INDUSTRIAL RELATIONS COURT OF AUSTRALIA Industrial Law - termination of employment - misconduct - failing to follow reasonable instructions - valid reason - procedural fairness - whether prohibited termination for reasons including union membership or participation in union activities Workplace Relations Act 1996, s170DC, DE, DF, EA Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 Selvachandran and Peteron Plastics Pty Ltd (1995) 62 IR 371 Cosco Holdings v Do and Others (1997) 150 ALR 127 Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 Johns v Gunns Ltd (1995) 258 at 267 Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439 JOHN BORNIS v AUSTRALIA MEAT HOLDINGS PTY LIMITED QI 1164 of 1996 RYAN JR MELBOURNE 29 APRIL 1998 IN THE industrial relations COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY QI-1164 of 1996 BETWEEN: JOHN BORNIS Applicant AND: AUSTRALIA MEAT HOLDINGS PTY LIMITED Respondent JUDicial registrar: RYAN DATE OF ORDER: 29 APRIL 1998 WHERE MADE: MELBOURNE ORDER: Having found that 1. the termination was for valid reason under s170DE(1) 2. the respondent complied with s170DC 3. the respondent did not terminate the applicant's employment for a prohibited reason under s170DF(1) the application is dismissed. IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY QI-1164 of 1996 BETWEEN: JOHN BORNIS Applicant AND: AUSTRALIA MEAT HOLDINGS PTY LIMITED Respondent JUDICIAL REGISTRAR: RYAN DATE: 29 APRIL 1998 PLACE: MELBOURNE REASONS FOR JUDGMENT THE CLAIM The applicant seeks relief for what he alleges was the unlawful termination of his employment by the respondent. He had been employed by the respondent as a boner at the Townsville Meatworks from 1990 to 28 August 1996. RESPONSE The respondent as employer concedes that the applicant's employment was terminated at the initiative of the employer. Given that concession, and given the onus on the respondent to establish a valid reason for the termination, the Court followed the procedure recommended by Northrop J in Selvachandran and Peteron Plastics Pty Ltd (1995) 62 IR 371 and directed that the respondent call evidence first. This is a procedure often adopted by the Industrial Relations Court of Australia and would not normally warrant comment except that prior to and throughout the trial counsel for the respondent complained that the applicant and his legal advisers failed to honour an agreement to exchange witness statements. No pretrial order for discovery or for the exchange of witness statements was ever made but on the third day of the trial the Court did order that the applicant produce a statement of evidence as soon as practicable. Such statement was only prepared and provided to counsel for the respondent on 27 August at the commencement of the fourth day of the trial. The respondent denies any breach of any provision of the Workplace Relations Act 1996. The respondent asserts: · the applicant had a history of misconduct and failing to follow instructions · during July and August 1996 the applicant was involved in many incidences of misconduct including (a) swapping jobs with another employee without the permission of the supervisor and in circumstances where it was not safe to do so (b) swearing at supervisors (c) arguing with supervisors (d) arriving late for work after breaks (e) refusing to follow the lawful and reasonable instructions of supervisors (f) refusing to accept instruction in relation to the performance of his job · on 31 July 1996 the applicant was counselled by the Plant Manager (Mr Johnson) and then the General Manager, Abattoirs Industrial Relations and Personnel (Mr Hughes), and was warned that if he failed to obey lawful instructions his employment would be terminated · on 27 August 1996 the applicant threatened that he would not carry out instructions the following day. · on 28 August 1996 the applicant arrived late for work. · on 28 August 1996, after arriving late for work the applicant refused the lawful and reasonable instruction of his supervisor and walked off the job · the applicant caused other boners to walk off the job after him on 28 August 1996 · the applicant was given the opportunity to respond to allegations that he failed to follow instructions and had been warned about such behaviour in the past and was warned that his employment may be terminated · the applicant failed to give any or any reasonable explanation of why he had failed to follow instructions. THE REJOINDER In an Outline of Contentions dated 12 May 1997 and filed on the first day of the hearing on 14 May 1997 the applicant: · denied that he had "a history of misconduct and failing to follow instructions". · denied any swapping of jobs · indicated that he "now (ie. on 12 May 1997) has no recollection of having sworn at Les Alloway on 26 July 1996" · "acknowledged having had discussions on 25 July 1996 with Les Alloway in relation to the conduct of the chain on 24 July 1996" and describes "such discussions" as "necessary and part of the applicant's obligation as a union delegate" · "has now (ie. 12 May 1997) no recollection of having argued with David Print on 26 July 1996 about whether or not he was being allowed to go to the toilet" · "acknowledged having had discussions with Ken Johnson on 31 July 1996 in respect of alternative duties which Johnson purported to allocate to him" · conceded being late back from lunch on 26 July 1996 · denied being late to work on 28 August 1996 · denied refusing to follow the instructions of his supervisors · denied that on 27 August 1996 he threatened he would not do as instructed the following day · denied that he was late for work on 28 August 1996 · acknowledged that he "walked off the job" on 28 August 1996 but states that "it was part of a union organised walk off and was not initiated by him" · denied that he caused any other person to walk off the job on 28 August 1996 · denied that on 28 August 1996 he was given an opportunity to respond to the allegations that he had failed to follow instructions · asserted that his employment was terminated by Ken Johnson "prior to being given any opportunity to respond to the allegations in question" · asserted that Ken Johnson said words to the effect "I suppose I had better hear what you have to say though it won't make any difference to my decision" · asserted that he was denied natural justice insofar as he was not given an opportunity to address any allegations prior to the termination of the employment · claimed that the termination of his employment by the respondent was as a direct consequence of his role as an employee's representative and the conflict that arose from his handling of that position · asserted that the respondent terminated the employment because of the applicant's union membership THE TRIAL The respondent called nine witnesses. The applicant called eight witnesses. The respondent maintained that the employment of the applicant was terminated for a valid reason and relied on an Outline of Contentions filed on 8 May 1997, the evidence of the nine respondent witnesses and, to no small measure, on evidence given by the applicant's own witnesses. In a final written submission on 1 September 1997 counsel for the respondent attacked the applicant's credibility and inferred different and inconsistent instructions from the applicant to his counsel during the course of the trial. The applicant at trial and through a final written submission by counsel asserted that: · ultimately the employment was brought to an end by Mr Ken Johnson on behalf of the respondent · Johnson terminated the applicant's employment and recorded the reasons for termination · the reasons for termination recorded by Johnson were that the applicant had failed to comply with instructions given on 27 and 28 August and was late for work on 28 August and on 28 August failed to carry out a lawful instruction and walked off the job · the applicant was not given an instruction or direction on 27 August "to work on intercostals" on 28 August · the applicant did not fail to comply with a direction on the morning of 28 August "to go to intercostals" · the applicant proceeded on 28 August to the intercostals area · the applicant followed the lead of others and walked off the job on 28 August as part of and as a participant in an industrial dispute · the applicant did not lead the other workers in walking off the job and did not cause the other workers to walk off the job · the applicant did not fail to comply with a lawful direction but, if it were to be found that he did fail to comply with a lawful direction to work in the intercostals area on 28 August, and if it were to be found that his failure to comply with such a direction could constitute a valid reason for termination, nevertheless, there was no valid reason for termination because the respondent failed to comply with s170DC of the Workplace Relations Act and failed to give the applicant an opportunity to respond to any allegations made against him THE EVENTS BETWEEN 24 JULY AND 1 AUGUST 1996 The respondent's Outline of Contentions of 8 May was followed on 9 May with further particulars requested by the applicant. These particulars referred to certain events on 24, 25, 26 and 31 July 1996 and on 1 August 1996. Evidence called by both parties dealt in detail with these events. This evidence provides relevant background to the events 27 and 28 August 1996. Although it is the latter events which led to the termination of the applicant's employment, it is necessary to consider the evidence of the earlier events because the applicant relies on his version of these events as grounds for his assertions that the termination of his employment was unlawful. Furthermore, while the respondent relies primarily on the events of 27 and 28 August as constituting valid reasons for lawful termination, the evidence as to the events of late July and 1 August 1996 constitute, the respondent submits, evidence adverse to the applicant's credibility. The respondent also relies on the earlier events as evidence of the applicant's attitude and performance and as evidence of counselling, warnings and directions given to the applicant. The respondent submitted and called evidence to establish that in July and August 1996 the applicant swapped jobs without permission, swore at supervisors, argued with supervisors, arrived late for work and refused to accept or obey lawful and reasonable instructions. A CLAIM FOR ADDITIONAL PAYMENT David Print, foreman, gave evidence, supported by a diary note, that the applicant approached him on 24 July seeking additional payment for one or two minutes extra time on the grounds that Les Alloway, boning room supervisor, had started the (meat processing) chain early. The respondent submits that it was not a function or duty of the applicant to further pursue such an issue once the claim for payment had been brought to the attention of the foreman of the boning room. A dispute procedure (Exhibit R7) supports the position taken by the respondent. The respondent asserts that the applicant was overzealous in his complaint because Mr Alloway was involved and the applicant had been previously warned by Mr Johnson, manager of the Townsville Abattoirs, to keep away from Mr Alloway as they did not see "eye to eye". Evidence from Johnson, Alloway, Print and from Cyril Twist, Boning Room Supervisor, and from the applicant and some of his witnesses, confirmed that the relationship between Alloway and the applicant was difficult and uneasy and that Johnson had directed the applicant to keep away from Alloway. On Thursday 25 July 1996 the applicant renewed his claim for the alleged lost time on the chain and raised the claim with Print, Alloway and Foster. This is supported by a diary note made by Print. The applicant denied that he argued with Alloway over this matter on 25 July but the oral evidence of the three foremen and Print's diary note are to the contrary. The respondent submits that the applicant left his work station on 25 July to continue his pursuit of a claim that had already been made and which, in accordance with a settled procedure, was to be pursued without further representation from the applicant. The Court is satisfied from the weight of the evidence that the applicant did leave his work station on 25 July and it is not necessary to speculate whether he left to pursue the "early start" claim. The Court is also satisfied that on 24 and 25 July the applicant continued to pursue the "early start" claim. Likewise, the Court accepts the evidence of Twist, supported by a diary note, that about 1.10 pm on 25 July · the applicant pursued the claim again with Twist · Twist informed the applicant that Johnson had made a decision against any payment of the alleged early starting of the chain · the applicant threatened to withdraw his labour and the labour of all the union members · the applicant said to Twist "we will probably not start tomorrow" · Twist directed the applicant to follow dispute procedures while dialogue took place between management and the union There is supporting evidence from Foster, Alloway and Print. Finally, the Court notes and accepts the evidence and diary note of Print that later again in the afternoon of 25 July the applicant left his work station to go to the toilet. UNREST IN THE BONING ROOM 26 JULY Mr Print, by affidavit and in oral evidence supported by a diary note, deposed that the applicant again asked to go to the toilet on the morning of 26 July. His evidence was that he did not refuse the applicant permission to go to the toilet although the applicant accused him of that. Print's oral evidence was similar to paragraphs 10 to 13 of his affidavit which read as follows: "10. On 26 July 1996 Mr Bornis came to me and asked to go to the toilet. I said that his work mates would have to cut him out as we didn't have any spare boners. 11. Mr Bornis said that we were refusing to let him go. I said that was not the case, but that we wouldn't drop the team. 12. Mr Bornis said that a man being refused to go to the toilet would look good in court. 13. When Mr Bornis returned from the toilet, as he was walking past Mr Alloway he said to Mr Alloway to "go and get fucked". Attached and marked "C" is a copy of my diary note of 26 July 1996." The applicant's evidence in respect of this incident was unimpressive and evasive and, where his evidence conflicts with the evidence of Print and Alloway, the evidence of the respondent's two witnesses is preferred. Firstly, the applicant did not deny arguing with Print on 26 July. His statement of evidence, submitted on the fourth day of the trial, is silent and the Outline of Contentions of Fact and Law filed on 12 May 1997 state that "he now has no recollection of arguing with David Print on 26 July 1996 about whether or not he was being allowed to go to the toilet". Secondly, the Contentions also include the following statement "the applicant has now no recollection of having sworn at Les Alloway on 26 July 1996". Thirdly, in cross-examination the applicant seemed to indicate that he may have sworn at Alloway and then he claims to be confused. The Court pointed out to the applicant that there did not seem to be anything "confusing" about a direct allegation that he told Alloway "to go and get fucked". The applicant then denied that he swore at Alloway. The respondent's witnesses deposed to continued unrest on the boning room floor throughout the morning of 26 July and that four union delegates (Horwood, Murphy, Sherrington and the applicant) were involved. The four delegates were late back from lunch on 26 July and were told to go to Johnson's office. Johnson spoke to them about the unrest in the boning room in the morning and about being back late from lunch. The applicant's personnel file contains the following note made by Johnson on 26 July "brought to office re general disobedience in boning room. Also warned not to be late back from lunch or late or off chain without permission of supervisor". This is a record of a warning to the applicant in the presence of three other union representatives. DISPUTE OVER ALTERNATIVE DUTIES 31 JULY As a result of the incidents on 26 July the applicant was moved to the intercostals area where he worked until 30 July when he cut his finger. On 31 July at 7.28 am the applicant reported to a personnel officer, Mr Greg Inch, for the allocation of alternative duties because of his injury. Inch gave evidence that he told the applicant to report to Mr Gary Mitchell for the allocation of alternative duties and that the applicant said "I hope he doesn't harass me". Inch considered this an unusual and curious statement and recorded it in a diary note. At 7.40 am the applicant reported to Mitchell. Mitchell was an impressive witness. His evidence confirmed a diary note which he made on 31 July and which reads as follows: "0740 - John Bornis reported to me and I instructed him to clean the locker section floor of the male locker room. He refused and said 'I'm employed as a boner and I'm going to see the union president'. I reported this incident to the plant manager." The applicant denied that Mitchell gave him the instruction to clean up the locker room. He claimed that he first heard of the allegation that he had been given and refused an instruction to undertake cleaning duties after a telephone conversation with Hughes. This denial has to be considered in the context of the evidence of Inch and the cross-examination of Inch by counsel for the applicant. Inch stated that at 7.50 am the applicant informed him, for a second time, that he would not pick up papers and said, in effect, that he "was a boner not a garbo" and that he "may go home". In his Outline of Contentions the applicant had denied that he ever told Inch that he would not do alternative duties. In cross-examination of Inch the following exchange appears at T151: Counsel: The only argument you are going to have with Mr Bornis is - I have to put to you - that he says that he did not say on the day that he may go home. Inch: He did say that. When the applicant came to give evidence he denied every aspect of the Inch version of events except that he conceded that he told Inch that he "may as well go home". The position taken by the applicant in his evidence is inconsistent with the proposition put on his own behalf in cross-examination of Inch and is also inconsistent with his own Outline of Contentions. On 31 July Johnson recorded the following note in the applicant's personnel file: "Bornis refused to do work as instructed (e.g. to pick up papers from floor of locker room while on A.D. cut finger). Brought to office. Reinstructed to work as instructed. Phone consultation with John Hughes* re obedience to lawful instructions and change of attitude needed." (*John Hughes is General Manager of the respondent company. Leave was granted for Hughes to give evidence at the conclusion of the trial). In his evidence Johnson confirmed that he brought the applicant to his office on 31 July and counselled him and directed him to work to instructions and that the applicant "kept arguing" and that he contacted Hughes by telephone who then spoke to the applicant on the telephone and counselled the applicant and warned him that he would be terminated if he disobeyed lawful instructions. The applicant denied that he resisted the proposition that he should do the alternative duties and he categorised the meeting with Johnson as a "discussion not an argument". The applicant denied that Hughes gave him a final warning. Hughes in evidence was adamant he gave a final warning. He gave detailed evidence of his discussion with the applicant. Teleconference facilities were used so that Johnson was able to hear and participate in the conversation. The next day, 1 August, the applicant saw Inch again and queried the rate of pay while on alternative duties. The applicant seems to have been seeking an additional payment for additional work known as "overs". Inch pointed out that "overs" were not paid on alternative duties and that the applicant had finished at the normal time of 3 pm. The applicant advised Inch that he felt he was being discriminated against and Inch recorded the conversation in a diary note. "HARD BEEF AND DIRTY H BONES" Two separate incidents took place on 27 August. The applicant claims that the first incident involved "hard beef" (i.e. beef of which the fat content is so frozen as to be difficult and unsafe to cut). The second incident involved an allegation of "dirty H bones" (i.e. inadequate boning whereby excess fillet is left on the bone). The first incident appears on its face, of marginal relevance. Indeed, this is the position put by counsel for the applicant in his final submission. However, it is not an issue which can be so readily dismissed because the applicant seems himself to rely on the alleged incident as a catalyst to one of his claims namely that he was victimised for performing his duties as a union delegate and dismissed for reasons which included participation in union activities. The tenor of the applicant's evidence was that he was victimised for performing his duties as a union delegate and that his pursuit of the hard beef claim on 27 August was a significant factor. However, the Court has concluded that there was no real hard beef incident on 27 August which could have formed a reason for alleged discrimination against the applicant. The hard beef referee was John Edward Smith. The applicant called him as a witness. He was forthright and displayed no animosity towards the applicant. Indeed, he presented as a witness disposed to assist the applicant but his evidence was that while the meat on 27 August was at times "firm" it was not "hard" in the sense of unsafe to work and he was not at any stage called to referee the state of the beef which would have been the procedure in which he would have gone and checked the state of the meat in the chillers. The Court notes that while the applicant's counsel, in final submission, dismisses the hard beef issue as of marginal relevance, Patrick Mullins, slicer, gave evidence on behalf of the applicant and his affidavit of evidence contains the following statement: "4. I recall an incident which occurred on 27 August 1996. As we commenced working for the day slicing pieces of beef along the chain I recall a couple of people were calling out about the state of the meat. It was what is termed "hard meat". The people calling were up on the chain. I am on the floor below them. I recall one of the people who were calling out was Jack Smith. He was yelling out about the meat and couldn't get any of the foremans' attention. He then rotated his position with another worker. 5. Cyril Twist and Chris Foster came over to talk to the boners. John Bornis said to them that the meat was a bit hard and the boner's were complaining. Cyril Twist then said to him something to the effect:- "Whatever job you get on you are always complaining. I am going to send you back to the wing ribs (intercostals) and that's where you will stay." 6. Later on that day the boners and the Union had a discussion and agreed that it was not fair that John Bornis was in trouble because he was putting forward the complaints of the boners as he was elected." The weight of evidence given by witnesses for the respondent and witnesses for the applicant is clearly indicative of dirty H bones rather than hard beef as the incident that led to a "disputed" direction that the applicant work in the intercostals or wing ribs area on 28 August. The direction is described as "disputed" only in the sense that the applicant's disputes that such a direction was given. The Court is satisfied that on 27 August and again on 28 August the applicant was directed to work in the intercostals area. In his affidavit of evidence tendered on the fourth day of the trial the applicant has stated that "the events which led to my sacking were, in my view, and to a large extent brought about by the foreman, Les Alloway (nickname Hoppy)". Alloway gave evidence that on the morning of 27 August 1996 two boners, Salvadore Pires and Fred Thompson, showed him pieces of fillet which had been left on every second H bone. Alloway deposed that he counted back the boners to find out who was leaving the meat and that he concluded that it was the applicant. Alloway and other witnesses called by both parties gave evidence of difficulties in the Bornis/Alloway relationship and Alloway reported the dirty H bones to Twist. Twist and Foster gave evidence of discussing the H bones with the applicant and another boner, Michael Jones. Twist indicated that Jones did not object to inquiries about the H bones but that the applicant reacted by denying that he was leaving excess meat on H bones and by alleging that the meat was hard and that he was being victimised. Twist denied victimisation and in his evidence and in a diary note of 27 August stated "I told him I am not victimising him and whenever I put something to him he has got some excuse. Told him to start back on intercostals tomorrow morning. Told me was not going to start there because I was victimising him. I then told him he had to and walked away." The applicant's witness, Mullins, also gave evidence of Twist and Foster talking to the applicant, of the applicant alleging that the meat was hard and of Twist saying to the applicant words to the following effect: "whatever job you get on you are always complaining. I am going to sent you back to the wing ribs and that is where you will stay." Darryll Sherrington is a slicer employed by the respondent at the abattoirs in Townsville. He is also the union secretary. He gave evidence of · Alloway checking the inside of H bones · the applicant and Jones working on the filleting of the H bones · Alloway removing excess meat from the H bones with a knife and attempting to count back to where the fillet boners were working · another boner doing a countback on behalf of Alloway · the boners "having a bit of fun and winding Les Alloway up and singing out look out, Rolo, Hoppy is on to you" · Alloway reporting to Twist and Foster · Twist and Foster going over to the applicant · the boners, "then trying to wind up Rolo...they were singing out go on Rolo, get up them" · a discussion then occurring between the applicant and Twist It is clear from a diary note on 27 August and from Johnson's evidence that Twist reported his problems with the applicant to Johnson on 27 August. The evidence and the diary note confirm that Twist reported to Johnson that · during the day pieces of fillet were being left on every second H bone · "when (a countback was done) to see who was responsible it came back to Mr Bornis" · the applicant and Michael Jones had been advised of the problem and Jones had accepted the situation but the applicant "had started carrying on about being victimised" · Twist had advised Johnson that "every time he corrected (the applicant) he would start whingeing about being victimised" · Twist had told the applicant to start on intercostals the next day · the applicant had said he wouldn't go · Twist had responded that he would be instructed to go THE WALKOUT 28 AUGUST The applicant was late for work on 28 August. He denies this but the evidence of his own witnesses (Whiley and Murphy) and the evidence of the respondent witnesses (Foster and Twist) confirm that the applicant was late. When he arrived the chain was in operation and Foster had sent another employee, Michael Smith, to the intercostal stand to ensure there were three boners on that stand. Within a few minutes of the applicant arriving the boners walked out. The applicant and his witnesses and the respondent witnesses gave certain common evidence as follows: · the applicant walked past the intercostal stand to the flank and fillets stand (this was the stand where the applicant had worked on 31 July) · Foster called the applicant back from the flank and fillets stand and directed him to go to the intercostals area · the applicant moved back to the intercostals area The applicant and his witnesses do not agree with the respondent's witnesses as to what happened after the applicant walked back to the intercostals stand. The applicant concedes that Foster directed him to work in "wing ribs", which is another name for the intercostals area. The applicant's oral evidence was similar to that given in his affidavit of 27 August 1997. He stated: "33. On the morning of 28 August 1996 when I got to work I was walking toward the area that I had worked the day before, the fillet boning section. On my way there I walked passed the wing rib section where I noticed three workers already there. This section only requires three people working at a time. So I continued to the fillet boning area. When I got there I was told by Chris Foster to go to the wing rib. I turned around and walked back to the wing rib area. 34. I commenced putting on my safety gloves. The three workers were already working on a side of beef. I was waiting until one of the workers had finished the side of beef so that I could then commence in the wing rib section. The person I was replacing was Michael Smith. By the time I had my gloves on I looked up and all the workers further up the chain had gone. Murray Whiley, one of the men on intercostals, then turned to me and said "Come on, we've got to go". I then followed him down the stairs onto the floor and out to the dining room." Whiley gave oral evidence consistent with paragraphs 6 to 9 of his statement of evidence which read as follows: "6. I was at my work station at wing ribs and I saw John Bornis walk past the wing ribs to flanks. 7. Chris Foster then told him to go to wing ribs. I saw him turn around and walk back to wing ribs. I did not hear or notice John Bornis argue or object to coming over to wing ribs. 8. I looked down the line to where the union president was observing, and saw him indicate that we were to walk off. I then saw the workers taking off their knives and walking off the job. 9. Myself and Henry Woodenberg said it looks like we are having a meeting and proceeded to leave the sand. I walked past John Bornis and noticed he was getting ready to start work." Murphy's oral evidence was consistent with paragraph 9 of his statement of evidence which reads as follows: "9. On 28 August 1996 all the boners at the front of the chain were waiting for John Bornis to come in. When he came in we watched him walk up to his job, past the wing rib and up to the flanks. As he reached that job, Chris Foster told him to go the wing ribs. When Chris Foster motioned for John Bornis to go to the wing ribs all the boners at the front of the chain walked out to have a meeting." The Court notes an inconsistency between the evidence of Whiley and Murphy. Whiley stated that he "saw the union president (Murphy) observing and saw him indicate that we were to walk off". Apart from the vagueness of a statement that he noticed that the union president "was observing", the president (Murphy) did not himself, in his statement or in his oral evidence, suggest that he gave an indication to Whiley and/or other boners that they were to walk off. Indeed, Murphy's evidence is "when Chris Foster motioned for John Bornis to go to the wing ribs all the boners at the front of the chain walked out to have a meeting". Given the evidence of Murphy and the general tenor of the evidence given by the applicant, Twist and Foster, and given that Murphy gave no evidence that he gave an indication to Whiley or other boners, including boners at the front of the chain, the Court does not accept Whiley's evidence of an "indication" by Murphy. Foster's oral evidence was consistent with a note in his handwriting dated 28 August 1996 which contains a handwritten direction, probably from Johnson, as follows "Greg Inch to Bornis file". Foster wrote as follows: "When the sides had reached intercostals there were only two boners, J Bornis who had been told the day before to start there was not there. I sent M Smith there until J Bornis arrived. When J Bornis arrived he walked past the intercostals stand to the start of the fillet and flank stand, I called out to him "Rollo your here today", pointing to intercostals, J Bornis walked back and I told M Smith to go over and do loins. I then walked away to the end of the 2nd crop belt, on looking back I noticed J Bornis at the end of the fillet and flank stand were C Hardy and another person who I think was M Hardy were. J Bornis walked back to the intercostal stand taking his glove off then climbed down the stairs off his work station, I walked to the phone area and informed C Twist that J Bornis had left his work station, we looked over and by this time the fillet and flank boners had gone off their stand. I walked back towards intercostals and noticed other boners were starting to leave their work stations, I went back to inform C Twist that a number of boners were now leaving their jobs, but C Twist was in conversation with R Murphy." Twist, as a supervisor in the boning room provided a memo dated 29 August 1996 to Johnson. It is handwritten. It is Exhibit R3. The first sentence reads as follows: "These are the notes from my diary dated Tuesday 27 August 1996." The second page of the memo (Exhibit R3) reads as follows: "Wednesday 7.40 am (presumably 28 August) Was informed by C Foster that John Bornis was leaving the boning chain. I looked up and seen John Bornis taking his arm guard off and comming down the steps followed by the two fillet boners, C Hardy and M Hardy. The chop table and intercostal boners were still working. I started to walk back around the room to see Ray Murphy to find out what was going on. I met Ray at the walk way across to the pack off area and boning stands. I notice Ray had no boning gear on and John Bornis, M Hardy and C Hardy were still behind me. Ray said to me "you are victimising John Bornis and calling him a whinger when he tell you there is hard beef and the boners are going to have a meeting". He then walked away. I walked back too the phone by then D Print (foreman) had stopped the chain bull (26.80 sec) I looked to the intercostal stand and D Smith (Boners) was still up there boning and I said so to Dave. I then came over to the office to see Ken who was not in yet. Got Jack to ring him at home but was informed on his way in." Part of the respondent's case, one of the reasons for termination which the respondent asserts to be a valid reason, was the refusal of the applicant to undertake the intercostal duties on the morning of 28 August. The respondent asserts that: · the applicant had refused to accept the direction on 27 August to work on intercostals on 28 August · the applicant had further failed to comply with the direction when the chain started on 28 August and was not at that time present on the work floor · the applicant refused again by his actions in walking past intercostals to fillets and flanks on his arrival on 28 August · the applicant left the intercostal stand of his own volition and just prior to the walk off of the other boners and by stepping down from the intercostal stand before and in front of the boners, Mark Andrew Hardy and Colin Lisle Hardy, who immediately followed him, he had manifested for the third time that morning (and for the fourth time since 27 August) his unwillingness to accept the direction to work on intercostals. It is not necessary to determine whether the applicant orchestrated and led the walk off. There is evidence which suggests that other union delegates, especially Murphy and Sherrington, had alerted other boners to a likely walk off if management insisted, as it did, on requiring the applicant to work on intercostals on 28 August. There is no clear evidence of any identified person other than the applicant leading the walk off. Certainly, Whiley claims Murphy indicated to him and other boners that they were to leave but this evidence is not accepted and most particularly because Murphy does not support it himself. There is vague, indefinite evidence from Murphy that boners "at the front of the chain" went first. He does not identify a specific boner leading his workmates off the chain. His evidence, such as it is, amounts to one or more unidentified boners leading a walkoff which had been pre-arranged to occur if the respondent persisted with a direction that the applicant was to work on intercostals. It is a direction which Murphy implies could have constituted "victimisation" of the applicant and a direction which was not to be complied with until the boners considered whether the direction constituted "victimisation". It is clear that Twist and Foster considered that the applicant, with the two Hardys, led the workers off the chain. It is clear that Johnson accepted the evidence of his supervisors and assumed this was so. It is clear that Murphy and Sherrington took the view that the respondent initially considered the applicant and Mark and Colin Hardy had "led the charge". It is possible that Murphy and/or Sherrington and/or the applicant orchestrated the walk off but none of them was prepared to admit that or take responsibility. Each of these three implies that an unidentified boner or boners initiated the action. There is plenty of evidence from members of the union that a walk off was planned and was to take place if the respondent insisted that the applicant work on intercostals as directed. By 9.20 am the employees had voted to return to work provided that the applicant and Mark and Colin Hardy were permitted to return. The respondent would not agree. By 9.30 am the employees had voted to return to work without the applicant or the Hardys. The return to work of all employees except the applicant and C and M Hardy does not constitute any admission for responsibility for the walk off but it is indicative of a union position that these other employees were not responsible. By the end of shift the union had negotiated a return to work of Colin and Mark Hardy. The respondent would not budge on the applicant. In essence the respondent has taken the position that the applicant's refusal on 27 August and his repeated refusal three times on 28 August to work on intercostals justified his immediate termination of employment and it is clear that the respondent took into account an earlier history of warnings to the applicant and refusal by the applicant to comply with directions of the respondent. VALID REASON The applicant asserts that · the respondent must establish a valid reason for termination and has failed to do so: Quality Bakers of Australia Ltd v Goulding (1995) 60 IR 327 · Johnson terminated the employment of the applicant on behalf of the respondent · Johnson terminated the employment as stated in Annexe H to Exhibit R1 (i.e. Johnson's handwritten note on the applicant's personnel file 28 August 1996) "for failure to obey an instruction given by supervisor C Twist to work at intercostals, when he was told to go from fillet and flanks to intercostals. He was late to work, was then instructed to go to intercostals by foreman Foster and he walked off the job and did not carry out his instruction" · the applicant was not instructed to go to intercostals on 27 August · if the applicant was instructed to go to intercostals on 27 August (which is denied) the instruction "may not have been a proper instruction" given the "difficulty" the applicant had "physically" with this job "having cut himself on the second day" of his last stint in the intercostals area. Disposing first with the last of the "assertions" that the instruction, if given on 27 August, was or may have been improper, there are no grounds for such an "assertion", made after the hearing in a final written submission and made in the form of a question as to the propriety of the instruction. No evidence was given by or on behalf of the applicant to challenge the instruction on a ground of the applicant's physical ability to work in intercostals. In any event, an accident report form signed by the applicant states he was cut when hanging up his gear when his knife came out of his pouch and fell on his finger. The Court agrees that Johnson terminated the employment of the applicant and for the reasons outlined in the handwritten note on the applicant's personnel file (Annexure H to Exhibit R1). The Court does not agree that the applicant was not instructed to go to intercostals on 27 August. The evidence of Twist that he so instructed the applicant is accepted. The applicant's witness, Mullins, gives evidence which confirms a statement by Twist indicative of a direction. Mullins states that Twist said to the applicant "whatever job you get you are always complaining. I am going to send you back to wing ribs and that is where you will stay". The Court is satisfied from the general tenor of the evidence and from Twist's and Johnson's diary notes of that day that the applicant was instructed on 27 August to report to work on 28 August on intercostals (wing ribs). The Court also notes the evidence of Foster that when the applicant had not arrived on time on 28 August he directed Michael Smith to take up a position as the third boner on the intercostals stand. Reference has already been made to the evidence that the applicant was late arriving on 28 August and to the view taken by the respondent, and now by the Court, that the applicant by his actions on three occasions on the morning of 28 August declined to comply with an instruction to work at intercostals. The Court has concluded that the respondent has demonstrated a valid reason which is sound, defensible and well-founded within the terms of Selvachandran and Peteron Plastics Pty Ltd (1995) 62 IR 371 and is reinforced in that view by the Full Court judgment in Cosco Holdings v Do and Others (1997) 150 ALR 127. While Cosco dealt with redundancy and operational requirements what is said there about the proper construction of s170DE(1) applies to termination connected with an employee's capacity and conduct. The Court has also taken account of the detailed counselling and warnings given by Hughes on 31 July and referred to below in the context of procedural fairness. PROCEDURAL FAIRNESS - S170DC Counsel for the applicant asserts that even if the Court were to accept that there was a valid reason or reasons for termination connected with the applicant's conduct the termination was nonetheless unlawful, being in breach of s170DC. The breach of s170DC is alleged to be an inadequate investigation of the allegations and an inadequate opportunity for the applicant to defend himself against the allegations. Counsel cited the oft quoted comments of Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 57 IR 50 at 62: "An employer genuinely investigating an allegation of misconduct or neglect of duty, or some other act or omission which might provide a ground for dismissal, is required to carry out a proper investigation, and not merely to go through the motions. The employer is required to ascertain whether there are any mitigating factors, either associated with the alleged ground for dismissal, or arising from the employee's past record and future prospects." Counsel places some reliance on Wyndham Lodge Nursing Home Inc v Reader (1995) 64 IR 83 at 91 where, at first instance, Marshall J found "the investigation carried out by the respondent was far too inadequate...no attempt (having been) made to interview other...staff ...present at the time of (a particular) incident". In Wyndham an appeal was partially successful in that a Full Court remitted for rehearing a primary issue of whether the respondent, an employee, had assaulted a nursing home resident. Nonetheless, in the appeal, the Full Court supported the initial finding of breach of s170DC and declared that the appellant's termination of the respondent's employment contravened s170DC. In that respect there is no difficulty in counsel for the applicant submitting a breach of s170DC on the grounds of inadequacy of investigation "because no attempt was made to interview other of its staff who were present at the time of the incident" (page 7 applicant's final submission). However, I do not agree that the investigation was inadequate or that the applicant was denied an opportunity to respond to the allegation that he failed to comply with a repeated direction to work on intercostals. The adequacy of any investigation must be gauged on the basis of existing circumstances. At 8.45 a.m. on 28 August the President and Secretary of the union at the respondent's plant (Murphy and Sherrington) participated with Johnson in a teleconference with the respondent's General Manager (Hughes). It is common ground that Hughes indicated that there was a procedure to follow and that anyone not prepared to follow the disputes procedure would be terminated, that the workforce was to return to work immediately or face termination of employment and that the applicant and Colin and Mark Hardy were not to be started back at that stage. By 9.20 a.m. the employees had voted to go back to work provided that the applicant and Colin and Mark Hardy were included. Johnson contacted Hughes but Hughes indicated that his original instruction stood. At approximately 9.30 a.m. the employees voted to return to work. Later on the morning of 28 August Hughes advised Johnson that he had agreed with the senior official of the union (Les Day) that Colin and Mark Hardy should not be terminated for what the respondent still maintained was their involvement with the applicant in leading the walkout. Johnson gave evidence that the two Hardys were "not troublemakers and were good employees". Hughes directed Johnson to advise them that they were on a final warning and that their personnel files would be recorded accordingly. At approximately 3.00 pm Johnson called the applicant and Murphy and Sherrington into his office. He advised the applicant that he was considering the termination of his employment for failure to obey instructions and he asked the applicant if he had any reason for failing to obey his supervisor, Cyril Twist. The claim made by the applicant that Johnson said "I suppose I had better hear what you have to say though it won't make any difference to my decision" is rejected. This claim is completely contrary to the general weight of the evidence and is contrary to the evidence of the applicant's witnesses Murphy and Sherrington. The evidence of the applicant and Johnson is consistent in respect to the response made by the applicant. In effect, the applicant does not concede that he was given a direction on the 27 August and he claims that he complied with the direction on the 28 August and went back to the intercostal stand although he had initially decided to go to the fillet and flank stand. Johnson advised the applicant in the meeting at about 3.00 pm that he had been warned in July about accepting and working to instructions and that at the end of July he had been counselled in Johnson's office by Hughes. The applicant appears to have repeated his expressed view that he was being victimised because of his activities as a union official. Johnson repeated that the problem essentially was that the applicant continued to disobey instructions. He was asked again to give a reason as to why he had declined to work on intercostals that morning and had arrived late. The applicant again repeated that he did not consider he was late and that he walked through to fillet and flank because he observed a complete team on the intercostals stand and he only walked out because he saw other boners walking out. He claimed that he was going to do the job on intercostals but when he saw the other boners walk out he also walked out. It is interesting to note that Johnson has reported the applicant as taking the view that he went to fillet and flanks "because the job on intercostals was filled". This is consistent with the applicant's oral evidence and his statement in paragraph 33 where he states: "On the morning of 28 August 1996 when I got to work I was walking toward the area that I had worked the day before, the fillet boning section. On my way there I walked passed the wing rib section where I noticed three workers already there. This section only requires three people working at a time. So I continued to the fillet boning area. When I got there I was told by Chris Foster to go to the wing rib. I turned around and walked back to the wing rib area." The position allegedly taken by the applicant when he first arrived at work and his apparent response at 3.00 pm to Johnson in the presence of Murphy and Sherrington, is not consistent with his position maintained throughout trial that he was not given a clear instruction to go to intercostals on 27 August. If he was given no clear instruction on 27 August to go to intercostals, there would be no need for the applicant to justify going first to fillet and flanks by a reference to a full team of three workers already on intercostals (wing ribs) and there would have been no reason for repeating at 3.00 pm a full team on intercostals as grounds for going to fillet and flanks. After all, as Johnson pointed out, there was also a full team of two boners on fillets and flanks on the morning of 28 August but nevertheless the applicant proceeded there first when he arrived. I have concluded that the applicant was given an adequate opportunity to explain why he · failed to comply with the instruction of 27 August · was late on 28 August · went first to fillet and flanks rather than intercostals on 28 August · did not commence work at intercostals on 28 August but walked off the job I have concluded that the applicant failed to accept parts of the allegation put to him and failed to explain why he did not comply with the instructions of 27 and 28 August. I have concluded that a past history of failing to comply with instructions was put to the applicant and that the applicant had had previous warnings, including a final warning by Hughes in July, and that the issue of the previous warnings was also put to him. In respect of the final warning on 31 July 1996 the Court accepts the evidence of Hughes that: · initially on 31 july Johnson had wanted to dismiss the applicant because of his refusal to accept reasonable instructions in respect of alternative duties and because of "past performances and problems he had suffered with Mr Bornis" · Johnson, when questioned by Hughes about the applicant's performance conceded that "in certain circumstances (the applicant) had been...and would be in the future an asset to the company and with certain aspects of the work was quite able and competent...and had been used to train new employees in the skills required for boning for export markets" · he (Hughes) advised the applicant by conference telephone in the presence of Johnson on 31 July 1996 that "he had been given proper instructions by his supervisors and if he wasn't prepared to carry out those instructions to the best of his ability and (as) he had currently maintained for a couple of hours that he would not do as he was instructed, he would be terminated there and then" · he (Hughes) and the applicant had a lengthy debate "as to how a (union) delegate's role can be of assistance to both employees and employer if the rules, the award and commonsense were applied" · the applicant "finally accepted that he would carry out instructions" · he (Hughes) advised the applicant that "he had tested the water for the last time and that in future if he failed to perform proper instructions given by his superiors that he would be given no further warnings and his services would be terminated" The respondent had documented this and other previous incidents at the time they occurred and documented the circumstances of the termination at the time it occurred. I find that the respondent has complied with s170DC. PROHIBITED TERMINATION - S170DF The right of an employer to terminate the employment of an employee has been restricted by the provisions of Part VIA of the Workplace Relations Act 1996. The restrictions which applied at the time of this termination and at the time of this hearing have been somewhat altered by amendments now in force but the restrictions are essentially similar. The Australian Industrial Relations Commission must now have regard under s170CG(3)(c) whether the employee was given an opportunity to respond to any reason (for termination) related to capacity or conduct of the employee. This was an obligation placed on the Court under s170DC. It still falls to the Court (now the Federal Court) to consider grounds on which employment must not be terminated. That is now s170CK(2). The relevant provisions applicable at the time of this termination were in s170DF. S170DF(1)(b) provides that an employer must not terminate an employee's employment for reasons which include union membership or participation in union activities. In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 268 Northrop J dealt with earlier predecessors to s170DF(1) and with what he described as "the onus of disproving facts, namely that the reason for the defendant's action was not actuated by the reasons alleged in the charge". In Johns v Gunns Ltd (1995) 258 at 267 to 269 Northrop J analysed s170DF(1) and explained why the reasoning in Heidt was equally applicable to s170DF(1). In effect, he pointed out in Johns that in any case in which an applicant alleges a prohibited termination under s170DF(1) it is not sufficient for a respondent employer to establish a reason for dismissal constituted as valid under s170DE(1). He said "the respondent has to establish a negative namely if the reasons for dismissal did not include a reason (prohibited under s170DF(1)). A mere denial may not be sufficient. All the circumstances have to be considered." I pause to note that the learned judge did not say "a mere denial will never be sufficient". He said what judges have often said and continue to say "all the facts and circumstances have to be considered". The statement is made in more detail in Heidt at 266 and is cited in Johns at 267-268: "The provisions...cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge." In the circumstances of this case and for the reasons given throughout this judgment I am satisfied that the respondent did not terminate the applicant's employment for reasons including union membership or participation in union activities. In Johns, on review, an employer representative gave direct evidence that a prohibited reason for termination (temporary absence from work because of illness or injury) "formed part of the reason" for dismissal. In this case employer witnesses have strenuously denied that the applicant's termination of employment was based in any part at all on union membership or participation in union activities. I have concluded that the applicant sought often to categorise lawful instructions to him as employer "victimisation or harassment" in his lawful pursuit of union activities and that he had chosen to categorise his termination of employement in those terms. I do not agree and I note that after termination extensive negotiations led to offers of reinstatement and that, while the respondent considered the matter resolved and settled, and resolved and settled with the agreement of the applicant, the matter went to trial as a contested claim of unlawful termination of employment. In the circumstances of this case I find no breach by the respondent of s170DF(1). ORDER Having found that 1. the termination was for valid reason under s170DE(1) 2. the respondent complied with s170DC 3. the respondent did not terminate the applicant's employment for a prohibited reason under s170DF(1) the application is dismissed. I certify that this and the preceding twenty-five (25) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Ryan to be delivered 29 April 1998 Associate: Dated: 29 April 1998 Counsel for the Applicant: Mr W Elliott Solicitor for the Applicant: Connolly Suthers Counsel for the Respondent: Mr P Lafferty Solicitor for the Respondent: Australia Meat Holdings Pty Limited Date of Hearing: Townsville 14, 15 and 16 May 1997, 27 and 28 August 1997 Final Submissions: 1 and 7 September 1997 Date of Judgment: 29 April 1998