Simon v Bartter Enterprises [2000] NSWIRComm 148

Industrial Relations Commission of New South Wales

CITATION : Simon v Bartter Enterprises [2000] NSWIRComm 148 PARTIES : Tony Simon and Bartter Enterprises FILE NUMBER: IRC No 2573 of 2000 CORAM: Harrison DP Unfair dismissal - onus and standard of proof CATCHWORDS : Held - prospective reinstatement ordered LEGISLATION CITED : Industrial Relations Act 1996 Jeffery v Department of Corrective Services (McLeay C. 14/7/00 IRC00/553 unreported) Briginshaw v Briginshaw (1938) (60 CLR 336) CASES CITED : Wang v Crestell Industires Pty Ltd (73 IR 454) M v M (1988)(63 ALJR 108) Shop Distributive & Allied Employees' Association v Jewel Food Stores (22 IR 1) Coles Myer v Shop Distributive & Allied Employees' Association (27 IR 299) HEARING DATES: 07/31/2000 DATE OF JUDGMENT: 08/14/2000

Mr Reitano of Counsel LEGAL REPRESENTATIVES: with Ms K Edser of MRM Solicitors for applicant Mr P Ludeke for respondent

JUDGMENT: - 16 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 14 August 2000 Matter No IRC 2573 of 2000

TONY SIMON & BARTTER ENTERPRISES Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION 1 Mr Tony Simon ('the applicant') was dismissed from employment with Bartter Enterprises Pty Ltd ('the Company') on 31 May 2000. 2 This application was filed on 7 June 2000 pursuant to section 84 of the Industrial Relations Act 1996 ('the Act') and subject to proceedings for the purpose of Directions and Conciliation on 27 June 2000 which established that the matter could not be resolved by agreement between the parties. Directions were issued that the applicant file and serve statements of evidence to be relied upon by 21 July 2000; and that the respondent file and serve statements of evidence to be relied upon by 28 July 2000 in preparation for arbitration proceedings on 31 July and 1 August 2000. In the event, the matter was completed on 31 July 2000. 3 On hearing, Mr Reitano of Counsel, instructed by Ms K Edser of MRM Solicitors, appeared on behalf of the applicant; and brought evidence from the applicant. 4 Mr P Ludeke appeared on behalf of the Company with Ms B Livingstone, and brought evidence from: · Mr Kevin Hawkins, employed at the Company's Beresfield processing facility for some nine years, the past five years as a leading hand in the turkey plant. · Mr Danny Maiava, employed at the Beresfield facility for a period of two years, the past 18 months as Front Dock Supervisor in the turkey plant. · Mr Darren Mitchell, employed at the Beresfield facility for some two and a half years as Turkey Plant Production Manager. 5 The applicant's employment was terminated by the respondent on the basis of a view formed that Mr Simon had deliberately and wilfully struck a turkey with an iron bar, killing the bird. The Company viewed this event as a serious issue of animal welfare, as well as misconduct by the applicant. 6 The applicant denies that he deliberately struck the turkey, putting that he had found an iron bar obstructing a walkway and had thrown it to one side to clear the walkway and was unaware that it had accidentally struck a stray turkey until informed by management representatives. 7 The evidence of Mr Simon is that he commenced employment at the Beresfield processing facility on 31 March 1989 as a casual in the deboning section and transferred to the position of truck driver in May 1999. 8 The applicant described his duties and the circumstances of the event giving rise to the termination of his employment in his affidavit of evidence (exhibit 1) in the following terms: … … 6. My duties as a truck driver in the Turkey Plant Dock involve the unchaining of the trailers and the placing of trailers in particular positions. I am also required to unload crates of live turkeys onto a conveyor so that the people who hang the turkeys for processing can start work.