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. 7. I am also required to hose the trailers down, place chains on the crates and assist occasionally with the reloading of the empty crates. … …. 9. Unfortunately, it was common place for the turkeys to escape from the crates. The turkeys were able to knock the clips loose and the turkeys were then able to escape from the crate. Both big and small turkeys escaped but more often it was the small turkeys. … … 14. On the 29th May, 2000, I was performing my normal duties. On that day I recall about 80 to 100 turkeys had escaped from their crates on top of the trailer. I had to catch them and climb on top of the trailer and put them back in. I recall on that day I complained to Danny Maover [sic] that the clips have still not been fixed and I still have to chase and put the birds back in. 15. I recall that when I finished putting the birds into the crates, I climbed down off the trailer and said to Kevin Hawkins words to the effect of "I'm sick of this, putting birds back in crates so many times a day". I recall that I used an expletive and I was feeling very frustrated with the situation 16. I then started walking towards the next trailer to pick up broken crates. As I was walking to pick up the crates, there was a steel bar in the walkway. The steel bar was about one metre long. I recall picking the bar up and throwing it to my right side up onto the loading bay. I did not look around when I threw it. 9 Mr Simon strenuously denied that he had deliberately hit a turkey, deposing that he had held a concern for the safety of turkeys in the loading dock area. Mr Simon deposed that he had submitted numerous safety alert forms in respect to the issue, particularly the incidence of stray turkeys being run over by trucks in the loading dock area. Mr Simon deposed that he had devised a new clip system to better secure turkeys in the crates, which he had submitted to management and which was subject to current assessment. 10 Mr Hawkins deposed that he observed the applicant pick up an iron bar approximately one metre in length, walk some two metres to a landing on which a turkey was standing, hold the iron bar by two hands in a baseball type grip and swing it from behind his right shoulder, across his body, striking a turkey on the back of the upper neck/lower head area. The turkey shook for a moment then fell dead from the edge of the landing. 11 Mr Hawkins deposed that the applicant then dropped the iron bar and proceeded to another trailer and commenced to chain it up and otherwise pursue his normal duties. 12 Mr Hawkins deposed that he had observed the applicant's actions as his attention had been drawn by the applicant's comments that he was frustrated with recovering escaped turkeys and reloading them in crates. 13 Mr Hawkins deposed that he left the area to report the incident to Mr Maiava. Mr Hawkins did not confront Mr Simon or challenge him concerning his actions. Mr Hawkin's evidence is that he left the turkey where it had dropped as evidence. To Mr Hawkins knowledge the iron bar has never been recovered or specifically identified. Mr Hawkins deposed that it did not occur to him to speak to Mr Simon at the time, or to secure the iron bar for evidentiary purposes. 14 Mr Hawkins deposed that apart from this incident he found Mr Simon to be a good worker, of a co-operative nature, and generally of good character who got on well with other employees. 15 Mr Hawkins deposed that he was aware of some action to improve the crate clips to contain the turkeys more securely, but was unaware of who had initiated that action. 16 The evidence of Mr Maiava is that when Mr Hawkins reported the injury to a turkey, he was very surprised that any employee would act in that way. 17 Mr Maiava deposed that he inspected the turkey and found it to be fatally injured by contact to the left side of its neck. Mr Maiava deposed that Mr Hawkins demonstrated the actions of Mr Simon, which he portrayed as holding the iron bar in his right hand, raising it over his right shoulder, and striking forward in a vertical plane. 18 Mr Maiava deposed that he informed Mr Simon of the allegation and invited him to obtain the assistance of a union delegate for the purpose of immediate discussion in his office. Mr Maiava detailed this conversation in his affidavit of evidence (exhibit 3) in the following terms: 4. I then approached Mr Simon. I said: Maiava: It's been brought to my attention that you have caused injury to a bird. Simon: Look's like I'm gone then. Maiava: No, listen. All I'm saying is that this has been brought to my attention and I need you to get Alan Grady and come into the office where we'll start an investigation. 19 Mr Simon challenged this version of the approach by Mr Maiava. It was Mr Simon's evidence that Mr Maiava approached him and said, "Tony, I'll get you to come to the office", then on the way to the office Mr Maiava said, "I have got to get Alan Grady". Mr Simon deposed that it was at this time he said, "Look's like I'm gone then". 20 It was Mr Simon's evidence that he was not aware that he was being called to the office concerning injury to a bird. Mr Simon deposed that he was aware of the Company's strict disciplinary policies and that a combination of being called to the office with a union delegate meant trouble, hence his statement. Mr Simon deposed that at the time he presumed that the call to the office concerned swearing at Mr Hawkins. 21 In cross examination Mr Maiava stood by his version of events, deposing that this form of approach is one he routinely applies as a result of training and experience in his former employment at BHP, and in the processing plant. 22 The evidence of Mr Mitchell is that the Company's Animal Welfare Policy was promulgated in March this year, consequent upon acquisition of the Beresfield processing facility from Steggles Pty Ltd. Mr Mitchell deposed that the policy was not subject to specific training or communication to existing employees as he presumed that Steggles had a policy, though he has not seen it. 23 The evidence of Mr Mitchell is that he conducted an investigation into the allegation that Mr Simon had deliberately injured a turkey, and concluded that the allegation was supportable on the following basis: · Mr Simon had responded to Mr Maiava, "I guess I'm gone then" when Mr Maiava first put the allegation to him. · Mr Hawkins had no reason to make a false allegation and accordingly there was no reason to disbelieve him. · If Mr Simon had thrown the steel bar as he suggested, there would be damage to a fibreboard wall behind where the turkey was positioned, however there was no such damage. 24 Mr Mitchell conceded in cross examination that both Mr Hawkins and Mr Simon gave consistent, though different, accounts of events. 25 Mr Mitchell deposed that he had daily contact with Mr Simon and regarded him to be an honest and diligent employee, conceding that he had no reason to disbelieve Mr Simon, though was compelled to make a decision on the competing facts. 26 Mr Mitchell deposed that he took the view that either Mr Simon or Mr Hawkins was not presenting the truth. Mr Mitchell conceded that he had not entertained the possibility that Mr Hawkins could have been truthfully mistaken in his observations. 27 In cross examination Mr Reitano challenged the conclusion drawn by Mr Mitchell that if the bar had been thrown with the force Mr Simon suggested it would carry to damage the fibreboard wall. Mr Mitchell conceded that Mr Simon had not suggested any particular force and accordingly the conclusion that, if one accepted Mr Simon's version, the fibreboard wall would be damaged was unsustainable. 28 Mr Mitchell confirmed that Mr Simon had contributed a revised design to the turkey crate clasp to more effectively contain the turkeys. 29 Mr Mitchell conceded that the actions attributed to Mr Simon were out of character, hence the investigation undertaken by him. Mr Mitchell conceded that for Mr Simon to hit a turkey in the manner alleged, in full view of the leading hand, would be an act of gross stupidity tantamount to effecting a resignation from employment. 30 Mr Mitchell deposed that the comment by Mr Simon, "Look's like I'm gone then" influenced his decision to accept the allegation made against him as he viewed this statement as an admission by Mr Simon. 31 Mr Mitchell deposed that had the bar been thrown in the manner asserted by Mr Simon, it is his view that the turkey would not have incurred injury to the extent sustained. 32 Mr Mitchell deposed that he retrieved the bar, he did not inspect the turkey which was removed before he could inspect it, or cause photographs to be taken. 33 Mr Mitchell deposed that the variation in the description of events put by Mr Hawkins in respect to the manner in which it was alleged Mr Simon swung the iron bar would not have influenced him to accept the explanation offered by Mr Simon. 34 Mr Mitchell deposed that he had taken Mr Simon's employment record of 11 years into account in considering the appropriate action. Mr Mitchell confirmed that Mr Simon had been subject to one disciplinary interview concerning absenteeism some time prior to the events of 29 May 2000 and was otherwise without blemish to his employment history. SUBMISSIONS 35 Mr Reitano took me to the established authorities, which he put were conveniently collected in a decision of McLeay C. of 14 July 2000 in Jeffery v Department of Corrective Services (IRC No 553 of 2000, unreported). 36 Mr Reitano put that the test applied here must be that enunciated in Briginshaw v Briginshaw (1938)(60 CLR 336) and, given the potential criminality of the allegations, a high standard of proof must be required. Mr Reitano put that the drastic consequences of a finding adverse to Mr Simon, who he described as a relatively young person with a young family and "years of diligent service" further contributed to raise the standard of proof. 37 Mr Reitano referred specifically to Wang v Crestell Industries Pty Ltd (73 IR 454) where he put a Full Bench of the Commission held that the onus is on the employer to establish to the reasonable satisfaction of the Commission that the allegation is made out. The relevant passage from Wang is found at pp 463-464: The principle applicable in relation to the onus and standard of proof in a reinstatement case concerning summary dismissal for serious misconduct involving criminal activity by the employee is that the employer must establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct alleged. 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 362. See also Shop, Distributive and Allied Employees' Association, NSW Branch v Jewel Food Stores (1987) 22 IR 1 and Coles Myer Ltd v Shop, Distributive & Allied Employees' Association (NSW) (1989) 27 IR 299. We should further observe that the evidence in a reinstatement case involving criminal activity may well establish that the employee was guilty of conduct which, whilst falling short of criminal conduct, nevertheless constitutes serious and wilful misconduct justifying dismissal and refusal of reinstatement. 38 Mr Reitano put forward four grounds upon which a finding in favour of Mr Simon should be grounded. 39 The first advanced is that no particular credit be afforded to the evidence of Mr Hawkins simply because he is a leading hand. Mr Reitano submitted that both Mr Hawkins and Mr Simon should be regarded as employees of good standing and the veracity of their evidence assessed on its merit alone. 40 The second issue put by Mr Reitano is the consistency of evidence. Mr Reitano put that Mr Simon had been consistent in relating the events throughout, from preliminary investigation by the Company to these proceedings. Whilst Mr Hawkins had offered differing accounts when pressed to detail of how and where the blow was delivered, first telling Mr Maiava that he observed a one handed downward strike to the side of the bird's head and neck junction, and, in evidence, a baseball type swing with two hands to the back of the head and neck junction. Mr Reitano put that the inconsistencies in the evidence of Mr Hawkins should raise disquiet as to whether the allegation is made out to the requisite standard. 41 The third point put by Mr Reitano is the absurdity of the actions attributed to Mr Simon, which he further put is out of character for Mr Simon on the evidence of the Company witnesses. 42 Mr Reitano pressed an argument that Mr Hawkins, whilst genuinely believing his version of events, had been mistaken. Mr Reitano put that Mr Hawkins could well have seen Mr Simon pick up the bar, looked away, then observed the injured turkey and presumed that Mr Simon deliberately swung the bar at the turkey. 43 The fourth point raised by Mr Reitano is that I have regard to Mr Simon's demeanour in giving evidence when assessing the weight to be afforded his statement to Mr Maiava, "Look's like I'm gone then". Mr Reitano put that the Company have given inappropriate and inordinate weight to this utterance to the point of regarding it as an admission. Mr Reitano submitted that such a conclusion is simply not available in the circumstances and context of the event. 44 The comment "Looks like I'm gone then" is presumed by management as a concession to dismissal. 45 Mr Reitano submitted that during the investigation and interview by Mr Mitchell, Mr Simon was not asked to explain his comment, though it is open to many interpretations. Mr Reitano submitted that Mr Simon did not offer expansive explanation of this comment as he had come to the view that he would not be believed. 46 Mr Reitano argued that Mr Simon had been denied procedural fairness in that he had not been given the same opportunity to reinforce his explanation as Mr Hawkins. 47 Mr Reitano submitted that the evidence of Mr Simon is that he uttered these words when first called to the office as he expected to be disciplined for swearing at Mr Hawkins in expressing his displeasure over the number of escaped turkeys he had been obliged to capture and return to their crates. 48 Mr Reitano put that this comment was prompted by the direction that Mr Simon attend the office for a disciplinary interview. 49 Mr Ludeke pressed the inference that the comment by Mr Simon came spontaneously on hearing the allegation, which Mr Ludeke put was an acceptance of the termination of his employment as Mr Simon was well aware of the Company's attitude to animal welfare issues, including the termination of employment of two other persons on the basis of animal welfare issues. 50 Mr Ludeke submitted that these proceedings were civil in nature and that a criminal standard of proof, or standard approaching the criminal standard, is not the appropriate test. Mr Ludeke submitted that the matter is properly considered within the statutory framework under which the application is made. 51 Mr Ludeke submitted that the matter at issue fell to be decided on the civil test of the balance of probabilities. Mr Ludeke discounted the criminality pressed by Mr Reitano. 52 Mr Ludeke argued that the evidence supports the allegation of wilful injury to a turkey, which the applicant knew full well would lead to his dismissal. 53 Mr Ludeke put that the applicant's evidence should not be believed. Mr Ludeke referred to the frustration expressed by Mr Simon on the occasion, which he put had inflamed him to act in the manner alleged. Mr Ludeke submitted that this proposition is supported by the applicant's own evidence as well as that of Mr Hawkins and Mr Maiava. 54 Mr Ludeke argued strenuously that there is sufficient consistency in the evidence of Mr Hawkins and Mr Maiava to support the allegations made. Mr Ludeke put that, whilst some minor inconsistencies appear which are amplified by Mr Reitano, they are not, in Mr Ludeke's submission, fatal as the substance of the allegation stands. 55 Mr Ludeke put that there is inconsistency in the events deposed by Mr Simon. Mr Ludeke submitted that a response, "Looks like I'm gone then" to a request to attend the office without allegation as contended by Mr Simon is illogical. Mr Ludeke put that the presumption by Mr Simon that he faced disciplinary action for swearing at Mr Hawkins is not sustainable as his evidence in these proceedings is that he did not swear at Mr Hawkins. Mr Ludeke submitted that this explanation is further diminished by the fact that it was not given at the time of interviews conducted by Mr Mitchell, in which Mr Simon was given the opportunity to provide explanation and had the assistance of union representation. 56 Mr Ludeke submitted that the level of inconsistency in the evidence of Mr Hawkins as to the method by which a blow was delivered to the turkey is not to the extent or significance advanced by Mr Reitano. 57 Mr Ludeke submitted that all of the relevant statutory tests found in s.88 of the Act have been met by the respondent and that there can be no issue of procedural fairness. CONSIDERATION 58 The issue of animal welfare is an important matter of principle and policy within this industry and others. The importance of this policy and the absolute requirement of adherence is not challenged in these proceedings. Mr Reitano acknowledges that deliberate injury to a turkey (or any other animal) is a serious offence. 59 The challenge here is that Mr Simon did not deliberately injure a turkey. There is in my view sufficient inconsistency in the description of events by Mr Hawkins to mitigate against a positive finding against Mr Simon. The possibility of mistake is raised by the seriousness of the issue and the actual injury to the turkey. 60 I find no lack of procedural unfairness. Management is faced with a manifestly difficult task in circumstances such as this where two persons regarded to be reliable, diligent and conscientious employees present different versions of the one event, the consequences of which are profound. The evidence of Mr Hawkins that he did not challenge Mr Simon immediately on observing injury to the turkey is difficult to reconcile with the gravity of the accusation. 61 The statement by Mr Simon, "Look's like I'm gone then" has coloured consideration of the matter. There are grounds for uncertainty in the manner in which Mr Maiava approached Mr Simon, and the context in which Mr Simon's statement, "Look's like I'm gone then", was made. 62 The description of events by both Mr Maiava and Mr Simon are entirely plausible. Mr Maiava relies upon standard form to support his evidence that this is the way he would handle such a situation and less on specific recollection. Mr Simon, to whom the remark is attributed, relies upon specific recollection. 63 I accept that Mr Maiava's evidence is given truthfully, in good faith; as is that of Mr Simon. Neither are capable of corroboration as the exchange was no in the presence of others. It is difficult to disbelieve either Mr Maiava or Mr Simon however, given the uncertainty and weight of inference attributed to this statement by Mr Simon, there is a considerable degree of discomfort attached to dismissing the plausible and innocent explanation offered by Mr Simon. 64 I am unable to come to the conclusion that I am confidently satisfied that the allegation is made out. 65 The residual situation is to accept the version of events put by Mr Simon. This results in a conclusion that Mr Simon has conducted himself in a careless and reckless manner causing injury to an animal and occasioning commercial loss to his employer. 66 It is simply not acceptable that any employee throw an iron bar (or any other projectile) within the workplace. 67 It would appear proper housekeeping to remove an iron bar from a walkway by picking it up and placing it in a safe place. 68 The conduct admitted by Mr Simon justifies disciplinary action, however termination of employment is in my assessment harsh, unreasonable and unjust. 69 I find that a case has been made out which attracts the intervention of the Commission. I issue orders for the prospective reinstatement of Mr Simon from 15 August 2000 without loss of continuity of service, however without payment of wages or accrual of entitlement in respect to the period from termination to reinstatement. 70 I so determine. 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. ORDERS 1. Pursuant to section 89(1) of the Industrial Relations Act 1996 Bartter Enterprises is ordered to reinstate Mr Tony Simon to his former position from 15 August 2000, on terms not less favourable than those that would have been applicable if the applicant had not been dismissed. 2. Pursuant to section 89(4) of the Industrial Relations Act 1996 Mr Simon is to be reinstated without loss of continuity of service, however without payment of wages or accrual of entitlement in respect to the period from termination to reinstatement. I so order. The Hon. R W Harrison Deputy President 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.