insufficient to warrant a finding that termination of his employment was harsh, unjust and unreasonable in the circumstances of this case. In saying so I have regard to the following matters. · the seriousness with which assault is regarded in the community. · the effect of the assault on Mr Sowa. · the relative mildness of the matters which the Applicant says led to the assault. · the lack of an immediate apology by the Applicant. · that the assault occurred during a workplace meeting. Robust discussion is to be expected at such meetings, but no employee should be put in a position of fear of physical retribution. The Applicant also argued that the termination of his employment was unlawful because the manager who conducted the disciplinary hearing was a witness to the assault. It is clear from the disciplinary procedures of the Respondent that facts are not to be taken into account unless proven beyond reasonable doubt. It could not be argued in this matter that the assault did not take place. The disciplinary hearing focused on the reasons for the assault and any mitigating circumstances. I do not think the process itself or the fact that it was conducted by Mr White has the result of rendering the termination of the Applicant's employment unlawful. In any event the applicant exercised his right to appeal the decision. I am satisfied that the termination of the Applicant's employment was lawful. I therefore dismiss the application. I certify that this and the preceding 2 pages are a true copy of the reasons for my judgment. DATE OF HEARING : 5 MARCH, 24 APRIL,10 MAY 1996 FOR THE APPLICANT : MR SIMEONAKIS FOR THE RESPONDENT : MR MOIR