Industrial Relations Commission of New South Wales CITATION: Woodward v. Stock Holdings Pty Limited, trading as Namron Transport [2005] NSWIRComm 1092 APPLICANT Bertram Keith Woodward PARTIES: RESPONDENT Stock Holdings Pty Limited FILE NUMBER(S): 644 of 2005 CORAM: Connor C termination of employment - alleged assault - impracticability of reinstatement - monetary compensation - rejection of a claim for damages - onus of proof to support allegation CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 Re Barrett and the Crown Street Women's Hospital (1947) AR 565 Henderson v. Rural Lands Protection Board (1997) 74 IR 142 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 Little v. Commissioner of Police (No.2) (2002) 212 CASES CITED: Nowra Bomaderry League Club Case (1986) 15 IR 463 Oswald v. New South Wales Police Service (1999) 90 IR 42 Vouzas v. Askgun Pty Limited (unreported) HEARING DATES: 06/16/2005 EXTEMPORE JUDGMENT DATE : 06/16/2005 APPLICANT applicant appeared in person LEGAL REPRESENTATIVES: RESPONDENT David Whitmore DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: CONNOR C Thursday, 16 June, 2005 Matter No IRC 644 of 2005 Bertram Keith Woodward and Stock Holdings Pty Limited, trading as Namron Transport DECISION [2005] NSWIRComm 1092 1 Mr B K Woodward was employed as a forklift driver with Stock Holdings Pty Limited, trading as Namron Transport. He commenced employment on Tuesday, 31 August, 2004 and his services were terminated on Thursday, 3 February, 2005. He subsequently lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, claiming that the termination of his services was unfair and seeking his reinstatement, re-employment or, alternatively, monetary compensation. In his Part 6 application he claimed that he received no reasons for his dismissal but that he had been assaulted at work by Mr David Whitmore, the manager of the local operations for Namron. 2 The matter was allocated to me by Registry staff who set it down for a conciliation and directions hearing on Thursday, 3 March, 2005. There was no appearance by Namron. Nor has it provided any formal response to Mr Woodward's Part 6 application. I adjourned the proceedings for a mention on Friday, 18 March, 2005 and confirmed the mention in writing to Namron. I urged the parties into further discussions and set the matter down for a further mention on Thursday, 7 April, 2005. It was not possible to resolve this matter by conciliation. I programmed it for hearing on Thursday, 16 June, 2005. In that hearing Mr Woodward represented himself and Mr Whitmore represented Namron. Both men gave evidence under oath. 3 The customary procedure for arbitrated Part 6 applications is for the parties to file and serve the evidentiary material on which they will rely. In the proceedings on Thursday, 7 April, 2005 I directed Mr Woodward to provide that material by no later than Friday, 6 May, 2005 and for Namron to respond one month later - Monday, 6 June, 2005. That apparently caused some problems for Mr Woodward who wished to serve Namron management in Adelaide and not the local management, ie Mr Whitmore. I suggested that Mr Woodward provide two copies of the evidentiary material and send one copy to Mr Whitmore and one copy to Namron management in Adelaide. Mr Woodward indicated in the proceedings that he was "...not happy with that..." course of action but indicated that he would comply with my directions. He has not done so and on Friday, 20 May, 2005 Mr Whitmore wrote to me to inform me of that fact. Consequently, he had not complied with my directions either. 4 Directions for the filing and serving of evidentiary material are designed to assist the parties and speed up the hearing of matters in dispute [Practice Note No.11]. But if those directions are causing concern to the parties before me, then I propose to waive them. The issue before me is a discrete matter - whether or not Mr Woodward was assaulted by Mr Whitmore - and something I believe I may address without the need for any further evidentiary material (although Namron has not even formally responded to the Part 6 application). 5 In his Part 6 application Mr Woodward has sought the full range of remedies available - reinstatement in employment under S.89(1), re-employment in another position under S.89(2) or, alternatively, monetary compensation under S.89(5). He has identified no sum for monetary compensation, simply recording in the space provided for that purpose in the Part 6 application that he was seeking "...unspecified damages...". He has not identified his average weekly earnings, claiming that his pay slips were removed from the office and he did not know where they were. However, during the hearing on Thursday, 16 June, 2005 both Mr Woodward and Mr Whitmore agreed that Mr Woodward received in the vicinity of $700.00 per week in wages. It is really the only issue on which I was able to achieve an agreement between the two men. 6 Reinstatement under S.89(1) or re-employment under S.89(2) remain the principle remedy for an unfairly dismissed employee [Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67 and 68, Hollingsworth v. Commissioner of Police No.2 (1999) 88 IR 282 at pp.341 and 342, and Little v. Commissioner of Police (No.2) (2002) 112 IR 212 at p.243]. But in the light of the circumstances under which Mr Woodward's services were terminated, there is not much chance of restoring an effective employer/employee relationship between Mr Woodward and Mr Whitmore. The remedy of reinstatement is in the nature of the specific performance of a contract of employment. Such remedies are not ordinarily available where the relationship between the two men has deteriorated to the extent that allegations of assault have been made and police have been called. 7 The claim is therefore confined to monetary compensation under S.89(5), viz: "If the applicant has been dismissed and, in determining the claim, the Commission considers that it would be impracticable to make an order for reinstatement or re-employment, the Commission may order the employer to pay to the applicant, within a specified time, an amount of compensation not exceeding six months' remuneration of the applicant at the average rate received over the period of six months immediately before being dismissed. If the applicant was on leave without full pay during any part of that period, the maximum amount of compensation is to be determined as if the applicant had received full pay while on leave." And S.89(6) provides further: "When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment." 8 McKenna C described the combined effect of Ss.89(5) and 89(6) in Henderson v. Rural Lands Protection Board (1997) 74 IR 142 at p.150, when she indicated that the purpose of monetary compensation in Part 6 proceedings was: "…not to enrich an applicant nor to punish a respondent. Rather, as the remedy indicates, the purpose of the remedy of compensation is to compensate for losses occasioned by a harsh, unreasonable or unjust dismissal..." Monetary compensation under S.89(5) is not "damages" as Mr Woodward is suggesting. S.89(5) speaks of "remuneration", meaning actual earnings, and it concerns loss of income. It is neither punitive (punishing a respondent for wrongdoing) nor speculative (taking into account income that might possibly have been earned but was not). Mr Woodward indicated that one month after his dismissal he found alternative employment and from that time he received in that employment a wage comparable to what he had previously received when he worked for Namron. 9 Mr Woodward's Part 6 application outlines his version of the incident leading to his dismissal, which he confirmed in his evidence under oath, viz: "...Upon arriving at my place of employment, Mr Whitmore shouted loudly at me and began pushing me with both hands, until I was pushed against a door with force, pushing the door open. Outside the premises I was knocked to the ground and with his right fist he struck me to my facial area numerous times (at least three times)...." Mr Woodward then records in his Part 6 application that the police attended the site at his request and he was subsequently informed by Mr Whitmore: "Your services are no longer required here. Your employment is terminated. Now can I have my key back?" Mr Woodward claimed that he was entitled to the keys to the site. 10 In his evidence Mr Whitmore gives a different version of the incident. He indicates that Mr Woodward had been behaving in an aggressive manner with drivers and that he had grabbed Mr Whitmore's keys from his desk on Wednesday, 2 February, 2004 and did not return them when he was asked to do so. Mr Whitmore asserted that Mr Woodward was not entitled to the site keys. When he entered the site on Thursday, 3 February, 2005 Mr Whitmore demanded that Mr Woodward return the keys. He conceded that he restrained Mr Woodward from entering the site with his body, moving him out of the way and that he was angry enough with him to have shouted at him. But he denies that he struck Mr Woodward in the face with his fist or forced him to the ground. 11 Mr Woodward claims that he has pursued with the police that complaint over Mr Whitmore's alleged assault of him. He has apparently had no success in that respect and is critical that the police have apparently slept on the matter. The only material he has advanced to back up his allegation in that respect is pages out of the notebook of the police officer who attended the site following his complaint. That evidence simply reinforces what Mr Woodward has told me (and the police officer). It does not provide any corroboration of Mr Woodward's evidence. What I would need in that respect is a report by that police officer or some indication of the possibility of charges being laid against Mr Whitmore. I have nothing of that nature. Mr Whitmore claims that he has been informed by the police that they do not intend to take any further action with respect to Mr Woodward's claim. 12 I am very concerned over this conflict in the evidence in this hearing. That conflict is not simply a case of the two men holding different recollections of the incident on Thursday, 3 February, 2005. Either Mr Woodward or Mr Whitmore is being less than honest in the hearing. Mr Woodward asserted strenuously that Mr Whitmore was committing perjury and he clearly resents the suggestion he believes I made that, in fact, one option from such evidence that has come before me is that he may not be telling the truth. I make no such assertion. But as I indicated to Mr Woodward in the hearing, I can only reach a conclusion on the basis of evidence actually before me: I cannot build a house without bricks. And there is nothing to go on apart from the conflicting evidence given under oath by Mr Woodward and Mr Whitmore. 13 In Part 6 proceedings the onus to establish the truth of an allegation falls on the person making the allegation. That view has been confirmed time and again [Re Barrett and the Crown Street Women's Hospital (1947) AR 565 at p. 566 and Nowra Bomaderry Leagues Club Case (1986) 15 IR 463 at p.464]. As I indicated in my unreported decision of Wednesday, 14 November, 2001 in Vouzas v. Askgun Pty Limited [Matter No.IRC 2179 of 2001 at p.8]: "…since (the applicant) has not been able to satisfy me that (the evidence of the respondent) is incorrect, I should accept it as the truth, notwithstanding the fact that it conflicts with the evidence of (the applicant)…" Just simply asserting that Mr Whitmore is guilty of perjury, is not enough to establish that fact. Mr Woodward has to do more than making that bald statement. It is improper that he does so without something to back up his claim. Mr Woodward's conduct during the proceedings does not assist him in establishing the truth of the serious allegation he has made against Mr Whitmore. 14 Mr Woodward has indicated that he intends to appeal my decision (even before I had formed any view in a decision to appeal). He left the hearing room in somewhat agitated state confirming his intention to appeal. That is his right. But due to the lack of evidence that he has produced to back up his claim, I see no alternative other than to dismiss his Part 6 application and I now do so. P J CONNOR Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.