Industrial Relations Commission of New South Wales CITATION: Green v. Shoalhaven Commercial Printers Pty Limited [2005] NSWIRComm 1112 APPLICANT John William Green PARTIES: RESPONDENT Shoalhaven Commercial Printers Pty Limited FILE NUMBER(S): 784 of 2005 CORAM: Connor C CATCHWORDS: termination of employment - summary dismissal - delay in compliance with directions made - conflict in evidence - alleged assault - onus of proof for allegation of misconduct - appropriate level of monetary compensation LEGISLATION CITED: Industrial Relations Act 1996 Briginshaw v. Briginshaw (1938) 60 CLR 336 Busways v. Johnson (1994) 55 IR 255 D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 Gorman v. BHP Integrated Steel Division (unreported) Jones v. Dunkel (1959) 101 CLR 298 CASES CITED: Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 M v. M (1988) 63 ALJR 108 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 Spanish Club Case (1999) 94 IR 173 Wang v. Crestell Industries Pty Limited (19970 73 IR 454 HEARING DATES: 07/04/2005; 07/11/2005 DATE OF JUDGMENT: 08/04/2005 APPLICANT Michael Spivak Illawarra Legal Centre LEGAL REPRESENTATIVES: RESPONDENT Warwick Reynolds Holman Webb Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 4 August, 2005 Matter No IRC 784 of 2005 John William Green and Shoalhaven Commercial Printers Pty Limited Application under S.84 of the Industrial Relations Act, 1996 DECISION [2005] NSWIRComm 1112 Introduction 1 Mr John Green was employed as a stationery manager and purchasing officer with Shoalhaven Commercial Printers Pty Limited. Mr Jim Wheatley and his wife (Mrs Karen Wheatley) are currently joint directors of SCP. They took over the operations of the business from its former owner on Monday, 9 November, 1999 and with it Mr Green who had twelve years of employment at that time with the former owners. Mr Green's father had, in fact, managed the business prior to that time and, after Mr Green's father died, his mother had apparently retained a share of the business up to the time that the new owners had taken it over. Mr Green's services were suspended (with pay) on Thursday, 20 January, 2005 and he was subsequently summarily dismissed on Friday, 4 February, 2005 for the alleged assault of Mrs Wheatley, an allegation which he strenuously denies. 2 Mr Green subsequently lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90], of the 1996 Industrial Relations Act, seeking monetary compensation. The matter was allocated initially to Bishop C. She had originally set the matter down for a preliminary hearing on Monday, 21 March, 2005 but that date was vacated when there was a reallocation of regional work for her. The matter was reallocated to me and I set it down for a preliminary hearing on Tuesday, 5 April, 2005 and a mention on Monday, 18 April, 2005. Those proceedings and all subsequent proceedings were convened in the Commission's premises at 90 Crown Street, Wollongong. 3 Conciliation failed to settle the matter. I programmed it for arbitration, making directions in the customary manner for the filing of the necessary evidentiary material. Such material has been provided on behalf of Mr Green by Mr Spivak, who represented him in the proceedings - an affidavit by Mr Green. I had received nothing in response on behalf of SCP when the matter resumed before me for mention and programming on Monday, 20 June, 2005. Nor was there any appearance by any representative of SCP at that time. I programmed the matter for hearing on Monday, 4 July, 2005, intending to proceed ex parte if that became necessary. 4 Originally, Mr Grasso had represented SCP in the proceedings on Tuesday, 5 April, 2005 and Monday, 18 April, 2005 and it was through him that SCP forwarded its formal response to Mr Green's Part 6 application. However, on Wednesday, 11 May, 2005 Mr Grasso had forwarded a notice that he was ceasing to act for SCP. He was replaced by Mr Watson of the Printing Industries Association of Australia but on Friday, 10 June, 2005 Mr Watson also forwarded a notice to inform me that he was ceasing to act for it as well. In his notice Mr Watson indicated that he understood that another firm of solicitors, which he named, was now representing SCP. I had received nothing to confirm that fact from those new solicitors, however. 5 On Wednesday, 22 June, 2005 Mr Spivak wrote to me to confirm that the new firm of solicitors was now acting for SCP. He understood that the firm had "...instructions to settle the matter...". In fact, on Friday, 1 July, 2005 the firm of solicitors belatedly filed and served four witness statements - from Mr Wheatley and his wife and from two other employees of SCP (Ms Alicia Morris and Mr Darren Fagan). Those witness statements pointed to a far from satisfactory working relationship between Mr Green and Mrs Wheatley, in particular, and suggested to me that settlement of Mr Green's Part 6 application was certainly now less likely. The matter proceeded into hearing on Monday, 4 July, 2005 but did not conclude on that day. The hearing was adjourned for Monday, 11 July, 2005. In the hearing Mr Spivak representing Mr Green and Mr Reynolds representing SCP. 6 In the proceedings Mr Spivak expressed concern over the late filing of evidentiary material for and on behalf of SCP. He initially proposed that I not admit it into evidence. There is precedent for such a course of action. In the Spanish Club Case (1999) 94 IR 173 the Full Bench of the Commission (Wright J - President, Marks J and Bishop C) declined to grant leave for an appeal against a decision at first instance to exclude affidavits into evidence since they had not been provided in accordance with directions made and without furnishing proper reasons for that failure. The Full Bench took the view (at p.173) that the exclusion of the affidavits was at all times within the discretion of the member of the Commission and it was open to the member of the Commission hearing a matter to rule out evidentiary material which did not comply with directions made. But in an effort to be as fair as possible to SCP in the hearing it seemed appropriate for me to permit its late witness statements into evidence and I did so. 7 Mr Spivak sought to admit into evidence the original formal response to Mr Green's Part 6 application. Ordinarily I would have no difficulties with that course of action and on many occasions in the past I have done so to compliment the evidence adduced in the hearing. But on this occasion the position is not so clear cut. It was Mr Grasso who actually prepared the documentation prior to his ceasing to act for SCP and it contains some information which sits at odds with the current position taken by SCP. For instance, it is alleged in the formal response that Mr Green had spoken to Mrs Wheatley in the following terms: "You are mentally retarded. Are you on leave from an institution or have you escaped?" That assertion is not now contained in either the evidence of Mr Green or Mrs Wheatley, although, as I describe later in this decision, it bears some similarity to comments Mr Green attributes to Mrs Wheatley - not the other way around. I do not propose to admit the formal response by SCP into evidence, in any event. It was Mr Grasso who was its author of that documentation (albeit I would have expected that he completed it on instructions from SCP). 8 Over the objections of Mr Reynolds, Mr Spivak also sought to tender into evidence the transcript of an interview that Mrs Wheatley had apparently given on talkback radio. Mr Spivak asserted that Mrs Wheatley had spoken on the talkback radio programme in terms contemptuous of these proceedings and made certain allegations concerning Mr Green which were defamatory. Ultimately, I do not believe that the transcript of the radio programme is helpful to me in answering the issues in dispute between the parties. My only concern is to determine whether or not Mr Green's dismissal was unfair not what is said on talkback radio. If Mr Spivak believes that Mrs Wheatley has acted in contempt of these proceedings or has defamed Mr Green on radio, that is a matter essentially for him and for Mr Green. 9 I gather that Mrs Wheatley was speaking in terms which gave some support to one particular position taken in the current political debate on industrial relations in general, ie that businesses of the size of the SCP operation should be excluded entirely from the unfair dismissal regime. That is Mrs Wheatley's right in a free society but at the present time the remedy exists for an unfairly dismissed employee and Mr Green currently has the right to bring his complaints forward under Part 6, whatever may be the position in the future. Background 10 In his affidavit Mr Green claimed that he had "...gained the respect of many of SCP's customers, suppliers and staff..." and his affidavit is accompanied by written references from SCP customers, suppliers and former SCP staff. None of those referees were called to give evidence and the contents of those written references is therefore not admissible in evidence. They would clearly be hearsay and they were objected to by Mr Reynolds on that basis. Nevertheless, the fact that those references were issued, as distinct from their actual contents, does support the view that Mr Spivak was a respected employee of SCP at least by some customers, supplies and staff members. 11 However, the evidence of two members of the existing staff of SCP - Ms Morris and Mr Fagan - is that they had a strained relationship with Mr Green. Ms Morris claimed that he was frequently disrespectful to her and Mr Fagan described him as a difficult employee to work with. Mr Wheatley described his relationship with Mr Green in his written statement as "unhealthy" and claimed that Mr Green: "...never discussed issues he had misgivings about but rather stewed upon them and allowed the situation to escalate..." 12 Mr Green's relationship with Mrs Wheatley appears to have been particularly strained. He claims that she had verbally abused and threatened him in front of other staff members on a number of occasions. Mrs Wheatley also confirms in her written statement that she had not got on well with Mr Green from the start, viz: "...My relationship with Mr Green was difficult from day one. He was openly resentful of the fact that we had taken over the business. He was rude and would ignore us when we asked for information and often treated us like idiots. I felt very intimidated by Mr Green. He was belligerent. He treated me very badly and often confronted me with a violent attitude, very '...in my face...'. I feared at times that he would physically assault me, such was his manner..." Mr Wheatley described, with some frustration in his evidence, a "...five year history of arguments..." between Mr Green and his wife. He called them separately into his office on one occasion and informed them that he believed their behaviour was childish and unprofessional. He even went so far as to limit the times that his wife attended the office to avoid the friction that he observed between Mr Green and his wife. 13 According to Mrs Wheatley, she gave Mr Green a written warning over his conduct some three years ago but he ripped it up and threw it in the garbage bin. The written notice was created on a computer. She has not kept a copy of it. Mrs Wheatley also recalled one particular argument with Mr Green over the implementation of a computer programme. Mrs Wheatley apparently had formed the view that Mr Green was delaying its implementation. The argument became quite heated. It was overheard by Mr Fagan who very reluctantly was brought into it by Mrs Wheatley. He reported on it in his written statement, viz: "...I was upstairs in the office when I was phoned by Mrs Wheatley to come downstairs to witness the argument. Mrs Wheatley and Mr Green were in an intense argument. I felt embarrassed by this situation. I didn't particularly want to see anything like that. The argument ended when Mr Green stated that he didn't have to put up with this and walked out of work. This was about 1.30pm. Mr Green did not return to work for the remainder of the day..." 14 Mr Wheatley and his wife also claimed that Mr Green was constantly ordering large amounts of stock - according to Mrs Wheatley, intentionally to undermine the business since the stock orders were creating cash flow problems for the business. Mr Wheatley asserted in his evidence that he had to speak to Mr Green on a number of occasions over Mr Green's orders for excessive amounts of stock. But Mr Green continued ordering large amounts of stock against Mr Wheatley's directions and the issue became what Mr Wheatley described in his witness statement as a "...bone of contention..." 15 Mrs Wheatley believes that the genesis of the friction in her working relationship with Mr Green was his belief that his mother had been "...ripped off..." in the sale of the business. Mrs Wheatley records in her written statement that: "...we negotiated a reduced sale price for the business with (the former owners) as the business was operating at a substantial loss for a number of years previously. Accordingly, the share of the proceedings for Mr Green's mother would have been reduced..." Mr Wheatley shares that view, commenting in his written statement that Mr Green: "...has previously said that he felt the discounted price paid for the business had cheated his mother out of a significant amount of money..." But it does not appear to me that there was any real friction in the working relationship between Mr Green and Mr Wheatley who I believe expressed no real antagonistic attitude to Mr Green in his evidence: the problem seems always to have been with Mr Wheatley's wife. They simply did not get on for some reason or another. And since Mrs Wheatley was a director of SCP that was ultimately to be fatal to any continuing satisfactory employment relationship for Mr Green in SCP. 16 As Mr Reynolds submitted, ultimately the friction in the working relationship between Mr Green and Mrs Wheatley is no more than background for an incident which happened on Wednesday, 19 January, 2005 and from which Mr Green's services were terminated. There are conflicting views of what actually transpired at that time and it is necessary to set out the conflicting versions in some detail. It is disturbing to me that there are such discrepancies in the evidence of Mr Green and Mrs Wheatley. I am left with the suspicion that they are both not being totally honest with me, leaving out important parts of the incident which do not put them in a particularly good light. But it is on the strength of those conflicting versions of the incident, and their credibility as witnesses, that this hearing really turns. The Evidence of Mr Green 17 Mr Green was entrusted with security for the SCP premises and he was in possession of a full set of keys and the security codes for the alarm system. At 5.30pm on Wednesday, 19 January, 2005 Mr Green finished work and exited the side entrance to the SCP premises which leads into a laneway at the end of which is a padlocked gate. Mr Green locked the padlock on the gate as he left. Mr Wheatley remained working inside the premises at the time. Mr Green recognised Mrs Wheatley's car parked on council land adjacent to the SCP premises. He assumed that Mrs Wheatley must also have been upstairs working. He claimed that he did not see her until she approached Mr Green as he walked away, yelling aggressively at him: "I would expect as much from you." Mr Green turned around and saw Mrs Wheatley standing in the middle of the driveway. She said to him: "Get out of my sight. You make me sick." 18 That exchange took place in front of another employee who left shortly after it but that employee was not called to give evidence in the hearing to confirm that part of the conversation at least, leaving me with the uncorroborated evidence of Mr Green alone to support his version of the incident. Mr Reynolds submitted that the failure of Mr Spivak to call that other employee to back up Mr Green's version of the conversation raised an inference that his version was not correct [Jones v. Dunkel (1959) 101 CLR 298]. But I must deal with what evidence is actually led in these proceedings and I believe that it is not correct to automatically draw such an inference simply because a particular witness was not, in fact, called to give evidence. 19 Mr Green continued to walk away to where his car was parked. He entered his car and then chose to drive back to speak further with Mrs Wheatley in an effort, he claimed, to resolve the matter and eliminate any further conflict on the following work day. He parked the car in the middle of the driveway, approximately five metres from where Mrs Wheatley was standing and walked over to her. Mrs Wheatley repeated: "Get out of my sight." Mr Green, assuming correctly that Mrs Wheatley had been locked out of the SCP premises, responded: "I didn't realise you were in the car. Would you like me to let you into the shop?" 20 Mr Green alleges that Mrs Wheatley said words to the following effect: "You're nothing but a glorified shop boy and an idiot. I am scheduling a meeting tomorrow with my husband and our solicitor. I know people at the hospital and they told me all about your mental problems." Mr Green claimed that he remained calm but asked: "Who at the hospital said that? I demand to know." Mrs Wheatley was pointing her finger at him at the time. She then folded her arms and responded: "You demand nothing from me." 21 Mr Green then claimed in his written statement that he placed the underside of his index finger and middle fingers of his right hand under Mrs Wheatley's left forearm for two seconds and asked her to tell him who at the hospital had spoken of his alleged mental problems. He described his conduct as an "appeal" to Mrs Wheatley. He denied that he pushed her. Mrs Wheatley quickly turned away, saying: "Don't touch me. I'll have you on assault. And you know I will." Mr Green asked that Mr Wheatley be present to hear the conversation and Mrs Wheatley called him on her mobile telephone. Mr Green asked that the matter be handled urgently as he had an appointment. He asserts that Mrs Wheatley replied sarcastically: "Oh, you have to go and see your psychiatrist or go to a gay bar." 22 Mr Wheatley arrived on the other side of the padlocked gate and through the gate Mrs Wheatley told him that Mr Green had called her a "fucking bitch". At that time Mr Green did not deny to Mr Wheatley that he called Mrs Wheatley a "bitch" but he claimed that he had done so under considerable provocation from Mrs Wheatley and he denied using the offensive adjective "fucking". I have to say, that to my mind not a great deal turns on any distinction between calling any woman a "bitch" or a "fucking bitch": the word "bitch" is offensive enough, in my opinion. But on reflection, Mr Green now believes that he had not called Mrs Wheatley a "bitch" at all. He has admitted in his evidence that on occasions in the past he has described Mrs Wheatley as a "bitch" to other staff members but he denies having called her one to her face at any time. Mr Fagan, for instance, recalled Mr Green calling Mrs Wheatley a "bitch" when she was not in the room. 23 Mr Wheatley did not go to let Mrs Wheatley into the SCP premises. He remained on the other side of the padlocked gate. He raised his hands, saying: "I don't want to hear about it." And walked back into the SCP premises. As Mr Green was walking back to his car, Mrs Wheatley followed him and then said: "Get off the property. You have to remember who pays your wages." Mr Green brought out copies of his timesheets and pay slips from his shoulder bag and showed them to her. This apparently caused some concern to Mrs Wheatley who shouted out to Mr Wheatley as he walked away: "He's copied the timesheets." By that time Mr Wheatley was out of sight and no doubt did not hear what Mrs Wheatley had said. 24 As Mr Green reached his car he heard Mrs Wheatley say: "You're so ugly. You make me want to vomit." And Mr Green's response to Mrs Wheatley, no doubt with irony and sarcasm, was: "You're pretty." Mrs Wheatley stated: "I know." 25 Mr Green contends that at no time had he been accused of assaulting Mrs Wheatley until after he had been suspended and police officers visited his home and interviewed him over an allegation of assault and also, inexplicably, break and enter (which suggests to me that the police officers did not have a great deal of information to go on). Mr Green claims that to have been the first occasion that he understood that he was accused of assault. The letter of Thursday, 20 January, 2005 confirming his suspension spoke only of an "...altercation...". The police investigations of this matter have not apparently resulted in any charges being laid against anybody. The Evidence of Mrs Wheatley 26 At 5.15pm on Wednesday, 19 January, 2005 Mrs Wheatley attended the office to pick up Mr Wheatley because his car was in service. She parked the car in the grassed area just off the driveway to the SCP premises. As she got out of her car she observed Mr Green walking out of the gate. She is confident that Mr Green saw her as he was looking straight at her but he hurriedly locked the gate, denying her access to the SCP premises. She is convinced it was a deliberate act on Mr Green's part. Mr Green turned and spoke to her: "Oh, that's right. I forgot, you don't have any keys, do you? And kept on walking. 27 Mrs Wheatley said: "Thank you very much for that. That is exactly what I would expect from you." She rang Mr Wheatley and told him that she had been locked out by Mr Green and Mr Wheatley said that he would be down "...in five or ten minutes..." and would leave the SCP premises with her at that time. Mrs Wheatley told him that she would wait and she did so. She had no reason to enter the SCP premises as she was only present to pick Mr Wheatley up and drive him home. 28 Five minutes later Mr Green returned in his car, got out and stood three metres from her, doing what she described as a "...funny little dance..." and saying: "Oh dear, did I lock you out? I thought I ought to come back and let you in." Mrs Wheatley replied: "Don't bother. I don't want anything to do with you. You're not supposed to be here. You've finished work. Leave the premises now." But Mr Green refused to leave. 29 Instead, he pulled timesheets out of a bag that he held over his shoulder relating to his pay for the previous week. He walked up to her and waved the timesheets in her face. He was very agitated, complaining that he had not been paid for his overtime. Mr Green allegedly screamed at her: "You fucking bitch. I worked all this overtime and haven't been paid." Mrs Wheatley responded: "Well, you're not getting paid anything more than you're entitled to. You're nothing but a glorified shop boy. We don't know what you do here so therefore you don't get paid. And you have already been told that you don't get paid overtime without approval." 30 Mr Green threatened to take the matter up with "...the DLI..." and commented further: "I know all about your financial position. You're in trouble, aren't you? Mr Green then spoke of a third party claim Mrs Wheatley had made - an injury to her finger from a baby cot - which had been settled, viz: "You got a nice payment for that. And how is the little finger anyway?" Mrs Wheatley replied: "That's none of your business." Mrs Wheatley claimed that the fact that Mr Green knew all of this confidential information shocked her. She suspects that he had looked at the business records in the cabinet in Mr Wheatley's office. That cabinet is not always locked apparently. 31 Mrs Wheatley conceded that she was upset but she claimed that Mr Green was in a rage. She claimed that she thought "...he was really losing it..." and "...his eyes looked crazy..." He became very abusive and she believed that at one stage he was going to hit her. She told him to leave but he refused to do so. He called her a "fucking bitch" again (two more times) and pushed her shoulder with his open hand sufficiently to move her backwards. She did not fall over or sustain any injury, however. She responded: "If you touch me again, I will have you charged with assault. You do not lay your hand on me ever again." Mrs Wheatley telephoned Mr Wheatley on her mobile telephone and asked him to come down to the gate. 32 Mr Wheatley arrived and stood on the other side of the padlocked gate. He did not have the key necessary to open the padlock. Mrs Wheatley told Mr Green to repeat what he had called her and then told Mr Wheatley: "He called me a fucking bitch. He pushed me. He's refusing to leave." Mr Wheatley spoke to Mr Green through the padlocked gate. He repeatedly told him to leave: "Just go. Fuck off." And Mrs Wheatley was also saying: "Just leave the premises." Mr Green kept the argument going but eventually did leave. It was only when Mr Green left that Mr Wheatley returned to the SCP premises. Conclusion 33 The words in S.84(1) on which the success of any Part 6 application relies are "harsh", "unreasonable" or "unjust" [Busways v. Johnson (1994) 55 IR 255 at p.261]. My principal task in this hearing remains to identify whether or not the termination of Mr Green's services was unfair in that context. I appreciate that Mr Wheatley was placed in a difficult position over this issue. After all, one of the two combatants in this unfortunate incident was his wife. It was natural that he would take his wife's position over the issue in preference to Mr Green. He did so, accepting her version of the incident and rejecting the version advanced by Mr Green in the process. I do not criticise him for doing so. But that must mean that he rejected Mr Green's version of the incident when I believe that a more balanced approach would have satisfied him that his wife was far from blameless over the incident. In acting as he has done, I believe that he acted unfairly to Mr Green. 34 This undignified exchange between Mr Green and Mrs Wheatley does neither of them very much credit. I am astounded that in any working relationship two adults would behave in the manner which is suggested by the evidence in this hearing. I am sure that Mr Wheatley is correct when he describes the conduct of both Mr Green and his wife as childish and unprofessional. I am not at all confident to accept either the evidence of Mr Green or Mrs Wheatley without some reservations - and it is on their evidence, largely uncorroborated, that I am forced to rely in this hearing. Mr Reynolds sought corroboration of Mrs Wheatley's version of the incident from comments made to Mr Wheatley and his attitude to those comments as part of the res gestae of the incident. But I find that information unconvincing. 35 I suspect that with their highly coloured versions, both Mr Green and Mrs Wheatley have sanitized their versions of the incident, leaving out some aspects of the argument between them that places them in a bad light. The truth probably lies between the two versions. Both Mr Green and Mrs Wheatley no doubt said things that it would have been far better to have left unsaid. In my view they were both at fault and their conduct, in effect, cancels one another out. 36 As far as Mr Green is concerned, it is possible that he saw Mrs Wheatley and chose to lock her out. That was what Mrs Wheatley believed and it would make more sense that when she made her comment - "...I would expect as much from you..." to Mr Green she was responding to his deliberate act of locking her out. As Mr Reynolds suggested in his submissions, Mr Green's version of this part of the incident "...lacks context...". Furthermore, even if Mr Green had not initially appreciated that Mrs Wheatley had been locked out of the SCP premises, he certainly should have formed that impression when she spoke to him. Yet he continued to walk away to his car, only to return some time later. 37 It also seems implausible to me that Mr Green would have remained as calm as he suggested in his evidence during the incident. From upstairs at her desk Ms Morris overheard both a male and a female voice shouting. Mr Green may not have been in a rage, as Mrs Wheatley claimed in her evidence, but I would expect him to have been angry. On his own evidence, he had just been informed that he was a "...glorified shop boy..." and an idiot, told that he made Mrs Wheatley sick and received offensive statements concerning his mental state and other personal matters. 38 But I still found Mr Green's version of the incident to be more plausible and it his evidence which I prefer overall. He gave his evidence in a calm manner which sits oddly with the aggressive employee which Mrs Wheatley would have me believe he was. And as far as Mrs Wheatley is concerned, she was also obviously upset over being locked out of the SCP premises. It was a female voice, as well as a male voice, shouting that Ms Morris heard from her upstairs desk. Mrs Wheatley became angry and, I conclude, making the offensive and unnecessary comments to Mr Green which he attributes to her. Her conduct simply served to escalate the dispute unnecessarily. 39 Of course, if Mr Green assaulted Mrs Wheatley it would obviously constitute a ground for his summary dismissal. But, while Mr Green does not deny that he briefly touched Mrs Wheatley, he denies that he assaulted her. And the question before me is simply to determine whether such an assault actually took place. I do not believe that there was an assault. As I indicated in my unreported decision of Thursday, 13 July, 2000 in Gorman v. BHP Integrated Steel Division [Matter No.IRC 4242 of 1999 at pp.47 and 48]: "...The gist of the assault lies particularly in the apprehension in the victim's mind. Thus a person pointing a harmless toy pistol at a taxi driver who was deceived and thought the pistol was real would still clearly be an assault [ R v. Everingham (1949) 66 WN(NSW) 122]..." 40 According to Mrs Wheatley, Mr Green assaulted her after he had shown her the timesheets which he had taken out of his shoulder bag. In other words, Mr Green's hand was apparently holding pieces of paper and yet, according to Mrs Wheatley, he still struck her with an open hand. I do not accept that he could have actually done so. It is also surprising to me that, if Mrs Wheatley was so concerned for her safety, she would continue to argue with Mr Green after he had allegedly assaulted her and after Mr Wheatley had left her alone, following Mr Green to his car. And I accept Mr Green's claim that she had done so. 41 More significantly, I would not expect Mr Wheatley to have walked away from the other side of the padlocked gate and left his wife in the presence of Mr Green in the rage in which Mrs Wheatley claimed him to be. Mrs Wheatley had allegedly telephoned her husband in an agitated and concerned state, fearing for her safety. Mr Wheatley knew that his wife was locked out because she had told him earlier on the telephone. And yet he never thought to ensure that he had keys to get access to her. Again I accept Mr Green's evidence in that respect. Perhaps Mr Wheatley may not have actually found it necessary to jump the gate to come to the defence of his wife, as Mr Spivak suggested in his cross-examination of him, but I would have expected that if he genuinely believed that his wife had been assaulted he would have remained to assist his wife or walk around to the side entrance and let her in. 42 Mr Wheatley did neither. Rather he walked away from the area. I suspect that Mr Wheatley simply walked away because he was somewhat frustrated by the conduct before him and the incriminations flowing from both Mr Green and Mrs Wheatley - a natural reaction in my opinion. Mr Wheatley conceded in his evidence in this hearing that he was not really interested in the details of the argument before him on Wednesday, 19 January, 2005 but simply to get the problem over. I also note from Mr Wheatley's written statement that Mr Green had never admitted to him that he pushed Mrs Wheatley in his subsequent interview of him. In fact, Mr Wheatley concedes that he never actually put that allegation to him specifically. 43 Where, as in this case, an employee is summarily dismissed for misconduct which is denied by the employee, the onus of proof rests on the employer to establish that misconduct [Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v. Gartrell White (No.3) (1990) 35 IR 70 at pp.83 and 84]. It is hardly surprising that any litigant making a serious allegation - and an allegation of assault is clearly serious - should be put to the task of establishing that fact. The standard of proof is not the criminal standard - beyond reasonable doubt - but the civil standard - the balance of probabilities. The situation was described by the Full Bench of the Commission [Cahill J - Vice President, Hill J and French C] in Wang v. Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 46 to which Mr Spivak referred in his submissions, viz: "…The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v. M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v. Briginshaw (1938) 60 CLR 336 at p.362…" Therefore, in this hearing it falls on Mr Reynolds to establish that the assault actually took place. I believe that he has failed to do so. 44 Mr Green has not sought to return to employment, which has long been the principal remedy for an unfairly dismissed employee [eg Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 at p.15]. In any event, clearly reinstatement would not be a viable option for Mr Green. His claim is confined to monetary compensation. The upper limit for such monetary compensation is set by S.89(5) as: "…an amount of compensation not exceeding six months' remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed…" And Mr Green's claim in this hearing must also be considered bearing in mind the provisions of S.89(6), viz: "When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment." 45 Whilst S.89(5) is concerned with loss of income, not any assessment of damages, there remains a certain amount of speculation in determining the appropriate level of compensation. In D and R Commercial Pty Limited v. Flood (2002) 113 IR 344 the Full Bench of the Commission (Wright J - President, Walton J - Vice President and Tabbaa C) alluded to that when (at p.363) it commented that: "…the power in the Commission to make a money order, subject to the limitation on the quantum of compensation and the matters required to be taken into account by S.89(6), is nevertheless within the Commission's discretion. Whilst the Commission is required to take into consideration the matters identified in S.89(6), those matters are not necessarily to be reflected in any particular, arithmetic or definitive way in the money order for compensation made…" S.89(6) does not provide a simple mathematical formula - a sum representing the amount of income over the period of six months immediately prior to dismissal minus a sum representing the earnings after that date equals the amount of compensation available. The direction in S.89(6) is to "…take into account…" those factors: what is actually to be done with that information is still a matter for my discretion, provided always that I do not exceed the six month ceiling in S.89(5). 46 On Thursday, 19 May, 2005 Mr Green found alternative employment. He is not earning as much as he earned whilst he worked for SCP and his new employment is casual only at this time. In the circumstances, based on the figure of $694.00 which Mr Green recorded in the Part 6 application as his average weekly remuneration when he worked for SCP and bearing in mind the provisions of Ss.89(5) and (6), I propose to order that it pay to him the sum of $8,950.00. I reserve Mr Spivak's application for costs. O R D E R 1. Shoalhaven Commercial Printers Pty Limited shall pay the sum of $8,950.00 to Mr John Green within 28 days. 2. This order shall take effect on and from Thursday, 4 August, 2005. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.