Bryant v City of Fairfield RSL Memorial Club Ltd [1997] IRCA 302

INDUSTRIAL RELATIONS COURT OF AUSTRALIA

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged unlawful termination of employment - VALID REASON - SEXUAL HARASSMENT - allegation of indecent assault made by male employee on fellow male employee - whether "horseplay" - use of offensive nicknames - need for development of guidelines and Code of Practice or plans to encourage reporting and prevention of sexual harassment in the workplace - MISCONDUCT - ASSAULT - indecent assault - common assault - previous scuffle with fellow employee where applicant threatened with beer keg stem by fellow employee - long history of aggravation between two employees - Occupational Health and Safety Legislation - violence in the workplace - need for development of guidelines and Code of Practice or plans to reduce or prevent violence by reference to Workplace Health and Safety Committee - OPPORTUNITY TO RESPOND - termination interview of Applicant interrupted - when Applicant asked representatives of management to have union delegate leave the meeting - purpose of presence of union delegate twofold - union delegate there as witness to events complained of by management about performance of Applicant in his day to day work - same union delegate recipient of complaint of indecent assault by Applicant - also there as representative of Applicant - in such circumstances failure to provide opportunity for another person to assist Applicant when defending himself may be contravention of legislation - EXTENSION OF TIME - no prejudice to respondent - legal representation obtained after fellow employees decide in Union Meeting not to support reinstatement of Applicant - initial application filed in state jurisdiction - application for extension of time granted - REPRESENTATION - Union to consider need for separate representation of employee when interests of individual member and fellow workers conflict - not advisable for Applicant to be represented by Union delegate who was providing evidence of poor performance at termination meeting - PRACTICE AND PROCEDURE - application for disqualification on grounds of apprehended bias against interests of respondent refused - ADJOURNMENT - Applicant unable to be present on pre arranged hearing date due to new work commitments - adjournment refused. Crimes Act (NSW)1900 Pt 15A, ss 61, 61L Workplace Relations Act (Cth) 1996 (formerly known as Industrial Relations Act 1988) ss 170DB, 170DC, 170EA(3)(b), 170ED(1), 170ED(2) Evidence Act (Cth) 1995 ss 60, 128 Workplace Health and Safety Act (Qld) 1995 s 90 Industrial Relations Act (NSW) 1991 s 246 Occupational Health & Safety Act (NSW) 1983 ss 19, 24(1)(a), 44(a) Sex Discrimination Act 1984 s 28A