GALINAC -V- LIBERTY MEAT EXPORTS (AUST) PTY LTD [1997] IRCA 206

DECISION NO:206/97 CATCHWORDS INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - VALID REASON - whether employee acted in a manner which threatened supervisor with harm - whether misuse of knife - whether employer investigated allegations of employee's CONDUCT - whether reasonable to to require deny OPPORTUNITY TO RESPOND - REMEDY - whether REINSTATEMENT impracticable - Workplace Relations Act 1996 ss170DC, 170DE(1), 170EA, 170EE Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 GALINAC -V- LIBERTY MEAT EXPORTS (AUST) PTY LTD VI 2567 of 1996 Before : PARKINSON JR Place : MELBOURNE Date : 19 JUNE 1996 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2567 of 1997 B E T W E E N: Vlado GALINAC Applicant A N D LIBERTY MEAT EXPORTS (AUST) PTY LTD Respondent MINUTES OF ORDERS 19 JUNE 1997 PARKINSON JR THE COURT ORDERS THAT: 1. Pursuant to Section 170EE (1) (a) (i) of the Workplace Relations Act, 1996, on and from 23 June, 1997, the respondent reappoint the applicant to the position in which he was employed immediately before the termination of the employment. 2. Pursuant to Section 170EE(1) (b) (i) of the Workplace Relations Act 1996, the employment of the applicant by the respondent be treated for all purposes as having been continuous between the date of the termination of the employment and the date of the re appointment pursuant to Order 1 herein. 3. Pursuant to Section 170EE(1)(b)(ii) of the Workplace Relations Act 1996 the respondent pay to the applicant, within 21 days of this order, remuneration lost by the applicant between 4 October, 1996 and 8 April, 1997, as a consequence of the termination of the employment. 4. The parties have leave to apply to the Court upon 24 hours notice in the event that agreement cannot be reached in relation to the calculation of the amount of lost remuneraton in Order 3 herein. 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 VI 2567 of 1997 B E T W E E N: Vlado GALINAC Applicant A N D LIBERTY MEAT EXPORTS (AUST) PTY LTD Respondent REASONS FOR DECISION 19 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 by the respondent as a boner at its meat processing plant at Northcote in Victoria and had worked for the respondent for over ten years, in a number of different capacities. The applicant's employment was terminated summarily on 4 October, 1996. The respondent contends that it had valid reason for the termination of the applicant's employment based upon the applicant's conduct in the workplace. The respondent alleges that on 4 October, 1996 at approximately 7.00am, the applicant threatened another of the respondent's employees, the Foreman,Mr Rutmar, with a knife that he used in the course of his employment. The applicant denies that he threatened the other employee. It is appropriate to set out some of the background to this matter together with my findings of fact. In 1995 the applicant's right hand was injured in the course of his employment and as a consequence returned to work in July, 1996 on his own initiative, able to perform modified duties only. The duties for which he was able involved light boning work. He was restricted from performing any work on heavy carcasses and was in the main, limited to slicing work in preference to boning. These limitations were in the knowledge of the respondent's Occupational Safety and Work Care Officer, and had been discussed with the applicant's supervisors on the job. On 4 October, 1996, the applicant was working on the boning table at the rear of the premises when he was instructed by the supervisor to go and work on another table. This instruction was given as a consequence of the table being short one employee as a consequence of injury. The applicant protested to Mr Rutmar that he was not able to perform the work on that table because of his injury. He advised Mr Rutmar that he should check this out with Mr Norwood, the general manager of the plant. Mr Rutmar responded "...you can see f'ing Norwood you can see your f'ing mother but down here you talk to me and you go where I tell you to go...". Whilst in his evidence Mr Rutmar used the abbreviated version, I am satisfied that Mr Rutmar used the full version of the expletive in the course of his conversation with the applicant. The applicant, offended by the obscenity attached to the reference to his mother then responded, "what did you say about my mother" and took steps towards Mr Rutmar who was at that time some three to four metres away from the applicant. The evidence is that the applicant continued to hold the slicing knife in one of his hands and the sharpening steel in the other, at the time he moved towards Mr Rutmar. The applicant says he didn't brandish or threaten Mr Rutmar with the knife. His evidence is that he was unaware of the knife when he reacted to the comments. Mr Rutmar's evidence was that he was afraid for his safety and felt that he was being threatened by the applicant with the knife and that he on a number of ocassions called out to the applicant to put down his knife. His evidence was that the applicant should have put the knife down on the table. The evidence of other employees as to what occurred in the incident varies considerably. The evidence is that some employees intervened between the applicant and Mr Rutmar and also told the applicant to put down his knife. This is variously said to have been just a friendly arm around his shoulders to calm him down to the applicant being physically restrained from approaching closer to Mr Rutmar. However none of these witnesses gave evidence of seeing the applicant brandish or raise the knife in a threatening manner towards Mr Rutmar. I have considered the evidence of Mr Peter Ktski, Mr Vinko Knezevic and Mr Bozo Cubla and am not satisfied that the applicant acted in a manner which threatened Mr Rutmar's physical safety by the use of a knife or was intended to be threatening with a knife or to cause Mr Rutmar to fear that he was being physically threatened with a knife. Mr Ktski's evidence was that the applicant held his arms with the knife in one hand at right angles from his body with his elbows bent. As I interpreted his evidence, the knife was not being brandished or pointed towards Mr Rutmar. His evidence was that he intervened and stopped the applicant close to the main work table, by holding his hands. His evidence was that he did not use much force and the applicant responded immediately to his intervention and went back to work at the light duties table. Mr Knezevic's evidence was that the applicant holding his steel and knife started to walk towards Mr Rutmar, but was intercepted and told by Mr Knezevic to go back to his table, which he did. His evidence was that the applicant was holding his knife and steel pointed towards the ground. Mr Cubla's evidence was that he did not see the applicant restrained by any other employee and that he did not see him raise or brandish his knife towards Mr Rutmar.