HERDEGEN -v- WOOLWORTHS LTD [1997] IRCA 86

DECISION NO:86/97 CATCHWORDS

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - VALID REASON - Assistant Store Manager (a male) had grabbed a young female employee by her ponytail, threatened to put her head through the wall, and pushed her head into the wall - This was SERIOUS MISCONDUCT which justified the termination of his employment - OPPORTUNITY TO RESPOND TO ALLEGATIONS - If either of sub-section (a) or sub-section (b) of section 170DC of the Workplace Relations Act is satisfied, the section is not breached - The applicant's conduct was so serious that his employer had no reasonable alternative other than to terminate his employment - It followed that, to give the employee the opportunity to argue, not only that some of the allegations were false (which opportunity was given to him) but also to argue that his employment should not be terminated (which opportunity was not given to him) would have been futile, and that, therefore the "employer could not reasonably be expected to give the employee that opportunity" - The operation of section 170 DC(b) of the Act is not limited to cases where it is urgently necessary to terminate an employee's employment - APPLICATION DISMISSED.

Workplace Relations Act, 1996, ss 170DC, 170DE(1) Evidence Act, 1995, ss 60, 108(3)(b)

Briginshaw -v- Briginshaw 1938 60 CLR 336 North -v- Television Corporation Limited (1976) 11 ALR 599 R -v- Skuse, NSW Court of Criminal Appeal, 24 October 1996, unreported Wentworth -v- Rogers (No10) (1987) 8 NSWLR 398

HERDEGEN -v- WOOLWORTHS LTD NI 2108 of 1996

Before: PATCH JR Place: COFFS HARBOUR Date/s of hearing: 21 FEBRUARY 1997 Date of judgment: 21 FEBRUARY 1997

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

NI 2108 of 1996

BETWEEN:

NORMAN ERNEST HERDEGEN Applicant

AND

WOOLWORTHS LTD Respondent