Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on behalf of Mark Harrison and Keith Donaldson, and Australian Co-Operative Foods Limited [2000] NSWIRComm 199

Industrial Relations Commission of New South Wales

CITATION : Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on behalf of Mark Harrison and Keith Donaldson, and Australian Co-Operative Foods Limited [2000] NSWIRComm 199 APPLICANTS Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on behalf of Mark Harrison PARTIES : Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, on behalf of Keith Donaldson RESPONDENT Australian Co-Operative Foods Limited FILE NUMBER: 7056 and 7059 of 1999 CORAM: Sams DP Termination of employment - unfair dismissal - workplace prank - potential for injury - summary dismissal - whether dismissal harsh, unreasonable or unjust - procedural fairness - principles considered. CATCHWORDS : Held, incident admitted - unnecessary to prove - employer did not take into account all the evidence - potential for injury negligable - other employees' involvement not considered - employee not left unattended - dismissal disproportionate to conduct - applicants' regret and contrition - failure to take account of applicants' long service and records of employment - investigation hasty and flawed - applicants denied procedural fairness - dismissals substantively and procedurally unfair - reinstatement impractical - compensation appropriate - orders made. LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Franklins Ltd v Webb, 72 IR 257 Pastrycooks Employees, Biscuit Maker Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White No 3, 35 IR 70 Rose v Telstra Corp Ltd, Ross VP, 45 AILR 3-966 Byrne & Anor v Australian Airlines (1995) 185 CLR 310 Bankstown City Council v Paris (1999) 93 IR 209 re Federated Ironworkers' Association of Australia, New South Wales Division and Australian Iron & Steel Pty Ltd (1978), Watson J, Industrial Arbitration Reports 177 Zippara and K-Mart Auto, IRC2225 of 1992 and Parker and K-Mart Auto, IRC2226 of 1992 (unreported) Patterson CC, 11 February 1993 Inghams Enterprises v Bruce, 60 IR 365 Shop Distributive and Allied Employees' Association v Jewel Food Stores, 22 IR 2 CASES CITED : Bigg & Anor v New South Wales Police Service, 80 IR 434 Federated Municipal and Shire Council Employees Union of Australia, New South Wales Division, on behalf of Stephen Wardle and Blue Mountains City Council (unreported) Sams DP, IRC4727 of 1998, 21 May 1999 Taggart and Bell Sports (unreported) Sams DP, RC5224 of 1998, 10 September 1999 Thornton and Happy Hours Pre School Kindergarten (unreported) Sams DP, IRC5333 of 1998, 28 July 1999 Ueckert and Australian Water Technologies (unreported) Sams DP, IRC5553 of 1999, 25 July 2000 Standley v Electronics Boutique Australia Pty Ltd (unreported) Sams DP, IRC4516 of 1998, 18 March 1999 Hill and Department of Juvenile Justice (unreported) Sams DP, IRC6474 of 1999, 27 July 2000 Outboard World v Muir (1993) 51 IR 167 Antanakopoulos v State Banks of New South Wales (1999) 91 IR 385 Wilson v Department of Education (unreported) Walton VP, Kavanagh J, Bishop C, Matter IRC1735 of 1999, 21 March 2000 Johnson v Catholic Education Office, Diocese of Parramatta (unreported) Cahill VP, Schmidt J, Tabbaa C, Matter IRC5641 of 1997, 21 August 1998 HEARING DATES: 04/19/2000; 05/16/2000 DATE OF JUDGMENT: 10/18/2000