Fernandes v Aristocrat Leisure Industries Pty Ltd [1997] IRCA 120

DECISION NO:120/97 CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - SERIOUS MISCONDUCT

Evidence Act 1995, Section 128 Workplace Relations Act 1996, Section 170DC, 170DE(1),170 DB(1), 170 EE(1), 170EE(2) Parliamentary Debates, 30 August 1995, Hansard Report, page 821 ]

Selvachandran v Peteron Plastics Pty Ltd, 1995-96, 62 IR 371 Nicholson v Heaven & Earth Gallery Pty Ltd (1994) IRCR 199 Byrne and Frew v Australian AirlinesLimited (1994) 52 IR 10 Victoria & Ors v The Commonwealth of Australia (1996) 138 ALR 129

NI 1551 of 1996

Before: MCILWAINE JR Place: SYDNEY Date/s of hearing: 10-11 SEPTEMBER 1996, 20 SEPTEMBER 1996 Date of judgment: 16 APRIL 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY

NI 1551 of 1996

BETWEEN:

Juan FERNANDES Applicant

AND

ARISTOCRAT LEISURE INDUSTRIES PTY LIMITED ACN 001 660 715 Respondent

BEFORE: MCILWAINE JR PLACE: SYDNEY DATE: 16 APRIL 1997 MINUTES OF ORDERS The Court finds that: (1) The Respondent has contravened section 170DC; (2) The Respondent did not have a valid reason for the termination of Mr Fernandes; (3) In the circumstances of the case I do not propose to reinstate him; (4) If I am wrong on that issue there is no reason why there ought not to be a finding that it was not impracticable to reinstate him; (5) In the circumstances of the case, there is no order for compensation. 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 NEW SOUTH WALES DISTRICT REGISTRY

NI 1551 of 1996

BETWEEN:

Juan FERNANDES Applicant

AND

ARISTOCRAT LEISURE INDUSTRIES PTY LIMITED ACN 001 660 715 Respondent

REASONS FOR JUDGMENT

Delivered ex tempore

This is an application for relief in respect of termination of employment under Division 3 Part VIA of the Industrial Relations Act 1988 ("the Act"). The application was received by the Australian Industrial Relations Commission on 4 April 1996 from Juan Fernandes. The respondent to the applicant is the former employer of Mr Fernandes, Aristocrat Leisure Industries Pty Limited, ACN 001 660 715, trading as Aristocrat Leisure Industries. A notice of employer's appearance was filed by the respondent and attached to it an outline of the reasons for the termination as follows: "Mr Juan Fernandes' employment was terminated on 20 March 1996 following an investigation into certain issues which occurred at approximately 3.00 pm on Tuesday, 19 March 1996. 1. Mr Juan Fernandes became involved in an argument with another employee over a car space. Subsequently he reversed his vehicle into the other employee's car. He then produced a knife and threatened the other employee. 2. Mr Juan Fernandes then handed the knife to another employee who brought it on to the premises. 3. The police arrived at approximately 3.25 pm to conduct the investigation and recovered the knife in the locker of the employee that was handed the knife by Mr Juan Fernandes. 4. Taking into account the actions of this employee on 19 March 1996 and the company's responsibility to maintain a safe place of work for its employees the company saw fit to terminate Mr Juan Fernandes' employment." In my view that is a very misleading and inaccurate document in the light of the evidence which was given in this matter: Paragraph 1: above leaves out the very relevant fact that the other employee (Mr Enwia) drove his vehicle into the applicant's car. Paragraph 2: There was no evidence that after the knife was taken by another employee that he then brought it onto the premises. The knife was possibly brought onto the premises of the respondent. It was suggested that the knife is now in the custody of the police but no action has been taken to produce it in court which could easily have been done by subpoena by either party. Paragraph 3: is also misleading as it fails to disclose the fact that the police conducted an investigation, interviewed both employees and did not charge either employee in relation to the incident. The employees were advised to complete a self reporting traffic accident form only. Paragraph 4 is inaccurate and misleading in that the altercation between the employees occurred outside the control of the company in an area which was primarily the responsibility of the police. I want to make it clear to the parties at the outset that had the company provided car-parking space for its employees and this incident occurred on the company premises then the company would be completely entitled to march the two employees from the premises without any hesitation in my mind that it was serious misconduct pursuant to section 170DB and that the circumstances were such as entitled the respondent to take such action immediately. Unfortunately, that is not what happened in this case. Much has been made in the respondent's case of the "production of the fishing knife" by he applicant. However, so that the gravity of the actions of Mr Enwia are understood, I quote the relevant provision in the Crimes Act (1900) NSW: "198 A person who maliciously destroys or damages property intending the destruction or damage to endanger the life of another is liable to penal servitude for 25 years." I will make specific findings about the conduct of Mr Enwia which in the light of the possibility of future proceedings may make life difficult for him. At the same time Mr Fernandes could have been similarly charged with a simple assault under Section 61 Crimes Act (1900) NSW: "61. Whoever assaults any person although not occasioning actual bodily harm shall be liable to imprisonment for 2 years." Mr Fernandes could also face a charge of a more serious nature. That is what the Crimes Act in NSW states about the conduct of these two men in terms of the punishment that may follow a successful prosecution in criminal proceedings. I want the parties to understand I make this decision having regard to the legislative framework which the state has outlined to cover the actions of both of these men. Moreover the primary responsibility for enforcement in this case rested with the New South Wales Police. It is clear to me that the police having attended and investigated the incident had an unfettered discretion to take any or all of the above courses of action. They chose not to do so. The respondent suggests that it is entitled to separate the incidents and concentrate on the actions of Mr Fernandes only. I very much doubt that in the time frame that all the independent witnesses have given me that it is possible or even desirable. The background to this matter is that the company may or may not have parking facilities for its employees on its premises. If they do have such parking there is no evidence given to the Court and I have no criticism to offer about this situation. If they do have such parking facilities then neither of the three employees who were referred to in the evidence chose to use that entitlement. The respondent employs up to 1600 employees and no doubt that many car spaces in that location would impose an extraordinary economic difficulty for the company. Nevertheless whatever the reasons its employees are virtually, and in this case, did fight for car spaces in the most convenient location adjacent to the gate of the premises. I think this is an extraordinary situation. Apparently, the employees have their informal street parking arrangements between themselves. I am reminded of the scenes often seen outside schools where, even on wet days, mothers or fathers will call their children across the road in front of cars either parked at the kerb or double parked risking the lives of the children in order for the convenience of not having to walk for an extra few minutes. A similar type of attitude is what caused this case to arise. I do not see how the company, whilst it might have some moral or other responsibility in that regard, can have any legal responsibility for the actions of two employees outside the premises before working hours. If the respondent were to take on that role in life then it will have to deal with many similar issues, for example, if the same two employees became involved five minutes after work or half an hour before work outside a licensed premises or at a hotel or somewhere else where there is limited parking space; it is surely not the responsibility of the employer. In my view the company could not have been held responsible for the actions of either of these two people outside the premises and before their working hours commenced. As I indicated earlier, had it happened on the premises of the respondent in some parking area provided or on some specially leased area or as Miss Inglis suggested, in relation to employees who were working on the job in a club fixing poker machines then it would have been an entirely different situation. I should now give some background to the incident before I turn to the individual evidence of the various parties. The respondent is a poker machine manufacturing company. It is, as I understand, a very successful company in this area. Mr Fernandes had been employed by the respondent from 15 November 1993. His date of birth is 14 February 1951 which makes him 45 years of age this year and indeed he would have turned 45 years of age on 14 February 1996, approximately 34 days, before the termination which occurred in this matter. He worked as a press operator on the poker machines in a bending and press operation. His personal file was tendered. He appears to have had an unblemished record with the company, indeed as does Mr Enwia. The evidence of Miss Inglis was to the effect that Mr Fernandes was only an average employee, however, I have not had the benefit of a view of the objective evidence which may be contained in the file of Mr Enwia to provide a proper comparison between the employees. Mr Fernandes had either of his own volition or it may be that it has been paid by the company, undertaken a computer drafting course. Exhibits 1 and 2 are diagrams drawn by him on his computer, although I do not necessarily accept the position of the vehicles that he shows on the sketches is totally accurate. The diagrams are very clear and impressed me with his ability in that regard. I would have thought that his skill would have been an asset, which could have been utilised by the respondent. Miss Inglis was, in my view, overly supportive of Mr Enwia as an employee. It may be that her opinion arose out of her selecting him for the position. For this reason, among others, I am inclined to discount her evidence. I find that both Mr Enwia and Mr Fernandes ought to have been treated as having unblemished records and a history of good conduct in their employment. This entitled both of them to equal treatment. There is no doubt there was great competition for the acquisition of car spaces at the premises as close as possible to the factory entrance. A number of employees arrive very early, some at 2.30 pm for a 3.30 pm start of their shift. In the case of the independent witness, Mr Phillips, it was about 2.30 pm whilst for Mr Fernandes, I specifically find that he arrived at 2.40 pm in the street outside the factory premises for his 3.30 pm commencement. On arrival, Mr Fernandes double parked while his passenger, a fellow employee, Mr Oca, who subsequently gave evidence, alighted from the vehicle and went into the factory to find out who was finishing on time on the day shift. I am satisfied that Mr Oca did that and established with Mr Data an understanding between the two of them about the car space. The arrangement was that Mr Data would come out to his car on time so that Mr Fernandes could take his spot. Mr Data was not called to give evidence by either side. That was a possibility open to each party. I do not think it was necessary in the circumstances but if there is any question in relation to my finding, it would be necessary, in my view, to have Mr Data give evidence to change that finding. Another issue which I have taken into account is the description given by Ms Inglis of the car being yellow. Ms Inglis is the only witness who has described the colour of the car that way. The objective evidence would be in the hands of Mr Data, either by an oral description, production of a motor vehicle registration certificate or colour photograph of his car. I am satisfied there was an arrangement on behalf of Mr. Fernandes for Mr Data to leave and for Mr Fernandes to take his spot. Mr Fernandes then parked on the footpath. This was in my view probably in breach of the Motor Traffic regulations and as a consequence he had commenced to act inadvisably. If it is common for the employees to park on footpaths near driveways, no doubt, the company would have previously received complaints from the local community who were affected by the practice. I observe that it can be dangerous in certain circumstances to park in that way. If it was a common occurrence the company should have taken some action rectify the situation, however, there is no evidence before me. I can make no specific finding on the issue. Ms Inglis gave an extraordinary account of the event in that it did not accord with the recollection of any of the independent witnesses of the incident and was totally supportive of Mr Enwia. Even on her account it is quite clear that Mr Enwia arrived some time after Mr Fernandes. He then double parked outside the premises and this is confirmed both by his own admission and by the eye witness, Mr Phillips, who I was very impressed with and I said so in his presence. It was quite obvious to Mr Phillips that he knew something was about to happen when Mr Enwia stopped. Based on his evidence, I am able to make a specific finding that Mr Enwia, in parking the way in which he did, which was illegal, and the more dangerous practice was in a premeditated and deliberate way seeking to snatch the car space, which under the already concluded informal arrangement had been allocated to the applicant. His excuse that the applicant was not in the car, in my view is totally insufficient to provide any justification for his actions. This incident need not have happened if once Mr Enwia had seen the car parked there, he had accepted that the space was gone. It is just unbelievable to think that any person in the circumstances could believe that where a car was parked up on the footpath immediately near the gate of the premises the employee was going to leave it there for the whole of the shift. It is just an incredible invention. Mr Enwia attempted improperly to claim a car space. Mr Enwia is a big man by any standards and there was no suggestion that he had any disability which required him to park close to the entrance to the factory. He had ample time to cease parking illegally and go and find another location, indeed the space that Mr Fernandes says that he went to later after the incident. He is of a much larger build and taller that Mr Fernandes. Mr Enwia and Mr Fernandes gave conflicting accounts of the incident. The only real support for the evidence given by Mr Enwia is from Ms Inglis. There is greater support for Mr Fernandes' account in the evidence of Mr Friells and Mr Phillips. This is so even discounting Mr Friells' evidence for reasons which I will mention later on. I can summarise the background this way: Mr Fernandes spoke to Mr Data and then returned to his car. Again Mr Data was available to either side to call to prove or disprove this aspect of the evidence. I am inclined to believe that there was such a conversation. During the conversation, Mr Data could have been in his car or entered it after speaking to Mr Fernandes. In the light of the knowledge which Mr Enwia had it does not really matter a great deal. On these issues I do not propose to accept completely the testimony Mr Enwia or the applicant. Both of them at that stage were prepared to act illegally, and subsequently demonstrated that they were capable of not telling the truth. Any findings I make in this regard are made in reliance on other witnesses. Mr Fernandes then got in his car and drove it down in front of Mr Data's car so that he could reverse into the space. Mr Data then left the scene and Mr Fernandes started to reverse into the position. At this stage Mr Enwia commenced to execute the plan that he had to claim or grab the same car parking space before Mr Fernandes by using the threat of force. The cars at that stage did not come into contact but they came back close to one another. The evidence varies between very close to a few metres. There was then an argument or a discussion which took place between them. The details of that really are not a matter for this Court, they are a matter for another Court if there were, and it is possible that there could still be criminal proceedings laid against either gentleman. It is really not necessary for me to make a finding about that conversation. Mr Fernandes returned to his car which reversed into the car driven by Mr Enwia who then in a very deliberate and malicious way rammed his car into the vehicle operated by Mr Fernandes. See the definition of "Maliciously" in Section 5 of Crimes Act 1900 (NSW): Maliciously: 5. "Every act done of malice, whether against any individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime." I find in these civil proceedings and based on the lesser standard of the balance of probabilities that the action of Mr Enwia fell within the definition of "maliciously". I make that finding because Mr Fernandes was in his car at the time and testified that he was pushed forward sharply. There is also the account of Mr Enwia in which he admits that there was some force in the way in which his vehicle hit the parked vehicle. This of course, is offset by the testimony of Mr Griff where he says that it was lighter than the first contact made by Mr Fernandes. I have to balance his evidence against the evidence from Mr Fernandes that he was propelled forward in the car together with the testimony of Mr Phillips and Mr Oca, who both confirm that the larger impact occurred through the actions of Mr Enwia. Thus the more damaging collision was initiated in a premeditated fashion by Mr Enwia. At that stage, and there is some dispute about this, both men jumped out of the car and advanced towards one another. Both admitted to me that they were angry and upset and therefore not in control of their emotions. Mr Fernandes then withdrew and had he retreated and taken refuge in the security office or called the police, then that would have been the end of the matter. The company could then have taken the matter further on the basis that Mr Enwia was the instigator of this incident. That is if the company wished to take any action at all in relation to something that occurred outside its premises. But Mr Fernandes did not do that. Mr Fernandes returned to his car and produced a fishing knife from inside the car. I am satisfied that it was a fishing knife although it was not produced in evidence. When I expressed concern about the claims that many other knives were subsequently found on its premises that day in the lockers of other employees, the representative of the respondent suggested that they were basically paring knives used for peeling fruit. Mr Fernandes told the court that he had been fishing recently at Balmain. He was not challenged in cross-examination about this statement. There is also support for the innocent explanation given by him when it is noted that he included "fishing" as a hobby in his original application for employment. There are other questions which in the light of the traffic licence that was produced by Mr Fernandes, the answers may not have been completely accurate but that need not trouble me any more as the parties did not see fit to explore those matters in cross examination. I did not have the benefit of seeing the licence of Mr Enwia so I cannot make any comparison. When the "fishing knife" was produced Mr Enwia realised that he was in some danger. I do not accept that it was only a few inches or very close to his body. I suspect there was some distance still between them. He realised that it was quite an unsafe situation and he backed off and ran into the security area and asked for the police to be called. At the same time Mr Fernandes realised his position and he also retreated. I mention that I accept that Mr Fernandes originally brought the fishing knife out in its case and then withdrew it from the case. It was at this stage he realised that he was in far deeper than he could handle and he similarly withdrew. Mr Fernandes then went and parked the car elsewhere because at that stage it was parked across the gateway to the factory. The police, having been called, arrived and conducted an investigation. They interviewed Mr Fernandes and he told them a lie about the knife. In his favour is his confession when he was asked about the knife by his employer. At that stage, he told the truth and he showed immediate contrition for his actions. The same thing cannot be said for Mr Enwia who lied to his employer about the circumstances. In my view, he quite deliberately and falsely represented the extent of his responsibility and involvement. He expressed no contrition about his role in the incident. It is a matter of concern to the court and no doubt to the company that Ms Inglis who interviewed him did not have the necessary skills to determine that this was the case. There are ample signs that Ms Inglis should have been aware of the true situation. On her own admission to the court, Ms Inglis knew that Mr Enwia had arrived at the location after Mr Fernandes. For some unexplained reason, Ms Inglis was prepared to accept the suggestion made to her by Mr Enwia that because Mr Fernandes was not in the car but was sitting across the road where a number of employees usually waited, this justified the actions of Mr Enwia. That is just an extraordinary admission on her behalf as it accepts the concept that employees can compete for the few spaces using physical or violent means. It was patently obvious to Mr Phillips at 3.00 pm that there was going to be a dispute and he was watching very carefully. Had there been a proper investigation to ascertain if there were any independent witnesses it would have disclosed the evidence which Mr Phillips could give. I am not convinced that there was any proper investigation of this matter until well after the incident and perhaps even after the application was filed. The police came and during the conduct of their investigation an extraordinary situation is said to have occurred during the course of the search for the knife. There is a report that an employee held up some instrument that apparently to the police officers gave the appearance of being a rifle and that one officer then attempted to draw his pistol. There is also the extraordinary situation of the company security officers finding 11 knives that day and 6 knives on the next day. This contradicts the suggestion of Mr Cullen that it was all a big mystery to him. It seems to me that the company is in dire need of some positive action by developing policies through its Workplace Health and Safety committee, to deal with violence in the workplace including assaults, fighting and the bringing of knives or other weapons onto the premises. In the light of the fact that there are some 1600 employees and the instances that have been reported to me about the number of knives found, it will have to be specific action. My impression of Ms Inglis and Mr Cullen is that, at present, they do not have the necessary skills to manage such a volatile workforce. Moreover it is simply not good enough to pin a policy document on a notice board more positive action is required. The police spent some time at the factory, at least 20 minutes. They spoke to Mr Fernandes and Mr Enwia. The police had the primary duty of investigating the incident which occurred in the street. I was not informed as to what was said between the police and Ms Inglis and Mr Enwia. It may be that Mr Enwia did not disclose his role in the incident. In my view the police would have had ample evidence to proceed with a prosecution against Mr Enwia for the malicious damage to property against Mr Enwia. The maximum penalty for such an offence upon indictment being up to a twenty five year prison sentence. No doubt any prosecution action would be of summary kind before a magistrate. The significance of the incident would be taken into account as well as any previous good conduct of Mr Enwia. There is no need for me to speculate on the result. Mr Enwia gave as an excuse for telling the police that he did not want further action because he wished to avoid any trouble or problems with his employer. His reason may have been that he was aware of the situation that prevails in other companies such that if there is any fighting on the premises both employees are dismissed. They may, after a period of suspension, be allowed to re-apply for their job on certain conditions. This may be the informal practice in industry but that is purely within the gift of the company concerned and would have regard to all the circumstances. There is no evidence from the police. Police statements which were taken were never tendered, therefore I have no idea why the police took the extraordinary step of not pressing any criminal charges. The only action taken was to tell both employees that they had to comply with the traffic law of this state, in that they had to attend the police station and file a report of the motor vehicle accident being the collision between the vehicles. I am conscious of the fact that the findings I have made about the responsibility for the damage to Mr Enwia may affect any claim he makes through his insurance company for the damage which was done to his vehicle. It is quite clear in my view that Mr Fernandes' vehicle was damaged in a substantial way before the accident. In giving evidence I gained the impression at one stage that he was about to tell the court an untruth, however he owned up to the fact that he had already made a claim and the damage done to the car by Mr Enwia's vehicle or by his own action in reversing into the car had been fixed up as a result of the earlier claim. So that both parties are treated equally by me in this regard, I consider that if I were to assess the liability between the parties in relation to the total damage to the two vehicles in the collision on that afternoon, I would assess the contribution of Mr Fernandes as being twenty per cent (20 %) and Mr Enwia eighty per cent (80%) responsible. Mr Fernandes gave a very deliberate account of what happened, he testified that Mr Oca and he had arrived at about 2.40 pm, well before in my view, Mr Enwia. Mr Oca went inside the premises and he came out and signalled that Mr Data's car was leaving. I have already mentioned that Mr Data could have confirmed this one way or the other so that on that view I am prepared to accept Mr Fernandes and Mr Oca's account. The car was described as a Toyota Corolla and again, there was no mention of any yellow colour as Ms Inglis had suggested. There was similar evidence from Mr Oca, who gave evidence that it was a blue Corolla, and Mr Phillips, who also gave a similar version. I accept as I have indicated earlier Mr Fernandes' description of what happened up to the time when the collision occurred between the vehicles, there is no doubt that he was sitting on the fence over the road talking. It may be that Ms Inglis was mistaken in her impression about the circumstances, as she was out there to have a cigarette outside the premises and probably was not concentrating on the issue. I accept his version that he drove down and that he was in front of Mr Data before the car left and that he then saw Mr Enwia going to, in his words: "block my way". He suggested that there was about two feet between the vehicles. He says that he went out and spoke to Mr Enwia, "I'm going to park my car, please move your car". And that he says Mr Enwia said, "No, I want this spot". Mr Enwia gave a different account of course, he suggested he used certain swear words, he was unable despite being asked by me on a couple of occasions what were the words, except to give some vague and misleading answer in the sense that he referred to "stupid" or something of that nature. On the other hand Mr Friell in his evidence had suggested that there had been some discussion between them in their own language. That seems highly unlikely given that they were from different national backgrounds and there is no evidence that they shared a common language other than English. In any event if there was any dispute between them about the evidence, I would prefer the account given by Mr Fernandes to that of Mr Enwia. I know that it is difficult to distinguish between them given the fact that I find that Mr Fernandes lied to the police whilst Mr Enwia lied at least twice. Moreover, Mr Enwia then lied again in written statements, although I must acknowledge that those written statements were not put in evidence, although he admitted under cross-examination by Ms Howell, counsel for the applicant, to that effect. He confirmed he had left out the part that he drove into the car of the applicant in a deliberate way. I find this to have been done in a malicious way which damaged property and possibly Mr Fernandes was placed at risk of serious injury. I accept the evidence of Mr Fernandes in the sense that he says that they moved towards each other, that he then moved back to the car and picked up the knife in the case. I accept his evidence on the basis that it is supported by Mr Friell in his evidence to the effect that he saw him go back to the car to pick something up. Also Mr Oca gave a similar version. Although in some respects I think that Mr Friell and Mr Oca both would have had difficulties seeing exactly what happened given their location there may be an element of reconstruction in both of their versions. I have made that finding even allowing that I am discounting their evidence because Mr Friells gave his evidence in a very defensive way, unlike Mr Phillips who tried to be impartial and give considered answers when asked about the incident. Mr Friell, of course, had been a supervisor of Mr Enwia and he exhibited the same sort of lack of objectiveness as was shown by Ms Inglis. Mr Oca was a friend of Mr Fernandes and I have discounted his evidence because of this factor. In the circumstances there is no doubt in my mind that Mr Fernandes withdrew the knife out of the case, and that Mr Enwia saw it. All the eyewitnesses differ as to just exactly what happened - I am able to make a finding that Mr Enwia was not as close as he suggests he was at the time the knife was drawn and taken out of its case. I do not accept that there was a deliberate lunge forward, although there was certainly some movement of the arm, this is testified to by all the witnesses including Mr Oca. Although Mr Oca says that he could not see the knife. His explanation is plausible because he was sitting on the opposite side of the road and Mr Fernandes was between him and his view of him. There was some movement made by Mr Fernandes towards Mr Enwia. I am satisfied such an action occurred whether it went past his body or back it is really not necessary for me to find. That is a matter for another court. But I am satisfied that it was a sufficient movement to put Mr Enwia in fear of injury. His fear would have been similar to that felt by Mr Fernandes when he drove his vehicle with such force that when it impacted Mr Fernandes was pushed forward in the car, as normally occurs in a rear end shunt. That conclusion is supported by Mr Oca and by Mr Phillips in their versions of the incident. I accept the version of Mr Phillips that the severity of the crash was much more severe than had been the case in the account of Mr Enwia or Mr Friell. So I find them equally responsible in that they put each other in fear of injury. In any criminal proceedings it may have been possible for Mr Fernandes to argue that he was simply defending himself or his property. This concept does not concern me. It is not a matter for me to speculate about, except to say that I am satisfied that the action which Mr Fernandes took created a fear in the mind of Mr Enwia. In my view that fear was sufficient to qualify as an assault. I do not accept the proposition of the company that this was a separate action, it was all part of the one incident, which happened in a very short period of time. I conclude this being why the witnesses, such as Mr Phillips, Mr Friells and Mr Oca could give such reasonably consistent accounts of the incident. The drawing of the knife by Mr Fernandes could not be justified under the circumstances. Consequently, I find that the actions of Mr Fernandes in producing a knife raised a serious personal threat to Mr Enwia. Mr Enwia at that stage I think realised that retreat was the better course to take. I make that finding conscious of having seen both of them in the witness box as well as in the court. I also gave Mr Enwia the opportunity of telling me his height which he said he did not know. I find that answer cannot be believed. He did admit that he was tall and there is no doubt he looks bigger than Mr Fernandes. He is a bigger build and would in my view have a substantial advantage if there had been no knife produced but they had fought. I make a specific finding that their conduct in this matter was reprehensible and indeed possibly criminal. I accept Mr Fernandes' explanation that his collision was an accident. When he reversed, he had no intention of damaging the property of Mr Enwia contrary to the view which I have taken of Mr Enwia's action; it was an accident. I do not accept his explanation that when he started the car: "I didn't realise it was in reverse". My knowledge of automatic vehicles is that they will not start if they are in any gear. There has been no photograph or other evidence suggesting the way in which the automatic gear operates on the vehicle. Had that been available or had there been some questioning about that, then I would perhaps have been able to make a more specific finding in that regard. However, if one looks at the normal configuration, there is "park" at the top, followed by "reverse", "neutral" and "drive" in the normal vehicle. That may not be the case, I cannot make any finding because there is no primary evidence. However, if it were to be in that configuration then it provides support for the explanation that it was accidental on the part of Mr Fernandes. In any event, on the evidence of everybody except Mr Friells, the damage caused by his vehicle in Mr Phillips' words: "was a mark on the bonnet of the car". In the incident neither person was in any way interested in what damage was done to their vehicle. They did not stop or look to make any assessment of the damage; they were both more interested in confronting one another. Mr Enwia is to be held primarily responsible for that action. They both left the cars together. It is undisputed that they had not met previously. The evidence is unclear to me whether Mr Enwia went backwards. Certainly there is no testimony by either of them that there was any physical contact. I am not satisfied that they got as close at any stage as Mr Enwia suggests. I determine that it is more likely than not that the gesture with the knife was made in a fashion that if someone had been able to sit down calmly and think about it that the difference between their physical location and the length of the arm of Mr Fernandes would have made it unlikely that the knife would make contact. Nevertheless it was a serious threat as was the actions of Mr Enwia. Some positive features for Mr Fernandes emerged in his evidence by him admitting to me that he lied to the police. I gave both parties a warning about giving evidence and their right to make a claim under Section 128 of the Evidence Act 1995 to avoid self-incrimination. Either side did not pursue the suggestion as to who had taken the knife or who had hidden it as that sort of evidence could lead to another charge of aiding and abetting or some other criminal charge for another employee. That issue should have been dealt with by the police. In relation to the police, I accept Mr Fernandes' evidence that he was told by the police office words to this effect, and I quote him: "You are lucky, Mr Fernandes, they will not file any charges against you." "They", in my view, is a strange use of words by the police officer to this man. I can only speculate as to the assurances given to the police by "they" who I take to be representatives of the management of the respondent. I find that it is more likely than not that the reason that charges were not laid is that Mr Enwia maintained he did not want court action. In my view he did not want charges pressed because he knew that would subject himself to some critical examination by the police and by the company. This leaves aside the possibility of Mr Fernandes being advised about his rights against Mr Enwia in relation to the collision that occurred outside the company premises. Mr Fernandes should receive credit because he admitted immediately to the company that he had a knife and expressed contrition. I also accept that it was not normal for Mr Fernandes to carry the knife. There has been no contrition shown in these proceedings by Mr Enwia. He has maintained the lies that he originally told in protecting his own interests. His explanation for not including the collision in his account was, "I forgot". I find that claim outrageous and that Miss Inglis would accept it, is equally extraordinary. Moreover he was not concerned about inspecting the damage that had been done to his vehicle. He was more concerned about retaliating. I asked him a couple of times what was said to him by Mr Fernandes, his response was: "He kept swearing" and was otherwise unable to answer. I found his evidence totally unsatisfactory. Mr Phillips, a welder at the premises, gave evidence. He was a most impressive witness. He is, no doubt, loyal to the company and had the representatives of the company spoken to him he would have given an independent version before the termination occurred. This action may have enabled this application to have been avoided. The company, through his representatives, - Mr Cullen, Miss Inglis, for whatever reason did not seek to interview any other witness. Mr Phillips had made a statement to the police which had been recorded in the police notebook. He had not signed that note and accordingly it may not have a lot of weight, but nevertheless Ms Inglis or Mr Cullen did not take the precaution of either asking Mr Phillips or Mr Friell or anybody else about the incident. It is clear that at least one other employee gave information to the police. It would have been an easy matter to ask those employees for permission to approach the police on their behalf with their written consent to obtain copies of their statements. A very simple action that could have been done in a matter of hours was not done or even thought about. It is for that and other reasons that I find the investigation of this incident to be totally inept by the company. When I say the company, the primary responsibility for that is Mr Cullen. I have already mentioned, the volatility in this work place. Whether Mr Cullen is capable of having that responsibility in the future is a matter for the company to determine. It may be addressed by appropriate counselling and advise on the role that he should take in these matters. I do not want it to be thought by the respondent that I expect him to have skills equivalent to a trained police officer. Mr Cullen knew before he embarked on the course of terminating Mr Fernandes that the police, who had the prime responsibility for this matter, were not taking any action. I find it extraordinary the police would not press any charges in a serious incident such as this and it may be that they did not press charges because of Mr Enwia's view. That would be a simple explanation. In my view it is not beyond the realm of possibility that there could have been some indication given by the company that it would terminate one or other of the employees which could give a sufficient reason why the police decided not to take any further action. That is a matter wholly within the discretion of the police. There is no direct evidence of it and Mr Cullen was not cross-examined about it. I am unable to make any specific finding but it seems extraordinary to me that the police did not take any action to press any charges either under the Traffic Act or the Crimes Act. I think there is not much dispute about what happened after the incident. I can rely on the testimony of Mr Phillips with one minor reservation. That is where his evidence contrasts with Mr Friell. Mr Friell has made a suggestion which Mr Phillips denies that there was any going back to pick up the knife by Mr Fernandes. Mr Friell says there was. In the light of the explanation given by Mr Fernandes that seems to have some merit in it. I also specifically find that I accept Mr Phillips' evidence as to the result of the incident. His words were "mark on the bonnet" and that he knew from the time that Mr Enwia parked in the position that he did that there was going to be an incident. Both Mr Friell and Mr Phillips drew sketches in the witness box as did Mr Oca. The sketches, although as one would expect, differ in the location of the vehicles. They all support Mr Fernandes view of what happened. They do not support the attempted explanation of Mr Enwia for his actions and nor do they accord with the report given by Miss Inglis. In fact, her evidence was so out of step with the other witnesses that I gave her the opportunity to look at or comment on the other sketches. Both of those sketches, in my view, by a substantial margin support the version of the location of the vehicles given by Mr Fernandes. Even allowing for the fact that I have discounted Mr Friell's evidence for the reasons that I have touched upon earlier and Mr Oca whose evidence also ought to be discounted, but not totally so that I do not believe the way in which they have located the vehicles. The account given by Ms Inglis is just unbelievable. In saying that I do not suggest, for one moment, that it was her intention to deceive the court or to give false evidence or anything of that nature. The reason why it has occurred could arise from any number of factors including a simple mistaken eye witness account. There is a large amount of case law which discusses the reasons for differences in eye witness accounts of incidents. Alternatively it may be, as suggested by counsel for the applicant, Ms Howell, that her evidence was coloured by her support of Mr Enwia's case. Alternatively her view of who was more responsible in the incident may have arisen from her acceptance of the report given to her by Mr Enwia. Mr Enwia gave a false account of what happened. I have explained my view that the evidence of Mr Phillips is to be preferred to most of the other witnesses. As I indicated early in the proceedings when I was urging the parties to consider a settlement in this matter, that it would be unlikely that I would believe completely either of the two persons who were involved in the incident. Mr Friell was the supervisor of Mr Enwia. No doubt he felt the need to support Mr Enwia's version. He gave evidence with his arms folded at all times, giving a body language of being on the defensive during his questioning. I would rely on other witnesses, if at all possible. Mr Friell had no reason to adopt that stance and for that reason I discount his evidence. Also he made a comment in relation to the use of the knife as being "Not the Australian way". I share his concern that a knife was produced and it is reprehensible, but equally the contribution made to that situation by Mr Enwia cannot be set aside. Also in his evidence he conceded that everybody had been talking about the incident. Mr Cullen's evidence was that there were rumours rife throughout the factory and there were difficulties in getting the plant back on an even keel. I accept that claim. I do not need to go into any more detail about the evidence of Miss Inglis. I think the less I say about her evidence, the better, in the circumstances. The objective evidence, that is the sketches and oral testimony prove her wrong. Even if I overlooked the colour of the car as being an insignificant issue, I am forced to conclude that no reliance can be placed on her version of events. As Mr Cullen relied on her without making his own independent inquiry the investigation was tainted from the start. I think it is doing a grave disservice to the word "investigation" to suggest on the basis of the way Mr Cullen gave evidence that there was anything like any proper investigation. It does not have to be an investigation that has to be conducted with the skill of a trained police officer. It is at a level that could be expected of a company having 1600 employees and requiring people with some degree of skill in dealing with the different frailties of human beings in the work place. In my view Mr Cullen and Miss Inglis sadly let the company down in that regard. The company had the advantage of a police investigation and the officers decided not to take any action. In my view the company therefore has to show justification for intervening in a matter that occurred out of office hours and before the employees had got to work. It occurred in an area which was not under their control although being so very close to the main gate. There cannot be in my view any direct connection between the activities that were entered into outside the premises of the company, out of work hours and the direct responsibility of the company. I have indicated earlier, had it been in the carpark, had it been at a club premises or anywhere where those persons were employed, then in my view they could have both been given their marching orders. Mr Cullen's evidence was that he made these investigations from about 3.45 on one day until about 3.30 the next day. That does not allow a proper opportunity for Mr Fernandes to reply to the allegations being made against him, in fact Mr Cullen did not have all the allegations and did not get them until later on. No doubt the statement which has been prepared and that I have referred to earlier, as misrepresenting the position is not signed by anyone but the document appears to have been signed by the Senior Human Resources Officer on 12 April 1996. The person who compiled that statement of the facts has wrongly recorded it in a substantial way and therefore in my view the company is in serious breach of section 170DC of the legislation in that it did not give Mr Fernandes the opportunity to defend himself against the allegations which were made. There have been no proper enquiries made and any investigation was totally inept. Mr Fernandes in accepting that he had drawn a knife immediately expressed contrition which was a factor that ought to have been taken into account. He also said that the other man had rammed him, that came from the evidence of Mr Cullen. Mr Cullen took no action at that stage to investigate it or question Ms Inglis about the matter and in all the circumstances the company did not conduct any independent investigation and it did not give Mr Fernandes the opportunity to defend himself. Can the company rely on Section 170DC(b) in that the employer could not be reasonably expected to give the employee the opportunity of remaining in Employment during the period of Notice, the answer is no, the respondent cannot rely on that section for a number of reasons. Mr Cullen gave evidence that both of them were sitting in the same reception area without any adverse consequences. There is the evidence that after the incident Mr Fernandes had withdrawn and there was no physical contact. There is no suggestion that there were any words passed, or any threats or anything of that nature between the two of them subsequent to the incident. The evidence of Ms Inglis differs from that of Mr Cullen when she says Mr Enwia was taken to her office for his safety. Mr Cullen says that they were both sitting in the reception area, I do not think it is necessary for me to determine who is right and who is wrong in that circumstance except to say that it suggests another inadequacy on their part. Mr Fernandes as distinct from Mr Enwia had expressed contrition for his role, thus in my view there was no reason why the company could not reasonably be expected to give him opportunity of serving out his notice. The employer could have suspended him on pay for a week while they made the necessary inquiries. Then someone more senior at the local police station could have been consulted about the decision not to charge anyone. It may have been that the police had more important things to do on that day. If that were the case Mr Fernandes was entitled to have that information and the opportunity of making representations based on it. Particularly, as he could have been made aware, there were witnesses who had given written statements to the police. Those statements recorded in the Police notebooks were first hand accounts contemporaneous with the incident and may have been the best evidence as to what happened. Much was made by Counsel for the Applicant about the way in which the hearing was conducted. Concern was expressed that some statements were not tendered. I believe there would be a fair amount of self serving contained in such statements in the light of the evidence given by the two main proponents. In fact I might say in Mr Cullen's favour, I was impressed with the frankness with which he admitted his failure to properly investigate the incident. I then turn to 170DE(1): An employer must not terminate an employees employment unless there is a valid reason or valid reasons connected with the employee's capacity or conduct or based on the operational requirements of the undertaking establishment or service. Included in the personnel file is a document that was signed by the applicant. There is no evidence before me that Mr Enwia signed a document in similar terms as to that signed by the Applicant. It is headed house rules: The following items shall constitute serious misconduct. The penalty for which is summary dismissal: 6. Horseplay which results in the injury of a fellow worker. There was no injury to a fellow worker. The incident would not in my view come within the concept covered by horseplay because the incident occurred outside on the street and out of hours. Moreover, it had the potential to be much more serious then horseplay and subject to criminal prosecution if decided by the police. 7. Wilful damage to company property. Had the property that was damaged been company property then it would have come within that house rule with respect to the actions of Mr Enwia. There was no wilful damage to company property. 8. Assaulting another person on company premises. It is clear also in my mind, although I have suggested that the malicious damage aspect, is deserving of the harsher penalty being accorded to Mr Enwia, that both of them were guilty of an assault. I am not making a finding but I am suggesting that that could be the case because I only have to look at it on the balance of probabilities. I regard the conduct of both of them as serious but it was conduct outside the premises of the company and control of the Respondent. In my view it is not a matter in which the Respondent was entitled to act under these house rules. As I have indicated earlier, there is no question that the company would have been entitled to summarily dismiss both men had their conduct occurred within any part of the premises under its control or on other premises in which they were working. That is not the case and therefore I fail to see how the company can establish a valid reason connected with the employee's capacity or conduct or based on the operational requirements of the undertaking establishment or service for the dismissal of Mr Fernandes. In making that finding I have taken account of the fact that it was out of hours, it was outside the company premises, and that the police, although having the primarily responsibility for sorting out between the two parties who was responsible had declined to act. Under the provisions of the Act, the respondent carries the burden of showing that at termination it had a valid reason or reasons for bringing the employment to an end summarily. In his decision in Selvachandran v Peteron Plastics Pty Ltd (1995-96) 62 IR 371, Justice Northrop describes the meaning of this phrase in the following way: "Section 170DE(1) refers to "a valid reason, or valid reasons", but the Act does not give a meaning to those phrases or the adjective "valid". A reference to dictionaries shows that the word "valid" has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: "2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value." In the Macquarie Dictionary the relevant meaning is "sound, just, or well founded; a valid reason." In its context in s 170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must "be applied in a practical, commonsense way to ensure that" the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC." In my view, the way the investigation was conducted by the two officers of the respondent did not allow the respondent a "fair go". See the discussion on this issue by Chief Justice Wilcox in Nicholson -v- Heaven and Earth Gallery Pty Limited, (1994) 1 IRCR 199 at pages 209-210. The evidence in this case leads me to the conclusion that there was not well founded or just grounds for the decision to terminate the employment of the applicant. There was not a valid reason to terminate the employment of the applicant. There was a strong submission made by Ms Howell that the concept of "harsh unjust or unreasonable" termination of employment was imported into the contract. This was based on the tender of an extract from the Metal Industry Award: "Metal Industry Award 1984 - Part 1 [M039] as at January 1996 6. Contract of Employment a..... b..... c..... d..... (i).... (ii).... (iii).... (iv).... (v) Summary Dismissal Notwithstanding the provisions of subparagraph 6(d)(i)(1) hereof the employer shall have the right to dismiss any employee without notice for conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty and in such cases the wages shall be paid up to the time of dismissal only. (vi) Unfair dismissals Termination of employment by an employer shall not be harsh, unjust or unreasonable. For the purposes of this clause, termination of employment shall include terminations with or without notice. Without limiting the above, except where a distinction, exclusion or preference is based on the inherent requirements of a particular position, termination on the ground of race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction and social origin shall constitute a harsh, unjust or unreasonable termination of employment. I am asked to take account of that in my consideration on the basis of the decision of the High Court in Byrne and Frew v Australian Airlines Limited (1994) 52 IR 10 and other issues referred to by counsel. In light of the finding that I have made which was that there was no breach of the contract of employment by Mr Fernandes which would justify the company terminating his employment, it is unnecessary for me to consider those provisions in this case. I am very conscious that with a finding of this nature in his favour, Mr Fernandes in the ordinary course of events, ought to be reinstated to his former position. There is sufficient authority which suggests that I have a very limited discretion not to reinstate him. In the light of that authority, I make a specific finding that it would not be impractical on the evidence before me to reinstate Mr Fernandes. If reinstatement were to occur I would recommend and suggest to the respondent that the applicant and Mr Enwia be placed on an equal footing in terms of undertakings about their future behaviour. If necessary such conditions could extend to their behaviour outside the premises where it may be likely to impact on the company's reputation or its relationship with the local community. Other conditions might need to be imposed which would apply equally to both men with respect to their conduct towards each other. In my view that would be the proper course to take if I am wrong in the decision that I am about to make. In relation to remedy, I am obliged to consider section 170EE(1) of the legislation. In respect of a contravention of a provision of this division (other than section 170DB or section 170DD): Constituted by the termination of employment of an employee, the court may if the court considers it appropriate in all the circumstances of the case, make the following orders. It is then set out that I can order his reinstatement and thereafter I can order the remuneration that would normally flow from that. I have already indicated the view that I take in relation to section 170EE(2). In respect of 170EE(3) counsel for the applicant asked me if I would give her the opportunity of addressing me if I proceed to make a decision under that section. In the light of the decision that I propose to make, that will not be necessary. I have been urged by the company in considering the situation to take account of the first reading speech of Mr Jones, Special Minister of State in the House of Representatives. On 30 August 1995 in relation to this provision which was inserted in the legislation by the amendments at that time. The High Court has specifically reserved its position as to the validity of those amendments on the basis that it was not argued before that court in Victoria & Ors v The Commonwealth of Australia (1996) 138 ALR 129. The quotation that has been referred to me by the company is the fourth paragraph, at page 821 of the hansard report of theParliamentary Debates, 30 August 1995. "The Act will be amended to make it clear that a breach of an employer's obligation will not automatically lead to a remedy. There has been suggestion that remedies are given for breaches based only on procedural grounds without regard to the overall circumstances. Such a situation should not exist. For example, there should not be any guarantee of a remedy where the only defect in the employer's conduct has been some failure to provide procedural fairness and the employee's conduct warrants dismissal. To make it clear that this situation is not intended, the court will be required to consider all the circumstances in deciding whether a remedy of reinstatement or compensation should be granted and if so, what the remedy should be. In other words, the court will weigh up all of the circumstances and may, even though an employer has not met a statutory requirement, decide that a remedy should not be given to the employee. This approach is consistent with the long standing practice of industrial Tribunals." In this matter, I am satisfied that the company is substantially in breach of section 170DC. It did not have any valid reason. I am not saying that if it had applied the proper course that it may have given Mr Fernandes and Mr Enwia appropriate notices and terminated their employment, that may be an option that was open to the respondent. It may still be open to them in the case of Mr Enwia. I have taken account of the circumstances which I have outlined earlier in this decision. It was a serious matter in my view to produce a knife in this altercation notwithstanding that Mr Fernandes may have had a number of defences such as, defence of his property or person. I have made a specific finding that Mr Enwia is at least 80 percent liable for the damage that was caused to both vehicles. There are other matters which are in his favour including the fact, unlike Mr Enwia, that he did not lie to his employer. In addition he very early expressed his contrition about the incident. As far as I am aware there has been no contrition exhibited or expressed by Mr Enwia for his actions. I have also taken account of the provocation which the applicant was subjected to by Mr Enwia. I can also take into account in the circumstances the inept investigation by the respondent illustrated by the two officers who have given evidence. The failure of the respondent to take into account the police decision in this matter. The failure to provide even if there was no statutory requirement, proper parking facilities for employees. There obviously is a constant problem outside the factory. In my view all of these circumstances could also be taken into account in view of the wording of the legislation. However, it is not for me to express any concluded view on that section. Having considered all the circumstances I cannot ignore the fact that by producing the knife there was a threat of serious personal harm to Mr Enwia. The provocation, although grave, did not justify Mr Fernandes drawing the knife. It is solely on that basis that I do not order his reinstatement. In view of the findings I have made, I propose there be no compensation in relation to this termination. I should say that as part of the circumstances I have taken into account the fact that the applicant was obviously a good employee. I know which one of the two men I would prefer to employ but that is not for me to determine. Nor do I suggest that the company should embark on disciplinary action at this late stage with respect to the employment of Mr Enwia. Unfortunately that course has been determined by the ineptitude of Mr Cullen and Ms Inglis in the way in which they investigated the incident. In all the circumstances when compared to the treatment afforded to Mr Enwia, Mr Fernandes is the one that has been most unjustly dealt with by the respondent. It is not too late for the company to remedy the situation. It may, as some companies are prepared to do, invite him back on the basis that he would be put on probation or other conditions the respondent felt was necessary. I do not feel he is any threat to the respondent. He has given evidence that in his own time that was prepared to improve his work for the respondent by acquiring additional skills. There is no evidence of a similar nature from Mr Enwia. I do not accept the explanation given by the Respondent for the large number of knives found on the premises that they were paring knives. It takes a lot of convincing as it seems just too unbelievable. There was obviously a serious problem with employees bringing knives whether they be paring or fishing knives, onto the premises. There was no evidence whatsoever there was any intention of the respondent to deal with the problem. The problem has now been highlighted by the cover up which was alleged to be embarked on by Mr Fernandes or by a friend. I do not accept the evidence of Mr Cullen that the actual knife was found. My reason is that he has relied totally on hearsay testimony. There is no factual basis on which I could make any conclusion on that evidence. In the circumstances I suggest that the company gives some consideration to whether it invites Mr Fernandes to re-apply for his job. He, of course, may not wish to work there again. He may find some solace in the finding that the respondent has acted wrongly and unjustly in my view, in relation to him when the conduct of Mr Enwia is taken into account. I suggest that if the company considers that course of action. However my remarks are not to be seen as any direction to the respondent. It may be, as I have indicated, inappropriate to take any action against Mr Enwia in view of the way in which the investigation against Mr Fernandes was based on his false account. I think there is sufficient penalty in the wings for Mr Enwia in that if any person reads this decision they will have the benefit of a finding that Mr Enwia cannot be believed on his oath. In view of my finding that Mr Fernandes has been treated unjustly by the company, he can use these reasons as an indication of the damage he suffered at the hands of Mr Enwia. The claim by Mr Enwia for $350 is totally unsustainable. He is, in my view, to be held primarily responsible for the damage done to the vehicles. There would be no objection to this decision being brought to the attention of the relevant insurance companies in relation to this claim for damages by Mr Enwia. The evidence that substantial damage was done to Mr Fernandes' car before the collision gives me some difficulty in establishing what proportion occurred as a result of this collision. The company of course, has no responsibility in my view for doing anything at all about these matters because it is a matter primarily between the two persons involved. I would think they are both better to hope that no further action from any other authority arises out of these proceedings and that it be the end of the dispute. I now turn to section 170DB. I am not prepared because of the time to hear either counsel or the solicitor at this time on this issue, but I will give a preliminary view of the orders I propose to make and if the parties wish they can file consent orders within seven days or alternatively they can approach me for time to sit again and argue the matter. It is conceded that no payments were made by way of notice to Mr Fernandes in this matter. Section 170DB(1) states: "An employer must not terminate an employee's employment unless: (a) the employee has been given either the period of notice required by sub-section (b) or compensation instead of notice; or (b) the employee is guilty of serious misconduct, that is, misconduct of a kind such that it would be unreasonable to require the employer to continue the employment during the notice period. In view of the findings that I have made if this action had occurred on a car park on the premises of the respondent, or as I have indicated earlier in some other premises under the control of the company, then there would be no doubt in my mind that it was serious misconduct and both of them could have been given their marching orders without any payment of notice. I take a preliminary view that the respondent is unable to establish that this conduct was serious misconduct within section 170DB(2)(b). I have not made a concluded view on that Mr Baragry. I will hear from you and Ms Howell on that issue if necessary. In my tentative view the company is not able to establish that the conduct of Mr Fernandes was serious misconduct within the terms of the particular requirements of this legislation which would justify him not continuing to work during the period of Notice. I have concluded that it was a serious incident and that both their actions were reprehensible, but it occurred outside the immediate control of the company, and for which it had no legal responsibility. It may have some other moral or other responsibility but it had no legal responsibility. The responsibility lay with the police officers to take action. Those officers not having taken action the respondent would be entitled to rely on the fact they took no action. The applicant was over 45 years of age at the time and therefore would in my view be entitled to at least three weeks payment in lieu of notice. I am prepared to make an order along those lines but not without giving you both the opportunity of considering and then addressing me on the issue. If the parties are prepared to advise me within seven days that they are prepared to have consent orders made along the lines that the company is in breach of section 170DB and that compensation to the extent of three weeks ought to be paid then I will determine the case accordingly. The respondent and the applicant have until 4 pm on 19 September 1996 to advise the court whether they will consent to an order that compensation for failure to pay notice of three weeks be paid. If they do not wish to consent then they can come back and argue the point with me. In addition there will be the findings that I make in relation to the company's contravention of section 170DC and it not having a valid reason for the termination. The findings I intend to make are: (1) The Respondent has contravened section 170DC; (2) The Respondent did not have a valid reason for the termination of Mr Fernandes; (3) In the circumstances of the case I do not propose to reinstate him; (4) If I am wrong on that issue there is no reason why there ought not to be a finding that it was not impracticable to reinstate him; (5) In the circumstances of the case, there is no order for compensation. Because he is over 45 years of age, he has been with the company more than three years, he is entitled to three weeks notice pursuant to Section 170DB. I propose to make that order. I am allowing an opportunity until 4 o'clock on 19 September 1996 because it has not been addressed by either party to apply to be heard on that issue. If the parties consent to that order, I make it clear that it is a consent on the basis that it does not restrict your rights to review my decision. It is not a consent for all purposes. It is a consent to avoid the necessity for both of you to come back to the court to argue the issue. The parties subsequently filed consent orders as follows: "Consent Order By a decision dated 12 September 1996 Judicial Registrar McIllwaine ordered that the Respondent pay to the Applicant three week's wages as compensation in lieu of notice pursuant to section 170DB of the Industrial Relations Act 1988. such amount to be agreed by the parties have now reached agreement as to such amount. BY CONSENT THE COURT ORDERS THAT: 1. The amount to be paid by the Respondent to the Applicant pursuant to the Order made on 12 September 1996 in this matter shall be $1,843.26. I consent to this Order. I consent to this Order. .........signed................. .........signed................. Solicitor for the Plaintiff. Solicitor for the Defendant. I make the findings which have been proposed in these reasons. The declarations I make are: 1. There was no valid reason for the termination of the employment of the Applicant. 2. The respondent has contravened s 170DC. 3. The respondent has contravened s 170DB(2). 4. It is not impracticable to reinstate the applicant in his former position with the respondent. The Court declines to: 5. Make an order reinstating the applicant having regard to the circumstances of the case. 6. Award compensation having regard to the circumstances of the case. By consent the Court orders: 7. The respondent to pay to the applicant the amount of $1843.26. I certify that this and the preceding 40 pages are a true copy of the reasons for decision of Judicial Registrar McIlwaine as recorded in the transcript and revised by the Judicial Registrar.