Industrial Relations Commission of New South Wales CITATION : Burge v NSW BHP Steel Pty Ltd [2001] NSWIRComm 117 APPELLANT Shane Peter Burge PARTIES : RESPONDENT NSW BHP Steel Pty Limited FILE NUMBER: IRC 1251 of 2000 CORAM: Walton J Vice-President; Hungerford J; Bishop C CATCHWORDS : Appeal - Application for leave to appeal - Unfair dismissal - Challenge to commissioner's decision that dismissal was not harsh, unreasonable or unjust - Dismissal for fighting in the workplace - Alleged serious and wilful misconduct - Errors of fact and law - Serious issues raised - Interests of dismissed employeee - "No fighting" policy of employer - Investigation of incident by employer - Policy applied without considertion of background circumstances - Provocation - No eyewitnesses - Failure to take into account objective evidence of what likely occurred - Reliance on reconstruction of incident without evidentiary support - Onus on employer to establish misconduct to requisite standard of proof - Leave to appeal granted - Appeal upheld - Practicability of reinstatement - Discretion - Reinstatement ordered, without loss of remuneration and continuity of employment (except for a specified period). LEGISLATION CITED : Industrial Relations Act 1996 s 89 s 181(2) s 187(a) s 188(1) Pt 6 of Ch 2 Abalos v Australian Postal Commission (1990) 171 CLR 167 Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Australasian Transport Officers' Association v Department of Motor Transport [1988] 25 IR 235 Autobake Pty Ltd v Budd [1986] 19 IR 18 Bankstown City Council v Paris (1999) 93 IR 209 Bostik (Australia) Pty Ltd v Gorgevski (No 1) [1992] 41 IR 452 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 CCH Australia Ltd v Bowen (1998) 79 IR 206 Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 Crown Employees (Teachers, Locality Allowance, &c) Award [1981] AR (NSW) 1017 Dispute - Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 CASES CITED : Four Sons Pty Ltd v Limsiripothong (No 2) (2000) 100 IR 400 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151, (1999) 88 IR 282 London Bank of Australia Ltd v Kendall (1920) 28 CLR 401 Martin v Osborne (1936) 55 CLR 367 NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 Oswald v New South Wales Police Service (1999) 90 IR 42 Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) [1990] 35 IR 70 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 Port Macquarie Gold Club Ltd v Stead (1996) 64 IR 53 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 Warren v Coombes (1978) 142 CLR 531 Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 HEARING DATES: 08/17/2000; 08/18/2000; 12/13/2000 DATE OF JUDGMENT: 05/31/2001 APPELLANT Mr M J Kimber SC and Mr P Ginters of counsel Solicitor: Mr Z Brull Meyer Solomon & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr H J Dixon SC Solicitor: Mr A O Davies Blake Dawson Waldron JUDGMENT: - 38 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WALTON J, Vice- President HUNGERFORD J BISHOP C Thursday, 31 May 2001 Matter No IRC 1251 of 2000 SHANE PETER BURGE v NSW BHP STEEL PTY LIMITED Application by Shane Peter Burge for leave to appeal and appeal against a decision of Mr Commissioner Redman given on 10 March 2000 in Matter No IRC 3247 of 1999. DECISION OF THE COMMISSION [2001] NSWIRComm 117 1 This is an application for leave to appeal and, if granted, an appeal by Shane Peter Burge against a decision of Mr Commissioner Redman given on 10 March 2000. The commissioner dismissed the appellant's claim pursuant to Pt 6 - Unfair dismissals of Ch 2 of the Industrial Relations Act 1996 for relief relating to his alleged unfair dismissal by the respondent, NSW BHP Steel Pty Limited, on 8 June 1999 for misconduct on finding that the dismissal was not harsh, unreasonable or unjust. The appellant sought orders on appeal that the commissioner's decision be quashed and that the respondent reinstate the appellant to his former position, together with consequential orders for the recovery of wages and continuity of the period of employment lost by reason of the dismissal. Also, the appellant claimed an order for his costs of the proceedings both at first instance and on appeal. The respondent opposed leave to appeal being allowed and sought the dismissal of any appeal on merit grounds. 2 At the outset, we indicate, as required by s 188(1) of the Industrial Relations Act for this appeal under s 187(a) thereof to be competent, that leave to appeal should be granted and we will do so. The whole of the circumstances of this case, as will become apparent from our review of them, warrants appellate consideration of the issues. 3 Mr H J Dixon SC, for the respondent, submitted that "the appeal is against the discretionary judgment of the Commission at first instance to the effect that the dismissal of the appellant by the respondent in June 1999, because of misconduct, was not harsh, unreasonable or unjust". He submitted that in terms of principle, mere discretionary decisions ordinarily will not attract leave to appeal unless a proper case be made out: see Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at pp 265-266. Here, however, the notice for leave to appeal pleaded the following serious errors allegedly made by Redman C: (a) The Commission adopted the wrong test for evaluating the applicant's unfair dismissal claim in that the Commissioner erroneously focussed on whether or not the employer's conclusion as to misconduct was "open to it as a result of its investigation … its decision to dismiss him was, in all the circumstances, a reasonable decision …"; (b) the Commission paid no regard to the fact that when dismissals are based on allegations of misconduct, the respondent employer bears the onus of proving that the applicant was, in fact, guilty of that misconduct; (c) the Commission failed to pay any, or any proper regard, to the fact that as there were no eye witnesses to the altercation between the applicant and Usher, close scrutiny would then need to be given to the objective or independent evidence in deciding whether the respondent employer had discharged its onus as to the applicant's alleged misconduct; (d) the Commission effectively ignored the respondent's own evidence (from Ainsworth) that "mitigating factors" were not taken into account in either deciding whether the applicant was guilty of misconduct or in deciding on an appropriate penalty for the said misconduct; (e) the Commission failed to pay any, or any proper regard, to the fact that the respondent employer was aware of the antipathy between the applicant and Usher and to the fact that an immediate supervisor forecast trouble between the two men when he became aware that they were rostered to work together again; and (f) the Commission, in preferring the evidence of Usher to that of the applicant with respect to the altercation itself failed to pay any, or any proper regard, to the fact that Usher gave several quite different versions as to the nature and extent of the altercation; that he left the scene of the altercation before the supervisor arrived in answer to the applicant's cries for help; and sustained no marks, torn clothing or any other injuries (save for abrasions to his knuckles). 4 The extent to which, if at all, those errors be ultimately established is not a matter to be finally determined on the question of leave but only on a full hearing of the appeal. In themselves, we are satisfied they raise serious issues to be tested, are reasonably arguable and are of a nature proper to attract leave to appeal. Further, and importantly both for the question of leave and the appeal itself, the alleged errors so identified demonstrate, contrary to Mr Dixon's submission, that the decision made by Redman C was not solely discretionary in nature. The initial question arising is whether the dismissal was harsh, unreasonable or unjust; in our view, that process involves mixed issues of fact and law: see Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151 at pp 181-182, (1999) 88 IR 282 at p 310; and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at p 59. If that process leads to a decision favourable to the dismissed employee then the next issue involves the exercise of a discretion as to what, if any, relief should be allowed: cf Port Macquarie Golf Club v Stead (64 IR at p 60). We do not, therefore, view the commissioner's decision as the exercise merely of a discretion. 5 We should emphasise on the aspect of leave to appeal that the appellant's dismissal from employment was for serious and wilful misconduct for fighting at the workplace with another employee, David Michael Usher, who was dismissed also but did not bring any claim to the Commission in relation thereto. We accept the submission of counsel for the appellant, Mr M J Kimber SC and Mr P Ginters, that "a dismissal for fighting is a serious matter vis a vis an employee's future employment prospects" and particularly so where the commissioner found the appellant to have "actively participated" in the fight with Mr Usher. We were reminded of, and accept as supportive (but not determinative) of leave to appeal, the general industrial principle, as repeated by Dey J in Re Crown Employees (Teachers, Locality Allowance, &c) Award [1981] AR (NSW) 1017 at p 1049, "that the interests of employees are an important aspect of public interest". The same point was stated in this way, and with which we agree, by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) [1990] 35 IR 70 at p 84 : As was the case in Re Wentworthville Leagues Club Ltd (1976) 18 AILR 355, the position here is that the company has made an allegation of misconduct in summarily dismissing Mr Parsonage which could well, if left unproven, nevertheless be a stigma on Mr Parsonage which may well have implications for his future employment prospects. If misconduct indeed not be made out, then, on the approach I take, a very serious allegation against Mr Parsonage has been found to have no substance; if that be the result, then, in my view, that finding should be clearly made and published. So too, it will represent a very compelling consideration for restoring the employment relationship otherwise unlawfully severed. 6 The commissioner, in a very detailed and comprehensive decision, examined the altercation between the appellant and Mr Usher in light of their relationship over the previous few years, their conflicting evidence about the fight itself (to which there were no eyewitnesses), the nature of the investigation conducted by the respondent (including interviews with the two employees concerned), the respondent's policy as to fighting in the workplace and the consequences of the appellant being reinstated. Much of the commissioner's decision referred to the parties' submissions on the applicable law from the cases on the subject of fighting at work and how it was applied to the particular facts of those cases. However, the commissioner did not go the next step after his analysis of the facts here and making findings thereon to relate those findings to the relevant principles of law. In any event, we have to say the commissioner's process in reasoning the available facts, many of which were based on circumstantial evidence, was inconsistent with the evidence so as to lead to an unreasonable explanation for what occurred. As was said by Dixon J, with whom Latham CJ agreed, in Martin v Osborne (1936) 55 CLR 367 at p 375 – "If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference". In the result, as will later emerge from these reasons, Redman C, in our opinion, fell into error both of fact and law requiring appellate intervention. 7 The general principle is that an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge; in deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusions of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it: Warren v Coombes (1978) 142 CLR 531 at p 551. And, in addressing error, an appellate court should not interfere with the trial judge's conclusions on facts unless it is of the opinion that they were not reasonably open (or were clearly wrong) on the evidence: Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at p 107; Autobake Pty Ltd v Budd [1986] 19 IR 18 at p 25; Abalos v Australian Postal Commission (1990) 171 CLR 167 at pp 178 ff; Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 153-155; and Port Macquarie Golf Club v Stead (64 IR at p 59). Importantly in this latter respect, we have in mind the observations by the High Court in London Bank of Australia Ltd v Kendall (1920) 28 CLR 401 at p 407 as to the duty of an appellate tribunal, as follows : But where the law says that the Court, and not a jury, is to determine the facts, and also says that an appellate Court can be asked to reconsider them, and therefore should reconsider them, it is the duty of the appellate tribunal (and it is the statutory right of the litigant who invokes it to require of it the performance of that duty) to determine for itself the true effect of the evidence so far as the circumstances enable it to deal with the evidence as it appeared in the Court of first instance. 8 It is timely also to restate what we regard as the settled approach to follow on an appeal from a discretionary decision involving findings of fact and credibility of witnesses. In Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 at pp 42-44, Wright J, President and Walton J, Vice-President reviewed the principles by reference to the authorities cited therein. In summary form, the approach was re-stated by a Full Bench (Wright J, President, Glynn and Hungerford JJ) in Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 at p 428, as follows : Nevertheless, and notwithstanding the grant of leave, this appeal falls to be considered in accordance with the ordinary principles as an appeal stricto sensu and having in mind the statutory requirement in s 191(3) of the Industrial Relations Act obliging the Full Bench to follow the principles applying to appeals from discretionary decisions: see Big W Discount Stores v Donato (1995) 58 IR 239 at 242-244; Re Solicitors (State) Award (No 3) (1997) 72 IR 225 at 234-235 and the cases cited therein. In the result, it is only open for us to view the challenged decision on appeal in accordance with the proposition that the exercise of a discretion by the primary judge has long required that an appellate court is not justified in interfering with the decision made unless it reaches the clear conclusion that by reason of some error, whether of fact or of law, the primary judge not only has taken a different view but has failed properly to exercise the discretion conferred: see also Mace v Murray (1955) 92 CLR 370 at 378; and Port Macquarie Golf Club Ltd v Stead (1996) 64 IR 53 at 58-60. The principle was restated by a Full Bench ( Wright J, President, Walton J, Vice-President and Peterson J) of the Court in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 446 and again in Abboud v State of New South Wales (Department of School Education) (1999) 92 IR 32 at 42-43 (per Wright J, President, and Walton J, Vice-President); it needs no further elaboration here. 9 It is necessary, before reviewing the subject altercation which occurred at about 3.00 am on 7 June 1999 leading to the dismissal, to shortly trace the earlier relationship between the appellant and Mr Usher. The appellant commenced employment with the respondent on 6 April 1992 as a mechanical maintenance fitter at its steel mill at Rooty Hill. Mr Usher also was employed at the steel mill on maintenance work, but as an electrician, and both he and the appellant commenced work together during 1994. However, it seems that in mid to late-1994 Mr Usher and another employee carried out a workplace "prank" by filling the appellant's tool box with expanding foam - it was said in evidence by Mr Usher, denied by the appellant, that the appellant threatened to "punch his head in"; it appeared from that point, notwithstanding an apology by Mr Usher after he cleaned the tool box, that relations between the two men became strained and, unbeknown to the appellant, Mr Usher requested the supervisor to so arrange the rostering that he and the appellant would perform work on different shifts. Although that arrangement was put in place, it was not communicated to senior management at the steel mill. Then, in 1998, there occurred at the steel mill an altercation between two employees, Jonathan Holmes and Peter Cavanagh, in which the former assaulted the latter, although it seems not seriously so; at the time, both the appellant and Mr Usher were union delegates - Mr Usher urged Mr Cavanagh to report the incident to management, against the appellant's strong disapproval, and Mr Holmes was thereupon asked to resign and he did so. In the result, it was alleged the appellant continued to make adverse comments to Mr Usher about "dobbing-in" Mr Holmes. To exacerbate the situation, there was evidence that the appellant regarded Mr Usher as a good electrician but he had heard rumours since 1994 from other employees that Mr Usher had stated he was incompetent in his job and should not have been employed by the respondent as a mechanical fitter. In that context, the events of what occurred on 6 and 7 June 1999 are to be viewed. 10 Ironically, both the appellant and Mr Usher were considered by the respondent to be suitable to join other selected employees in a two-weeks' training programme in Germany in 1999. However, prior to the training occurring and due to the strains thereby placed on manning levels as groups of employees attended the training from time-to-time, the appellant and Mr Usher were rostered to work at the steel mill on the same shift from 7.00 pm to 7.00 am as from about 5 June 1999. The commissioner in his decision set out what then occurred in the following way: In this capacity they worked side by side without incident until on the 6th June a crane driver, Mr Frank Refalo, told Mr Burge privately that Mr Usher had made some uncomplimentary remarks alleging Mr Burge lacked skill and confidence on the job. This was later reported to Mr Burge by Mr Refalo. At about 10.00 pm on the 6th June Mr Usher responded to a call over the 2-way radio system which required an electrician to attend an alarm and after announcing that he was proceeding to check the alarm, Mr Burge announced over the 2-way radio system, "Usher is a two-faced cunt, Budgie". Mr Burge's nickname in the Mill was 'Budgie'. Mr Usher attended the alarm only to discover that the problem was not electrical in nature but was hydraulic. The attendance of a fitter was therefore necessary. At about 11.00 pm on the 6th June Mr Burge went to the Arc Furnace Control Room to attend to the hydraulic alarm. Mr Usher was in the room when Mr Burge arrived as were Mr David McKissock who is the Shift Leader in the Company's Melt Shop and five or six other employees. Mr McKissock supervises and manages about 20 employees, including Mr Burge and Mr Usher. The evidence of Mr McKissock and Mr Usher is that when Mr Burge entered the room he said, "David, you're a two faced cunt." Mr Burge denies using those words and alleges that he said: "Watch what you say about me Dave. Word gets back to me. I don't need this shit." When Mr McKissock asked Mr Burge whether he was referring to himself as his given name is also David. Mr Burge responded by saying, "no.....it's the guy who is sitting next to you." Mr McKissock directed Mr Burge to proceed to attend to the hydraulic problem. After Mr Burge had left, Mr McKissock called Mr Usher into his office to enquire what the problem was between the two men. Mr Usher indicated that he did not like to work with Mr Burge as they did not get along well together. Mr McKissock counselled Mr Usher to keep away from Mr Burge if at all possible on the shift as this was their last night rostered to work together. Mr McKissock further directed Mr Usher to proceed to the Arc Furnace Room and undertook to direct Mr Burge to the Castor Room so that the two men would not have contact for the remainder of the shift. A little later Mr McKissock spoke to Mr Burge at the Arc Furnace where he was carrying out repair work and upon inquiry Mr Burge advised Mr McKissock that the crane driver Refalo had told him that Usher had said to Mr Refalo that Mr Burge was, "nothing but a grub, a big mouth on days and a king shit on shift." Mr McKissock advised Mr Burge that he had directed Mr Usher to remain in the area of the Arc Furnace Room in order that the two men should not have contact for the remainder of the shift. Mr McKissock's evidence was that at about 3.00am on the 7th June he had heard Mr Burge screaming over the two-way radio system. In response to Mr Burge's screams for help Mr McKissock eventually found him injured outside the Hydraulic Room. Mr Burge told Mr McKissock that he had been attacked by Mr Usher. Mr Usher was summoned to the scene. He initially denied that he had been involved in an altercation with Mr Burge but quickly changed his story admitting that he had fought with Mr Burge but had simply been defending himself. Mr Burge had insisted that the police be called. The evidence before the Commission is that Mr Usher and Mr Burge were engaged in a forceful physical and verbal confrontation lasting for a few minutes. The evidence also establishes that as a result of the confrontation which was described by the parties as a "fight", Mr Burge suffered a depressed fracture of his right cheek bone as well as abrasions to his face and neck while Mr Usher suffered abrasions to his hands. 11 The appellant's version of the actual altercation was stated in this way by the commissioner : It was Mr Burge's evidence that between 3 and 3.30 am on the 7th June he was called to attend an alarm at the Hydraulics Room. After he arrived there Mr Usher had entered the Room and because of the extremely high noise level from the machinery Mr Usher had screamed at him asking him what his statement was about in the Control Room. Mr Burge claimed that he indicated to Mr Usher that they should go outside the Hydraulic Room because it was too noisy to talk and he denies that he said to Mr Usher "I am all talk am I?" and "you wouldn't have the balls". Mr Burge claimed that he did not initially consider that there was any physical threat to him and he believed that they were having no more than a verbal argument. His evidence was that when he and Mr Usher walked out of the Control Room Mr Usher had his helmet off and had placed it on a nearby forklift and confronted Mr Burge, his face being about 25 centimetres away from his. He claimed that Mr Usher flicked the helmet off his head and that caused Mr Burge to move backwards when Mr Usher then gripped him around the neck, turned him around and punched him to the ground. Mr Burge denied that he had thrown an arm out in the form of a lame punch or a "backhander" as asserted by Mr Usher. Mr Burge further denied that he said to Mr Usher at this time that he, Mr Burge, was going to have his (Usher's) job and he denied that it was a punch-for-punch exchange between them. He claimed that he did not punch Mr Usher because he was crouched on the ground after Mr Usher had kneed him in the chest area and that he did not get up off the ground until Mr Usher had left the scene. Mr Burge also denied that he said anything to provoke Mr Usher in the Hydraulic Room and denied that he said, "you haven't got the balls, I'm not scared of you". In addition Mr Burge denied lunging at Mr Usher or trying to tackle him in a football style tackle. He claims that Mr Usher was lying when he stated that he hit Mr Burge as an act of self defence. ... Further in relation to his denial that he had abused Mr Usher in Mr McKissock's presence in the Control Room, Mr Burge claimed that he was "upset" but that he was not "worked up", as claimed by Mr McKissock. Under cross examination in relation to the confrontation between himself and Mr Usher outside the Hydraulic Room, Mr Burge said, "I was trying calm David down. -----I was in fear. I was telling him to calm down. ----David was carrying on about just the way that - he was just yelling at me and telling me not to get in his face anymore. David was just basically telling me that, "this is the way it is. I am not going to work with you. You do your job, I do mine." "I was still telling David to calm down. I still thought - I was still stressing to David to calm down, calm down." 12 Mr Usher's corresponding evidence was stated by the commissioner in this way : It was Mr Usher's evidence that at about 3.00 am on the 7th June he went to the Hydraulic Room to confront Mr Burge about his public abuse of him over the 2-way radio system and his further abuse in the Arc Furnace Control Room. Due to the extremely high noise level he had to amplify his voice to screaming pitch to be heard. He claimed that he and Mr Burge were face to face and Mr Burge agreed with him and apologised that he should not have said what he had and that Mr Usher emphasised to Mr Burge that in future their relationship would be formal, stating, "this is how it's going to be from now on. One hello in the morning and one in the arvo. No backstabbing, no comments about Jon Holmes. We'll work if we have to, but outside that, nothing. If you want to take it further I'm quite happy to. Mr Burge had indicated that they should go outside the Hydraulic Room because of the noise after he had agreed with everything that Mr Usher had said. However when they moved outside the room Mr Burge's demeanour changed and he became aggressive and said to Mr Usher, "you wouldn't have the balls to do anything - you'll get yourself sacked --- I can have your job. I can get you sacked." Mr Usher's evidence was that he felt that Mr Burge was provoking him into a fight and that Mr Burge came up very close to his face and then again accused him of talking behind his back and of being a "2-faced cunt" and he appeared to be in a rage. It was Mr Usher's evidence that Mr Burge was so worked up that he was spitting on Mr Usher as he was talking to him which caused Mr Usher to step back once followed by Mr Burge stepping forward towards him again followed by Mr Usher taking another step backwards and Mr Burge still advancing forward onto him. At this time Mr Usher knocked Mr Burge's helmet off his head with the back of his hand and he claimed that Mr Burge "swung at me" and Mr Usher stepped forward towards Mr Burge to avoid the punch and he hit Mr Burge with his left fist on the right side of Mr Burge's face. There followed a fight which according to Mr Usher involved Mr Burge swinging punches at him, some connecting on his upper torso area, and resulting in Mr Usher taking Mr Burge into a headlock and kneeing Mr Burge in the abdomen when Mr Burge allegedly grabbed Mr Usher by the testicles. It was Mr Usher's evidence that the fight may have continued for between 3 and 5 minutes and during the mêlée Mr Burge was screaming for assistance over his 2-way radio. Under cross examination Mr Usher was emphatic that he had not embellished his evidence but after he had been suspended he had taken legal advice, which was that he should not give the Company any details about the fight with Mr Burge as there was a concern that he would be charged with assault. Mr Usher agreed that he had made very adverse comments to Mr Refalo regarding Mr Burge, and these had occurred following Mr Burge's apparent agitation about being required to change the brake pads on the south crane during the shift they had worked on the 6th June. Mr Usher stated that when Mr McKissock had spoken to him in his office about Mr Burge's public abuse over the 2-way radio Mr Usher had said to Mr McKissock, "I hate the cunt". 13 The commissioner referred to the evidence given by eight other employees at the respondent's steel mill, including that of Graham Colin Ainsworth (Engineering Manager) and of David Russell McKissock (Shift Leader) who both had contact with the appellant and Mr Usher shortly after the altercation. The remaining six witnesses in their evidence dealt generally with the nature of the troubled relationship between the appellant and Mr Usher and with the practicability of the appellant being reinstated. We will deal later with that evidence. 14 After making findings on the evidence, the commissioner concluded : I prefer the evidence of Mr Usher to that of Mr Burge in respect of their physical confrontation outside the Hydraulic Room. I have come to this view for the following reasons. There is evidence that Mr Burge by nature is a bold, if not brave, but foolhardy man in the face of physical confrontation. Mr Burge had since 1994 developed an ever-increasing animosity towards Mr Usher. Mr Usher's flipping of Mr Burge's safety hat off his head more likely provoked Mr Burge into retaliating with a swinging punch rather than a protective fending-off action. Despite Mr Usher's lack of boxing training he adopted the classical boxer's manoeuvre of stepping inside the punch and throwing a short left hand jab, which unfortunately for Mr Burge connected forcefully in the area of Mr Burge's right cheek. This was followed by further punches being thrown by both men. It is likely that punches were traded as well as Mr Burge being held by Mr Usher in a headlock with Mr Burge attempting to break free and retaliating for some minutes until he was kneed in the abdomen and went to ground. It is my opinion that in the 3 to 5 minutes duration of their fight Mr Burge saw an opportunity to capitalise on the situation and promote Mr Usher as the aggressor and himself as the victim who had done nothing more than cover up and refuse to fight. Having observed both men at length in the course of this case I am satisfied that on the balance of probabilities, Mr Burge did engage with Mr Usher in a fight which was the culmination of five years of increasing provocation by Mr Burge. I find that it is likely that Mr Usher, who would have been as mindful of the Holmes/Cavanagh incident and its outcome as was Mr Burge, did not confront Mr Burge in the Control Room with a physical fight on his mind but had simply reached the end of his tether in relation to Mr Burge's unceasing harassment. I find that this was a fight which should never have happened, but it did, and it was a two way fight and I find that given the history of the conflict between these two men, Mr Burge was as culpable and reprehensible as Mr Usher. 15 The commissioner then considered, notwithstanding the appellant's participation in the fight, whether the Commission should intervene and exercise discretion in his favour. For that purpose, reference was made to the history of the relationship between the appellant and Mr Usher in terms of what the commissioner described as his "40 years of experience working directly in and associated with such heavy industries as steel making, ship building and coal mining", "powerful anti-discrimination legislation in place to protect minority groups from vilification" and "the dynamic nature of language". It followed, on the commissioner's reasoning, that "the public denigration over the 2-way radio system and the direct accusation made by Mr Burge to Mr Usher in front of other workers that he was a 'two-faced cunt', ... (was) ... at the high end of the scale (of up to 10) and not less than 9". The commissioner expressed the view that it was "perhaps not surprising therefore that Mr Usher could contain himself no longer and sought Mr Burge out in the Hydraulic Room to confront him and put an end to his ongoing humiliation" and "the only surprise is that Mr Usher was able to contain himself for as long as he did before he reacted to Mr Burge's persistent provocation which had been elevated to a new level of intensity following the Holmes/Cavanagh incident". The commissioner then said : That Mr Burge was so severely injured is not to be condoned and is most regrettable. However, given my findings concerning the fight between the two men and my observation that they appear physically and, by virtue of their similar ages, evenly matched, in my view Mr Burge was the unlucky victim of a punch that was thrown by Mr Usher, a man with no boxing experience or training. Mr Burge did not deserve to be assaulted at all, but I find that he was not the innocent victim in the whole fracas. As an immediate prelude to the fight he was responsible for at least two highly insulting and humiliating public verbal attacks against Mr Usher with the highest degree of provocation. The commissioner then concluded that the decision to dismiss the appellant "was, in all the circumstances, a reasonable decision consistent with contemporary standards in industry generally and should not attract the Commission's discretion to intervene". However, in the event the finding that the appellant actively engaged in the fight was wrong, the commissioner said "it would be my view that his conduct up to the time of the physical confrontation outside the Hydraulic Room was serious misconduct such as to justify his dismissal with payment of wages in lieu of the notice period". The appellant's unfair dismissal claim was, therefore, dismissed. 16 Counsel for the parties provided detailed and most comprehensive written submissions in support of their respective positions, supplemented by extensive oral submissions over three days of hearing. We are grateful for the assistance so provided. It is simply impracticable in this decision to particularise and reason all of the submissions put, but, suffice it to say, we have given them earnest consideration. 17 The principal propositions put by Mr Dixon in resisting the appeal may be summarised as follows - · The commissioner set about considering whether the misconduct complained of had in fact occurred. In doing so, the commissioner properly had regard for all the evidence before him. · The respondent had to establish, to the reasonable satisfaction of the Commission, that the appellant employee was guilty of the misconduct alleged. The standard of proof required was to enable a positive finding to be made, on the balance of probabilities, that the misconduct occurred having regard to the gravity of the allegations. · The commissioner's findings of fact were substantially influenced by the credibility of the appellant as a witness so that the ultimate conclusion should not be set aside even if on appeal it be thought that the probabilities of the case were against, even strongly against, those findings. · The appellant has been unable to show that the commissioner failed to use, or palpably misused, the advantage he enjoyed at first instance in hearing and observing Mr Usher and the other witnesses give evidence. Cogent reasons were given for the findings made by the commissioner concerning credibility of the appellant and those conclusions were open and could not be said to be clearly wrong; they cannot now be challenged. · In considering the alleged inconsistencies in Mr Usher's evidence, it is to be borne in mind that he gave an explanation for not fully discussing all the details in his original account of the incident based on legal advice, that his account on oath was consistent with the account he gave to the police and that his account on oath was not inherently improbable. · As to what probably occurred during the incident, the commissioner weighed the evidence, or particular aspects of it, by assessing how the fight occurred and the extent to which the employees concerned participated in it and/or contributed to it. · The findings made by the commissioner supported the conclusion that the appellant engaged in the fight in a manner as culpable as Mr Usher, who was also dismissed, and that should not be interfered with. · Having found that misconduct occurred, the commissioner by reference to the materials before him embarked upon the discretionary exercise to determine whether the dismissal was in all the circumstances, including the conduct of the appellant over a period of approximately 5 years, unfair so as to lead to the issue whether the Commission should intervene and exercise discretion in the appellant's favour. · The commissioner concluded correctly that the fight was not a spontaneous isolated eruption - there was regular harassment by the appellant of Mr Usher over a considerable period of time, the appellant's public denigration of Mr Usher over the two-way radio system on 6 June 1999 was at the high end of the range of provocation short of a direct physical assault, there had been persistent provocation by the appellant which had been elevated to a new level of intensity following the Holmes/Cavanagh incident in 1998 and it was Mr Usher rather than the appellant who behaved maturely and responsibly. · The commissioner correctly concluded that the appellant had engaged in deliberate, provocative conduct and in light of the facts intervention by the Commission was not warranted. · The discretion reposed in the Commission in determining unfair dismissal claims was very wide. Whether a particular dismissal in particular circumstances was harsh, unreasonable or unjust was a matter involving value judgments and on which opinions may differ. · The commissioner's conclusions as to the alleged unfairness were clearly open and should not be overturned. · The alternative conclusion reached by the commissioner that the appellant's conduct leading up to the time of the physical confrontation was serious misconduct, such as to justify his dismissal, was clearly open on the evidence. It is not to the point that the employer did not dismiss the appellant for that reason as it was unnecessary to do so. That, however, does not preclude the Commission from forming that view on the evidence given the clear findings about the appellant's conduct. · In relation to the appellant's submission as to relief, it must be borne in mind that on any view the appellant engaged in conduct which was provocative and highly offensive in a workplace where safety was a significant factor. · It is also clear that the appellant contributed in a very significant way to the ultimate dismissal of another well thought of employee, Mr Usher, who had until the provocation on the night of the incident sought to avoid the appellant. · Consideration also must be given to whether the appellant is entitled to discretionary relief in his favour, if successful, when there are clear findings he had not been honest or open and frank with the Commission or with his employer and, as such, the employer-employee relationship must be regarded as incapable of proper restoration. It is not to the point that some of the witnesses said they would have no difficulty in having the employee return to the workplace. 18 For his part, Mr Kimber addressed in a careful manner the facts as they emerged from the evidence by reference to the relevant legal principles as to the appellant's dismissal, the credibility of witnesses, the incident of the fight, the onus on the respondent in establishing serious misconduct, the respondent's "no fighting" policy and its application in the resondent's decision-making process here, the findings of Redman C concerning the impact of the appellant's prior behaviour towards Mr Usher (including that of Mr Usher towards the appellant) and the appropriate relief available to the appellant. 19 In summary, Mr Kimber put the following propositions in support of the appeal as to the unfairness of the appellant's dismissal and the errors made by Redman C in dismissing the appellant's claim for relief - (1) The dismissal was by way of, as said in the respondent's letter to the appellant, "summary dismissal for serious and wilful misconduct (fighting)"; there was no reference to the use of coarse language. (2) There were no witnesses to the altercation. Notwithstanding that the commissioner had the benefit of seeing the appellant and Mr Usher give evidence, that circumstance alone does not preclude appellate review. (3) To the extent the commissioner made credibility findings in preferring the evidence of Mr Usher to that of the appellant, such a preference was based on the evidence of Mr Usher which was "glaringly improbable" and "contrary to the compelling inferences of the case" so as to render the commissioner's decision open to appellate review. (4) The evidence demonstrated that Mr Usher gave a fundamentally different version of the fight during his evidence in the proceedings compared to that given by him to Mr McKissock and Mr Ainsworth immediately following the incident. (5) The respondent regarded Mr Usher's assertion that he was merely defending himself against the appellant to be unreliable which, together with the variations in his accounts of what occurred, meant that the commissioner's preference for the evidence of Mr Usher over that of the appellant was erroneous. (6) An analysis of the whole of the evidence before Redman C supports the proposition that the commissioner erred in preferring Mr Usher's evidence as being more reliable than that of the appellant. In particular, Mr Usher's account of the incident was inherently improbable having regard to the fact that - · although Mr Usher was directed by Mr McKissock to stay away from the appellant, he defied that direction and confronted the appellant - Mr Usher admitted he "went to see him (the appellant) when he was on his own" and that he "felt he had to go and confront" the appellant; · prior to the incident, Mr Usher had said to Mr McKissock "I hate the cunt" in relation to the appellant; · Mr Usher was responsible for the first physical contact between himself and the appellant when he knocked the appellant's hard hat off with his hand; · Mr Usher fled the scene of the incident and had to be called to return on two separate occasions; and · Mr Usher initially denied he had assaulted the appellant by claiming he was acting in self-defence and that the appellant "must've been jumped again". (7) In circumstances where an employee is dismissed for serious misconduct the onus of proof is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred; the degree of satisfaction referred to should not be, but as was the case here, by "inexact proofs, indefinite testimony or indirect inferences". The respondent did not discharge its onus of proof in the proceedings at first instance so that the commissioner's conclusion against the appellant based on the evidentiary material was not sound. (8) Given the fundamental problems with Mr Usher's evidence of the incident, the only basis upon which the commissioner could have found the appellant to have engaged in serious misconduct would be on the appellant's own evidence. However, that evidence, which was not undermined in cross-examination, was that he "did not initiate the fight with Mr Usher nor did I attempt to fight back once he commenced to physically assault me". (9) On a proper view of the whole of the evidence and the respondent's inability to satisfy the onus of proof, Redman C erred in finding that the appellant actively participated in the fight with Mr Usher. (10) The respondent had a well known policy against fighting in the workplace, the consequence for which was instant dismissal. The respondent's decision to dismiss the appellant was based on six conclusions concerning its view of the appellant's conduct at the relevant time but without regard to the appellant's particular circumstances. Specifically, the appellant failed to have regard to - · who was the aggressor in the incident; · the history of the relationship between the appellant and Mr Usher; · the two men since 1994 were not to be rostered to work together on the same shift; · whether or not Mr Usher's behaviour to the appellant was aggressive and provocative; · the fact that Mr Usher criticised and denigrated the appellant to another employee, Mr Refalo, which was the trigger or cause for the appellant abusing Mr Usher over the two-way radio; · the fact that Mr Usher sought out the appellant despite being told by Mr McKissock to keep away from him; · the fact that Mr Usher went to the Hydraulic Room to deliberately confront the appellant; · the fact that Mr Usher's demeanour on the evening in question was described as being "boiling" and that he said to Mr McKissock that "I hate the cunt (ie, the appellant)"; · the fact that Mr Usher had to be recalled to the scene of the incident on two occasions; · the fact that Mr Usher initially denied involvement in the fight; · the views of Mr McKissock not being sought by the respondent at the time of the decision to dismiss the appellant, even though it was Mr McKissock who was the shift supervisor and had interviewed both employees; and · the fact that the respondent regarded the appellant as being a good employee with "no prior history of fighting with any other employee at work", "no previous record of misdemeanour" and where the appellant had been selected to participate in a training programme in Germany following advice that he had been advised he "would be looked at for the next available planner's job on day shift". (11) The respondent applied its "no fighting" policy inflexibly without taking into account many other relevant considerations which were known to it at the time so that the dismissal of the appellant for non-compliance with the policy was harsh, unreasonable and unjust. The commissioner erred in accepting this position by failing to follow settled principle. (12) Apart from the fight itself, the commissioner erred in finding, in the alternative, that the appellant's conduct up to the time of the altercation was serious misconduct such as to justify his instant dismissal, particularly having in mind the respondent's evidence that the appellant was not disciplined for using foul language and such language was not uncommon at the plant with a high level of tolerance to its use. (13) The respondent either condoned the use of coarse language or waived its right to dismiss the appellant on the basis of his use of such language. To the extent the respondent belatedly sought to rely on the appellant's use of coarse language to justify the dismissal, such a reason was harsh, unreasonable and unjust because the appellant was not given notice of that reason, was not given an opportunity to make out a defence or explain his behaviour; neither was he warned that the use of coarse language could lead to dismissal. (14) It would not be impracticable to reinstate the appellant in his former employment. (15) Reinstatement should be accompanied by an order for the respondent to pay the appellant the wages lost as a consequence of the dismissal as it was only in exceptional circumstances that the discretion to so disentitle an employee should be made. 20 It is helpful in understanding the thrust of a central submission by Mr Kimber in relation to the altercation, namely that Redman C erred by failing to pay any, or any proper, regard to significant admissions made by Mr Usher and to other evidentiary material, to cite the evidence relied upon as set out in the grounds of appeal, thus : (a) After the disputed exchange of words in the Arc Furnace Control Room, Usher was counselled by his supervisor (McKissock) to stay away from the applicant for the balance of the shift, but Usher admitted that he defied that direction from McKissock ("Mr Usher was unable to contain himself": ...) and deliberately sought to confront the applicant (by going to the room where he knew the applicant would be). (b) The applicant was not counselled or warned by Mr McKissock as to what he had said over the radio nor was he counselled or warned when he was alleged to have repeated that remark ("two faced cunt") to Usher in the presence of the supervisor Mr McKissock. (c) After the exchange in the Control Room Usher was "boiling" and went to the workshop to "cool off" and keep away from Burge. (d) Immediately prior to his defiance of McKissock's order, Usher said to McKissock: "I hate the cunt" and "I've had enough of him". (e) Usher admitted that he deliberately sought an "opportunity" to "confront" Burge without other people present. (f) It was common ground that the first physical contact between the two men occurred when Usher flicked the applicant's hard hat off his head. (g) Usher's account of the altercation, (including its nature, extent and sequence) as given on oath before the Commission was substantially expanded and significantly different from the account of the events that he gave to his employer at the time of the altercation. For example, the reference to the applicant spitting on him; grabbing him by the testicles; him having the applicant in a headlock; the applicant's three attempts to tackle him; and the applicant preventing Usher from leaving the scene immediately prior to the altercation, were all entirely new matters. (h) Usher, whilst later alleging that his actions were purely by way of self defence, left the scene of the altercation whilst the applicant was calling for help over a two way radio, and had to be summonsed (on two separate occasions) to return to the scene. On his return, Mr McKissock described him as "absolutely peaking, taking 10 metre steps and pumped". (i) Usher initially denied that he had assaulted the applicant but then admitted to such contact when McKissock observed the abrasions to Usher's knuckles. (j) Whilst initially denying that he had ever had the applicant by the neck, (in spite of the appellant's assertion to this effect and the contemporaneous photographs showing scratch marks on the applicant's neck), Usher ultimately admitted (in cross examination) that this had occurred. (k) Usher actively asserted that he knocked the applicant to the ground three times in the course of what he asserted was a two way fight that left him (however) with no bruises, cuts, marks or other abrasions, other than damage to his knuckles, but the applicant's attempted tackles failed and that none of his punches connected. (l) The applicant sustained cuts and abrasions as well as a depressed fracture of the right cheek bone. 21 Our separate review of the evidence so referred to in Mr Kimber's propositions disclosed to us that indeed those matters were either not referred to by the commissioner or, to the extent they were, in a manner which minimised their importance in establishing the appellant's evidence as to what actually occurred in the fight with Mr Usher. Certainly, in our view, we are satisfied that that conclusion makes perverse the commissioner's finding preferring the evidence of Mr Usher to that of the appellant. We consider the only reasonable finding on all the evidence would be to accept the appellant's version, and we do. That means, in short, that we accept the appellant did not actively participate in the fight but rather was confronted and attacked by Mr Usher; the appellant was thereby forced to defend himself. 22 We would emphasise in that respect that the injuries sustained by the appellant, so graphically demonstrated by the photographs of his face, neck and hands taken shortly after the altercation, amply demonstrated consistency only with his account of the fight but not that given by Mr Usher. It must be observed that this aspect, which we think to be significant objective evidence, was never referred to by the commissioner in his reasons (notwithstanding the reasonably substantial submissions put by the parties as to those issues at first instance). That the appellant sustained what were quite brutal injuries makes sense of his pleas for help over his two-way radio. It was Mr Usher who went to the Hydraulic Room, where the fight occurred, to confront the appellant about the appellant's abuse of him on the two-way radio, even though that was contrary to Mr McKissock's direction to Mr Usher to go to the Arc Control Room so that he and the appellant would have no further contact on that shift. Also, Mr Usher had to be twice called to return after leaving the scene of the incident. Mr Usher's claim of self defence and significant changes in his story of what occurred make simply unbelievable his version of events – and, so, the commissioner's conclusion cannot stand. The injuries sustained by Mr Usher, abrasions to the knuckles on his hands, compared to those sustained by the appellant, was entirely consistent with him being the sole aggressor as was his observed highly emotional state at the time. 23 It must be added that in preferring Mr Usher's evidence the commissioner, as referred to earlier in these reasons (as to the nature of the appellant being "a bold if not brave, but foolhardy man in the face of physical confrontation", the appellant "retaliating with a swinging punch rather than a protective fending-off action", Mr Usher adopting "the classical boxer's manoeuvre of stepping inside the punch and throwing a short left hand jab" and "further punches being thrown by both men"), relied upon either no or highly improbable evidence. In the result, we are of the view that the commissioner's conclusions as to the fight represented a reconstruction of what occurred but without any satisfactory evidentiary basis therefor. The respondent failed, in our assessment, to satisfy the onus on it to the requisite standard of proof to establish serious and wilful misconduct by the appellant and the commissioner was wrong in finding it had done so. 24 We find no support in the evidence, nor in terms of ordinary reason, for the commissioner's finding, based on the language by the appellant to Mr Usher, that "the only surprise is that Mr Usher was able to contain himself for as long as he did before he reacted to Mr Burge's persistent provocation which had been elevated to a new level of intensity following the Holmes/Cavanagh incident". It is true the commissioner expressly did not condone the severe injuries sustained by the appellant; but, in finding that in engaging in the fight "Mr Burge was as culpable and reprehensible as Mr Usher" and that "Mr Burge was the unlucky victim of a punch that was thrown by Mr Usher", we are of the view the commissioner misstated the real position - the facial injuries sustained by the appellant did not occur from "a punch" by Mr Usher but manifestly, as the appellant claimed, by a number of punches. This aspect as to the real impact of the alleged provocative language is to be assessed, we think, not by impressions by the decision-maker, as was done here, but only by the evidence relating to this particular case. For instance, Mr McKissock's evidence was that the appellant was not disciplined for using foul language and Mr Ainsworth agreed it was common in the steel industry for a fairly high level of tolerance where people verbally disagreed with each other, including at supervisory level, in somewhat coarse terms. Further, Mr McKissock, in speaking to both the appellant and Mr Usher after the fight, said to them "shut the fuck up and get up to my office now". We should not be seen to be condoning the use of foul or provocative language in the workplace, particularly having in mind the reaction of different persons and the consequences which may follow, but simply seek to put what occurred in this case in a proper context. 25 After considering the various cases on fighting in the workplace, the commissioner found "that in the light of the Company's well known policy concerning fighting in the workplace, a policy absolutely essential in industry and particularly in a hazardous environment, the Company's conclusion that Mr Burge was guilty of misconduct was a conclusion open to it as a result of its investigation" so that the decision to dismiss was "a reasonable decision consistent with contemporary standards in industry generally and should not attract the Commission's discretion to intervene". For that approach, the commissioner relied upon the decision of the Full Court (Sheppard and Heerey JJ, with whom Gray J agreed) of the Federal Court in Bostik (Australia) Pty Ltd v Gorgevski (No 1) [1992] 41 IR 452. Whilst the commissioner said he was "particularly mindful" of that case, it is nevertheless to be borne in mind, as their Honours said (41 IR at p 460), that "employers can promulgate policies and give directions to employees as they see fit, but they cannot exclude the possibility that instant dismissal of an individual employee for non-compliance may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable". However, in finding there that the dismissal was unwarranted, their Honours added (41 IR at p 465) : The underlying cause of this dismissal was that the company took the view that, having formulated its no smoking policy it had no option but to dismiss the respondent, notwithstanding the long and good service he had given the company, the catastrophic financial consequences for him, the lack of any actual danger in his conduct, and the inadequacy of the way in which the new policy was communicated. It seems that even if the company had carried out the most formal and meticulous procedures the decision would have been no different. That decision to dismiss was we think rightly held by the learned trial judge to be harsh, unjust and unreasonable and the actual procedure which the company adopted was merely incidental. 26 Our review of the evidence in the present case leads us to a similar conclusion as that in Bostik v Gorgevski, that is, the respondent took the view that its policy against fighting in the workplace, without more and once it had been established the appellant was engaged in a fight, meant that dismissal should follow almost as a matter of course. The commissioner upheld the respondent's conclusion on the basis, as he said, "as a result of its investigation". That requires a review of the investigation of the incident undertaken by Mr Ainsworth and in which Mr McKissock was involved. 27 Mr Ainsworth in his affidavit identified the respondent's conclusions from the investigation as follows : (a) Mr Burge had called Mr Usher a "two faced cunt" over the two-way radio late on 6 June 1999 and before a number of witnesses, including Mr McKissock early on 7 June 1999. (b) Mr Burge's conduct was aggressive and provocative towards Mr Usher. (c) After the incident in the Arc Furnace Control Room, Mr McKissock instructed Mr Usher and Mr Burge to keep apart and not to confront each other. (d) Later that morning, Mr Burge and Mr Usher had a verbal confrontation in the Caster Hydraulics Room. During that confrontation, Mr Burge and Mr Usher had an argument which led to both of them going outside into the courtyard. Mr Burge had invited Mr Usher outside. ( e) Mr Usher and Mr Burge had engaged in fighting in the workplace. (f) Mr Burge's conduct constituted serious misconduct and he should be dismissed immediately. Mr Ainsworth added : 28. Mr Burge is not a man who will walk away from things. Rather, I observed him to be a person who confronted issues, as I had observed on several occasions. On one occasion approximately eighteen months ago, he had willingly challenged trespassers on the plant in the dark. Further, Mr Burge would sometimes bring up employment matters persistently. He did this in relation to his progression through the employment matrix. 29. We also reached our conclusion based on the reasoning that, if Mr Burge did not wish to confront Mr Usher, he had the opportunity to walk away (as he most certainly should have done) or to radio for assistance before the matter escalated. Rather he and Mr Usher went outside where they could not be seen. I was not sure whether Mr Burge swung the first punch or not, although it was likely Mr Burge reacted to Mr Usher knocking off his hard hat. 30. Accordingly, we concluded that the Company should dismiss Mr Burge immediately. We also decided that the company should dismiss Mr Usher immediately. 28 Under cross-examination, Mr Ainsworth said that no conclusion was drawn as to who was the aggressor, the appellant or Mr Usher, and the decision to dismiss was made by applying the no-fighting policy based on the circumstances leading to the incident which showed both employees had the opportunity to withdraw from the confrontation but did not do so. However, Mr Ainsworth conceded that the respondent applied its no-fighting policy by "a straight application of policy, no fighting in the workplace" but, as he further conceded, the respondent "just applied the policy and therefore the detail really didn't matter". We have earlier referred to Mr Kimber's submission identifying a number of factors which the respondent failed to have regard in deciding to dismiss the appellant; we do not repeat them but accept that senior counsel's submission was cogent as a result of the admissions made by Mr Ainsworth. Of particular relevance in that respect was the respondent's failure to consider who was the aggressor, the history of the relationship between the two employees, whether Mr Usher was aggressive and provocative towards the appellant, the confrontation by Mr Usher of the appellant, the level of anger of Mr Usher at the time and Mr Usher's departure from the scene after the fight and then his initial denial of any involvement in it. Those matters which the respondent did not take into account were, in our view, proper and necessary to be so considered rather than, as it would seem, the respondent applying its no-fighting policy without regard to the particular circumstances as they existed. It follows, we are satisfied, that the respondent's dismissal of the appellant in this case was harsh, unreasonable and unjust in that the policy was applied without relevant regard to all the circumstances; its investigation of the incident was merely incidental to its application of the no-fighting policy contrary to the approach, with which we agree, stated in Bostik v Gorgevski. We are reminded in expressing this view of the following comments by Wilcox CJ in Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at p 205 : ... it is too simplistic an approach to say that any employee involved in a fight is guilty of serious misconduct and, therefore, there is a valid reason for that employee's dismissal. The employee may have been the victim of an unprovoked attack and have acted in self-defence. If a "no fighting" policy is to be enforced fairly, the employer must look behind the fight itself and examine its causes. It is also essential, I think to ensure there is nothing in the work environment, or the conduct of other employees, that might incite an employee to resort to violence. We respectively agree with his Honour's comments and which are apt to apply in the present case. That the commissioner here endorsed the respondent's approach in dismissing the appellant as a result of its investigation necessarily meant that the commissioner also erred. 29 As we have said earlier, Redman C adopted an alternative finding to justify the appellant's dismissal for serious misconduct, in the event his finding that the appellant actively engaged in the fight was wrong, namely, "his conduct up to the time of the physical confrontation outside the Hydraulic Room". Unfortunately, this alternative basis was dealt with by the commissioner in a short paragraph at the end of his decision and without any identification or reasoning of the conduct concerned. One may reasonably presume, we think, that it referred to the history of the relationship between the two employees since 1994 although, no doubt, the appellant's statement about Mr Usher on the two-way radio in the early hours of 7 June 1999 shortly before the incident was foremost in the commissioner's mind. We would only add, however, that that remark seemed to flow from disparaging comments about the appellant made an hour or so beforehand on that shift by Mr Usher to Mr Refalo. Be that as it may, it is clear that the respondent did not discipline or counsel the appellant in respect of his conduct, including the use of coarse language, during the previous five-years' period but dismissed him because of his active participation in the fight with Mr Usher. In view of our findings on appeal that the appellant did not so participate, other than to defend himself, the alternative basis for the commissioner finding serious misconduct is to be separately viewed. 30 In the circumstances as disclosed in the evidence, we are unable to accept that this so-called alternative finding, in itself, justified summary dismissal. The long settled industrial approach in such a situation was stated by Cook J in Re Dismissal of Union Delegates at Homebush Abattoir [1966] AR (NSW) 371 at p 374 in terms that : ... the question of whether the conduct of an employee amounts to misconduct justifying instant dismissal would generally depend upon whether or not the act complained of can properly be regarded as deliberate or wilful or of such a nature as to strike at an essential element in the contract of service, namely, obedience to the lawful commands of the employer and the right of the employer to enforce discipline. (See also the discussion by Hungerford J in Gartrell White (No 3) (35 IR at pp 73-76) as to the various authorities supporting this approach.) True it is the appellant used provocative and coarse language to Mr Usher, but, it must be acknowledged, in response to Mr Usher's provocative denigration of him to Mr Refalo and others. Those features of the relationship were well known to the respondent and, indeed, arrangements had been in place for some years not to roster both employees on the same shift. Regrettably, as it happened, that arrangement on the present occasion broke down. In any event, and particularly having in mind the nature of the language apparently not uncommonly occurring and accepted at the workplace, we do not consider the appellant's conduct here could properly be regarded, as Cook J observed, "of such a nature as to strike at an essential element in the contract of service". We conclude, therefore, that the alternative finding made by the commissioner as justifying the appellant's summary dismissal was not established. At most, in our opinion, it is but a factor to be taken into account by the Commission in exercising its overall discretion as to whether, and if so to what extent, intervention is warranted in allowing relief. 31 In any event, we are satisfied the conduct of the appellant referred to has been condoned by the respondent or that it has waived any right it may have had to dismiss him for serious and wilful misconduct. As Macken J observed in Australasian Transport Officers' Association v Department of Motor Transport [1988] 25 IR at 235 at p 244, "the doctrine of condonation has always formed a part of the law applied by the NSW Industrial Commission". In that respect, his Honour referred with approval to the following statement by Cook J in Clarke v Metropolitan Meat Industry Board [1967] AR (NSW) 16 at p 25 : ... where an employer with a full knowledge of an act amounting to misconduct justifying summary dismissal does not exercise the right which he thereby possesses but elects to treat the contract as still subsisting, then he is regarded in law as having waived the right of summary dismissal for that offence, or of having "condoned" that offence, so that he cannot, therefore, in an action for wrongful dismissal based on misconduct, rely upon an offence which he has waived as justification for his action. 32 It is to be emphasised that the appellant's conduct the subject of complaint, and said to justify instant dismissal, was well known to the respondent at the time of the present incident but where the respondent expressly did not rely upon it in deciding to dismiss the appellant. It was not, therefore, and as Mr Kimber submitted, a situation of knowledge acquired by the respondent of the conduct of the appellant after the dismissal and which would thereby be relevant to take into account as justifying the dismissal: see Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at p 467 and Hollingsworth v Commissioner of Police (No 2) (47 NSWLR at p 197; 88 IR at p 325). We would only add in this respect, and with which we agree, the following comments by Cahill V-P in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at pp 51-52 : A final matter which deserves comment is that, while in some reinstatement cases it might be appropriate to consider the practicality of restoring the employment relationship in advance of, and separate from, the question of fairness of the dismissal, it is difficult to conceive of such an approach being properly taken unless all the evidence is in and the submissions completed. Furthermore, such a course would not, in any event, seem appropriate in a type of case, of which the present case is an example, where specific charges have been laid, an enquiry has been held by the employer, the charges have been found proven and dismissal action has been taken. In a reinstatement case following such a sequence of events the primary matter for the tribunal's consideration is surely whether, on all the evidence, the charges on which the dismissal was based have been made out. 33 Our view is, therefore, that Redman C was wrong in finding in the alternative that the appellant had engaged in conduct other than the fight itself which justified his instant dismissal for serious misconduct. 34 For the foregoing reasons, we conclude the appellant was wrongfully dismissed by the respondent and that that action was harsh, unreasonable and unjust. The remaining question is what relief should he be allowed. Six of the shift supervisors at the steel mill gave evidence and, in general terms, none of them expressed any particular difficulties if the appellant were to be reinstated should his dismissal be found unfair. We have so found it. The primary remedy under s 89 of the Industrial Relations Act for an unfair dismissal is reinstatement, together with other relief specified in the section for continuity of employment and for compensation for remuneration lost before the reinstatement was ordered. Of course, the form of relief is discretionary in light of all the circumstances of the case concerned. We note the respondent's submission, earlier summarised, against discretion being exercised in the appellant's favour because he "engaged in conduct which was provocative and highly offensive in a workplace where safety was a significant factor" and where "he contributed in a very significant way to the ultimate dismissal of another well thought of employee"; the respondent considered it "not to the point that some of the witnesses said they would have no difficulty in having the employee returned to the workplace". 35 The appellant sought reinstatement and compensation for wages lost as a result of the dismissal. In considering the practicability of reinstatement, we are very mindful of the approach adopted by a Full Court (Wilcox CJ, Marshall and North JJ) of the then Industrial Relations Court of Australia in Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at pp 191-192 where their Honours observed that "each case must be decided on its own merits" but that "in most cases, the employment relationship is capable of withstanding some friction and doubts". As their Honours observed further, "what is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive" and that "if the employer is of even average fair-mindedness, (the problems) are likely to prove short-lived". Those comments have been cited with approval by Full Benches of this Commission in Hollingsworth v Commissioner of Police (No 2) (88 IR at pp 341-342), CCH Australia Ltd v Bowen (1998) 79 IR 206 at pp 217-218 and Oswald v New South Wales Police Service (1999) 90 IR 42 at pp 67-68. We affirm the approach as appropriate in the present case. In short, and even given the appellant's provocative conduct towards Mr Usher over a period of time and his use of coarse language, we are of the view in all the circumstances that termination of employment was far too severe a penalty. He should be reinstated but subject to conditions. 36 At the time of the dismissal the appellant had completed just in excess of seven years' service, during which period his employment was satisfactory and where he had been selected on merit to undergo a training programme in Germany; also, he was being considered for promotion to a planner's position. The only significant negative factor in his employment was the relationship with Mr Usher, now no longer employed at the steel mill, since 1994 which culminated in the altercation of 7 June 1999 and his dismissal on 8 June 1999. We accept that the appellant must bear some responsibility for the continuing poor relationship with Mr Usher and, in particular, his use in that respect of provocative and coarse language. In a real sense, we can understand to an extent the respondent's action in dismissing both employees but, as we have found, the respondent failed to properly determine the appellant's lack of fault in the altercation itself. In our view, it would be reasonable to accept that that situation should have been remedied by the commissioner's decision of 10 March 2000. Therefore, we think it appropriate for reinstatement to effectively occur as from that date, with compensation for wages lost thereafter and subject to a provision that the period of employment of the appellant with the respondent be taken not to have been broken by the dismissal. 37 The appellant sought costs. Pursuant to s 181(2)(c) of the Industrial Relations Act the Commission may award costs in a case such as the present where a party has "unreasonably failed to agree to a settlement of the claim". At the completion of the hearing of the appeal on 13 December 2000 in reserving our decision, we took the somewhat unusual step in relation to an appeal of directing the parties to confer with a view to a conciliated outcome. However, on 21 December 2000 we were advised that the parties had unsuccessfully attempted to settle the matter. Nevertheless, and in the present state of our knowledge, we find it difficult to finalise the question of costs in the absence of further submissions from the parties as to matters relevant thereto: see Bankstown City Council v Paris (1999) 93 IR 209 and Four Sons Pty Ltd v Limsiripothong (No 2) (2000) 100 IR 400. Accordingly, we would propose that costs be reserved to enable the parties to confer and, to the extent necessary, for the matter to be restored to the list if agreement not be possible. 38 We make the following orders - 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Mr Commissioner Redman given on 10 March 2000 dismissing the appellant's claim against his dismissal is quashed. 4. The respondent shall reinstate the appellant in its employ in his former position as a mechanical maintenance fitter at the Rooty Hill steel mill effective as from the first shift occurring on an appropriate roster after the date of this decision. 5. The respondent shall pay to the appellant the remuneration the appellant would, but for being dismissed, have received from 10 March 2000 to the date of reinstatement, less any remuneration earned by the appellant from other employment during that period. 6. The period of employment of the appellant with the respondent shall be taken not to have been broken by the dismissal on 8 June 1999, except that the period from 8 June 1999 to 9 March 2000 shall not be taken into account as a period of employment. 7. Costs are reserved; leave to apply in relation thereto on reasonable notice within 14 days of the date of this decision, otherwise each party shall bear its own costs without further order. ______________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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