DECISION NO:187/97 CATCHWORDS INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - VALID REASON - CONDUCT AND PERFORMANCE - - whether OPPORTUNITY TO RESPOND - SERIOUS MISCONDUCT - whether unreasonable to continue employment in notice period - Workplace Relations Act 1996 ss170DB, 170DC, 170EA, MILLER -V- HOLMES COMMERCIAL PRINTING PTY LTD VI 1163 of 1997 Before : PARKINSON JR Place : MELBOURNE Date : 3 JUNE 1997 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1163 of 1997 B E T W E E N: Russell James MILLER Applicant A N D HOLMES COMMERCIAL PRINTING PTY LTD Respondent MINUTES OF ORDERS 3 JUNE 1997 PARKINSON JR THE COURT ORDERS THAT: 1. The application pursuant to Section 170EA of the Workplace Relations Act 1996 be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 1163 of 1997 B E T W E E N: Russell James MILLER Applicant A N D HOLMES COMMERCIAL PRINTING PTY LTD Respondent REASONS FOR DECISION (delivered ex-tempore) 3 JUNE 1997 PARKINSON JR This is an application made pursuant to Section 170EA of the Workplace Relations Act, 1996.('the Act') The applicant was employed as a printer. He was initially employed in June, 1995 at the business, by a company known as Myland Press Pty Ltd, which conducted a business of commercial printing. In November, 1996 the business of that company was purchased by the respondent and the applicant was retained in the employment of the respondent as a successor or assignee of the business. On Friday 8 November 1996, after the completion of the sale of the business, the applicant and other staff were informed of the new ownership by the then, Managing Director of Myland Press Pty. Ltd., Mr Myers. I am satisfied that on that day he advised the employees that he was to remain in the business as an employee of the respondent and that his position was to be Manager of the business. The applicant returned to the workplace on Monday 11 November, 1996 when he was involved in an incident with Mr Myers. Mr Myers' evidence is that after the applicant failed to respond to his morning greeting, he approached the applicant to establish whether there was a problem. His evidence is that the applicant told him to "piss off, you're not my boss now". Mr Myers' evidence is that he responded to this by informing the applicant that he remained his boss, notwithstanding the sale of the business and that it was not appropriate for him to speak in that manner. Mr Myers' evidence is that he then started to leave the print room, and as he left the applicant called after him "you fucking maggot". The applicant's evidence is that he did not speak to Mr Myers at all in the print room on that morning and the only conversation between them occurred in the office where he concedes he called Mr Myers "a fucking maggot" in the presence of the bookeeper and a sales person. I am satisfied that the conversation between the appplicant and Mr Myers occurred in the print room as related by Mr Myers. I prefer his evidence to that of the applicant, because I am satisfied that the applicant was in a state of upset on the morning of the incident and is unlikely to have been able to accurately recall the sequence or location of the events. I am also satisfied that it is consistent with the evidence of Ms Miller and Ms Evans. In any event the location of the incident is not fundamental to the outcome of these proceedings. This is because I am satisfied that there was a course of misconduct in the workplace on the part of the applicant about which he had been warned on a number of occasions and which conduct was the subject of a written warning on 16 September, 1996. The applicant was warned on that occasion as to his lateness for work, volatile temper and lack of respect towards his supervisor. The incidents which were in contemplation in this letter were known to the applicant and included incidents where the applicant had thrown items, upturned bins, threatened violence against other employees and behaved disrespectfully towards the production manager. The warning clearly identifies the nature of the behaviour that was complained of by the respondent. On 11 November, 1996 I am satisfied that the applicant engaged in further conduct of the type already the subject of a written warning. The conduct if not designed to, had the effect of intimidating Mr Myers and resulted in his feeling that he was unable to remain at the workplace. Further the language used by the applicant and in particular the manner in which it was used and directed towards Mr Myers was rude, disrespectful and deliberately insulting. It matters not in my view whether the applicant believed that Mr Myers was no longer his supervisor, the language and the manner in which it was used was inappropriate whether directed to a supervisor or fellow employee. I am satisfied that the respondent had valid reason for the termination of the applicant's employment, having regard to the history of the applicant's conduct in the workplace and based upon the conduct of the applicant on 11 November, 1996. I am satisfied that the respondent has not contravened s170DE(1) of the Act. I turn now to consider the operation of s170DC. The respondent's evidence was that a meeting was called at which time the applicant was informed that his employment was being terminated as a consequence of his behaviour towards Mr Myers. The evidence of Mr Frank Tadisko and Mr Len Tadisko differs as to the matters which were discussed. Mr Len Tadisko, save for a discussion about the applicant threatening Mr Myer with physical injury, was unable to recall the detail of any matters which were put to the applicant at that meeting. Mr Frank Tadisko's evidence was that a number of matters, including the applicant's language on that day and his conduct to Mr Myers were raised. The applicant's evidence is that no such discussion took place. The evidence of Ms Judith Miller was that she observed the applicant in the meeting with Mr Frank and Len Tadisko. Her evidence is that the applicant was speaking in a loud manner and that he swore and responded in the discussion with arm gestures. Whilst there is some discrepancy between the evidence called for the respondent as to the matters discussed, I accept the evidence that the applicant was informed of the reasons why he was called into the office and his employment was to be terminated. I am satisfied that in that meeting he had opportunity to respond to those matters and to explain his conduct on the day. Having regard to the events of the day, I do not accept his evidence that he had no appreciation of why he was called to the office or why his employment was terminated. On balance I am satisfied that there has been no contravention of s170DC of the Act. I have considered the question of notice and in the circumstances I am satisfied that the applicant was guilty of serious misconduct of a type such that it would be unreasonable to require the employer to continue the employment in the notice period provided for by s170DB of the Act. For the reasons set out herein the application will be dismissed. I certify that this and the preceding two (2) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate : Dated : 3 June 1997 APPEARANCES The applicant in person. Counsel appearing for the respondent : Mr. N. Jones Solicitors for the respondent : McCluskys Date of hearing : 3 June 1997