Erdogan & AWU v ATCO Controls Pty Ltd [1997] IRCA 106

DECISION NO:106/97 CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - SERIOUS MISCONDUCT - CONDUCT AND PERFORMANCE -VALID REASON - PROCEDURAL FAIRNESS - OPPORTUNITY TO RESPOND

Workplace Relations Act 1996 (Cwth) ss170DC, 170DE, 170EA

ERDOGAN & AWU v ATCO CONTROLS PTY LTD VI96/2443

Before: MURPHY JR Place: MELBOURNE Date: 27 MARCH 1997

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI96/2443

BETWEEN:

NEJAT ERDOGAN Applicant

AUSTRALIAN WORKERS UNION - VICTORIAN BRANCH Applicant

AND ATCO CONTROLS PTY LTD Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 27 MARCH 1997 MINUTES OF ORDERS

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

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI96/2443

BETWEEN:

NEJAT ERDOGAN Applicant

AUSTRALIAN WORKERS UNION - VICTORIAN BRANCH Applicant

AND ATCO CONTROLS PTY LTD Respondent

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 27 MARCH 1997 REASONS FOR DECISION Delivered Ex-Tempore This is an application for a remedy under s170EA of the Workplace Relations Act 1996 ("the Act"). The first applicant ("the applicant") contends that the respondent, on 5 August 1996, terminated his employment as a factory hand contrary to the provisions of ss170DE and 170DC of the Act. The respondent's defence to the claim was that the applicant was terminated for misconduct after he was given an opportunity to respond to the allegations against him. The misconduct on which the respondent relied, and on which it carries the onus of proof, was that at about 12.30 am on night shift on Saturday, 2 August, the applicant had assaulted a fellow employee and machine operator, Ms Nihal Kilinekran, by grabbing her around the neck just under the chin, spitting at her and verbally abusing her. The respondent's contention was that the version of events given by the complainant, Ms Kilinekran, and supported by Mr Razbocan was to be preferred to the applicant's version. It was the applicant's case that the respondent had not made out its onus of proof because it had failed to obtain and consider the evidence of an eye witness, Ms Petrovic, and had failed to properly investigate the whole incident before it rushed to its conclusion that the misconduct had been made out. The evidence. The respondent led evidence from Ms Kilinekran, and from Mr Drago Razbocan, the night shift supervisor, who said he witnessed the incident. It also led evidence from Mr David Zerna, its quality manager and industrial relations coordinator, and Mr Bill Jankulovski, the production manager. These two witnesses conducted an interview with the applicant on 5 August after which he was dismissed. The respondent also led evidence from the day and afternoon shift supervisors, respectively Mr Francis Yamou and Mr Henry Pteshak. The applicant gave evidence. He also called Ms Ruzica Petrovic, a production worker who said she witnessed the incident. Evidence was also led from two machine operators, Mr Nirari Khananishoo and Mr Mehmet Kaya. Relations between the applicant and Ms Kilinekran. The respondent's version of the incident commences at 11 pm just prior to the shift the night before. Ms Kilinekran, who was wearing make-up and had just had her hair blonded, went to the factory. As she did so, the applicant was standing nearby with two or three other workers. He made some abusive comments directed at her, called her a bitch or a slut and spat on the ground. It was the evidence of the complainant that there had been a history of these types of comments about her by the applicant. The history of their relations is as follows. At the 1995 Christmas party an incident had occurred and after it the applicant told Ms Kilinekran that "that sort of behaviour should not be done, it was not good in the Turkish community and a Turkish lady should not behave like that". Ms Kilinekran apologised. When the factory resumed work after the January holiday closedown, the applicant and another employee, Mr Mehmet Kaya, swore at Ms Kilinekran on occasions, threatened her and her family, and spat on the ground. Ms Kilinekran approached the production manager, Mr Jankulovski. He gave evidence that in mid February 1996 he spoke to the applicant and Mr Kaya and told them both: "Leave her alone. You look after your job and leave her to do her job. I don't want any problems here". Mr Jankulovski said he repeated the warning two or three months later, and also in June or July. He said he spoke to the applicant and Mr Kaya, and told them, as friendly advice, to "Leave Ms Kilinekran alone. Look after your job because this can create a problem for you." The night shift supervisor, Mr Razbocan, gave evidence that Ms Kilinekran had, on a number of occasions, raised with him that the applicant and Mr Kaya were abusing her. She asked him not to take the matter any further but in May 1996 she said she could not take it any more. Mr Razbocan called the three in and told the applicant and Mr Kaya to leave Ms Kilinekran alone, not to talk to her or approach her, and: "that this behaviour cannot go on any more in the factory". The three started arguing again in Turkish and the meeting broke up. Mr Razbocan asked Ms Kilinekran to write down what had been happening so that there would be proof. She subsequently wrote a statement in English (Exhibit R17). It was prepared with the help of Mr Razbocan's son who also worked at the factory. In it she said: "I first had a problem with one employee [the applicant]. He had been saying very bad things about me, and they are making me upset and my feeling are hurt. I spoke to [Mr Razbocan] about this problem and he went to speak to [the applicant] about this problem. After [Mr Razbocan] spoke to him, he came over to me and said 'Why did you speak to [Mr Razbocan] when you know you are this type of person?' He said he was embarrassed of me (sic). He said the way I looked was not the way a Turkish woman should look. This made me very upset and uncomfortable and, to make things worse, Mr Mehmet Kaya has started to join in on the harassment. This is making things even harder for me...." The evidence of Mr Jankulovski and Mr Razbocan as to their warnings to the applicant to leave Ms Kilinekran alone was not challenged. Ms Kilinekran said that during and after the meeting with Mr Razbocan she was verbally abused and threatened. She said that the two of them said: "We're ashamed of you. You should not take us to the office and you shouldn't make us feel that way in front of other people. You are a very dirty and down person. We are ashamed of you." After the meeting, the applicant approached her at a machine and again threatened her. Ms Kilinekran gave evidence that the abuse, swearing and spitting on the ground continued over the period from May to August 1996 but she did not complain about it because she did not want things to get out of proportion. The applicant gave evidence that in the meeting of mid May he said: "I just said to her, 'Sister what's up with you? We are not jealous of you. Whatever you like to do, do it, it doesn't matter to us, you know, but to bring us in front of everyone into the office and [be] interrogated by the supervisor, it's a shame to us; it's not nice'." The applicant denied in his evidence that he made the statements that Ms Kilinekran alleged he had made. Mr Kaya confirmed that the applicant made no threats to Ms Kilinekran in the meeting with Mr Razbocan in May. He also confirmed that the applicant told Ms Kilinekran that it was a shame that she brought him to the factory because other employees will see there is trouble. Events of 2 August. I have already indicated what Ms Kilinekran said happened outside the factory as she arrived to commence work at about 11 pm. The applicant denied that anything occurred outside. He said that he did not notice that Ms Kilinekran had had her hair blonded on that night. Ms Petrovic said that she did not see Ms Kilinekran come into work. Ms Kilinekran was very nervous after the incident outside and, soon after she started, complained to Mr Razbocan. He told her that he would take the matter up with the applicant. At about 12.30 am on 2 August, Mr Razbocan approached the applicant in his work area, which is known as the varnish area. He said: "What did you done (sic) again? What is the problem again between you and Nihal?" At this, the applicant said: "What, that bitch complaining again?" He pulled his gloves off, threw them on the floor and at full pace, almost running, went towards the machine that Ms Kilinekran was working on. Mr Razbocan followed him about 10 metres behind; the applicant was yelling. The applicant approached Ms Kilinekran and grabbed her by the neck; he was yelling and he seemed to spit. Mr Razbocan grabbed him by the arm and pulled him away. The applicant pulled out of the grasp and spat again at Ms Kilinekran. Mr Razbocan grabbed him again and told him to go away and leave her alone. Ms Kilinekran's account was that she was sitting at her machine, the applicant just appeared. She heard a voice swearing in Turkish. The applicant came over, held her under the chin and pulled her head around and spat on her face. He called her a slut. She pushed him away and said, "If I am a slut, you're a pimp". The applicant was taken away and later as he passed the glass partition made an angry gesture and abused her. The applicant's version was that when he was approached by Mr Razbocan. He asked why Mr Razbocan accepted the word of Ms Kilinekran. He told Mr Razbocan that he should investigate the matter and take it up with another employee, Angela. He said that he approached Ms Kilinekran. He just said to her: "What do you want from me? Do you want trouble? ......... I just said to her that people probably would have a wrong idea about you when you behave like this or act like that and are you a bad woman? What is this? Or are you a loose woman, words to that effect, and then she just looked at me and she said that, 'Are you my pimp? Get away from here', and she put up her hand." The applicant denied swearing, spitting or touching Ms Kilinekran. He said that he moved close to her and gesticulated with fingers clasped together. He contradicted himself as to whether Mr Razbocan separated them. The applicant called an eyewitness, Ms Petrovic, who said that from her machine she had the opportunity to view the whole incident. She said that she heard raised voices in the varnish area and saw the applicant walk at a normal pace to Ms Kilinekran. She saw them finger pointing and heard Ms Kilinekran yell at the applicant. She saw no contact and did not see Mr Razbocan pull the applicant away. In cross-examination, she had the two players two metres apart. She also said that her vision of Ms Kilinekran remained unobscured even though her vision of the applicant was obscured by Mr Razbocan's back. Ms Petrovic tendered a handwritten statement (Exhibit A3). She said she prepared it at the request of Mr Jankulovski and tendered it to him. He admitted he asked her for a statement but denied that she ever tendered a statement to him. In the statement Ms Petrovic says that the applicant yelled at Ms Kilinekran and she yelled back, and he waved his finger at her and she did likewise. Ms Petrovic's evidence differed significantly even from the applicant's own evidence, particularly on the distance between him and Ms Kilinekran, and the way that the applicant was gesturing with his fingers or finger. Mr Khananishoo, who had signed a statement that was later prepared by Mr Razbocan (Exhibit R21), gave evidence that he saw the applicant and Mr Razbocan "talking hard" in the varnish area. He saw the applicant go to Ms Kilinekran's machine and Mr Razbocan followed. Mr Khananishoo followed but when he got there everything was normal: he saw no incident. Later events. Mr Razbocan told the applicant in pithy language that he had to go home. The applicant protested that he, Mr Razbocan, was drunk. Eventually the applicant, after extracting a promise that he would be paid for four hours, went home. A message was later left with his wife that he was not to attend work on the Sunday night. He did so and was told to go home. He claimed that Mr Razbocan at that time pushed him into a rack causing a scratch on his side. Mr Razbocan denied this. On Monday, 5 August, the respondent obtained from Mr Razbocan a statement (Exhibit R21). It was also signed by Mr Khananishoo. The respondent also had a statement in Turkish from Ms Kilinekran (Exhibit R19). The applicant attended a meeting with Mr Jankulovski and Mr Zerna. He was accompanied by a friend. At that meeting, he had the allegations of Ms Kilinekran put to him. When pressed at the meeting, the applicant denied touching Ms Kilinekran, but he did say that he leaned close and waved his finger. Prior to the meeting, Mr Zerna had telephoned Ms Kilinekran to confirm that what Mr Razbocan had recorded in his statement was her version of events. It was the evidence of the respondent's witnesses that the applicant in the meeting would not directly address the issue of what happened but raised tangential matters. The meeting went for over an hour. Mr Jankulovski said he canvassed the events of 1996, had the applicant's file with him but did not refer to it specifically. He said: "I really came to the conclusion on that day that [the incident] did happen, did occur...., that he was a very aggressive person, I really was scared that if I let go (sic) back again in the place that probably would occur something (sic) worse that again I will be the one to be penalised and blamed, that I didn't took (sic) the proper action at the time." Mr Jankulovski and Mr Zerna adjourned the meeting after about an hour and formed the view that the incident, as alleged, had occurred. The applicant was dismissed for misconduct. What did happen on the night? The respondent's witnesses - Mr Razbocan, Ms Kilinekran and Mr Zerna, had the advantage in giving their evidence that there were contemporaneous documents recording their version of events (Exhibits R21, R19 and R20). The only written version supporting the applicant was the statement of Ms Petrovic (Exhibit A3). Next in assessing the inherent likelihood of the competing versions is the existence of written accounts of previous incidents of verbal abuse by the applicant in May 1995 (Exhibit R15) and November 1995 (Exhibit R16). There is also Ms Kilinekran's note made in May 1996 (Exhibit R17). There was also the unchallenged evidence of Mr Razbocan and Mr Jankulovski that they had raised with the applicant on a number of occasions that he should leave Ms Kilinekran alone. There was also the statement that Mr Khananishoo gave to Mr Jamou (Exhibit R22). That statement corroborates the account of Ms Kilinekran about an incident of an argument between the applicant and Ms Kilinekran after the main incident that occurred on 2 August. With this background, the Court is invited to conclude that the applicant's account of the night is to be preferred. First this requires that Ms Kilinekran has made up the story of an incident outside and then, in effect, made a false report to Mr Razbocan. Given the documented history of the applicant's previous behaviour to her, this is inherently unlikely. Second, the Court is to find that Mr Razbocan has relied totally on a false statement by Ms Kilinekran that the applicant grabbed her by the throat and spat at her. Aside from the general presentation of Mr Razbocan as a witness of truth, this again is inherently unlikely, given the unchallenged evidence of what he had previously raised with the applicant, and his own observations of the applicant's aggressive behaviour, both with Ms Kilinekran and others. Finally, the evidence of Ms Kilinekran and Mr Razbocan was more consistent than that of the applicant and Ms Petrovic. I place little weight on the latter's evidence. It is inherently incredible. It fitted too well with the applicant's version and appeared constructed and partial. Given the evidence of the applicant's past dealings with Ms Kilinekran, I prefer to accept her account of the incident. The applicant had a motive to argue with he because he had a poor opinion of her that he had expressed on previous occasions, and that he admitted on this occasion. He had also reacted adversely when she had previously raised his conduct with Mr Razbocan. He admitted he was ashamed that she had raised him with Mr Razbocan, and that he had a low opinion of her. He would have the Court accept that despite these views, essentially nothing happened that night. I do not accept that. It follows that I accept Ms Kilinekran's account that the applicant lost control and did assault her that night by grabbing at her neck, twisting her head and spitting in her direction, and that he had to be pulled away by Mr Razbocan. Valid reason and procedural fairness. It was argued that the respondent had failed to accord the applicant procedural fairness and that its reasoning process could not sustain the conclusion it reached that the incident, as recounted by Ms Kilinekran, did occur. The basis of this argument was that the respondent should have obtained statements from other potential witnesses, including Ms Petrovic and those outside the canteen. It did not and it was submitted that it could not then form the defensible conclusion that the misconduct had occurred. Further, by failing to interview Mr Khananishoo it was led into the error that he corroborated Mr Razbocan when in fact he did not see anything of the actual incident at Ms Kilinekran's machine. Finally, as a result of the applicant raising the fact that there may have been "something" between Mr Razbocan and Ms Kilinekran that the respondent had not investigated, its reasoning process was impugned and the two may have contrived the events. I am unable to accept that the matters raised by counsel for the applicant impugned the respondent's conclusion that the applicant had committed an act of misconduct. I am unable to accept that the respondent, in a sense, dismissed first and investigated later. Mr Jankulovski said he had spoken to a number of people on the factory floor to see if they could shed light on what happened. They saw nothing. Ms Petrovic said that she did not see the alleged assault. She told Mr Jankulovski, contrary to her own evidence in Court, that she did not see the applicant touch Ms Kilinekran because the applicant had his back towards her. That statement differed from her evidence but was enough for Mr Jankulovski not to question her further. The respondent had adequate material on which to proceed to question the applicant as to his version. It did this and was met with evasive responses. The respondent rejected the applicant's account and reached the conclusion that the report by Ms Kilinekran and Mr Razbocan was the more probable one. The requirements of the Act are that an employer prove it had a valid reason to terminate: s170DE, and that the applicant prove he was denied an opportunity to respond: s170DC. Here the respondent has satisfied me that it had a valid reason to terminate the applicant's employment. It has made out an act of misconduct by the applicant that is serious enough to justify termination. Given my finding as to what in fact occurred, it is not for the Court to substitute its own view of the employer's actions. The employer has given the applicant an opportunity to respond to what was a simple allegation. The respondent had undertaken sufficient investigation into the incident to give the applicant an opportunity to respond, and it did so. The respondent's conclusions were defensible and justified. The applicant just went too far that night. He was not denied a fair go by the respondent. He has not made out breaches of either ss170DE or 170DC of the Act. The application must be dismissed. I certify that the preceding eleven (11) pages are a true copy of the reasons for decision of Murphy JR as recorded on transcript and revised by the Judicial Registrar.